Utah Power & Light Co. v. Idaho Public Utilities Commission

629 P.2d 678, 102 Idaho 282, 43 P.U.R.4th 299, 1981 Ida. LEXIS 338
Idaho Supreme Court·Decided May 5, 1981·No. 12838, 12922 and 12956·Published·Cited by 30 cases

Opinions

SHEPARD, Justice.

This is an appeal by Utah Power & Light Company from an order of the Public Utilities Commission setting rates to be charged Idaho customers for electric power delivered by Utah Power. We set aside the order of the Commission.

Utah Power is a public utility providing electrical energy to consumers in Utah, Idaho and Wyoming. Idaho consumers account for approximately 19% of Utah Power’s total sales. The Idaho Commission had granted Utah Power a rate increase of 32% in 1975 and an increase of 29.5% in 1976. In December, 1976, Utah Power applied for an additional 26.58% increase in Idaho on the basis that it was necessary to meet inflationary pressures and to finance a 1.6 billion dollar program for the construction of additional facilities. In 1976, Utah Power’s earnings per share and dividends rose to record high levels and their bond rating improved from “A” to “AA”.

At that time the Teton Dam flood, low farm prices, and a drought had made Utah Power’s southeastern Idaho service area economically depressed and at hearings held on Utah Power’s application, the public response was decidedly adverse. Following those hearings and other submitted evidence, the Commission issued an electric rate schedule which had been formulated using a 1976 test year, allegedly adjusted for known and measurable changes. The Commission determined the rate base to be $129,023,655, upon which Utah Power was allocated a rate of return of 9.67%. Utah Power challenges numerous methods used by the Commission to reach that result.

The Public Utilities Commission is statutorily vested with jurisdiction to regulate rates charged by public utilities furnishing services, products or commodities in the State of Idaho. I.C. § 61-501. When the Commission finds that the rates proposed by a public utility for such services are unjust, the Commission must establish [284] just, reasonable or sufficient rates. I.C. § 61-502. This Court’s scope of review on appeal in cases of this type is to determine only if the Commission regularly pursued its authority and whether the constitutional rights of the utility were violated by the fixing of rates which were unjust, unreasonable and thus confiscatory. I.C. § 61-629; Utah-Idaho Sugar v. Intermountain Gas Co., 100 Idaho 368, 597 P.2d 1058 (1979); Intermountain Gas Co. v. Idaho Public Utilities Comm’n, 97 Idaho 113, 540 P.2d 775 (1975); Federal Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1944).

Utah Power first contends that the Commission erred by failing to make certain adjustments to the 1976 test year data for “known and measurable changes” and that such data resulted in the determination of an artificially low rate base. We agree. Test year data should be adjusted for known and measurable changes where the changes are shown to be reliable and certain. E. g., Citizens Utility Co. v. Idaho Public Utilities Comm’n, 99 Idaho 164, 579 P.2d 110 (1978); Agricultural Products v. Utah Power & Light Co., 98 Idaho 23, 557 P.2d 617 (1976). The Commission should include in the rate base all items which are proven with reasonable certainty to be justifiably used by the utility in providing services to its customers. Citizens Utility Co. v. Idaho Public Utilities Comm’n, supra.

Utah Power asserts that the addition to the Huntington Plant and the acquisition of the Deer Creek Coal Mining properties were known and measurable changes to the 1976 test year data, should have been included in Utah Power’s rate base, and were erroneously excluded. We agree. Although Utah Power’s new unit at Huntington, described as “Huntington 1977,” was not in use in 1976, it was scheduled to and did go on line in June of 1977. As to the Coal Mining properties, Utah Power contracted for the purchase of those properties in 1976, but possession was not actually obtained until early 1977 due to the necessity of securing approval of the purchase from the Federal Trade Commission. Utah Power & Light presented evidence of the revenues, if any, and expenses connected with those properties. The proceedings continued into August of 1977 and the order of the Commission was not entered until September 29, 1977. It could not be said that the adjustments were “future” or unknown. The Commission’s holding that the inclusion of the Huntington unit in the rate base would be solely conjectural is not supported by the evidence and is set aside. The holding of the Commission that the Deer Creek Coal Mine should not be included in the rate base is likewise unsupported by the evidence, erroneous and is set aside.

Utah Power next asserts that the Commission erred in computing the 9.67% overall rate of return based in part on an alleged inadequate 13.5% return to common equity. Although other aspects of the Commission’s determination of the overall rate of return are asserted as error, we consider only the contention by Utah Power relating to the return on common equity and within that category, an adjustment for “regulatory lag.” Regulatory lag or attrition has been defined as a “decline in the rate of return earned * * * [occurring] when the rate base expands faster than the revenue and is caused both by inflation and by expansionists construction programs which do not generate additional comparable revenue.” Providence Gas Co. v. Burman, 376 A.2d 687 (R.I.1977) (quoting from Public Service Comm’n v. Baltimore Gas & Electric Co., 273 Md. 357, 329 A.2d 691 (1974).

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Utah Power & Light Co. v. Idaho Public Utilities Commission, 629 P.2d 678, 102 Idaho 282, 43 P.U.R.4th 299, 1981 Ida. LEXIS 338 (Idaho 1981).

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