State ex rel. Utilities Commission v. Carolina Power & Light Co.

358 S.E.2d 35, 320 N.C. 1, 1987 N.C. LEXIS 2172
CourtSupreme Court of North Carolina
DecidedJuly 7, 1987
DocketNo. 591A85
StatusPublished
Cited by5 cases

This text of 358 S.E.2d 35 (State ex rel. Utilities Commission v. Carolina Power & Light Co.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Utilities Commission v. Carolina Power & Light Co., 358 S.E.2d 35, 320 N.C. 1, 1987 N.C. LEXIS 2172 (N.C. 1987).

Opinion

MITCHELL, Justice.

The questions before us on appeal arise from an order of the North Carolina Utilities Commission entered after reconsideration of three general rate cases1 and six fuel adjustment proceedings.2 All of the cases were originally filed by Carolina Power & Light Company (hereinafter “CP&L”) and initially heard by the Commission during the period 1979-82. Five of the cases were appealed by one or more intervenors. This Court or the Court of Appeals remanded each of those cases to the Commission after holding its order erroneous.3

The Commission consolidated the five cases on remand. In its effort to comply with the instructions of this Court and the Court of Appeals, the Commission also reopened one additional general rate case (Sub 366)4 and three fuel adjustment proceedings (Sub 420, Sub 434 and Sub 452) and consolidated them with the remanded cases.5

[4]*4A panel of the Commission held hearings in February and March of 1985. After additional hearings were held in May, a Recommended Order On Remand was filed on 18 June 1985. The intervenors, the Attorney General, the Public Staff, Kudzu Alliance (hereinafter “Kudzu”) and Carolina Utility Customers Association, Inc. (hereinafter “CUCA”)6 filed exceptions to the Recommended Order. The Commission heard oral arguments in August and entered its Final Order on Remand Requiring Customer Refunds on 10 September 1985. CP&L and all intervenors appealed to this Court.

The three primary issues before this Court on appeal are (1) whether the Commission erred by “normalizing” CP&L’s fuel costs for test periods involved in the general. rate cases, (2) whether the Commission erred by applying accounting methods proposed by a witness for CP&L, and (3) whether the Commission erred by applying an improper formula for fuel cost adjustments. We find no error and affirm the order of the Commission.

We do not undertake a complete review of all of the evidence introduced as it is in the form of several thousand pages of transcripts and exhibits. Specific evidence and what it tended to show is discussed throughout this opinion where pertinent and necessary.

A brief historical review is necessary to an understanding of the issues presented and the unique posture of the cases before us on appeal. Public utilities were first permitted to make interim adjustments to their rates in North Carolina in response to rapidly rising fossil fuel costs resulting from the effects of an oil embargo imposed by the Organization of Petroleum Exporting Countries in the mid-1970s. The first “fuel adjustment clauses” approved by the Commission operated automatically. Rather than being required to apply to the Commission for every rate adjustment, public utilities were permitted to adjust their rates unilaterally once each month to reflect changes in their fuel costs.

[5]*5In 1975, the General Assembly enacted former N.C.G.S. § 62-134(e) (repealed 17 June 1982) which provided that rates could be adjusted on the basis of changes in fuel costs only with approval of the Commission after a public hearing. 1975 N.C. Sess. Laws ch. 243, § 8; repealed 1981 N.C. Sess. Laws ch. 1197, § 2. The statute also provided for expedited hearings in fuel adjustment proceedings.

In its efforts to implement N.C.G.S. § 62434(e), the Commission adopted regulations and a fuel cost formula which were amended occasionally in light of experience. By 1978, a “two-track” rate making system had evolved. Under that system, all fuel related costs were considered in fuel adjustment proceedings, but excluded in general rate cases. Other operating costs, together with a proper rate of return, were considered in general rate cases but excluded from consideration in fuel adjustment proceedings.

In 1980 our Court of Appeals held that issues relating to management prudence should be considered only in general rate cases and not in fuel adjustment proceedings under N.C.G.S. § 62434(e). State ex rel. Utilities Commission v. Virginia Electric & Power Co., 48 N.C. App. 453, 269 S.E. 2d 657, disc. rev. denied, 301 N.C. 531, 273 S.E. 2d 462 (1980). While recognizing the correctness of that holding by the Court of Appeals, this Court thereafter determined that the Commission’s two-track rate making system was inconsistent with the requirements of N.C.G.S. § 62-133 and former N.C.G.S. § 62434(e). See generally, State ex rel. Utilities Commission v. Public Staff, 309 N.C. 195, 306 S.E. 2d 435 (1983). In reviewing the Commission’s prior orders in two of the fuel adjustment proceedings presently before us — Sub 402 and Sub 411 —we held that the Commission had erred by failing to establish a new base cost of fuel in each general rate case. Id. We also held that it had erred by including purchased power costs and nuclear fuel costs in fuel adjustment proceedings. Id. We recognized, however, that even though purchased power costs and nuclear fuel costs had been improperly considered in fuel adjustment proceedings before the Commission, they had also been improperly excluded from consideration in general rate cases to the detriment of public utilities. Id. Therefore, we remanded the fuel adjustment proceedings before us for a hearing “in the nature of’ a general rate case. Public Staff, 309 N.C. at 213, 306 [6]*6S.E. 2d at 445. We also directed the Commission to consider the reasonableness and prudence vel non of CP&L’s management in incurring the costs for the purchases and exchanges of power in question. We instructed the Commission to contrast the rates actually collected with those which should have been collected and to make such adjustments as necessary to correct any discrepancy. Public Staff, 309 N.C. at 214, 306 S.E. 2d at 446.

The appellate opinions in the other cases remanded to the Commission and dealt with in its order giving rise to this appeal were quite brief and cited our decision in Public Staff as controlling.7 Those cases and Public Staff represent practical applications, in cases remanded for recalculations, of the principle that a public utility must be given at least one fair opportunity at some point to recover all of its reasonably and prudently incurred fuel and purchased power costs,8 if rates are to “be fair both to the public utility and to [consumers]” as required by N.C.G.S. § 62433(a).

On remand, the Commission consolidated the five remanded cases with four reopened cases that had affected CP&L’s rates during the rate periods in dispute here — the 22 months from 1 December 1980 to 23 September 1982. The Commission held hearings to determine the rates that should have been collected during those rate periods.

CP&L introduced extensive testimony and numerous exhibits through expert witnesses with regard to its practices in purchasing fuel and power. It also introduced expert testimony as to the efficiency of the operation of its generating plants. CP&L’s evidence tended to show that, at all pertinent times, its fuel and power purchasing practices were reasonable and prudent, it operated its generating plants in a prudent manner, and no fuel or purchased power costs were incurred unreasonably or imprudently.

The Commission’s hearings were conducted “in the nature of” a general rate case according to our instructions in Public Staff.

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358 S.E.2d 35, 320 N.C. 1, 1987 N.C. LEXIS 2172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-utilities-commission-v-carolina-power-light-co-nc-1987.