State Ex Rel. Utilities Commission v. Carolina Utility Customers Ass'n

372 S.E.2d 692, 323 N.C. 238, 1988 N.C. LEXIS 609
CourtSupreme Court of North Carolina
DecidedOctober 6, 1988
Docket467A86
StatusPublished
Cited by16 cases

This text of 372 S.E.2d 692 (State Ex Rel. Utilities Commission v. Carolina Utility Customers Ass'n) 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 Utility Customers Ass'n, 372 S.E.2d 692, 323 N.C. 238, 1988 N.C. LEXIS 609 (N.C. 1988).

Opinions

EXUM, Chief Justice.

This is the second appeal in this general rate case. In tlje first appeal, State ex rel. Utilities Comm. v. N.C. Textile Manufacturers Assoc., Inc., 313 N.C. 215, 328 S.E. 2d 264 (1985), we remanded the proceeding to the Commission for further findings and for modification consistent with our opinion. From the Commission’s subsequent Order the questions presented are whether the Commission erred in concluding: (1) the adopted rate of return levels do not unreasonably discriminate between classes of customers; (2) transportation rates that allow for the same margin of profit whether the gas is customer-owned or transported under a sales contract are not excessive and do not unreasonably discriminate; (3) a modified Industrial Sales Tracker Formula (1ST) is not unreasonably discriminatory to or within customer classes. We conclude the Commission did not err and affirm its ORDER.

I.

On 27 April 1983 NCNG filed an application with the Commission to adjust certain rates charged for natural gas. The Commission declared the matter a general rate case and combined it with NCNG’s 10 June 1983 application for revision of its Transportation Rate Schedule T-l. After conducting hearings, the Commis[240]*240sion issued its order on 6 January 1984 in which it approved a rate increase of $1,117,531, terminated the curtailment tracking rate (CTR), implemented an 1ST, adopted a revised transportation rate and allowed NCNG to include a portion of its investment in a certain gas pipeline in its rate base.1 Cities and North Carolina Textile Manufacturers, predecessor to CUCA, appealed. We affirmed the Commission’s Order in part, reversed it in part, and remanded the case to the Commission for reconsideration. Id. at 230, 328 S.E. 2d at 273. On 31 January 1986 the Commission issued its Order from which Cities, CUCA, and Alcoa now appeal.

NCNG provides natural gas to the public under a Certificate of Public Convenience and Necessity issued by the Commission. Wholesale natural gas service is provided to Cities, each of which is authorized under N.C.G.S. §§ 160A-31K4), -312 to own and operate a natural gas distribution system for their respective citizens. The Commission has no authority to regulate rates set by Cities for gas sold by Cities to their respective citizens. NCNG furnishes retail natural gas service in eastern North Carolina to residential, .commercial and industrial customers.

NCNG has separate rate schedules for each customer class. These schedules include: Rate Schedule 1 — Residential; Rate Schedule 2 — Commercial and Small Industrial; Rate Schedules 3A and 3B — Industrial Process Uses; Rate Schedule 4A — Other Commercial and Industrial Non-IST customers; Rate Schedule 4B— Other Commercial and Industrial 1ST customers; Rate Schedule 5A — Boiler Fuel Non-IST customers; Rate Schedule 5B — Boiler Fuel 1ST customers; Rate Schedule 6A — Large Boiler Fuel Non-IST customers; Rate Schedule 6B — Large Boiler Fuel 1ST customers; Rate Schedule RE-1 — wholesale service to Cities; Rate Schedule SM-1 —Cities negotiated rates for industrials served by Cities; Rate Schedule S-l — NCNG’s negotiated rates for industrials served by NCNG; Rate Schedule T-l — transportation rate applicable to boiler fuel industrial volumes; Rate Schedule T-2 — transportation rate applicable to non-boiler fuel industrial volumes.

[241]*241In its original Order the Commission imposed the entire rate increase on customers in Rate Schedules 1 and 2. Notwithstanding this decision not to increase the rates of the other customers, including appellants, the Court on the first appeal noted:

The evidence before the Commission makes it clear that there is substantial discrimination between the various classes of customers. Residential customers in Rate Schedule No. 1 and commercial and small industrial customers in Rate Schedule No. 2 pay rates which yield a return considerably below the costs incurred by NCNG in serving them. The customers in the remaining rate schedules pay rates which yield returns in excess of their cost of service. The customers in Rate Schedule Nos. 3B, 4, 5 and 6 in particular pay rates which are far in excess of NCNG’s cost of serving them. The effect of this rate structure is that the rates of residential, certain commercial and small industrial customers are subsidized by the remaining industrial, wholesale and commercial customers.

Id. at 222-23, 328 S.E. 2d at 269. We remanded this aspect of the Commission’s first Order, saying:

In light of the substantial difference between cost of service and rate of return for the various classes of customers, the question of unreasonable discrimination among and within the classes of service is a material issue of fact and of law. The Commission’s failure to address this issue in its findings of fact is error prejudicing the substantial rights of defendants. Therefore, the case must be remanded to the Commission so that it may consider this issue and make appropriate findings. N.C. Gen. Stat. §§ 62-79(a) and 62-94(b); Utilities Commission v. Public Staff, 309 N.C. at 207-08, 306 S.E. 2d at 442.

Id. at 223, 328 S.E. 2d at 269-70. Three other aspects of the Commission’s Order were remanded for the Commission’s further consideration: (1) the implementation of the 1ST; (2) the elimination of the CTR and (3) the approval of Transportation Rate T-l.

The Commission on remand conducted further hearings, made additional findings and concluded: (1) the rates it originally approved, including Transportation Rate T-l, did not discriminate [242]*242unreasonably among the various classes of NCNG’s customers; (2) a modified 1ST would not operate in an unreasonably discriminatory fashion; and (3) elimination of the CTR did not result in an unjust rate increase.2

II.

On this second appeal Cities, CUCA, and Alcoa continue to urge that the Commission has not adequately, through appropriate findings supported by evidence, justified the differences in the rates of return on cost of service permitted to NCNG’s various customer classes. They argue that without such justification these differences amount to unreasonably discriminatory rates which violate N.C.G.S. § 62-140(a)3 and unjust and unreasonable rates which violate N.C.G.S. §§ 62-130(a) and 62-131(a).4 They further argue that the Commission failed to consider all the material facts of record in determining what were just and reasonable rates in violation of N.C.G.S. § 62-133(d).5 As the Court noted on the first appeal:

[243]*243A substantial difference in service or conditions must exist to justify a difference in rates. Utilities Comm. v. Edmisten, 291 N.C. 424, 428, 230 S.E. 2d 647, 650 (1976). “There must be no unreasonable discrimination between those receiving the same kind and degree of service.” Utilities Comm. v. Mead Corp., 238 N.C. 451, 462, 78 S.E. 2d 290, 298 (1953) (emphasis added). While decisions of the Commission involving the exercise of its discretion in fixing rates are accorded great deference, see Utilities Comm. v. Edmisten, 291 N.C. at 428, 230 S.E. 2d. at 650; Utilities Comm. v. Coach Co. and Utilities Comm. v. Greyhound Corp., 260 N.C. 43, 54, 132 S.E. 2d 249, 254 (1963), the Commission has no power to authorize rates that result in unreasonable and unjust discrimination.

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Bluebook (online)
372 S.E.2d 692, 323 N.C. 238, 1988 N.C. LEXIS 609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-utilities-commission-v-carolina-utility-customers-assn-nc-1988.