State ex rel. Missouri Power & Light Co. v. Public Service Commission

669 S.W.2d 941, 1984 Mo. App. LEXIS 3605, 1984 WL 921076
CourtMissouri Court of Appeals
DecidedFebruary 21, 1984
DocketNo. WD 34814
StatusPublished
Cited by6 cases

This text of 669 S.W.2d 941 (State ex rel. Missouri Power & Light Co. 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. Missouri Power & Light Co. v. Public Service Commission, 669 S.W.2d 941, 1984 Mo. App. LEXIS 3605, 1984 WL 921076 (Mo. Ct. App. 1984).

Opinion

CLARK, Judge.

This is an electric utility rate case presenting issues as to exclusion from or inclusion in the rate base of an investment in a distribution line extension and certain items of expense all as related to a fair rate of return. The circuit court affirmed the rate schedules allowed by the Missouri Public Service Commission and the company appeals. Reversed.

The case commenced in January, 1982 when the utility filed a revised rate tariff. Implementation of the rate increase was suspended by order of the commission and the case was heard by the commission in August, 1982. After a decision was rendered in October, 1982, the utility pursued a writ of review in the circuit court. This appeal followed the circuit court judgment in April, 1983.

The rate base and expense issues, contract distribution tree trimming and distribution line extension, are factually unrelated and the points as to each will be separately treated. As to each, however, the utility contends the commission order lacks evidentiary support and is contrary to controlling law.

CONTRACT TREE TRIMMING

The utility’s distribution lines in residential and business districts frequently are located near tree branches which, when they contact the lines, cause service interruptions. Maintenance of service requires a regular program of trimming tree growth. Experience has shown that arranging for tree trimming through outside contractors is more economical than using the utility’s line crews and the commission has encouraged the practice.

In the case of Missouri Power and Light, the expense for tree trimming has varied. In 1980, the cost was $253,000.00 and in 1979, it was $295,000.00. From the year 1975 to 1978, the lowest expenditure was $35,000.00 and the highest was $133,000.00. In connection with the previous Missouri Power and Light case, ER-80-286, the commission determined that a five year average, adjusted by the Consumer Price Index, should be used as allowable tree trimming expense in the test year to normalize fluctuations in tree trimming costs from year to year. Although actual expense incurred by the utility for tree trimming in 1981 was ultimately incurred in the amount of $340,-000.00, use of the five year average in the 1980 rate case resulted in an allowance of $182,250.00.

The test year in the present case consisted of the twelve month period ending March 31, 1982. The purpose of the test year is to establish a reasonably expected level of earnings and expenses. Data for the test year was enlarged by known and measurable changes through June 30,1982. As to tree trimming expense, a portion of the 1981 calendar year expense noted [944]*944above was incurred in the test year and such costs continued in the first three months of 1982.

By reason of the updating of information to June 1, 1982, it was determined that the utility had cancelled some contract distribution tree trimming. This was explained as being attributable to the depressed economy, fewer housing starts and very little new commercial or industrial activity. While tree trimming continued to be necessary work to maintain service, the utility decided to use its own line employees who were otherwise underutilized in performing normal service connection work. Utility witnesses expressed the opinion that when the economy improved, they would return to their contract suppliers for tree trimming service. There was no predictable date when this would occur.

The commission in its order determined that all contracts by the utility for tree trimming by outside firms had ceased as of August 31, 1982 and the utility had no tree trimming contracts for the remainder of 1982 or for 1983. On this account, the commission ruled that no allowance would be made in the test year for tree trimming. The utility argued then and now for inclusion of $180,788.00 in tree trimming expense computed on the five year average adopted in principle in the 1980 rate case.

The role of the court on appeal from a report and order of the Public Service Commission is to determine whether the report and order are lawful and reasonable and, in this review, the commission order has a presumption of validity. State ex rel. Utility Consumers Council v. Public Service Commission, 585 S.W.2d 41, 47 (Mo. banc 1979). While the court may not substitute its judgment for that of the commission, it can determine whether the commission could reasonably have reached the result on the consideration of all the evidence before it. State ex rel. Oliver v. Public Service Commission, 542 S.W.2d 595, 598 (Mo.App.1976). On review of the decision of the commission, reversal of the order is warranted if it appears that the action of the commission was arbitrary, capricious and without reasonable basis. State ex rel. Fee Fee Trunk Sewer, Inc. v. Public Service Commission, 550 S.W.2d 945, 946 (Mo.App.1977).

The facts applicable to the category of tree trimming expense, amplified by the record in the prior rate case for this utility, are not the subject of any contest. In the earlier case, when the data base showed increasing expense for distribution contract tree trimming, the commission adopted the concept of a normalized average of five years expense, the net effect of which was to disallow the utility a portion of tree trimming cost actually incurred and expended in the test year. The basis and justification for normalization is that rise and fall of fluctuating expenses will project a reasonable allowance in determining a rate producing a fair return in future years.

There was no dispute in the present ease that for the test year ending March 31, 1982, the utility had incurred substantial distribution contract trimming expense approximating the five year average allowance granted in the prior rate case. There is thus no factual basis to sustain disallowance of all tree trimming expense if the test year data and the five year average concept are the appropriate factors to consider in reaching the decision.

The commission order, however, bottoms its ruling on the fact, again not disputed, that the utility had suspended utilization of contract tree trimming pending improvement in the economy. In the language of the order, “The proposed allowance for distribution tree trimming is improper because there are no outstanding contracts for such services and there are no reasonably foreseeable circumstances under which such contracts will be expected.” This approach amounts to a repudiation of the normalization by average concept, applied in the prior rate case to the disadvantage of the utility when costs were rising.

[945]*945The report and order announces a commonly accepted principle of utility rate making. The test year is a period past, but is employed as a vehicle upon which to project experience in a future period when the rates determined in the case will be in effect. Normalization of a test year cost by multi-year averaging of the cost based on experience assumes that the cost rises and falls, with the consequence that the actual cost incurred in the test year is not representative.

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669 S.W.2d 941, 1984 Mo. App. LEXIS 3605, 1984 WL 921076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-missouri-power-light-co-v-public-service-commission-moctapp-1984.