Gas Co. v. New Mexico Public Service Commission

676 P.2d 817, 100 N.M. 740
CourtNew Mexico Supreme Court
DecidedJanuary 4, 1984
Docket14435
StatusPublished
Cited by5 cases

This text of 676 P.2d 817 (Gas Co. v. New Mexico Public Service Commission) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gas Co. v. New Mexico Public Service Commission, 676 P.2d 817, 100 N.M. 740 (N.M. 1984).

Opinion

OPINION

PAYNE, Justice.

This appeal challenges Public Service Commission’s decision to impute as income to Gas Company 75% of Southern Union Refining Company’s (SURCO’s) gross revenue from the sale of liquid gas, thereby reducing the cost of gas charged to utility customers.

Gas Company purchases natural gas at the wellhead. But the gas contains impurities, heavier hydrocarbons, which condense in high pressure transmission lines, sometimes causing operational difficulties. To remove impurities, the gas is processed by SURCO, an affiliate of Gas Company. Heavier gases are separated by condensation. However, only one-seventh of the condensed liquid gas (NGLs) is extracted for quality purposes; the rest is extracted because it is profitable. The NGLs, primarily propane and ethane, are sold at two and one-half to three times the price of gaseous methane, which is sold to utility customers.

This action arose when Gas Company petitioned to modify SURCO’s payment agreement. The Commission and the State Attorney General objected, contending the present terms were unreasonable. Under the present agreement, the price paid by SURCO for fuel (btu’s used in processing) and shrinkage (btu’s removed from the gas stream in NGLs) is similar to that paid by any utility customer for btu’s consumed. In the Commission’s order, the.price arrangement is described as follows:

At its Lybrook plant, SURCO buys wet gas from GASCO [Gas Company] for the purpose of extracting certain entrained liquids. In return for the right to process the gas, SURCO pays GASCO the average wellhead cost for the gas SUR-CO uses in processing, plus a gathering charge.

The Commission decided that the existing agreement is unreasonable, concluding:

[T]he agreement between them [GASCO and SURCO] does not fairly, justly and reasonably compensate GASCO, and that the contract is not reasonable as to cost and conditions, and does not effectively preclude the possibility of cross subsidization between GASCO’s utility operations and SURCO’s processing operations ____

The Commission’s conclusion relied on a study by an expert witness, Dr. Kirsch, which showed:

[W]hen SURCO’s overall net natural gas liquid [NGL] revenues per MCF of gas processed at Lybrook were compared with the average net NGL revenues of five interstate pipelines, SURCO’s revenues were found to be larger. In 1980, SURCO derived approximately $2,298,-678 more in net revenues than an average interstate pipeline would have by processing the same amount of gas, under arms-length agreements.
The evidence also shows that in 1980, for the 21.34 million MCF of gas processed at Lybrook, GASCO received approximately $2,702,067 less from SURCO than if GASCO’s contract reimbursed it at the same rate which,- on the average, a comparable interstate pipeline received from its gas processors.

A New Mexico gas consumer’s utility bill has two components: first, a service charge; and second, a cost of gas factor. Under this latter factor, the consumer pays the cost of purchasing, gathering, and transporting the gas MINUS any revenues Gas Company receives from processors for the sale of NGLs. N.M. Pub. Serv. Comm ’n Gen. Order No. 36. The Commission found that Gas Company received $2.7 million less revenue than it should have from processors. Accordingly, the Commission ordered that 75% of SURCO’s gross revenues be imputed to Gas Company to compensate it in closer conformity with the gas processing industry, and decreasing the cost of gas factor.

I.

Gas Company contends that the Commission employed an erroneous legal standard to find the payment agreement unreasonable. It alleges that the only correct standard is whether cost allocations prevent cross-subsidization and the Commission cannot look at SURCO’s profits.

The Commission’s authority to review transactions between an affiliate and the public utility is not limited to reviewing cost allocations. This conclusion is based on our interpretation of the legislative grant of authority. The Commission has jurisdiction to review a Class I transaction, which is defined as:

[T]he sale, lease or provision of real property, water rights or other goods or services by an affiliated interest to any public utility with which it is affiliated, or by a public utility to its affiliated interest.

(Emphasis added.)

NMSA 1978, § 62-3-3(J) (Cum.Supp.1982). Gas Company is a division of Southern Union Corporation, which is the parent company of SURCO. The same Board of Directors presides over all three companies. The shared decision-making process makes Gas Company and SURCO an affiliated interest. Hence, the sale of natural gas by the public utility to its affiliate is subject to agency review. The Commission’s power of review extends to the following components of the affiliate transaction:

B. In order to assure reasonable and proper utility service at fair, just and reasonable rates, the commission may investigate:
(1) Class I transactions to determine the reasonableness of the cost and contract conditions to the utility in any such transaction.
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D. The commission may issue such orders in connection with an evidentiary proceeding involving a public utility as it finds appropriate and necessary to assure that appropriate cost allocations are made and that no cross-subsidization occurs between the utility and an affiliated interest. (Emphasis added.)

NMSA 1978, § 62-6-19 (Cum.Supp.1982).

The primary purpose of extending jurisdiction to Class I transactions was to protect against cross-subsidization. The danger results from the shared decision-making process by which the utility may be able to allocate some of the profits of its regulated service to its unregulated affiliate. R. Posner, ECONOMIC ANALYSIS OP THE LAW, § 12.3, at 259 (2d ed. 1977). For example, in Maestas v. New Mexico Public Service Commission, 85 N.M. 571, 514 P.2d 847 (1973), this Court recognized that there was a possibility of abuse between the parent, Gas Company and its producing subsidiary. There, the parent could negotiate contracts with its subsidiaries at favorable rates, and thereby accrue hidden profits. However, the likelihood of harm was mitigated by the fact that the parent and its producing subsidiary were zon-affiliated. The producer sold its gas to other companies rather than to the parent. However, in a Class I transaction where Gas Company sells to its affiliate, the possibility of harm is real. Therefore, the Commission can review all contract provisions to insure that they do not adversely affect rates charged by the utility. The utility’s profit was not the Legislature’s concern because the Commission adjusts rates to provide an allowed guaranteed return. The danger is that the affiliate or parent may accrue hidden profits.

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Bluebook (online)
676 P.2d 817, 100 N.M. 740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gas-co-v-new-mexico-public-service-commission-nm-1984.