In re Consumers Energy Co.

307 Mich. App. 32
CourtMichigan Court of Appeals
DecidedSeptember 25, 2014
DocketDocket Nos. 305066 and 305083
StatusPublished
Cited by6 cases

This text of 307 Mich. App. 32 (In re Consumers Energy Co.) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Consumers Energy Co., 307 Mich. App. 32 (Mich. Ct. App. 2014).

Opinions

ON RECONSIDERATION

Before: RONAYNE KRAUSE, EJ., and FITZGERALD and WHITBECK, JJ.

RONAYNE KRAUSE, P.J.

In these consolidated cases appellants TES Filer City Station Limited Partnership and the Attorney General claim appeals from an order of the Michigan Public Service Commission (PSC) in Consumers Energy Company’s power supply cost recovery (PSCR) case. We affirm.

I. UNDERLYING PACTS AND PROCEEDINGS

On March 31, 2010, Consumers filed an application with the PSC seeking approval of its PSCR and revenues for the calendar year 2009.1 Consumers sought an underrecovery of $34,378,062, including interest.2

[36]*36The parties raised numerous issues at the hearing stage. However, these consolidated appeals focus on two issues: (1) the eligibility of TES Filer City to recover nitrogen oxide (NOx) allowance costs, and (2) the transfer price calculation.

A. TES FILER CITY NOx COSTS

Biomass plants generate electricity in whole or in part from wood waste. Public Act 286 of 2008, which became effective on October 6, 2008, enacted provisions to allow biomass plants to recover fuel and operation and maintenance (O&M) costs that are not covered by existing contracts with electric utilities. The relevant subsections, MCL 460.6a(7) to (9), provide:

(7) If, on or before January 1, 2008, a merchant plant entered into a contract with an initial term of 20 years or more to sell electricity to an electric utility whose rates are regulated by the commission with 1,000,000 or more retail customers in this state and if, prior to January 1, 2008, the merchant plant generated electricity under that contract, in whole or in part, from wood or solid wood wastes, then the merchant plant shall, upon petition by the merchant plant, and subject to the limitation set forth in subsection (8), recover the amount, if any, by which the merchant plant’s reasonably and prudently incurred actual fuel and variable operation and maintenance costs exceed the amount that the merchant plant is paid under the contract for those costs. This subsection does not apply to landfill gas plants, hydro plants, municipal solid waste plants, or to merchant plants engaged in litigation against an electric utility seeking higher payments for power delivered pursuant to contract.
(8) The total aggregate additional amounts recoverable by merchant plants pursuant to subsection (7) in excess of [37]*37the amounts paid under the contracts shall not exceed $1,000,000.00 per month for each affected electric utility. The $1,000,000.00 per month limit specified in this subsection shall be reviewed by the commission upon petition of the merchant plant filed no more than once per year and may be adjusted if the commission finds that the eligible merchant plants reasonably and prudently incurred actual fuel and variable operation and maintenance costs exceed the amount that those merchant plants are paid under the contract by more than $1,000,000.00 per month. The annual amount of the adjustments shall not exceed a rate equal to the United States consumer price index. An adjustment shall not be made by the commission unless each affected merchant plant files a petition with the commission. As used in this subsection, “United States consumer price index” means the United States consumer price index for all urban consumers as defined and reported by the United States department of labor, bureau of labor statistics. If the total aggregate amount by which the eligible merchant plants reasonably and prudently incurred actual fuel and variable operation and maintenance costs determined by the commission exceed the amount that the merchant plants are paid under the contract by more than $1,000,000.00 per month, the commission shall allocate the additional $1,000,000.00 per month payment among the eligible merchant plants based upon the relationship of excess costs among the eligible merchant plants. The $1,000,000.00 limit specified in this subsection, as adjusted, shall not apply with respect to actual fuel and variable operation and maintenance costs that are incurred due to changes in federal or state environmental laws or regulations that are implemented after the effective date of the amendatory act that added this subsection. The $1,000,000.00 per month payment limit under this subsection shall not apply to merchant plants eligible under subsection (7) whose electricity is purchased by a utility that is using wood or wood waste or fuels derived from those materials for fuel in their power plants.
(9) The commission shall issue orders to permit the recovery authorized under subsections (7) and (8) upon [38]*38petition of the merchant plant. The merchant plant shall not be required to alter or amend the existing contract with the electric utility in order to obtain the recovery under subsections (7) and (8). The commission shall permit or require the electric utility whose rates are regulated by the commission to recover from its ratepayers all fuel and variable operation and maintenance costs that the electric utility is required to pay to the merchant plant as reasonably and prudently incurred costs.

Certain provisions in the federal Public Utility Regulatory Policies Act (PURPA) are designed to encourage power production by small power production facilities. The legislation directs the Federal Energy Regulatory Commission (FERC) to promulgate rules requiring electric utilities to sell electricity to and purchase electricity from small facilities, also known as qualifying facilities. 16 USC 824a-3. A regulation promulgated by FERC provides that “[n]othing in this subpart requires any electric utility to pay more than the avoided costs for purchases.” 18 CFR 292.304(a)(2) (2014).3 The BMPs are qualifying facilities (QFs) under PURPA.

MCL 460.6a(8) provides that the $1,000,000 per month payment limit did not apply with respect to costs “incurred due to changes in federal or state environmental laws or regulations that are implemented after the effective date of the amendatory act that added this subsection.”4 TES Filer sought recovery of $636,073, the cost of purchasing seasonal and annual NOx allow[39]*39anees in 2009. TES Filer claimed that its NOx allowance expenses resulted from Michigan’s state implementation plan (SIP); TES Filer asserted that the SIP became effective on October 19, 2009, the date the federal Environmental Protection Agency (EPA) approved rules promulgated by the Michigan Department of Environmental Quality (DEQ), or on November 30, 2009, the date by which generators of NOx emissions were required to have purchased seasonal allowances for 2009.5

The PSC concluded that TES Filer was not eligible to recover the costs of the NOx allowances that it purchased in 2009. The PSC acknowledged that the EPA did not approve Michigan’s revised SIP (which required TES Filer to begin purchasing NOx allowances) until August 18, 2009; but the changes to state environmental regulations took place on June 25, 2007, the date the revised rules were filed with the Secretary of State.

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Bluebook (online)
307 Mich. App. 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-consumers-energy-co-michctapp-2014.