Commonwealth Gas Pipeline Corp. v. Anheuser-Busch Companies, Inc.

355 S.E.2d 605, 233 Va. 396, 3 Va. Law Rep. 2518, 1987 Va. LEXIS 206
CourtSupreme Court of Virginia
DecidedApril 24, 1987
DocketRecord No. 860705
StatusPublished
Cited by4 cases

This text of 355 S.E.2d 605 (Commonwealth Gas Pipeline Corp. v. Anheuser-Busch Companies, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth Gas Pipeline Corp. v. Anheuser-Busch Companies, Inc., 355 S.E.2d 605, 233 Va. 396, 3 Va. Law Rep. 2518, 1987 Va. LEXIS 206 (Va. 1987).

Opinion

THOMAS, J.,

delivered the opinion of the Court.

In this appeal of right, Commonwealth Gas Pipeline Corporation (Pipeline) contends that the State Corporation Commission (Commission) was without power to order a certain refund and that the Commission used an improper accounting method in calculating the rates that could be charged by Pipeline. We find no error in the Commission’s disposition of this case; therefore, we will affirm the Commission’s order.

I.

The facts concerning the refund issue are as follows: On September 10, 1985, Pipeline initiated a general rate case by filing an application to revise its tariffs. In that application, Pipeline stated that the proposed tariffs were designed to develop a decrease in annual operating revenues in the amount of $755,000. The application pointed out that in the twelve-month test period ending March 31, 1985, Pipeline had achieved an overall rate of return of 14.63% and a return on common equity of 21.02%. The application stated as follows concerning the receipt of excess revenues: “A comparison of [the] annual revenue requirement with the adjusted test period revenues produced from Company operations makes it apparent that Pipeline is experiencing a jurisdictional revenue excess in the amount of $755,000 . . . .” (Emphasis added.) Pipeline’s application also requested a suspension of the proposed tariffs pursuant to the provisions of Code § 56-238.

On September 20, 1985, the Division of Consumer Counsel of the Office of the Attorney General (Consumer Counsel), responded to Pipeline’s application by moving that suspension of the proposed tariffs be denied. Consumer Counsel requested that the proposed tariffs be implemented “subject to refund with interest pending hearing and final disposition.” Consumer Counsel described the figures contained in Pipeline’s application as an “admitted overrecovery.”

[399]*399On September 30, 1985, Pipeline responded to Consumer Counsel’s motion. Pipeline urged the Commission to suspend the proposed tariffs. It advanced two main reasons in support of suspension. First, Pipeline explained that the proposed tariffs contained “significant revisions in the terms and types of service being offered and in the design used to calculate the proposed rates.” Pipeline pointed out that these significant changes “will necessarily result in shifts among Pipeline’s customers of Pipeline’s overall cost of service, regardless of the levels of annual revenues ultimately authorized by the Commission.” Second, Pipeline explained that if the proposed rates had gone into effect without suspension, it and its suppliers might have had to make certain long term commitments “that would be difficult to undo.”

In its September 30, 1985 response, Pipeline made two other points. It questioned whether the Commission had any legal authority to suspend a rate reduction subject to refund. According to Pipeline, the suspension statute referred to revenue increases, not revenue reductions. Further, Pipeline submitted that because its application did not contain an effective date for its proposed tariffs, Code § 56-240 could not operate to cause the proposed rates to go into effect automatically subject to refund in the event the Commission refused to order a suspension.

On October 7, 1985, Allied Corporation (Allied), one of Pipeline’s direct customers, filed its opposition to Consumer Counsel’s motion to implement the proposed tariffs subject to refund. Allied argued for partial suspension. It contended that the most significant changes were in the transportation rates and that, as a result of those changes, Allied’s basic transportation rate would double. For these reasons, Allied requested that the transportation rates be suspended while the other rates be permitted to go into effect. Allied concluded by saying that if the Commission decided against partial suspension, it should suspend all the proposed tariffs.

On October 15, 1985, Anheuser-Busch Companies, Inc. (Busch) moved to suspend the transportation rates. It did not comment on the other rates. Busch explained that the proposed transportation rates included “a 100% increase over Pipeline’s existing interruptible transportation rate.”

On October 17, 1985, Pipeline responded to Allied’s motion for partial suspension. It opposed partial suspension on the ground that if partial suspension were granted Allied would receive a sub[400]*400stantial advantage over Pipeline’s other customers and would do so at Pipeline’s expense.

On October 21, 1985, Virginia Natural Gas (VNG), another Pipeline customer, filed a response on the question of suspension. VNG argued that the proposed tariffs were so complex that full suspension was warranted.

On October 22, 1985, the Commission issued an Order of Notice and Hearing. The Commission explained that because of the facts and circumstances of this particular case, neither immediate implementation of the proposed tariffs nor suspension of those tariffs was warranted. The Commission wrote as follows:

Without a thorough investigation and hearing, the Commission cannot find that the proposed changes to the rates, terms and conditions are reasonable, therefore it is not appropriate to implement the changes proposed by the Company in its application on an interim basis. However, to preclude the Company from overearning during the interim period, which was the concern of the Consumer Counsel’s motion, all presently effective rate schedules should be continued on an interim basis for service rendered on and after the date of this order subject to refund pending final determination.

The Commission ordered that the “presently effective tariff rates, terms, and conditions shall be continued as interim rates for service rendered on and after the date hereof, and that such interim rates shall remain subject to refund pending final determination of this case.”

Pipeline moved for reconsideration of the October 22, 1985 Order (the “October Order”). Pipeline contended that the Commission had no authority to convert its existing rates into interim rates. According to Pipeline, because the rates in existence up to October 22, 1985, had been approved by the Commission they were presumed to be just and reasonable. Pipeline argued that to order it to refund revenues collected under existing rates amounted to unlawful retroactive ratemaking.

By order dated November 12, 1985, the Commission denied Pipeline’s motion for reconsideration. The Commission pointed out that pursuant to Code § 56-238, it could have suspended the proposed tariff increases while implementing the proposed decreases. It explained that instead of taking that approach, it ordered a pro[401]*401cedure that benefitted both Pipeline and its customers. The Commission explained that Pipeline benefitted because by keeping interim rates at current levels, Pipeline faced “no risk of underrecovery during the interim period.” The customers were said to have been fully protected by the refund provision.

The Commission noted that it used a similar procedure in Comm. v. Potomac Edison, 219 Va. 1023, 245 S.E.2d 73 (1979), a decision which was affirmed by this Court without any discussion of the issue now under review. The Commission stated that in essence it had simply ordered interim rates at a level different from those proposed by Pipeline.

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355 S.E.2d 605, 233 Va. 396, 3 Va. Law Rep. 2518, 1987 Va. LEXIS 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-gas-pipeline-corp-v-anheuser-busch-companies-inc-va-1987.