Cities & Villages of Wisconsin v. Federal Energy Regulatory Commission

922 F.2d 861, 287 U.S. App. D.C. 333, 1991 U.S. App. LEXIS 91
CourtCourt of Appeals for the D.C. Circuit
DecidedJanuary 8, 1991
DocketNos. 89-1692, 90-1042
StatusPublished
Cited by1 cases

This text of 922 F.2d 861 (Cities & Villages of Wisconsin v. Federal Energy Regulatory Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cities & Villages of Wisconsin v. Federal Energy Regulatory Commission, 922 F.2d 861, 287 U.S. App. D.C. 333, 1991 U.S. App. LEXIS 91 (D.C. Cir. 1991).

Opinion

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

D.H. GINSBURG, Circuit Judge:

Coal supply contracts routinely contain a “take-or-pay” provision, under which the purchaser agrees that if it does not take delivery of a minimum amount of coal during each month or year of the contract term, it will pay the coal supplier part of the price of the coal not taken. In 1986 and 1987, Northern States Power Company (Minnesota) paid approximately $10 million to Westmoreland Resources, Inc., pursuant to invoices for minimum take payments. Because Northern (Minnesota) participates in a system-wide accounting pool with its subsidiary, Northern States Power Company (Wisconsin), a portion of the $10 million was allocated to Northern (Wisconsin). The subsidiary, in turn, passed its share of the minimum take payments directly to its customers, using the fuel adjustment clause filed with its rate schedule. (A fuel adjustment clause allows a utility to change its rates to reflect the current cost of fuel without continually having to file for rate increases and decreases. Public Serv. Co. v. FERC, 600 F.2d 944, 947 (D.C.Cir.1979).)

Northern (Minnesota) and Northern (Wisconsin) [collectively Northern] asked the FERC for a declaratory order approving this use of the fuel adjustment clause. In the alternative, Northern asked the FERC retroactively to waive the fuel adjustment clause rules and so to ratify the prior pass-through of minimum take payments. The petitioners here, wholesale customers of Northern (Wisconsin), intervened and claimed that take-or-pay payments do not qualify for fuel clause treatment. They also claimed that two specific disbursements totaling $4.2 million were part of a contract buydown and thus ineligible for fuel clause treatment in any event.

The FERC held in general that minimum take payments could be passed through the fuel clause, and that the challenged expenditures in particular were minimum take payments. 48 F.E.R.C. ¶ 61,012, reh’g denied and order to show cause, 48 F.E.R.C. 1161,313, order on response to show cause, 49 F.E.R.C. ¶61,291 (1989), reh’g denied, 50 F.E.R.C. ¶61,065 (1990). We deny the customers’ petition for review.

I. Analysis

Our inquiry into the FERC’s interpretation of its fuel clause regulation is narrow. We ask only whether the Commission’s decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Michigan Consol. Gas Co. v. FERC, 883 F.2d 117, 120 (D.C.Cir.1989) (MichCon) (quoting 5 U.S.C. § 706(2)(A)). Because it “rests on matters peculiarly within the agency’s area of expertise,” we must defer to the FERC’s construction of the fuel clause regulation unless it is “plainly erroneous or inconsistent with the regulation” itself. Transcanada Pipelines Ltd. v. FERC, 878 F.2d 401, 411 (D.C.Cir.1989). Cf. Southern Calif. Edison Co. v. FERC, 805 F.2d 1068, 1072 (D.C.Cir.1986) (considerable deference given to FERC interpretation of individual fuel adjustment clauses). Otherwise we will affirm the Commission as long- as it shows that it considered the relevant factors and provided a satisfactory explanation for its action. MichCon, 883 F.2d at 120-21.

In an effort to engage the court in closer scrutiny, the petitioners imply that the decision under review departs from Commission precedent. The FERC had never before considered the fuel clause treatment of a minimum take payment, however. The petitioners also argue that the FERC departed from its past practice of strictly construing the requirements for passing an expenditure through a fuel adjustment clause. This argument is no more than an expression of displeasure with the result. See Illinois Power Co., 52 F.E.R.C. ¶ 61,162, at 61,622-23 (1990) (reaffirming strict construction of fuel clause). The FERC simply did not believe that its principle of strict construction compelled a particular result in this case, 48 F.E.R.C. at 62,044 n. 6, and neither do we.

The FERC evaluates a fuel clause, or a use thereof, to ensure that each expenditure passed through to customers (1) reflects “the cost of ... fuel consumed,” and (2) “include[s] no items other than those [335]*335listed in Account 151 of the ... Uniform System of Accounts for Public Utilities and Licensees." 18 C.F.R. § 35.14(a)(2)(i), (a)(6). The items listed in Account 151 are:

1. Invoice price of fuel less any cash or other discounts.
2. Freight, switching, demurrage and other transportation charges, not including, however, any charges for unloading from the shipping medium.
3. Excise taxes, purchasing agents’ commissions, insurance and other expenses directly assignable to cost of fuel.
4. Operating, maintenance and depreciation expenses and ad valorem taxes on utility-owned transportation equipment used to transport fuel from the point of acquisition to the unloading point.
5. Lease or rental costs of transportation equipment used to transport fuel from the point of acquisition to the unloading point.

18 C.F.R. § 101, Account 151. The Commission often resolves in tandem the questions whether an expenditure is a “cost of ... fuel consumed” and also an “item[ ] ... listed in Account 151,” as for example in rejecting a utility’s claim that a- particular expenditure is “directly assignable” to the cost of fuel under Account 151(3). See, e.g., Indianapolis Power & Light Co., 48 F.E.R.C. ¶ 61,040 (1989); Minnesota Power & Light Co., 39 F.E.R.C. ¶61,192 (1987), aff'd in relevant part, 852 F.2d 1070 (8th Cir.1988). Here the agency treated the issues sequentially — which is an aid to clarity — and so, therefore, do we.

A. The Cost of Fuel Consumed

The FERC found that a minimum take payment made pursuant to a coal supply contract constitutes part of the cost of fuel consumed. The Commission explained that a minimum take payment is an integral element of a utility’s ongoing fuel procurement process. A payment made pursuant to the minimum take commitment may not itself put coal into the utility’s boiler, but the underlying commitment assures the utility of a reliable fuel supply at the contract price.

Accordingly, liability under a take-or-pay arrangement like the one involved here is a routine cost of obtaining coal. As such, it is like the reclamation expense afforded fuel clause treatment in Kansas Municipal & Cooperative Electric Systems, 16 F.E. R.C. ¶61,227 (1981), the only prior case in which the FERC allowed a utility to pass through the fuel clause an expense not patently within the terms of Account 151. In Kansas Municipal, the coal supplier billed the utility for the cost of surface reclamation required by statute.

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922 F.2d 861, 287 U.S. App. D.C. 333, 1991 U.S. App. LEXIS 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cities-villages-of-wisconsin-v-federal-energy-regulatory-commission-cadc-1991.