Keyspan Energy Services, Inc. v. Public Service Commission

295 A.D.2d 859, 744 N.Y.S.2d 245, 2002 N.Y. App. Div. LEXIS 6852
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJune 27, 2002
StatusPublished
Cited by10 cases

This text of 295 A.D.2d 859 (Keyspan Energy Services, Inc. v. Public Service Commission) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keyspan Energy Services, Inc. v. Public Service Commission, 295 A.D.2d 859, 744 N.Y.S.2d 245, 2002 N.Y. App. Div. LEXIS 6852 (N.Y. Ct. App. 2002).

Opinion

Peters, J.

Appeal from a judgment of the Supreme Court (Bradley, J.), entered November 9, 2001 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Public Service Commission approving amendments to certain tariffs filed by respondent Consolidated Edison Company of New York, Inc.

In September 1997, respondent Public Service Commission (hereinafter PSC) approved a historic rate and restructuring plan for respondent Consolidated Edison Company of New York, Inc. (hereinafter Con Ed) for the purpose of fostering competition and increasing consumer choice in New York’s electricity market. The three-phase “retail access plan” sought to ultimately allow consumers to purchase their electricity needs from a variety of different energy service companies, including petitioner, which would be permitted to deliver electricity to these customers over the existing infrastructure owned by Con Ed.

In a February 2000 order, the PSC approved Con Ed’s proposal for phase three of the plan, subject to certain modifications and conditions, including a requirement that it file and serve on all interested parties, including petitioner, a revised tariff providing for, inter alia, a 0.2 cents per kilowatt-hour retail access incentive to certain classes of customers by March 1, 2000. Therein, the PSC noted that a process would be established to insure that all parties would obtain information on the filing and that its staff would facilitate a meeting of all [860]*860interested persons on these matters with an opportunity for initial and reply comments; the revised tariff amendments were to become effective on a temporary basis beginning May 1, 2000, subject to further notice and comments.

On March 1, 2000, Con Ed filed a revised tariff proposing, inter alia, a method whereby the 0.2 cents per kilowatt-hour retail access incentive could be effectuated. In its cover letter, Con Ed noted that a copy of its revised tariff amendment proposal was being served by regular mail and by e-mail on all interested parties, including petitioner. On March 21, 2000, the PSC issued a notice to all interested parties soliciting comments on, inter alia, Con Ed’s proposed methodology; petitioner did not submit any comments.

On April 6, 2000, Con Ed circulated an e-mail to all interested parties, including petitioner, explaining its method of implementing the incentive formula. In an April 24, 2000 order, the PSC authorized the use of the incentive formula on a temporary basis; it was still subject to further review and final approval by the PSC. Again, Con Ed was directed to submit and serve on all interested parties, including petitioner, a revised tariff amendment incorporating any modifications contained in the PSC’s order.

On April 28, 2000, Con Ed filed a revised tariff amendment which, inter alia, amended its formula for implementing the incentive proposal. Therein, it indicated that copies of the filing were being served by mail on all interested parties, including petitioner. Con Ed sought approval of this revised methodology and for the tariffs to become effective on a temporary basis as of May 1, 2000. By e-mail dated August 24, 2000, Con Ed circulated a memo to all interested parties, including petitioner, to clarify questions regarding the new incentive methodology. Therein, it indicated that although the PSC approved its initially proposed methodology for implementing the incentive program by order dated April 24, 2000, Con Ed now believed that the revised methodology, circulated to all interested parties and discussed with staff, was a more direct method of providing the incentive to customers and a means to reduce complex computer programming.

On November 30, 2000, after considering comments submitted by interested parties, including those submitted by E Cubed Company LLC on behalf of petitioner, the PSC issued an order approving Con Ed’s tariff filings, including its revised incentive plan formula, on a permanent basis. In this final order, the PSC noted that it was clarifying its April 24, 2000 order to now authorize Con Ed to implement its revised incentive proposal in an effort to avoid unnecessary software complexities.

[861]*861On March 27, 2001, petitioner commenced this CPLR article 78 proceeding against the PSC and Con Ed seeking to set aside the PSC’s final approval of Con Ed’s amended incentive formula on the ground that it violated petitioner’s rights to procedural due process and because the order was arbitrary and capricious. Supreme Court dismissed the petition, prompting this appeal.

Initially, we reject any contention made by the PSC that petitioner lacks standing to maintain this proceeding since it claims to have suffered only an economic loss from the PSC’s approval of Con Ed’s revised incentive formula. Notably, the PSC found petitioner to be an interested party during the course of the administrative proceeding, mandating that it receive all notifications for change, revised tariff filings and any other document pertaining to Con Ed’s efforts. Thus, petitioner, having been deemed a party to the underlying administrative proceeding, will also be considered an aggrieved party for these purposes (see generally, Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 412-413).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Matter of Sunsea Energy LLC v. New York State Pub. Serv. Commission
2024 NY Slip Op 03914 (Appellate Division of the Supreme Court of New York, 2024)
Matter of Megnin Farms At Poolsbrook, LLC v. New York Pub. Serv. Commn.
2019 NY Slip Op 3709 (Appellate Division of the Supreme Court of New York, 2019)
Matter of Retail Energy Supply Assn. v. Public Serv. Commn. of The State of New York
2017 NY Slip Op 5908 (Appellate Division of the Supreme Court of New York, 2017)
MatterofEntergyNuclearPowerMarketing,LLCvNewYorkStatePublicServiceCommission
Appellate Division of the Supreme Court of New York, 2014
Entergy Nuclear Power Marketing, LLC v. New York State Public Service Commission
122 A.D.3d 1024 (Appellate Division of the Supreme Court of New York, 2014)
City of New York v. New York State Public Service Commission
105 A.D.3d 1200 (Appellate Division of the Supreme Court of New York, 2013)
National Fuel Gas Distribution Corp. v. Public Service Commission
8 Misc. 3d 584 (New York Supreme Court, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
295 A.D.2d 859, 744 N.Y.S.2d 245, 2002 N.Y. App. Div. LEXIS 6852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keyspan-energy-services-inc-v-public-service-commission-nyappdiv-2002.