State ex rel. Utils. Comm'n v. Cooper, Att'y Gen. , 367 N.C. 741 ( 2015 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 12A14
STATE OF NORTH CAROLINA ex rel. UTILITIES COMMISSION, PUBLIC
STAFF – NORTH CAROLINA UTILITIES COMMISSION, and DUKE ENERGY
CAROLINAS, LLC
v.
ATTORNEY GENERAL ROY COOPER and NORTH CAROLINA WASTE
AWARENESS AND REDUCTION NETWORK
Filed 23 January 2015
On direct appeal as of right pursuant to N.C.G.S. §§ 7A-29(b) and 62-90(d)
from a final order of the North Carolina Utilities Commission entered on 24
September 2013 in Docket No. E-7, Sub 1026. Heard in the Supreme Court on 8
September 2014.
Troutman Sanders LLP, by Kiran H. Mehta; Heather Shirley Smith, Deputy
General Counsel, and Charles A. Castle, Associate General Counsel, Duke
Energy Carolinas, LLC; and Williams Mullen, by Christopher G. Browning,
Jr., for applicant-appellee Duke Energy Carolinas, LLC.
Antoinette R. Wike, Chief Counsel, and William E. Grantmyre, David T.
Drooz, and Robert S. Gillam, Staff Attorneys, for intervenor-appellee Public
Staff – North Carolina Utilities Commission.
Kevin Anderson, Senior Deputy Attorney General; Phillip K. Woods, Special
Deputy Attorney General; Michael T. Henry, Assistant Attorney General; and
John F. Maddrey, Solicitor General, for intervenor-appellant Roy Cooper,
Attorney General.
Law Offices of F. Bryan Brice, Jr., by Matthew D. Quinn; and John D. Runkle
for NC WARN, intervenor-appellant.
JACKSON, Justice.
STATE EX REL. UTILS. COMM’N V. COOPER, ATT’Y GEN.
Opinion of the Court
In this case we consider whether the order of the North Carolina Utilities
Commission (“the Commission”) authorizing a 10.2% return on equity (“ROE”) for
Duke Energy Carolinas (“Duke”) contained sufficient findings of fact to demonstrate
that the order was supported by competent, material, and substantial evidence in
view of the entire record. See N.C.G.S. § 62-94 (2013). In addition, we consider
whether the Commission’s use of the single coincident peak (“1CP”) cost-of-service
methodology unreasonably discriminated against residential customers and
whether the Commission inappropriately shifted certain expenses to ratepayers.
Because we conclude that the Commission made sufficient findings of fact regarding
the impact of changing economic conditions upon customers, that the use of 1CP
was supported by substantial evidence, and that no improper costs were included in
the Commission’s order, we affirm.
On 4 February 2013, Duke filed an application with the Commission
requesting authority to adjust and increase its North Carolina retail electric service
rates to produce an additional $446,000,000, yielding a net increase of 9.7% in
overall base revenues. The application requested that rates be established using an
ROE of 11.25%. The ROE represents the return that a utility is allowed to earn on
the equity-financed portion of its capital investment by charging rates to its
customers. As a result, the ROE approved by the Commission affects profits for
shareholders and costs to consumers. State ex rel. Utils. Comm’n v. Cooper, 367
N.C. 430, 432, 758 S.E.2d 635, 636 (2014) (citations omitted). “The ROE is one of
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Opinion of the Court
the components used in determining a company’s overall rate of return.” Id.
(citation omitted).
On 4 March 2013, the Commission entered an order declaring this proceeding
a general rate case and suspending the proposed new rates for up to 270 days. The
Commission scheduled five hearings across the state to receive public witness
testimony. The Commission also scheduled an evidentiary hearing for 8 July 2013
to receive expert witness testimony. The Attorney General of North Carolina and
the Public Staff of the Commission intervened as allowed by law. See N.C.G.S.
§§ 62-15, -20 (2013). In addition, several parties filed petitions to intervene,
including the North Carolina Waste Awareness and Reduction Network (“NC
WARN”).
On 17 June 2013, Duke and the Public Staff filed an Agreement and
Stipulation of Settlement with the Commission. The Stipulation produced a net
increase of $234,480,000 in annual revenues and an ROE of 10.2%. The Stipulation
provided for the use of the 1CP cost-of-service methodology. Among the parties
contesting the Stipulation were the Attorney General and NC WARN.
During the hearings, the Commission received testimony from 131 public
witnesses, and the parties presented both expert testimony and documentary
evidence. The evidence presented before the Commission will be discussed in
greater detail as necessary throughout this opinion.
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Opinion of the Court
On 24 September 2013, the Commission entered an order granting a
$234,480,000 annual retail revenue increase, approving an ROE of 10.2%, and
authorizing the use of the 1CP cost-of-service methodology as agreed to in the
Stipulation. The Commission reviewed the evidence before it and stated that it
must consider whether the ROE is reasonable and fair to customers. See State ex
rel. Utils. Comm’n v. Cooper (“Cooper I”), 366 N.C. 484, 493, 739 S.E.2d 541, 547
(2013). The Commission concluded that the rate increase, ROE, and cost-of-service
methodology set forth in the Stipulation were “just and reasonable to the
Company’s customers and to all parties of record in light of all the evidence
presented.” The Attorney General and NC WARN appealed the Commission’s order
to this Court as of right pursuant to N.C.G.S. §§ 7A-29(b) and 62-90.
Subsection 62-79(a) of the North Carolina General Statutes “sets forth the
standard for Commission orders against which they will be analyzed upon appeal.”
State ex rel. Utils. Comm’n v. Carolina Util. Customers Ass’n (“CUCA I”), 348 N.C.
452, 461, 500 S.E.2d 693, 700 (1998). Subsection 62-79(a) provides:
(a) All final orders and decisions of the Commission
shall be sufficient in detail to enable the court on appeal
to determine the controverted questions presented in the
proceedings and shall include:
(1) Findings and conclusions and the reasons or bases
therefor upon all the material issues of fact, law, or
discretion presented in the record, and
(2) The appropriate rule, order, sanction, relief or
statement of denial thereof.
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Opinion of the Court
N.C.G.S. § 62-79(a) (2013). When reviewing an order of the Commission, this Court
may, inter alia,
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 or capricious.
Id. § 62-94(b). Pursuant to subsection 62-94(b) this Court must determine whether
the Commission’s findings of fact are supported by competent, material, and
substantial evidence in view of the entire record. Id.; CUCA I, 348 N.C. at 460, 500
S.E.2d at 699 (citation omitted). “Substantial evidence [is] defined as more than a
scintilla or a permissible inference. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” CUCA I, 348
N.C. at 460, 500 S.E.2d at 700 (alteration in original) (citations and quotation
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marks omitted). The Commission must include all necessary findings of fact, and
failure to do so constitutes an error of law. Id. (citation omitted).
The Attorney General argues that the Commission’s order is legally deficient
because it is not supported by competent, material, and substantial evidence and
does not include sufficient findings, reasoning, and conclusions. Specifically, the
Attorney General contends that the Commission failed to make findings of fact
showing in “meaningful detail” how it “quantified” the impact of changing economic
conditions upon customers when determining the proper ROE. We disagree.
Pursuant to subdivision 62-133(b)(4) of the North Carolina General Statutes,
the Commission must fix a rate of return that
will enable the public utility by sound management to
produce a fair return for its shareholders, considering
changing economic conditions and other factors, . . . to
maintain its facilities and services in accordance with the
reasonable requirements of its customers in the territory
covered by its franchise, and to compete in the market for
capital funds on terms that are reasonable and that are
fair to its customers and to its existing investors.
N.C.G.S. § 62-133(b)(4) (2013). In Cooper I we observed that this provision, along
with Chapter 62 as a whole, requires the Commission to treat consumer interests
fairly—not indirectly or as “mere afterthoughts.” 366 N.C. at 495, 739 S.E.2d at
548. But although the Commission must make findings of fact with respect to the
impact of changing economic conditions upon consumers, “we did not state in
Cooper I that the Commission must ‘quantify’ the influence of this factor upon the
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final ROE determination.” State ex rel. Utils. Comm’n v. Cooper, 367 N.C. 444, 450,
761 S.E.2d 640, 644 (2014) (citations omitted).
The evidence before the Commission included expert testimony and
documentary evidence concerning ROE. Duke presented the testimony of Robert B.
Hevert, Managing Partner of Sussex Economic Advisers, LLC. Hevert testified in
support of the 10.2% ROE agreed to in the Stipulation. Although Hevert originally
had recommended an ROE of 11.25%, he testified that he respected Duke’s
determination that an ROE of 10.2% would be sufficient to raise necessary capital.
Hevert also discussed the effect of capital market conditions upon Duke’s North
Carolina customers. He testified that although North Carolina’s unemployment
rate was higher than the national average, the State’s GDP growth and expected
household income growth exceeded the national average. Hevert noted that North
Carolina’s average residential electric rates were approximately 12.46% below the
national average. Hevert testified that his ROE analysis reflected changing
economic conditions.
The Public Staff presented the testimony of Ben Johnson, Consulting
Economist and President of Ben Johnson Associates, Inc. Johnson also supported
the 10.2% ROE agreed to in the Stipulation. He explained that he had computed an
ROE range of 9.75% to 10.75% using the comparable earnings method and that an
ROE of 10.2% would fall just below the midpoint of that range. Johnson testified
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that he took into consideration changing economic conditions and determined that
the Stipulation is “responsive” to those “difficult economic conditions.”
The Commercial Group—representing some of Duke’s commercial energy
customers—presented the testimony of Steve Chriss, Senior Manager for Energy
Regulatory Analysis for Wal-Mart Stores, Inc., and Wayne Rosa, Energy and
Maintenance Manager for Food Lion, LLC. Chriss and Rosa did not recommend a
specific ROE, but noted that Hevert’s original recommendation of 11.25% exceeded
the range of recently authorized ROEs across the country. They testified that the
10.2% ROE contained in the Stipulation “provides for significant movement on the
Commercial Group’s concerns regarding rate of return on equity.”
Finally, the Attorney General introduced documentary evidence intended to
show that setting a lower ROE results in lower rates and a report comparing
average utility bills and average disposable income on a state-by-state basis.
The Commission stated that it gave “substantial weight” to Hevert’s
testimony that, although North Carolina’s unemployment rate was higher than the
national average, the State enjoyed lower average electric rates, higher expected
household income growth, and superior GDP growth as compared with the nation as
a whole. Similarly, the Commission stated that it gave “substantial weight” to
Johnson’s testimony that the recent financial crisis had resulted in a period of
“prolonged weakness.” The Commission noted that both Hevert and Johnson
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STATE EX REL. UTILS. COMM’N V. COOPER, ATT’Y GEN.
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testified that economic conditions facing customers have improved since the
financial crisis. Furthermore, the Commission found that sixty-eight of the public
witnesses who testified at the hearings stated that “the rate increase was not
affordable to many customers,” including the elderly, the unemployed and
underemployed, the poor, and persons with disabilities. Nevertheless, the
Commission explained that
nine public witnesses testified that they understood
[Duke’s] need to increase rates in an effort to retire older
coal plants and replace them with natural gas generation.
In addition, 22 public witnesses expressed the view that
the Company should be required to discontinue its fossil
fuel and nuclear generation in favor of energy efficiency
and renewable resources.
The Commission found that the Stipulation “result[ed] in lower rates to
consumers in the existing economic environment and provides consumers with
greater rate stability.” The Commission noted that the Stipulation provided for a
phase-in of the rate increase in which $30 million of the total annual revenue
increase would be deferred for two years. The Commission acknowledged that this
provision only mitigated the rate increase temporarily, but found that it would “help
ratepayers at a time when the impact of economic conditions is relatively severe.”
In addition, the Commission noted that in the Stipulation, Duke agreed not to seek
another increase in base rates for two years. The Commission found that this
provision has “particular value to customers” because it would provide rate stability
during a period in which Duke is planning to make large capital investments.
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Finally, the Commission explained that the Stipulation requires Duke to contribute
$10 million for energy assistance for low-income customers.
Ultimately, the Commission found:
16. Changing economic conditions in North
Carolina during the last several years have caused high
levels of unemployment, home foreclosures and other
economic stress on [Duke’s] customers.
17. The rate increase approved in this case, which
includes the approved return on equity and capital
structure, will be difficult for some of [Duke’s] customers
to pay, in particular [Duke’s] low-income customers.
18. Continuous safe, adequate and reliable electric
service by [Duke] is essential to the support of businesses,
jobs, hospitals, government services, and the maintenance
of a healthy environment.
19. The return on equity and capital structure
approved by the Commission appropriately balances the
benefits received by [Duke’s] customers from [Duke’s]
provision of safe, adequate and reliable electric service in
support of businesses, jobs, hospitals, government
services, and the maintenance of a healthy environment
with the difficulties that some of [Duke’s] customers will
experience in paying [Duke’s] increased rates.
20. The 10.2% return on equity and the 53% equity
financing approved by the Commission in this case result
in a cost of capital that is as low as reasonably possible.
They appropriately balance [Duke’s] need to obtain equity
financing and maintain a strong credit rating with its
customers’ need to pay the lowest possible rates.
21. The difficulties that [Duke’s] low-income
customers will experience in paying [Duke’s] increased
rates will be mitigated to some extent by the $10 million
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of shareholder funds that [Duke] will contribute to assist
low-income customers.
These findings of fact not only demonstrate that the Commission considered
the impact of changing economic conditions upon customers, but also specify how
this factor influenced the Commission’s decision to authorize a 10.2% ROE as
agreed to in the Stipulation. These findings are supported by the evidence before
the Commission, including public witness testimony, expert testimony, and the
Stipulation itself. Therefore, we hold that the Commission made sufficient findings
regarding the impact of changing economic conditions upon customers and that
these findings are supported by competent, material, and substantial evidence in
view of the entire record.
In the second issue before us, NC WARN argues that the Commission’s order
authorized preferential treatment of the industrial class to the detriment of the
residential class. NC WARN observes that the Commission approved use of the
1CP cost-of-service methodology for allocating costs and contends that this
methodology results in a greater rate increase for the residential class. NC WARN
asserts that this use of 1CP is unjustified and constitutes unreasonable
discrimination. We disagree.
Section 62-140 prohibits unreasonable or unjust discrimination among
customer classes. CUCA I, 348 N.C. at 467, 500 S.E.2d at 704 (citation omitted).
The statute states in pertinent part:
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No public utility shall, as to rates or services, make
or grant any unreasonable preference or advantage to any
person or subject any person to any unreasonable
prejudice or disadvantage. No public utility shall
establish or maintain any unreasonable difference as to
rates or services either as between localities or as between
classes of service.
N.C.G.S. § 62-140(a) (2013). “The charging of different rates for services rendered
does not per se violate this statute.” CUCA I, 348 N.C. at 468, 500 S.E.2d at 704
(citation omitted). But any differences in rates between customer classes “must be
based on reasonable differences in conditions,” including such factors as quantity of
use, time of use, manner of service, and costs of rendering the various services. Id.
(citation omitted).
The witnesses who testified before the Commission disagreed whether 1CP is
a fair cost-of-service methodology. Phillip O. Stillman, Director of Regulatory
Strategy and Research for Duke Energy Business Services, LLC, supported the use
of 1CP. Stillman explained that 1CP allocates costs based upon how much demand
each customer class placed upon the system during the single hour in the test year
when total demand peaked. Stillman testified that Duke’s historical load profile
reflects a predominant summer peak and that using 1CP would allocate costs
correctly in light of the actual load characteristics of Duke’s system. Similarly,
Kroger presented the testimony of Kevin C. Higgins, Principal of Energy Strategies,
LLC, who explained that a utility’s resource planning is driven by its need to meet
its summer peak. In addition, Nicholas Phillips, Jr., Managing Principal of
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Brubaker & Associates, Inc., testified that use of the 1CP methodology would
allocate cost responsibility to customer classes properly and would minimize Duke’s
need for new generating capacity.
In contrast, NC WARN presented the testimony of William B. Marcus,
Principal Economist for JBS Energy, Inc., who opposed the use of 1CP in this case.
Marcus testified that costs arise not only from Duke’s need to meet its peak
demand, but from factors that are related to the amount of energy produced over
the entire year, such as expenses for fuel handling, ash disposal, fuel transport, and
water and consumable chemicals. Based upon these other costs, Marcus stated that
1CP may allocate costs unfairly and allow industrial customers to pay less than
other customer classes. Michael R. Johnson, Senior Analyst in Greenpeace’s
Climate and Energy Campaign, also opposed using 1CP and asserted that this
methodology contributes to environmental harm by encouraging the use of high
emissions energy sources. Both witnesses recommended including a component in
the cost-of-service methodology that accounts for the total energy consumed by each
customer class.
The Commission stated that it gave “substantial weight” to Stillman’s
“undisputed testimony” that having sufficient generation and transmission
resources to meet its summer peak load requirements “is an essential planning
criterion of [Duke’s] system.” The Commission found that the use of 1CP would
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allow all customer classes to share equitably in fixed costs relative to the demands
they place on the system during the summer peak. But the Commission explained
that the alternative methodologies recommended by NC WARN and Greenpeace
were not supported by substantial evidence and had not been “adequately applied
and analyzed with regard to the operating characteristics of the Company’s system.”
As a result, the Commission concluded that their experts’ testimony was entitled to
“little weight.”
Ultimately, the record contained conflicting evidence regarding whether the
use of 1CP was reasonable and fair to Duke’s different customers. The Commission
considered all the evidence presented by the parties, explained the weight given to
the evidence, and concluded that the use of 1CP methodology here was “just and
reasonable” in light of the specific characteristics of Duke’s system. We are mindful
that “[i]t is not the function of this Court to determine whether there is evidence to
support a position the Commission did not adopt. . . . The credibility of the
testimony and the weight to be accorded it are for the Commission,” rather than the
reviewing court, “to decide.” State ex rel. Utils. Comm’n v. Piedmont Natural Gas
Co., 346 N.C. 558, 569, 488 S.E.2d 591, 598 (1997) (citations omitted). We hold that
there is substantial evidence in the record to support the Commission’s finding that
the use of 1CP allocates costs “equitably.” NC WARN has not shown that the use of
1CP here results in unreasonable or unjust discrimination.
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Finally, NC WARN argues that certain costs included in the Stipulation are
not reasonable operating expenses and should not be recovered from ratepayers.
We disagree.
In fixing rates the Commission must ascertain a utility’s reasonable
operating expenses. N.C.G.S. § 62-133(b)(3), (5) (2013). The Commission must fix
rates that will allow the utility to recover its reasonable operating expenses and
receive a fair rate of return on the cost of the property used and useful in providing
the service rendered to the public. Id. § 62-133(b)(5); see also State ex rel. Utils.
Comm’n v. Thornburg, 325 N.C. 463, 467 n.2, 385 S.E.2d 451, 453 n.2 (1989). “The
findings of the Commission, when supported by competent evidence, are conclusive.”
State ex rel. Utils. Comm’n v. N.C. Power, 338 N.C. 412, 422, 450 S.E.2d 896, 901-02
(1994) (citation omitted), cert. denied, 516 U.S. 1092, 116 S. Ct. 813, 133 L. Ed. 2d
758 (1996).
Before the Commission Marcus testified that Duke should not be allowed to
recover costs associated with stock-based compensation, advertising, dues,
donations, political contributions, sponsorships, survey research, and liability
insurance for directors and officers. In response to his concerns, Duke presented
witnesses Carol E. Shrum, Director of Rates and Regulatory Strategy for Duke;
Paul R. Newton, State President for Duke; and J. Danny Wiles, Director for
Regulated Accounting for Duke Energy Corporation. Shrum disagreed with Marcus
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about advertising, some of the disputed dues, survey research, and liability
insurance for directors and officers, and testified that these costs constitute
reasonable operating expenses. Similarly, Newton testified that stock-based
compensation is a proper and reasonable expense that is allowable in setting rates.
Nevertheless, Shrum testified that the sponsorships, political contributions,
donations, and some additional dues challenged by Marcus had been removed from
Duke’s cost of service in the Stipulation and would not be recovered from Duke’s
North Carolina customers. Both Newton and Wiles acknowledged that some of
these expenses were not reasonable operating expenses and had been included
because of errors by Duke. Wiles explained that “over 95%” of these errors already
had been identified by the Public Staff and removed from the Stipulation. With
respect to the remaining errors, Newton testified that they subsequently were
corrected. Similarly, Katherine A. Fernald, Assistant Director in the Accounting
Division of the Public Staff, testified that no unlawful expenses remained in the
Stipulation.
In its order the Commission summarized the evidence concerning each
expense that Marcus alleged was improper. The Commission concluded that some
of these expenses were reasonable and could be recovered from ratepayers. But the
Commission was “quite disturbed” to find that political contributions, which may
not be recovered from ratepayers, were included in Duke’s original application. The
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Commission ordered Duke “to conduct an internal root cause analysis” of this error
and to file a report by 31 December 2013. Nevertheless, based upon the evidence in
the record, the Commission concluded that “all inappropriately coded charges” had
been removed from the cost of service during the course of the proceeding. The
Commission found that “any charges remaining outside of those reconciled in the
Stipulation were subsequently addressed by the Company through additional
adjustments, or appropriately accounted for by the Company’s accounting system.”
We conclude that the Commission’s findings are supported by substantial evidence
in the record, including the testimony of witnesses for both Duke and the Public
Staff acknowledging that errors occurred and explaining that corrective steps were
taken to resolve the errors. NC WARN has not shown that the Commission allowed
Duke to recover any improper costs from ratepayers.
Accordingly, the order of the Commission is affirmed.
AFFIRMED.
Justice ERVIN did not participate in the consideration or decision of this
case.
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