State ex rel. Utilities Commission v. Public Staff-North Carolina Utilities Commission

293 S.E.2d 880, 58 N.C. App. 480, 1982 N.C. App. LEXIS 2788
CourtCourt of Appeals of North Carolina
DecidedAugust 3, 1982
DocketNo. 8110UC392
StatusPublished
Cited by4 cases

This text of 293 S.E.2d 880 (State ex rel. Utilities Commission v. Public Staff-North Carolina Utilities Commission) is published on Counsel Stack Legal Research, covering Court of Appeals 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. Public Staff-North Carolina Utilities Commission, 293 S.E.2d 880, 58 N.C. App. 480, 1982 N.C. App. LEXIS 2788 (N.C. Ct. App. 1982).

Opinion

HEDRICK, Judge.

We first note that the statute out of which the proceedings before the Commission, and from which the Commission’s order emanated, G.S. § 62434(e), has since been repealed by 1981 N.C. Sess. Laws Ch. 1197, § 2 (enacted 17 June 1982). The Chapter containing such repeal nowhere states the effect of the repeal on already pending G.S. § 62434(e) proceedings, but does state, “all rates and changes under G.S. § 62434(e) shall terminate not later than December 1, 1982.” 1981 N.C. Sess. Laws Ch. 1197, § 3 (enacted 17 June 1982). Since the rate increase challenged in the present case pertained to a period well before December 1, 1982, and since “[a] statute will not be construed to have retroactive effect unless that intent is clearly expressed or arises by necessary implication,” In re Will of Mitchell, 285 N.C. 77, 79-80, 203 S.E. 2d 48, 50 (1974), we will treat G.S. § 62434(e) as the controlling statute notwithstanding its repeal as to certain fuel adjustment proceedings which are held later than the proceedings at issue in the present case.

The first assignments of error brought forward in the intervenor’s briefs relate to the Commission’s denial of a motion to have the instant fuel adjustment proceedings, which were being conducted pursuant to G.S. § 62434(e), consolidated with a CP&L general rate case already in progress and being conducted pursuant to G.S. § 62-133. Interveners argue that the Commission’s Order allowing an upward adjustment, based on increased costs [483]*483of fuel, in CP&L’s rates was reversible error in that such adjustment was made in an expedited G.S. § 62434(e) proceeding, which provides for no inquiry into the reasonableness of the increased fuel costs upon which such adjustment is based, rather than in an available, then-pending CP&L general rate case, in which inquiries into the reasonableness of CP&L’s management practices are required. Intervenors also argue that the Commission’s Order allowing a G.S. § 62434(e) rate adjustment was further tainted with reversible error in that the challenged Commission Order in the instant proceeding (Docket No. E-2, Sub 402) was incorporated into the Commission’s Order in the general rate case (Docket No. E-2, Sub 391), dated 15 January 1981, thereby effectively exempting CP&L’s fuel costs from any inquiry into their reasonableness, even in a general rate case.

G.S. § 62434(e) states in pertinent part:

Notwithstanding the provisions of this Article, upon application by any public utility for permission and authority to increase its rates and charges based solely upon the increased cost of fuel used in the generation or production of electric power, the Commission shall suspend such proposed increase for a period not to exceed 90 days beyond the date of filing such application to increase rates. . . . The Commission shall promptly investigate applications filed pursuant to provisions of this subsection and shall hold a public hearing within 30 days of the date of the filing of the application to consider such application, and shall base its order upon the record adduced at the hearing, such record to include all pertinent information available to the Commission at the time of hearing. The order responsive to an application shall be issued promptly by the Commission. ... A proceeding under this subsection shall not be considered a general rate case.

By the clear and express language of G.S. § 62434(e), “the legislature has provided a procedure by which a public utility may apply to the Utilities Commission for authority to increase its rates and charges based solely upon the increased cost of fuel used in the generation of electric power. . . .” State ex rel. Utilities Commission v. Virginia Electric and Power Co. [hereinafter referred to as “Vepco”], 48 N.C. App. 453, 460, 269 S.E. 2d 657, 661, disc. rev. denied, 301 N.C. 531, 273 S.E. 2d 462 [484]*484(1980) [emphasis in original]. The legislature enacted G.S. § 62434(e) not as a substitute for a general rate case, but to provide an expedited procedure by which the volatile and uncontrollable prices of fuels could be quickly taken into account in a utility’s rates and charges. Id. “|P]lant efficiency as it bears upon fuel cost is not a factor to be considered in the limited and expedited proceeding provided for by G.S. § 62434(e).” Id. at 462, 269 S.E. 2d at 662. Since “[t]he procedure provided [by G.S. § 62434(e)] is an expedited one ‘and shall not be considered a general rate case,’ ” Id. at 460, 269 S.E. 2d at 661 [footnote omitted], inquiries into the reasonableness of the fuel costs incurred (other than the reasonableness of the prices paid for such fuel) are not proper in a fuel adjustment proceeding. See Id.

On the other hand, review by the Utilities Commission of the reasonableness of “management decisions . . . in a general rate case is not only entirely appropriate but even necessaryf;]. . . the Utilities Commission . . . [must] take into account the efficiency of the company’s operations in fixing its rates in a general rate case as provided in G.S. 62-133.” Id. at 461-62, 269 S.E. 2d at 662 [emphasis in original]. This requirement, for general rate cases, of an inquiry into the reasonableness of incurred costs extends to fuel costs incurred by the utility. See Id. and G.S. § 62433(b)(3), requiring the Commission, in a general rate case, to ascertain the “utility’s reasonable operating expenses.” [Emphasis added.]

Hence, a fuel adjustment proceeding under G.S. § 62434(e) and a general rate case under G.S. § 62433 are entirely different in their functions and basic procedures. This fundamental difference between the two justifies the action of the Commission in hearing CP&L’s application for a rate adjustment based solely on the increased cost of fuel in a G.S. § 62434(e) proceeding rather than in the then-pending general rate case, since such adjustments for increased fuel costs are to be made in expedited G.S. § 62434(e) proceedings.

Intervenors, however, are concerned that if adjustments for fuel cost increases are always rendered in expedited G.S. § 62434(e) proceedings, in which the reasonableness of the increases are irrelevant, then public utilities will always be able to achieve virtually automatic rate increases based on their increased costs of fuel, even if the utilities were manifestly [485]*485unreasonable in incurring such increases. Their concern is unwarranted. Rate adjustments granted pursuant to G.S. § 62434(e) are purely interim adjustments made to a base rate previously determined in a G.S. § 62-133 general rate case; the holding of general rate cases subsequent to fuel adjustment proceedings assures that a utility’s fuel costs will be scrutinized for reasonableness. First, a base rate taking all considerations of reasonableness into account (including the reasonableness of fuel costs) is determined in a general rate case. In the interim between the general rate case establishing that base rate, rx, and the next general rate case establishing base rate r2, any number of rate adjustments based solely on the changing cost of fuel may be made to rx, and the effect of such adjustments is cumulative. Hence, if in the interim between rx and r2, three expedited fuel adjustment proceedings are held and have produced respective adjustments to rx of ax, a2, and a3, the adjusted rate after those three proceedings will be rx + ax + a2 + a3.

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Bluebook (online)
293 S.E.2d 880, 58 N.C. App. 480, 1982 N.C. App. LEXIS 2788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-utilities-commission-v-public-staff-north-carolina-utilities-ncctapp-1982.