City of El Paso v. Public Utility Commission

883 S.W.2d 179
CourtTexas Supreme Court
DecidedOctober 6, 1994
DocketD-3053
StatusPublished
Cited by409 cases

This text of 883 S.W.2d 179 (City of El Paso v. Public Utility Commission) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of El Paso v. Public Utility Commission, 883 S.W.2d 179 (Tex. 1994).

Opinions

Justice ENOCH

delivered the opinion of the Court,

in which Chief Justice PHILLIPS, Justices HIGHTOWER, HECHT, and CORNYN join.

This is an administrative appeal from an order of the Public Utility Commission (Commission) setting rates to be charged by El Paso Electric Company (EPEC).1 The order was consistent with a non-unanimous stipulation between EPEC and several parties, including the Commission General Counsel. In its final order, the Commission authorized EPEC to capitalize and include in rate base deferrals associated with certain post-in-service carrying costs and operating costs related to its investment in the Palo Verde Nuclear Generating Station (Palo Verde). The questions presented by this appeal are first, whether the Commission acted within its discretion by basing its final order, in part, on the nonunanimous stipulation agreement, and second, whether the Commission has the authority under the Public Utility Regulatory Act (PURA)2 to allow a public utility to include in a utility’s rate base certain costs incurred during the “regulatory lag” period.3 We answer both issues yes, and consequently affirm the judgment of the court of appeals in part and reverse in part.

In April 1987, EPEC filed an application for a rate increase with the Commission seeking to recover costs associated with its investment in the Palo Verde Project. EPEC sought rate treatment related to its investment in the two units which had started commercial operation, Palo Verde Units 1 and 2.4 On October 22, 1987, during the course of the hearing on EPEC’s application, certain industrial intervenors and the Commission General Counsel announced and filed a stipulation agreement intended to resolve the case.5 The Examiners scheduled an additional phase of the hearing to consider the stipulation, and eventually recommended to the Commission that the stipulation be rejected. The Commissioners modified the proposed stipulation and, as modified, adopted its terms in its final order.

As part of its request for a rate increase, EPEC requested that its rate base be in[182]*182creased by the amount of carrying costs and operating and maintenance costs it incurred during the “regulatory lag” period. The utility had deferred these types of costs for Units 1 and 2, aggregating each type of cost for each unit into a separate capital account. EPEC obtained the Commission’s prior permission to defer Unit 1 costs.6 The Commission reserved the right, however, to refuse subsequently to include the deferred costs in the rate base to the extent they were unreasonable, related to plant not used and useful, or were spent or incurred imprudently. Although EPEC did not obtain prior permission to defer its post-in-service costs for Unit 2, it nevertheless deferred them. After the hearing, the Commission granted EPEC’s request to include the deferred costs for both units in the rate base.

The City of El Paso (City), the State of Texas (on behalf of various state agencies located in western Texas) (State), and the Office of Public Utility Counsel (OPUC) sought judicial review of the Commission’s order, contending that the Commission erred by basing its order, in part, on the non-unanimous stipulation. The City, State, and OPUC also argued that the Commission lacked the authority to permit EPEC to defer post-in-service costs, and subsequently to include the deferrals in the utility’s rate base.

The trial court upheld the Commission’s order. The court of appeals affirmed the portion of the trial court’s judgment which affirmed the Commission’s order allowing the inclusion of capitalized post-in-service operating costs in the utility’s rate base. 839 S.W.2d 895, 934 (1991). The court of appeals reversed the portion of the trial court’s judgment which affirmed the Commission’s order allowing the deferral of post-in-service carrying costs. Id.7 All parties filed applications for writ of error to this court. For the reasons stated below, we reverse the judgment of the court of appeals to the extent that it disallows the deferral of post-in-service carrying costs. In all other respects, the judgment of the court of appeals is affirmed.

I.

The Non-Unanimous Stipulation

The City and OPUC make several arguments supporting their position that the Commission erred by basing its order, in part, on a non-unanimous stipulation. They ask this Court to reverse the judgment of the court of appeals, contending that its holding affirms an action of the Commission that is not supported by substantial evidence, not consistent with Texas law, arbitrary and capricious and characterized by an abuse of discretion. We do not accept the City’s or OPUC’s arguments.

A.

Reliance on the Non-Unanimous Stipulation

The City and OPUC contend that where no evidence existed to support its decision, the Commissioners erroneously relied on the stipulation itself as a substitute for the evidence. The City argues that by relying on the stipulation as opposed to the evidence, the Commissioners violated the statutory requirement that every finding be based exclusively on the evidence. Tex.Gov’t Code Ann. § 2001.141 (Vernon Pamphlet 1994). The City analogizes the present case to a civil cause in which the court renders an agreed judgment without consent of all the parties. It contends that in adopting the stipulation as a resolution of the ease, the Commission improperly imposed the terms of the settlement on the non-signing parties.

We reject the City’s analogy. In Mobil Oil Corp. v. Federal Power Commission, 417 U.S. 283, 94 S.Ct. 2328, 41 L.Ed.2d 72 (1974), the Supreme Court upheld the Federal Power Commission’s final order establishing a rate structure that was based, in part, on a non-unanimous stipulation. The Court em[183]*183phasized the importance of considering a non-unanimous proposal “on its merit:”

If a proposal enjoys unanimous support from all of the immediate parties, it could certainly be adopted as a settlement agreement if approved in the general interest of the public. But even if there is a lack of unanimity, it may be adopted as a resolution on the merits, if FPC makes an independent finding supported by ‘substantial evidence on the record as a whole’ that the proposal will establish ‘just and reasonable’ rates for the area.

417 U.S. at 314, 94 S.Ct. at 2348-49 (quoting Placid Oil Co. v. Federal Power Comm’n, 483 F.2d 880, 893 (5th Cir.1973)) (emphasis in original).

In Docket No. 7460, the Commission’s order provided, in part:

4. Even where some parties to a proceeding do not agree to a stipulated result, it is reasonable to adopt such a stipulation if:
(a) The parties opposing the stipulation have notice that the stipulation may be considered by the Commission and an opportunity to be heard on their reasons for opposing the stipulation;

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883 S.W.2d 179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-el-paso-v-public-utility-commission-tex-1994.