In re Michigan Consolidated Gas Co. to Increase Rates

293 Mich. App. 360
CourtMichigan Court of Appeals
DecidedJuly 21, 2011
DocketDocket Nos. 298830 and 298887
StatusPublished
Cited by3 cases

This text of 293 Mich. App. 360 (In re Michigan Consolidated Gas Co. to Increase Rates) 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 Michigan Consolidated Gas Co. to Increase Rates, 293 Mich. App. 360 (Mich. Ct. App. 2011).

Opinion

Donofrio, J.

In these consolidated cases, appellants, the Association of Businesses Advocating Tariff Equity (ABATE) and the Michigan Attorney General, appeal as of right an order of the Michigan Public Service Commission (PSC) that allowed petitioner, Michigan Consolidated Gas Company (Mich Con), to include through charges applied to its ratepayers more than $5 million in funding for the Low-Income and Energy Efficiency Fund (LIEEF). The Attorney General additionally appeals that part of the order that allowed Mich Con to continue to use an uncollectible expense true-up, or tracking, mechanism (UETM) as a way to reconcile recovery of estimated and actual losses stemming from customers who fail to pay their bills. We affirm the PSC’s decision to allow Mich Con to continue using its UETM, but reverse the PSC’s decision to allow Mich Con to charge its ratepayers for funding of the Low-Income and Energy Efficiency Fund.

[363]*363I. PACTS

The PSC’s opinion and order in this case contains the following concise statement of the facts:

On June 9, 2009, Michigan Consolidated Gas Company (Mich Con) filed an application requesting a $192.639 million rate increase on an annual basis, and other relief based on the use of a 2010 projected test year. The other forms of regulatory relief initially sought by Mich Con included continuation of authority to use its existing uncollectible expense true-up mechanism (UETM) with modifications .... In addition, Mich Con sought confirmation from the Commission that the company had satisfied directives set forth in the Commission’s orders in Case Nos. U-13898, U-13899, and U-15479. These directives included ... the obligation to propose a Low-income and Energy Efficiency Fund (LIEEF) contribution as part of its next general rate case filing.
... At the prehearing conference, the ALJ granted petitions for leave to intervene filed by the Association of Businesses Advocating Tariff Equity (ABATE), Attorney General Michael A. Cox (Attorney General)... [and] the Utility Workers Union of America, AFL-CIO, Local 223 (Local 223), [among others.] The Commission Staff (Staff) also participated in the proceedings.
... In the absence of a Commission order directing it to do otherwise, on January 1, 2010, Mich Con self-implemented a $170 million increase in its gas rates that was applied on an equal percentage basis for all customer classes.
Evidentiary hearings concerning the remainder of Mich Con’s general rate case took place on January 11, 12, and 14, 2010. The company presented the testimony and exhibits of an additional 22 witnesses, and the Staff offered [364]*364testimony and exhibits from 13 witnesses.. .. The record of this proceeding consists of 1,866 pages of transcript and 112 exhibits that were received into evidence.

The PSC approved the continued use of the UETM intended to adjust future rates to make up for 80 percent of the difference between Mich Con’s estimated and actual burdens in connection with customers from whom it could not collect amounts due on their bills, approved a base level of uncollectible expenses of $69.9 million, and rejected the Attorney General’s objections that such tracking mechanisms are not statutorily authorized. The PSC also approved $5,069,000 in test-year funding for the LIEEF and rejected appellants’ objections that the Legislature had repealed the legislation authorizing such funding in the first instance.

This appeal followed.

II. STANDARDS OF REVIEW

All rates, fares, charges, classifications, joint rates, regulations, practices, and services prescribed by the PSC are presumed prima facie to be lawful and reasonable. MCL 462.25; see also Mich Consol Gas Co v Pub Serv Comm, 389 Mich 624, 635-636; 209 NW2d 210 (1973). A party aggrieved by an order of the PSC has the burden of showing by clear and satisfactory evidence that the order is unlawful or unreasonable. MCL 462.26(8). To establish that a PSC order is unlawful, the appellant must show that the PSC failed to follow a statutory requirement or abused its discretion in the exercise of its judgment. In re MCI Telecom Complaint, 460 Mich 396, 427; 596 NW2d 164 (1999).

[365]*365A final order of the PSC must be authorized by law and supported by competent, material, and substantial evidence on the whole record. Const 1963, art 6, § 28; In re Consumers Energy Co, 279 Mich App 180, 188; 756 NW2d 253 (2008). A reviewing court gives due deference to the PSC’s administrative expertise and is not to substitute its judgment for that of the PSC. Attorney General v Pub Serv Comm No 2, 237 Mich App 82, 88; 602 NW2d 225 (1999).

Issues of statutory interpretation are reviewed de novo. In re Rovas Complaint Against SBC Mich, 482 Mich 90, 102; 754 NW2d 259 (2008). A reviewing court should give an administrative agency’s interpretation of statutes it is obliged to execute respectful consideration, but not deference. Id. at 108.

Whether the PSC exceeded the scope of its authority is a question of law that is reviewed de novo. In re Pelland Complaint Against Ameritech Mich, 254 Mich App 675, 682; 658 NW2d 849 (2003).

III. UNCOLLECTIBLE EXPENSE TRUE-UP MECHANISM

The UETM addresses the utility’s burden in supplying power to customers from whom it cannot collect.2 Mich Con sought to change its base level of uncollectible expenses from $37.3 million to $69.9 million to reflect its recent experience with increasing numbers of customers from whom it could not collect. Mich Con had been using its UETM to ensure its recovery of 90 percent of unpaid bills — less than 100 percent so that the utility would retain an incentive to expend efforts to collect from its customers. However, the hearing referee proposed adjusting that recovery rate to 80 percent on [366]*366the ground that Mich Con had shown something less than due diligence in the matter. The PSC accepted the higher figure for the base rate of uncollectible expenses and accordingly approved a continuation of the UETM, while adopting the referee’s recommendation to shift Mich Con’s risk factor from 90 to 80 percent. It is not in dispute that all cost-tracker mechanisms operate by comparing actual revenues to the base revenues approved by the PSC for the purpose of adjusting future rates to compensate for the differences.

Retroactive ratemaking in utility cases is prohibited, absent statutory authorization. Mich Bell Tel Co v Pub Serv Comm, 315 Mich 533, 547, 554-555; 24 NW2d 200 (1946). The Attorney General argues that use of the challenged tracking mechanism runs afoul of that principle. But retroactive ratemaking does not occur if only future rates are affected, with no adjustment to previously set rates. Attorney General v Pub Serv Comm, 262 Mich App 649, 655, 658; 686 NW2d 804 (2004).

This Court recently reiterated its approval of the PSC’s use of the accounting convention whereby certain expenses dating from one year are characterized as expenses incurred in a subsequent year to which they are then deferred. In re Consumers Energy Co Application for Rate Increase, 291 Mich App 106, 114; 804 NW2d 574 (2010), citing Attorney General, 262 Mich App at 658.

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Bluebook (online)
293 Mich. App. 360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-michigan-consolidated-gas-co-to-increase-rates-michctapp-2011.