And Okla. Energy Results LLC. v. Corp. (In re Okla. Gas & Elec. Co.)
And Okla. Energy Results LLC. v. Corp. (In re Okla. Gas & Elec. Co.)
Opinion of the Court
¶1 This case involves an order of the Oklahoma Corporation Commission that granted Oklahoma Gas & Electric Company pre-approval to install pollution-control devices at one of its power plants. The order raises two issues: 1) whether res judicata precluded the Commission from pre-approving OG&E's capital expenditure; and 2) whether the Commission could grant pre-approval under Okla. Const. art. 9, § 18
¶2 We hold that although res judicata did not preclude the Commission from pre-approving *1199the expenditure, it lacked authority outside of
FACTS
¶3 Pursuant to the Clean Air Act and other federal statutes,
¶4 On August 6, 2014, OG&E submitted an application to the Oklahoma Corporation Commission (the "Commission") seeking pre-approval of the environmental compliance plan and a recovery rider to recoup its expenditures through rate adjustments.
*1200¶5 In the 2014 application, OG&E sought the Commission's authorization under
¶6 After OG&E's first application was denied, it filed a second application with the Commission on February 6, 2016.
¶7 Unlike the 2014 application, which sought approval under
¶8 Seeking review of the Commission's order pre-approving installation of the scrubbers, Oklahoma Energy Results, LLC., and Sierra Club, Inc. ("Appellants"), filed a Petitioner in Error. This Court retained jurisdiction and now vacates the Commission's order.
STANDARD OF REVIEW
¶9 The Oklahoma Constitution, art. 9, § 20 grants this Court the power to review decisions of the Commission.
I.
Res Judicata Did Not Preclude The Commission From Pre-Approving OG&E's Capital Expenditure.
¶10 Both the 2014 and 2016 applications sought the Commission's approval to install the dry scrubbers. The Appellants have consequently argued that the second order was barred under the doctrines of claim and issue preclusion, or res judicata. We disagree.
¶11 The Commission may exercise legislative, judicial, or executive power.
¶12 Whether res judicata is applicable in the present case thus turns on whether the Commission was exercising judicial or legislative power when it considered OG&E's applications.
¶13 A proceeding is "judicial" if it "investigates, declares, and enforces liabilities as they stand on present and past facts and under laws supposed already to exist."
¶14 A proceeding is legislative, conversely, if it "looks to the future and changes existing conditions by making a new rule to be applied thereafter."
¶15 Here, the Commission was exercising legislative power, and therefore res judicata is not applicable. Rather than enforcing an obligation, it was considering a change to existing conditions. The act of approving or denying OG&E's applications was more akin to making a rule than imposing liability. The Commission was not investigating past events in order to resolve a private dispute between the parties, but was instead looking to the future and considering an order that would be applied prospectively. Additionally, OG&E initially sought approval under
¶16 Moreover, even if res judicata were applicable, it still would not have precluded the second application because different issues were addressed. Claim preclusion prevents parties (or their privies) from relitigating a claim that "either w[as] or could have been litigated in a prior action which resulted in a prior judgment on the merits."
¶17 The 2014 and 2016 applications addressed different issues. The 2014 application involved roughly 1.1 billion dollars for a number of construction projects at a number of different facilities. The 2016 application, on the other hand, involved roughly 490 million dollars for only the installation of the dry scrubbers at the Sooner facility. Because the 2014 application included a cost recovery rider, the Commission was considering the fairness of the project to ratepayers. The 2016 application, however, specifically disclaimed any cost recovery until a later proceeding and the Commission was considering only whether installation of the scrubbers was "reasonable." Finally, the 2014 application sought approval under the specific provision of
*1203¶18 Because the proceedings before the Commission were legislative in nature, and because the applications raised different issues, res judicata is inapplicable.
II.
The Commission Lacked the Authority To Approve OG&E's Capital Expenditure Outside of
¶19 Utilities are given the privilege of providing services on an essentially monopolistic basis and are therefore subject to regulation by the Commission.
A. The Applicable Constitutional and Statutory Authority
¶20 In the 2014 application, OG&E sought approval of the environmental compliance plan under
An electric utility subject to rate regulation by the Corporation Commission may file an application seeking Commission authorization of a plan by the utility to make capital expenditures for equipment or facilities necessary to comply with the federal Clean Air Act....35
Section 286(B) was enacted in 2005 and currently exists as amended in 2008. It allows electric utilities, like OG&E, to seek pre-approval of capital expenditures to comply with environmental regulations.
¶21 In the 2016 application, conversely, OG&E sought approval of the scrubbers under Okla. Const. art. 9, § 18 and
The Commission shall have the power and authority and be charged with the duty of supervising, regulating and controlling all transportation and transmission companies doing business in this State ... and to that end the Commission shall, from time to time, prescribe and enforce against such companies, in the manner hereinafter authorized, such rates, charges, classifications of traffic, and rules and regulations.... The authority of the Commission (subject to review on appeal as hereinafter provided) to prescribe rates, charges, and classifications of traffic, for transportation and transmission companies, shall, subject to regulation by law, be paramount; but its authority to prescribe any other rules, regulations or requirements for corporations or other persons shall be subject to the superior authority of the Legislature to legislate thereon by general laws.38
Section 18 grants the Commission broad authority to supervise, regulate, and control public utilities. Specifically, the Commission can establish rates, charges, rules, and regulations. Section 18 then clarifies that while the Commission's authority to establish rates and charges is paramount, its authority to establish any other rule or regulation is subject to the legislature's superior authority as prescribed by statute.
¶22 Title
*1204The Commission shall have general supervision over all public utilities, with power to fix and establish rates and to prescribe and promulgate rules, requirements and regulations, affecting their services, operation, and the management and conduct of their business; shall inquire into the management of the business thereof, and the method in which same is conducted.
Section 152 was enacted in 1913 and currently exists as amended in 1994. It broadly grants the Commission supervisory authority over public utilities and grants it the power to establish rates, rules, requirements, and regulations. The Commission's power to regulate under § 152"is not unfettered," but is instead limited by the Constitution and must be exercised within the confines of other statutes.
¶23 Appellants have argued that the Commission exceeded its power when it granted OG&E pre-approval to install the scrubbers based on its "general authority."
B. Title
¶24 The legislature created a specific procedure by which a utility can seek pre-approval of a capital expenditure to comply with environmental regulation:
¶25 As a general rule, the Commission lacks authority to grant pre-approval of an expenditure. Prior to the enactment of § 286(B) in 2005, this Court held so repeatedly. It made clear that the Commission's authority "does not include the power to approve or disapprove contracts about to be entered into nor to approve or veto the expenditures proposed."
¶26 The Commission has general authority to address the fairness of a completed project, not a future one. For example, in PublicServiceCompanyofOklahoma v. OklahomaCorporationCommission,
¶27 The legislature, however, has created a limited exception to this general *1205rule. It explicitly allows utilities to seek pre-approval under § 286(B). And two principles of statutory construction support the proposition that the Commission does not have the authority to grant pre-approval outside of § 286(B). First, a statute cannot be interpreted as superfluous.
¶28 The second relevant principle of statutory construction is that where two statutes address the same subject, one specific and one general, the specific statute will control over the general.
¶29 Finally, the Commission's decision to grant pre-approval in a way completely untethered from the project's effect on ratepayers further calls its order into question. The powers of the Commission over utilities "are limited to an investigation of the[ir] acts to determine whether or not they have a reasonable and fair effect upon the rights of the public," and it must act to avoid an "unfair or prejudicial effect upon the public rights."
¶30 In the first proceeding under § 286(B), the Commission did so. In the second proceeding, however, the Commission determined only that the installation of the scrubbers would be "reasonable." Any fairness to ratepayers (or lack thereof) was to be addressed at a later cost recovery proceeding. OG&E consequently received pre-approval for a project costing approximately half a billion dollars without its effect on ratepayers being considered. More pointedly, when a similar project was considered in the first proceeding, the Commission found that it would not be fair to ratepayers.
CONCLUSION
¶31 This decision does not leave OG&E without recourse. To the extent that it wants to continue with installation of the scrubbers, it can initiate a standard ratemaking proceeding under
ORDER OF THE OKLAHOMA CORPORATION COMMISSION VACATED
COMBS, C.J., KAUGER, EDMONDSON, COLBERT, REIF, JJ., concur.
GURICH, V.C.J., concurs in result.
WINCHESTER, J., dissents (by separate writing).
WYRICK, J., recused.
DARBY, J., not voting.
Okla. Const. art. 9, § 18 provides in pertinent part:
The Commission shall have the power and authority and be charged with the duty of supervising, regulating and controlling all transportation and transmission companies doing business in this State, in all matters relating to the performance of their public duties and their charges therefor, and of correcting abuses and preventing unjust discrimination and extortion by such companies; and to that end the Commission shall, from time to time, prescribe and enforce against such companies, in the manner hereinafter authorized, such rates, charges, classifications of traffic, and rules and regulations, and shall require them to establish and maintain all such public service, facilities, and conveniences as may be reasonable and just, which said rates, charges, classifications, rules, regulations, and requirements, the Commission may, from time to time, alter or amend. All rates, charges, classifications, rules and regulations adopted, or acted upon, by any such company, inconsistent with those prescribed by the commission, within the scope of its authority, shall be unlawful and void.
* * * * *
The authority of the Commission (subject to review on appeal as hereinafter provided) to prescribe rates, charges, and classifications of traffic, for transportation and transmission companies, shall, subject to regulation by law, be paramount; but its authority to prescribe any other rules, regulations or requirements for corporations or other persons shall be subject to the superior authority of the Legislature to legislate thereon by general laws: Provided, However, That nothing in this section shall impair the rights which have heretofore been, or may hereafter be, conferred by law upon the authorities of any city, town or county to prescribe rules, regulations, or rates of charges to be observed by any public service corporation in connection with any services performed by it under a municipal or county franchise granted by such city, town, or county, so far as such services may be wholly within the limits of the city, town, or county granting the franchise. Upon the request of the parties interested, it shall be the duty of the Commission, as far as possible, to effect, by mediation, the adjustment of claims, and the settlement of controversies, between transportation or transmission companies and their patrons or employees.
Title
An electric utility subject to rate regulation by the Corporation Commission may file an application seeking Commission authorization of a plan by the utility to make capital expenditures for equipment or facilities necessary to comply with the federal Clean Air Act (CAA), the Clean Water Act (CWA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Emergency Planning & Community Right-to-Know Act (EPCRA), the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), the Occupational Safety and Health Act (OSHA), the Oil Pollution Act (OPA), the Pollution Prevention Act (PPA), the Resource Conservation and Recovery Act (RCRA), the Safe Drinking Water Act (SDWA), the Toxic Substances Control Act (TSCA), all as amended, and, as the Commission may deem appropriate, federal, state, local or tribal environmental requirements which apply to generation facilities. If approved by the Commission, after notice and hearing, the equipment or facilities specified in the approved utility plan are conclusively presumed used and useful. The utility may elect to periodically adjust its rates to recover the costs of the expenditures. The utility shall file a request for a review of its rates pursuant to Section 152 of this title no more than twenty-four (24) months after the utility begins recovering the costs through a periodic rate adjustment mechanism and no more than twenty-four (24) months after the utility begins recovering the costs through any subsequent periodic rate adjustment mechanism. Provided further, that a periodic rate adjustment or adjustments are not intended to prevent a utility from seeking cost recovery of capital expenditures as otherwise may be authorized by the Commission. However, the reasonableness of the costs to be recovered by the utility shall be subject to Commission review and approval. The Commission shall promulgate rules to implement the provisions of this subsection, such rules to be transmitted to the Legislature on or before April 1, 2007.
OG&E and the Oklahoma Attorney General initially fought implementation in federal court. Oklahoma v. U.S.E.P.A.,
Sierra Club v. Costle,
removes sulfur dioxide in two stages which incorporate the use of a spray dryer and a baghouse. In this system a spray dryer (similar to a wet scrubber) is used with lime, soda ash, or other reagents to scrub sulfur dioxide from flue gases. Unlike wet scrubbing systems, since the flue gas leaving the spray dryer is "hot" (150-1800 F) due to the minimal use of water in the spray dryer (by design), no additional reheating of the exhaust plume is required. Following the spray dryer, a baghouse is used to collect all particulate matter (including sulfur dioxide reactants).
Cause No. PUD 201400229.
Order No. 286 (Dec. 2, 2015).
Title
Cause No. PUD 201600059.
Application No. 139.
Cause No. PUD 201600059, Order No. 652208.
Okla. Const. art. 9, § 18, see note 1, supra.
Chapter 8-Water, Heat, Light, and Power Companies.
Cause No. PUD 201400229, Order 652208.
On 12-22-2016, the Appellants moved for oral argument. This motion is denied.
Okla. Const. art. 9, § 20 provides in pertinent part:
The Supreme Court's review of appealable orders of the Corporation Commission shall be judicial only, and in all appeals involving an asserted violation of any right of the parties under the Constitution of the United States of the Constitution of the State of Oklahoma, the Court shall exercise its own independent judgment as to both the law and the facts. In all other appeals from orders of the Corporation Commission the review by the Supreme Court shall not extend further than to determine whether the Commission has regularly pursued its authority, and whether the findings and conclusions of the Commission are sustained by the law and substantial evidence. Upon review, the Supreme Court shall enter judgment, either affirming or reversing the order of the Commission appealed from.
CoxOklahomaTelecom, LLC v. Stateexrel. OklahomaCorp. Comm'n,
Okla. Const. art. 9, § 20, see note 15,
Monson v. Stateexrel.OklahomaCorp. Comm'n,
Monson,
Chicago, R.I. &P.R.Co. v. State,
Cmty. Nat. GasCo.,
Chicago, R.I. &P.R.Co. v. State,
Prentis v. AtlanticCoastLineCompany,
Prentis,
Wiley v. Okla. NaturalGasCo.,
CoxOklahomaTelecom, LLC,
Stateexrel.Tal v. CityofOklahomaCity,
Carris v. JohnR. Thomas&Associates, P.C.,
Salazar,
The two proceedings presented different issues. Indeed, Appellants have alleged error because of these differences. They have argued that the Commission's final order from the second proceeding should be vacated because it failed to consider whether the project was fair to ratepayers and instead considered only whether the project was "reasonable" in the abstract. Determining whether a project is "reasonable" is different than determining whether later recovery would be fair to ratepayers, which is what occurred in the first proceeding. Similarly, Appellants have argued that the order should be vacated because the Commission granted approval under its general constitutional authority rather than under § 286(B), which was the applicable standard in the first proceeding.
DataTransmissionCo. v. Corp. Comm'n,
Okla. Const. art. 9, § § 15 -35.
Title 17: Corporation Commission.
Okla. Admin. Code 165:35-38-4.
Cause no. PUD 201400229, Order No. 647346.
Okla. Const. art. 9, § 18, see note 1, supra.
Pub. Serv.Co. ofOklahoma v. Stateexrel. Corp.Comm'nexrel. Loving,
OklahomaGas&Elec.Co. v. Corp. Comm'n,
Cause No. PUD 201600059, Order No. 652208.
LoneStarGasCo. v. Corp. Comm'nofOkla.,
LoneStarGasCo.,
Pub.Serv.Co.ofOklahoma,
LoneStarGasCo.,
GlobeLife&Acc. Ins. Co. v. OklahomaTaxComm'n,
GlobeLife&Acc. Ins. Co.,
Bruner v. TimberlaneManorLtd. P'ship,
Title
LoneStarGasCo.,
Cmty. Nat. GasCo.,
Order No. 286 (Dec. 2, 2015).
Dissenting Opinion
*1206¶1 As noted by the majority opinion, the Oklahoma Constitution provides the Corporation Commission with broad authority to regulate and oversee public utilities. Okla. Const. art. 9, § 18. See also 17 O.S.2011, § 152 ("The Commission shall have general supervision over all public utilities ..."). Nevertheless, today's majority opinion dials back this authority and effectively reduces the Commission's general supervision.
¶2 The majority opinion misinterprets § 286(B) as providing the only authority for pre-approval of a capital expenditure to comply with an environmental regulation. Yet, the plain text of § 286(B) indicates that it is not mandatory for a public utility to utilize this statute when purchasing equipment to meet environmental requirements. The statute specifically gives a utility the option of applying for early cost recovery by providing: "An electric utility ... may file an application seeking Commission authorization of a plan by the utility to make capital expenditures for equipment or facilities necessary to comply" with certain environmental requirements. 17 O.S.2011, § 286(B) (emphasis added).
¶3 Here, OG&E did not seek, nor did the Commission approve, any rate increase or cost recovery from rate payers. OG&E formulated its own plan to install the scrubbers and voluntarily submitted the plan to the Commission for a reasonableness determination. The Commission specifically indicated that its finding of reasonableness would "not result in an automatic right to recover costs or a determination of used and useful." There is no conflict between the Commission's actions under its general authority and a § 286(B) pre-approval of costs. The canon of statutory construction which requires a specific statute to control over a general statute only applies if the two statutes conflict with one another and that is not the case herein. Humphries v. Lewis,
Reference
- Full Case Name
- In the MATTER OF the APPLICATION OF OKLAHOMA GAS AND ELECTRIC COMPANY for commission approval of the company's plan to install dry scrubbers at the sooner generating facility: Sierra Club Inc. and Oklahoma Energy Results LLC. v. The Corporation Commission of the State of Oklahoma and Oklahoma Gas & Electric Company
- Cited By
- 8 cases
- Status
- Published