Association of Businesses Advocating Tariff Equity v. Public Service Commission
Association of Businesses Advocating Tariff Equity v. Public Service Commission
Opinion of the Court
On February 6, 1990, the Public Service Commission held in consolidated cases nos. U-9174 (a 1989 gas cost recovery case) and U-8812 (a general rate case) that Michigan Consolidated Gas Company should be allowed "the opportunity to collect its current take-or-pay costs.” It was also held, among other things, that Michigan Consolidated Gas Company’s gas cost recovery plan for 1989, as revised by that order, was approved as "reasonable and prudent.” Michigan Consolidated Gas Company was also authorized to assess its transportation customers (appellant) a "flexible surcharge of between (ty and 1(V per thousand cubic feet to recover take-or-pay costs assigned to these customers.”
On May 3,1990, the psc denied the joint application for rehearing filed by the Association of Businesses Advocating Tariff Equity (abate) and the Residential Ratepayer Consortium.
Abate filed this timely appeal of right, raising four issues, all of which relate to the psc’s decision to allow full recovery of take-or-pay costs, the allocation of such costs between sales and transportation customers, and the adoption of a flexible take-or-pay costs surcharge.
However, Michigan Consolidated Gas Company had argued to the psc that federal supremacy law
Following oral arguments, Michigan Consolidated Gas Company sought leave to file a supplemental brief citing new authority. The motion was granted, and the other parties were given time to file responsive briefs. The new authority was a decision by the Illinois Supreme Court issued on the same date that this case was argued, June 4, 1991. That decision, General Motors Corp v Illinois Commerce Comm, 143 Ill 2d 407; 574 NE2d 650 (1991), reversed the lower appellate court’s decision in that case that had been relied upon by abate in its brief, 191 Ill App 3d 450; 547 NE2d 1299 (1989). Like this case, the Illinois case involved the efforts of natural gas local distribution companies (ldcs) to pass through to their customers the take-or-pay costs that the ferc required the ldcs to pay to help relieve interstate gas pipeline companies of the pipelines’ take-or-pay obligations to gas producers. The pipelines’ liability arose from long-term contracts formed between pipelines and natural gas producers before the ferc allowed distributors to purchase gas directly
The Illinois Commerce Commission determined that it was preempted from disallowing recovery of any portion of the costs approved by the ferc, but on appeal the lower Illinois appellate court reversed the commission’s order. When that decision was appealed, the Illinois Supreme Court reversed the judgment of the lower appellate court and reinstated the order of the Illinois Commerce Commission, finding that fundamental principles of federal preemption, as reflected in the long-standing and consistent application of the filed-rate doctrine, prohibited the Illinois Commerce Commission from conducting prudence reviews of the FERC-mandated take-or-pay costs. The Illinois Supreme Court said that Illinois distributors must be allowed to pass through to their customers the full amount of these charges.
Abate’s answer urges this Court to reject the preemption argument on two grounds. First, it is argued that because Michigan Consolidated Gas Company did not file a cross appeal it cannot raise the preemption issue on which the psc ruled against it. Second, it is argued that the United States Supreme' Court has held that an agency’s order must be upheld, if at all, on the same basis articulated in the order by the agency itself and that, because the psc specifically rejected the federal preemption argument, the ultimately favora
Both of those arguments lack merit. It is well established that an appellee who has taken no cross appeal may still urge in support of the judgment in its favor reasons that were rejected by a lower court. Burns v Rodman, 342 Mich 410, 414; 70 NW2d 793 (1955), and authorities cited therein. It is true that an appellee that has not sought to cross appeal cannot obtain a decision more favorable than was rendered by the lower tribunal. McCardel v Smolen, 404 Mich 89, 94-95; 273 NW2d 3 (1978). Michigan Consolidated Gas Company does not seek to enlarge the scope of the relief granted by the psc, but merely argues an alternate ground for affirmance that was rejected by the psc.
Regarding the federal authority cited by abate that holds that an agency’s order must be upheld, if at all, on the same basis articulated in the order by the agency itself, the orders to which that statement of the law applies are discretionary decisions of the agency, not rulings on issues of law such as the federal preemption issue.
Further, the issue of federal preemption is one of jurisdiction, Mississippi Power & Light Co v Mississippi ex rel Moore, 487 US 354; 108 S Ct 2428; 101 L Ed 2d 322 (1988), and questions of subject-matter jurisdiction can be raised at any time, even if not raised before the appeal is taken. Lehman v Lehman, 312 Mich 102, 105; 19 NW2d 502 (1945), and Sumpter v Kosinski, 165 Mich App 784, 797; 419 NW2d 463 (1988).
Moreover, reversal is not required where a lower court assigns a wrong reason for the correct result. Nrecaj v Yono, 173 Mich App 686, 689; 434 NW2d 210 (1988).
Having determined that the federal supremacy
The psc addressed this issue and stated in part:
As for Mich Con’s claim that we are pre-empted from allocating take-or-pay costs as we choose, one need only return to the language of Order No. 500 where the ferc stated:
"The Commission does not believe that Nantahala precludes state regulators from designing ldc rates, or, in appropriate circumstances, from reviewing the prudence of ldcs’ purchasing decisions in so far as they effect take-or-pay costs. . . . The Commission can exercise its jurisdiction only within its legitimate sphere, which in this instance involves establishing cost allocation procedures and rates for recovery by pipelines of take-or-pay costs from their jurisdictional customers. The development of cost allocation procedures and rates for the ldcs are matters to be determined by state regulatory authorities.” (89 PUR 4th at p 331.)
Thus, in order to adopt Mich Con’s pre-emption argument, we would have to ignore the language of Order No. 500, the order that authorized the pass-through of take-or-pay costs to ldcs in the first place. Furthermore, even in the absence of this language, it has long been held that the ferc has no jurisdiction over the rates — and cost allocations underlying these rates — charged by ldcs. We therefore reject the utility’s second argument.
The principal authority relied upon by abate in its brief when arguing against the preemption issue on the merits was the lower appellate court’s decision in General Motors Corp v Illinois Commerce Comm. As indicated above, that case was recently reversed by the Illinois Supreme Court,
Abate also argues that the psc acted unreasonably in apportioning take-or-pay costs between sales customers and transportation customers on a volumetric basis, rather than on a total revenue basis. Allocation on a volumetric basis means that the apportionment was based upon the sales and transportation customers’ respective percentages of Michigan Consolidated Gas Company’s total throughput. The adoption of abate’s proposal that a total revenue basis be used would have given a significant preference to transportation customers, because they purchased only transportation services from Michigan Consolidated Gas Company, unlike sales customers who bought both gas and transportation services.
The volumetric basis adopted by the psc was reasonable and lawful. Expert testimony supported using it, and the testimony of even one expert witness is considered "substantial” evidence in psc cases. Great Lakes Steel Division of National Steel Corp v Michigan Public Service Comm, 130 Mich App 470, 481; 344 NW2d 321 (1983). Further, this Court gives due deference to the psc’s administrative expertise and does not substitute its judgment for that of the commission. Building Owners & Managers Ass’n of Metropolitan Detroit v Public Service Comm, 131 Mich App 504, 517; 346 NW2d
Abate also argues that the psc erred in adopting a flexible take-or-pay surcharge because no party had proposed a flexible surcharge. However, the amount of the surcharge was within the amounts requested by the parties. The fact that the surcharge is flexible does not constitute unlawful discrimination as long as Michigan Consolidated Gas Company does not treat similarly situated transportation customers differently. A distinction between transportation customers and sales customers is not discriminatory.
The courts are not equipped to second-guess the commission on highly technical decisions regarding methodology, absent a showing that the commission has acted unlawfully or unreasonably or that its decision was not supported by competent, material, and substantial evidence on the record.
Affirmed with respect to result only.
US Const. art VI, § 2.
Reference
- Full Case Name
- ASSOCIATION OF BUSINESSES ADVOCATING TARIFF EQUITY v. PUBLIC SERVICE COMMISSION
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- 25 cases
- Status
- Published