State ex rel. Utilities Commission v. Thornburg

353 S.E.2d 413, 84 N.C. App. 482, 1987 N.C. App. LEXIS 2515
CourtCourt of Appeals of North Carolina
DecidedMarch 3, 1987
DocketNo. 8610UC373
StatusPublished
Cited by12 cases

This text of 353 S.E.2d 413 (State ex rel. Utilities Commission v. Thornburg) 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. Thornburg, 353 S.E.2d 413, 84 N.C. App. 482, 1987 N.C. App. LEXIS 2515 (N.C. Ct. App. 1987).

Opinion

MARTIN, Judge.

The primary issue presented by this appeal involves the Utilities Commission’s interpretation of G.S. 62-133.2(d). Basically stated, the question is whether, by enacting G.S. 62133.2(d), the General Assembly modified the judicially adopted rule prohibiting retroactive ratemaking, heretofore extant in this State, so as to authorize the Utilities Commission to employ an Experience Modification Factor (EMF) in connection with an electric utility’s fuel charge adjustment proceedings in order to provide for a “true-up” of the utility’s past over-recoveries or under-recoveries of fuel costs. We hold that G.S. 62433.2(d) does not authorize such a “true-up” system.

The standard of review of a decision of the Utilities Commission is contained in G.S. 62-94(b). The Court

may reverse or modify the decision if the substantial rights of the appellants have been prejudiced because the Commission’s findings, inferences, conclusions or decisions are:
(1) In violation of constitutional provisions, or
(2) In excess of statutory authority or jurisdiction of the Commission, or
(3) Made upon unlawful proceedings, or
(4) Affected by other errors of law, or
(5) Unsupported by competent, material and substantial evidence in view of the entire record as submitted, or
(6) Arbitrary and capricious.

G.S. 62 94(b). Appellants contend that the adoption of the EMF was in excess of the Commission’s statutory authority, thus our review is conducted pursuant to G.S. 62-94(b)(2).

In its Order, the Commission utilized an EMF in order to allow CP&L to recoup past under-recoveries of fuel costs. Such true-up procedures have traditionally been prohibited in North Carolina because they constitute retroactive ratemaking. In Utilities Comm. v. Edmisten, Atty. General, 291 N.C. 451, 232 S.E. 2d 184 (1977), the Supreme Court stated: “Prospective rate making to recover unexpected past expense, or to refund expected past [485]*485expense which did not materialize, is as improper as is retroactive rate making.” Id. at 469, 232 S.E. 2d at 195. This is because “[s]uch rate making throws the burden of such past expense upon different customers who use the service for different purposes than did the customers for whose service the expense was incurred.” Id. at 470, 232 S.E. 2d at 195.

The Commission, however, based its authority to implement the EMF on the following language contained in G.S. 62-133.2(d), which became effective on 17 June 1982: “The Commission may also consider, but is not bound by, the fuel costs incurred by the utility and the actual recovery under the rate in effect during the test period. . . CP&L contends that this provision allows the Commission to rectify, or true-up, differences between actual fuel costs incurred by an electric utility and recoveries for those costs under established rates. The Attorney General and the Public Staff, on the other hand, contend that the provision upon which the Commission relied only enables it to consider actual recovery of fuel costs as one indication of the need for future adjustment, thereby leaving intact the judicial prohibition against retroactive ratemaking.

The rules regarding statutory construction are well established. It is the function of the judiciary to construe a statute when the meaning of the statute is doubtful. Lithium Corp. v. Bessemer City, 261 N.C. 532, 135 S.E. 2d 574 (1964). However, judicial construction is controlled by the intent of the General Assembly in enacting the statute. State ex rel. Utilities Commission v. Public Staff, 309 N.C. 195, 306 S.E. 2d 435 (1983) (Public Staff). “In seeking to discover this intent, the courts should consider the language of the statute, the spirit of the act, and what the act seeks to accomplish.” Stevenson v. City of Durham, 281 N.C. 300, 303, 188 S.E. 2d 281, 283 (1972). All statutes dealing with the same subject matter are to be construed in pari materia—i.e., in such a way as to give effect, if possible, to all provisions. Jackson v. Guilford County Board of Adjustment, 275 N.C. 155, 166 S.E. 2d 78 (1969). Further, where one statute deals with certain subject matter in particular terms and another deals with the same subject matter in more general terms, the particular statute will be viewed as controlling in the particular circumstances absent clear legislative intent to the contrary. Food Stores v. Board of Alcoholic Control, 268 N.C. 624, 151 S.E. 2d 582 (1966). It is [486]*486presumed that, in enacting a law, the legislature acted with full knowledge of prior and existing law. State v. Benton, 276 N.C. 641, 174 S.E. 2d 793 (1970). Applying these rules to G.S. 62-133.2(d), we conclude that the statute does not authorize the Commission’s use of a true-up system such as the EMF employed in this case.

There is nothing in the legislative history of G.S. 62-133.2 that would indicate the General Assembly’s intent to allow true-ups. G.S. 62-133.2, entitled “Fuel charge adjustments for electric utilities,” replaced G.S. 62434(e), which had been enacted in 1975 to provide an expedited, statutory procedure whereby a utility could apply for adjustments in its rates and charges based upon an increase or decrease in the cost of fuel. See Utilities Commission v. Virginia Electric and Power Company, 48 N.C. App. 453, 269 S.E. 2d 657, disc. rev. denied, 301 N.C. 531, 273 S.E. 2d 462 (1980). However, under G.S. 62434(e), the Commission was not empowered to consider efficiency of management or how prudently the fuel costs had been incurred; only the actual increase or decrease in cost could be taken into account. Id. This limitation required the Commission, in effect, to automatically pass all fuel costs through to ratepayers without an investigation of the reasonableness of those costs or of the factors causing the change in costs. Nor did G.S. 62 134(e) permit a utility to obtain an adjustment in a fuel cost proceeding for any costs or expenses for purchased power; such costs and expenses were recoverable only in a general rate case. Public Staff, supra.

G.S. 62-133.2 was enacted by the General Assembly in order to eliminate these undesirable limitations which existed under G.S. 62 134(e). The new statute specifically includes the fuel component of purchased power among the fuel rates that may be adjusted. G.S. 62433.2(a). The statute also requires that the electric utility provide the Commission with specified data from an historic twelve-month test period, G.S. 62 133.2(c), and mandates that the Commission consider that data in reaching its decision. G.S. 62-133.2(d). The statute permits the Commission to consider, in addition to the required data, “the fuel costs incurred by the utility and the actual recovery under the rate in effect during the test period as well as any and all other competent evidence that may assist the Commission in reaching its decision. . . .” Id. The utility bears the “burden of proof as to the correctness and reason[487]*487ableness of the charge. . . .” Id. Only one adjustment proceeding within a twelve-month period is allowed for each electric utility. G.S. 62433.2(b).

CP&L asserts that the General Assembly also intended G.S. 62 133.2(d) to allow true-ups for past over-recoveries or under-recoveries of fuel costs.

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STATE EX REL. UTILITIES COM'N v. Thornburg
353 S.E.2d 413 (Court of Appeals of North Carolina, 1987)

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353 S.E.2d 413, 84 N.C. App. 482, 1987 N.C. App. LEXIS 2515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-utilities-commission-v-thornburg-ncctapp-1987.