In re Public Service Electric & Gas Company's Rate Unbundling

771 A.2d 1163, 167 N.J. 377
CourtSupreme Court of New Jersey
DecidedDecember 6, 2000
StatusPublished
Cited by7 cases

This text of 771 A.2d 1163 (In re Public Service Electric & Gas Company's Rate Unbundling) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Public Service Electric & Gas Company's Rate Unbundling, 771 A.2d 1163, 167 N.J. 377 (N.J. 2000).

Opinions

PER CURIAM.

Plaintiffs in this ease have challenged the August 24,1999 Final Decision and Order (“Final Order”) issued by the Board of Public Utilities (“BPU”) in respect of Public Service Electric and Gas Company’s (“PSE & G”) rate unbundling, stranded cost and corporate restructuring filings. Also at issue is the validity of the [382]*382BPU’s September 17, 1999 Bondable Stranded Costs Rate Order (“BSCRO”), issued in response to PSE & G’s petition to securitize its recovery-eligible stranded costs.

The Appellate Division upheld both the BPU’s Final Order and BSCRO. Following arguments on November 8, 2000, this Court issued an order disposing of the matter without an accompanying opinion because of the need for an expeditious resolution of the plaintiffs’ challenge. That order announced our decision affirming the judgment of the Appellate Division. Although we rely substantially on the reasons expressed in Judge King’s thorough and well-reasoned opinion, we take this opportunity to elaborate on that opinion and respond to the concerns of our dissenting colleague.

I

On April 30, 1997, the BPU issued a report entitled “Restructuring the Electric Power Industry in New Jersey: Findings and Recommendations” (“Final Report”). The Final Report recommended in part that by July 2000 all of the state’s retail customers should be able to select their electric power suppliers, and that rate reductions of from five to ten percent should be implemented during the phase-in of retail competition. Under the Agency’s proposed restructuring, the generation component of electric power production would be competitively priced on the open market.

The BPU’s order adopting the Final Report required the existing four utility monopolies, PSE & G, Jersey Central Power & Light Company, Rockland Electric Company and Atlantic Electric Company, each to submit three filings to the BPU: a rate unbundling petition, a stranded cost petition, and a restructuring plan. The rate unbundling petitions involve the manner in which the single, per-kilowatt-hour charge would be separated into its component parts (generation, transmission and distribution); the stranded cost filings relate to the utilities’ right to recover some portion of the overmarket (stranded) costs that would have been recovered had they continued as regulated monopolies; and the [383]*383restructuring filings relate to the reorganization of the four utilities, focusing on the utilities’ divestiture of generating assets, including the valuation of the transferred assets where, as here, those assets are transferred to an unregulated affiliate. The BPU’s Final Order addressed PSE & G’s submissions and was issued pursuant to the Electric Discount and Energy Competition Act (“EDECA”), N.J.S.A. 48:3-49 to 98,1 enacted in February 1999.

This is the first case involving one of the state’s utility monopolies to receive final agency review. An appeal from the Final Order was taken by the Division of the Ratepayer Advocate (“Ratepayer Advocate” or “RA”), New Jersey Business Users (“NJBUS”), a group of large industrial and commercial customers, and Co-Steel Raritan (“Co-Steel”), one of PSE & G’s largest commercial customers. In re PSE & G Co.’s Rate Unbundling, Stranded Costs and Restructuring Filings, 330 N.J.Super. 65, 748 A.2d 1161 (2000). We granted the petitions for certification filed by the Ratepayer Advocate and NJBUS, and granted in part the petition for certification filed by Co-Steel, limited to the issues concerning rate reduction. Certification was denied on Co Steel’s contract impairment claim. 165 N.J. 489, 758 A.2d 648 (2000).

II

This case implicates questions of statutory interpretation and executive agency decision making. When considering the [384]*384meaning of a statutory provision, absent any legislative intent to the contrary, courts must give effect to the language of the provision. Phillips v. Curiale, 128 N.J. 608, 617-18, 608 A.2d 895 (1992); Renz v. Penn Cent. Corp., 87 N.J. 437, 440, 435 A.2d 540 (1981). When a statute is ambiguous, however, “[w]e are ... warranted in placing considerable weight on the construction of the statute ... by the administrative agency charged by the statute with the responsibility of making it work.” The Passaic Daily News v. Blair, 63 N.J. 474, 484, 308 A.2d 649 (1973). Because “[t]he grant of authority to an administrative agency is to be liberally construed to enable the agency to accomplish the Legislature’s goals,” Gloucester Cty. Welfare Bd. v. State Civil Serv. Comm’n, 93 N.J. 384, 390, 461 A.2d 575 (1983), we defer to “[t]he agency’s interpretation ... provided it is not plainly unreasonable.” Merin v. Maglaki, 126 N.J. 430, 437, 599 A.2d 1256 (1992). Likewise, when reviewing an administrative agency’s factual findings, our function is not to substitute our judgment for that of the agency, particularly when that judgment reflects agency expertise. Flanagan v. Department of Civil Serv., 29 N.J. 1, 12, 148 A.2d 14 (1959); see Close v. Kordulak Bros., 44 N.J. 589, 599, 210 A.2d 753 (1965) (stating that courts should afford due deference “to the agency’s expertise where such expertise is a pertinent factor”).

The proceedings and decisions in this matter involve rate making by the BPU, “to which the Legislature has delegated its rate-making power, [and which] is vested with broad discretion in the exercise of that authority.” In re Public Serv. Coordinated Transp., 5 N.J. 196, 214, 74 A.2d 580 (1950). “[T]he BPU’s authority over utilities, like that of regulatory agencies generally, extends beyond powers expressly granted by statute to include incidental powers that the agency needs to fulfill its statutory mandate.” In re Alleged Violations of Law by Valley Rd. Sewerage Co., 154 N.J. 224, 235, 712 A.2d 653 (1998); see In re Elizabethtown Water Co., 107 N.J. 440, 449-50, 527 A.2d 354 (1987) (“The Legislature has endowed the BPU with broad power [385]*385to regulate public utilities ---- [and] considerable discretion in exercising those powers.”). We have long recognized that

[administrative agencies possess the ability to be flexible and responsive to changing conditions. See Heir v. Degnan, 82 N.J. 109, 121, 411 A.2d 194 (1980). This flexibility includes the ability to select those procedures most appropriate to enable the agency to implement legislative policy.

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