State ex rel. Intercon Gas, Inc. v. Public Service Commission

848 S.W.2d 593, 1993 Mo. App. LEXIS 310, 1993 WL 50713
CourtMissouri Court of Appeals
DecidedMarch 2, 1993
DocketNo. WD 46368
StatusPublished
Cited by8 cases

This text of 848 S.W.2d 593 (State ex rel. Intercon Gas, Inc. v. Public Service Commission) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Intercon Gas, Inc. v. Public Service Commission, 848 S.W.2d 593, 1993 Mo. App. LEXIS 310, 1993 WL 50713 (Mo. Ct. App. 1993).

Opinion

FENNER, Judge.

Appellant, Intercon Gas, Inc. (Intercon), appeals from an order of the circuit court affirming a decision by the Public Service Commission of Missouri (PSC or Commission). The matter before the PSC involved applications from respondents, Missouri Gas Company (MoGas), Missouri Pipeline Company (MPC), and Laclede Gas (Lac-lede), and appellant Intercon for certificates of public convenience and necessity in regard to various “gas plant” operations.1

MoGas first filed an application in April of 1990 to construct, own, operate and maintain an intrastate natural gas pipeline from a point of interconnection with the Panhandle Eastern Pipeline Company’s (PEPL) intrastate pipeline near Jefferson City, Missouri to Fort Leonard Wood and to subsequently extend this pipeline east/northeast along 1-44 to Sullivan, Missouri then north to the Washington-Union, Missouri area. In July of 1990, MoGas filed an Amended Application to construct, own, operate and maintain an intrastate natural gas pipeline along the same service route, but specifically requesting authority to allow MoGas to commence construction of the 1-44 corridor portion of the pipeline prior to the construction of the Jefferson City-Fort Leonard Wood portion.

In August of 1990, MPC filed an application to construct, own, operate and maintain an extension of its then existing intrastate natural gas pipeline. The extension was sought from St. Charles County, Missouri south through Franklin County to Sullivan, Missouri, terminating at a point of interconnection with the intrastate natural gas pipeline proposed by MoGas near Sullivan, Missouri.

In October of 1990, MoGas filed its Second Amended and Final Application requesting a Certificate to construct, own, operate and maintain an intrastate natural gas pipeline commencing from a point of interconnection with the proposed extension of MPC’s intrastate natural gas pipeline near Sullivan, Missouri and travelling southwest along the 1-44 corridor to Fort Leonard Wood.

Laclede sought to have the Commission grant it a Certificate of Convenience and Necessity to operate a local gas distribution company in Franklin County, Missouri to serve the communities of Washington, Union and St. Clair which communities had already granted franchises to Laclede. In addition, Laclede also sought authority to construct a 16 inch natural gas pipeline commencing at a point of interconnection with the proposed MPC extension of its natural gas pipeline near Washington, Missouri and travelling in an eastward direction to a point near Ellisville, Missouri. From this line, Laclede also proposed to construct a 6⅝ inch lateral pipeline to serve the City of Pacific.

Intercon first filed an application in April of 1990 seeking to construct, own, operate and maintain an intrastate natural gas pipeline to serve the communities along I-44 from Sullivan to Rolla, Missouri. In May of 1990, Intercon amended its application to extend its project further into Franklin County by seeking to serve the communities of Washington, Union and St. Clair. In December of 1990, Intercon filed its second amended application to extend its proposed pipeline along 1-44 past Rolla •to Fort Leonard Wood and also proposed the construction of a spur to serve the City of Pacific, in Franklin County, Missouri.

All of the pending applications were consolidated for hearing which was ultimately held in March of 1991. After the hearing [596]*596was concluded, Intereon filed its Initial Brief with the PSC. In its Initial Brief, Intereon conceded that the public interest would best be served by approving the applications of MPC and Laclede with the exception that Intereon sought authority to serve Sullivan. Intercon’s Initial Brief contained a new proposal which Intereon referred to as the “Modified Intereon Proposal.” In its Modified Proposal, Intereon sought to have the Commission consider the effect upon its withdrawal of its proposed extension north from the City of Sullivan, which was the area affected by the MPC and Laclede proposals. Intereon continued to urge the denial of the MoGas application.

Intereon attempted to file additional exhibits in support of its Modified Proposal. The PSC held that the record was closed and denied Intercon’s request to file additional exhibits.

On June 28, 1991, the Commission entered its order awarding certificates of public convenience and necessity to MoGas, MPC and Laclede and denying the application of Intereon. Intereon appeals.2

Mootness

Before addressing the merits of Inter-con’s appeal, we first address the Motion of MoGas to dismiss Intercon’s appeal as moot. The record reflects that the MoGas pipeline from Sullivan to Fort Leonard Wood has been completed during the pen-dency of this appeal. MoGas argues that this renders Intercon’s appeal of the Commission’s decision granting MoGas’s certificate in regard to said pipeline moot.

A case on appeal becomes moot when circumstances change so as to alter the position of the parties or subject matter so that the controversy ceases and a decision can grant no relief. State ex rel. Monsanto Co. v. Public Serv. Comm’n, 716 S.W.2d 791, 793 (Mo. banc 1986). PSC ratemaking orders have been found to be moot on appeal when subsequent orders granting additional rate increases have been entered during the pendency of the appeal superseding the orders in question. See, State ex rel. Empire Dist. Elec. Co. v. Public Serv. Comm’n, 615 S.W.2d 598 (Mo.App.1981); State ex rel. Kansas City Power & Light Co. v. Public Serv. Comm’n, 615 S.W.2d 596 (Mo.App.1981); State ex rel. Missouri Pub. Serv. Co. v. Fraas, 615 S.W.2d 587 (Mo.App.), cert. denied, 454 U.S. 1032, 102 S.Ct. 569, 70 L.Ed.2d 476 (1981); State ex rel. St. Louis County Sewer Co. v. Public Serv. Comm’n, 545 S.W.2d 375 (Mo.App.1976); State ex rel. Gas Serv. Co. v. Public Serv. Comm’n, 536 S.W.2d 491 (Mo.App.1976).

Underlying the application of the doctrine of mootness in ratemaking orders is the prohibition of retroactive ratemaking which renders the court without the ability to afford relief in regard to a superseded order. State v. Public Serv. Comm’n, 615 S.W.2d at 599. However, the fact that an act authorized by the PSC has been completed pending appeal does not of itself render an appeal moot. In State ex rel. Consumers Public Service Co. v. Public Service Commission, 352 Mo. 905, 180 S.W.2d 40 (Mo. banc 1944), the Missouri Supreme Court held that an appeal of a decision of the Commission approving the sale and purchase of electric utility properties was not mooted by the fact that the sale had been “consummated” and the properties were being operated by the purchaser.

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Bluebook (online)
848 S.W.2d 593, 1993 Mo. App. LEXIS 310, 1993 WL 50713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-intercon-gas-inc-v-public-service-commission-moctapp-1993.