city-of-somerville-city-of-new-waverly-and-office-of-public-utility ( 1993 )

SOMERVILLE IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN











NO. 3-92-456-CV





CITY OF SOMERVILLE, CITY OF NEW WAVERLY AND OFFICE OF PUBLIC UTILITY COUNSEL,

APPELLANTS

vs.





PUBLIC UTILITY COMMISSION, GULF STATES UTILITIES COMPANY AND TEXAS INDUSTRIAL ENERGY CONSUMERS,

APPELLEES

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT

NO. 91-9073, HONORABLE F. SCOTT McCOWN, JUDGE PRESIDING

This appeal arises from a suit for judicial review of an order issued by the Public Utility Commission of Texas (the "Commission") granting Gulf States Utility Company ("Gulf States") an increase in its retail electric rates. The Cities of Somerville and New Waverly (the "Cities") and the Office of the Public Utility Counsel ("OPUC") brought suit in district court seeking judicial review of the Commission's order. The district court affirmed the Commission order in large part, but remanded the case to the Commission on various federal income tax questions. We will affirm the district court's action on the tax questions, but reverse the affirmance of the Commission's adoption of the non-unanimous settlement stipulation ("NUS") and render judgment that that portion of the Commission order be reversed and the cause remanded to the Commission for action consistent with this opinion.

PROCEDURAL BACKGROUND

This case originated in 1989 when Gulf States filed an application with the Commission seeking an $88 million increase in retail electric rates. The Commission styled Gulf State's application as docket number 8702 and conducted an extensive evidentiary hearing on the application before several Commission administrative law judges. ⁽¹⁾ Following the conclusion of these hearings, the hearing examiners assigned to this case issued a 213-page examiner's report summarizing the evidence and testimony presented during the hearing and recommended a retail electric rate increase of approximately $9 million. The examiners later modified this recommendation and proposed a larger rate increase of $14 million.

After the examiner's report was issued, all but two of the parties involved in the case initiated extensive settlement negotiations in order to resolve the case before it was submitted to the Commission for final disposition on the merits. OPUC and the City of Somerville did not participate in these negotiations. ⁽²⁾ The parties to the settlement negotiations eventually agreed to a $30 million rate increase and submitted their proposed resolution of the case to the Commission in the form of an NUS.

After notice to all parties, on March 20, 1991, the Commission held a hearing on the NUS submitted by the settling parties. During this hearing, the Commission allowed OPUC and the City of Somerville to present objections to the NUS. Following this hearing, the Commission issued a final order, dated March 22, 1991, approving rates consistent with the NUS. ⁽³⁾ OPUC and the Cities subsequently brought a suit for judicial review pursuant to section 69 of the Public Utility Regulatory Act ("PURA") ⁽⁴⁾ and the Administrative Procedure Act ("APA"). ⁽⁵⁾ The district court overruled all of the points of error presented except for those points attacking the federal income tax expense figure adopted by the Commission. Accordingly, the district court reversed the Commission's final order and remanded the case to the Commission with instructions that it recalculate the federal tax expense figure.

DISCUSSION

1.  The Non-Unanimous Settlement Stipulation

OPUC's sole point of error and the Cities' seven points of error essentially address the role of the NUS in the Commission's decision of this cause. The crux of the Cities' position in their first six points of error is that it is never permissible for the Commission to base its decision in a rate case, in part, on an NUS. Thus, the Cities argue that the Commission's use of the NUS in this case was arbitrary and capricious. We disagree. In previous cases we have held that the Commission may base its final order, in part, on an NUS, provided certain conditions are met. See City of El Paso v. Public Util. Comm'n, 839 S.W.2d 895, 903 (Tex. App.--Austin 1992, writ granted); see also Cities of Abilene v. Public Util. Comm'n, 854 S.W.2d 932, 937-40 (Tex. App.-- Austin 1993, writ requested). Accordingly, we overrule the Cities' first six points of error to the extent that they contend that a Commission decision based, in part, on an NUS is never proper.

We will now consider the Cities' final point of error and OPUC's sole point of error, both of which question the sufficiency of the factual findings issued with the Commission's final order. OPUC, while recognizing that an NUS is permissible, contends that these findings of fact are not sufficient to determine whether the use of an NUS in this case complied with the requirements we set out in City of El Paso. OPUC argues that the Commission's findings of fact neither explain the basis for the Commission's final order, nor are sufficient to determine whether the final order is supported by substantial evidence in the record. We agree.

In City of El Paso, we set out two requirements that the Commission must meet in order to consider an NUS as part of its final order. First, the Commission must afford any non-stipulating party the opportunity to be heard on the merits of the stipulation. City of El Paso, 839 S.W.2d at 903. Second, the Commission must make an independent finding, on the merits, that the terms of the stipulation are fair, just and reasonable, and are supported by evidence in the record. Id. This second requirement reflects the rule that an agency's decision, whether or not based on an NUS, must be supported by substantial evidence. ⁽⁶⁾ APA § 2001.174(2)(E); see also Texas State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988), cert. denied, 490 U.S. 1080 (1980). We believe that the Commission complied with the first requirement by allowing OPUC and the Cities' the opportunity to present arguments against the stipulation during the May 1991 hearing. However, we do not believe that the findings of fact incorporated in the Commission's final order are sufficient to determine whether the order is supported by substantial evidence in the record and, therefore, we conclude that the Commission's final order does not meet the second requirement of City of El Paso.

Section 2001.141(b) of the APA requires an administrative agency to issue findings of fact and conclusions of law with every final decision. ⁽⁷⁾ Although the APA does not delineate standards for judging the sufficiency of the findings required under section 2001.141(b), effective judicial review of an agency's decision requires at least a minimal level of factual findings in order for a reviewing court to determine whether the agency's decision has support in the evidence. While there is no precise form for an agency's articulation of underlying facts, these findings should be sufficient to serve the purpose for requiring factual findings, which is to inform the parties and the courts of the basis for the agency's decision so that the parties may intelligently prepare an appeal and so that the courts may properly exercise their function of judicial review. Texas Health Facilities Comm'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446, 451-52. See generally John Powers, Judicial Review of the Findings of Fact Made by Texas Administrative Agencies in Contested Cases, 16 Tex. Tech. L. Rev. 475, 479-83 (1985). The Commission's factual findings, therefore, should be treated as "more than a technical prerequisite." Charter Medical-Dallas, 665 S.W.2d at 451.

Furthermore, requiring the Commission to issue sufficient factual findings to allow for proper judicial review is especially important in cases where the Commission's decision is based, as in this case, on an NUS. As we recognized in Cities of Abilene, there is a significant temptation for the Commission to merely adopt an NUS without requiring the utility to meet its burden of proof. ⁽⁸⁾ Cities of Abilene, 854 S.W.2d at 938-39. Therefore, in City of El Paso, we emphasized that when the Commission bases its final decision on an NUS, it must resolve the case on the merits and make an independent finding that the resolution of the case is "fair, just and reasonable." City of El Paso, 839 S.W.2d at 903. Otherwise, by merely adopting the terms and proposed factual findings contained in the NUS without considering the merits of the case, the Commission would be abdicating its statutory responsibility to decide the controversy. ⁽⁹⁾ In City of El Paso, we concluded that the Commission's resolution of the case on the merits was supported by substantial evidence in the record. In City of El Paso, the Commission held extensive evidentiary hearings which resulted in the issuance of an examiner's report containing evidentiary summaries and proposed factual findings. In its final order, the Commission adopted 237 findings of fact consistent with the NUS submitted in that case. The findings of fact set forth the basis of the Commission's decision. ⁽¹⁰⁾ Accordingly, we concluded that the Commission independently had resolved the case on the merits and that the Commission's resolution was supported by substantial evidence. City of El Paso, 839 S.W.2d at 903-04.

In the present case, however, we hold that the Commission's final order does not contain the minimum level of factual findings necessary to determine whether the Commission's resolution of the case is supported by substantial evidence. ⁽¹¹⁾ The Commission's factual findings are deficient because they exclude critical underlying variables that allegedly support the Commission's decision to grant Gulf States a $30 million rate-base increase. ⁽¹²⁾ This $30 million figure should be based on an intricate and complex series of underlying calculations and schedules which, when linked, comprise the analytical basis justifying a rate increase. While we recognize that a reviewing court may not possess the technical expertise to fully assess the analysis supporting a rate increase, a reviewing court must at least be provided with basic factual findings by the Commission to determine whether the rate increase approved by the Commission has evidentiary support. For example, in the present case, the Commission's findings of fact do not include the basic rate of return that Gulf States was allowed. ⁽¹³⁾ Nor do the findings adopted by the Commission detail the underlying variables used to calculate Gulf States' retail base-rate electric revenue requirement and the resulting increase in retail base rates. ⁽¹⁴⁾ Thus, in contrast to the findings involved in City of El Paso, the factual findings in this case fail to provide sufficient factual support for the rate increase approved by the Commission in order to allow a reviewing court to determine whether the increase has support in the hearing transcripts or the examiner's report. ⁽¹⁵⁾

Our basic disagreement with the dissenting opinion is its identical treatment of all settlement agreements, be they unanimous or non-unanimous. To paraphrase one of our great historical documents--all settlement agreements are not created equal. The dissent argues that once a utility gets a sole ⁽¹⁶⁾ contestant to agree with its position and enters into an NUS, then all of the contested-case procedures and substantive guarantees of PURA are no longer required. The dissent states: "Typically the settling parties relinquish, expressly or by necessary implication, many if not all the procedural formalities and safeguards that are incidental to formal adjudications." Slip opinion at 9. Query: What about the rights of the nonsettling parties? Do they forfeit their rights to a contested-case hearing and a fair and just adjudication of the case by the Commission as a result of some of the contesting parties agreeing to settle? The dissent's view of things is that once some of the contestants agree to settle, the Commission is no longer required to even file findings of fact and conclusions of law giving the basis for the Commission's decision. Further, according to the dissent, the nonsettling parties are left to challenge the NUS solely on the basis that the Commission somehow abused its discretion in approving the NUS. As a practical matter, the end result of the dissent's suggested informal procedure emasculates the rights of the nonsettling parties to challenge by any meaningful procedure the rate increase provided for in the NUS. Finally, the dissent's suggested informal procedure would virtually eliminate judicial review of Commission decisions. As we read the dissenting opinion, the Commission can approve the NUS without the necessity of a hearing and most importantly, without justifying its decision with the introduction of any evidence supporting the proposed rate increase. Thus, not only is the Commission relieved of its obligation to justify its decision by the filing of findings of underlying facts, but also that decision does not even need to be based upon substantial evidence in the record. This approach violates the precepts this Court set forth in City of El Paso for Commission approval of an NUS and effectively deprives the nonsettling parties of all rights before the Commission because of the existence of an NUS entered into by some of the parties to the dispute. We suggest that the procedure put forward by the dissent is not workable when the agreement is not unanimous.

Our decision today is not meant to impede or retard the use of settlement agreements, be they unanimous or non-unanimous, to resolve disputes before the Commission. On the contrary, we regard the settlement of these complex, expensive, and often time-consuming cases at the Commission level to be a worthwhile goal. As a consequence, we do not seek to dictate the particular form that the Commission's findings of fact must take; nor do we prescribe the particular findings of fact that are necessary to uphold the Commission's order. See Goeke v. Houston Lighting & Power Co., 797 S.W.2d 12, 15 (Tex. 1990); State Banking Bd. v. Allied Bank Marble Falls, 748 S.W.2d 447, 448-49 (Tex. 1988).

In Goeke, the Commission denied the application by Houston Lighting and Power Company ("HL&P") to amend its certificate of convenience and necessity in order to construct new high voltage transmission lines. The Commission's decision turned on its conclusion that HL&P had failed to prove that the need for the new lines outweighed the detrimental impact of the project. The supreme court ruled that the Commission's final order contained findings of fact sufficient to allow a reviewing court to conduct a proper review of the Commission's decision. Goeke, 797 S.W.2d at 14. In its decision, the court cited specific factual findings which, it concluded, supported the Commission's finding that HL&P had failed to meet its burden of proof. Id.

In the present case, however, the Commission's abbreviated findings of fact do not include the elements necessary to review the Commission's decision, since the key variables and assumptions supporting this decision are missing. We conclude, therefore, that the factual findings supporting the Commission's final order in the present case were insufficient to permit proper judicial review of the Commission's final order, especially since the final order was based, in part, on an NUS. Accordingly, we sustain OPUC's sole point of error and the Cities' seventh and final point of error.

2.  Federal Income Tax Expense Calculations

Gulf States and the Commission assert two points of error contending that the district court erred in holding that the Commission improperly calculated Gulf States' federal income tax expenses. The district court concluded that the Commission's calculation of Gulf States' federal income tax expenses excluded tax deductions that the utility received on capital expenditures that the Commission had previously disallowed on a showing that Gulf States had not proven their prudence. ⁽¹⁷⁾ Applying the "actual taxes paid doctrine" articulated in Public Utility Commission v. Houston Lighting & Power Co., 748 S.W.2d 439 (Tex. 1987) and Public Utility Commission v. GTE-SW, 833 S.W.2d 153 (Tex. App.--Austin 1992, writ granted), the district court ruled that these deductions must be used to reduce Gulf States' federal income tax expense for rate-making purposes. According to the actual taxes paid doctrine, a utility is entitled to rates "based only on the tax expense that had been actually incurred." Houston Lighting & Power, 748 S.W.2d at 442. Thus, any tax savings that a utility receives must be included in its federal income tax expense calculations for rate-making purposes, even when the tax savings arises from disallowed expenses. Gulf States and the Commission attempt to distinguish these prior cases by arguing that the disallowed expenses in those cases involved non-capital expenses while in the present case the disallowed expenses are capital expenses. Accordingly, Gulf States and the Commission contend that deductions for disallowed capital expenses should not be subject to the actual taxes paid doctrine. We disagree.

The underlying principle guiding the supreme court in Houston Lighting & Power was that tax savings actually enjoyed by the utility "should inure to the benefit of the ratepayers." 748 S.W.2d at 422. Consequently, a utility's federal income tax expenses for rate-making purposes should take into account tax savings on all deductible expenses, whether the Commission allows or disallows those expenses. GTE-SW, 833 S.W.2d at 169. We believe that this principle reflects a policy judgment that the ratepayers should not be required to pay for disallowed expenses, either directly or indirectly. Section 41(c)(3) of PURA provides that the Commission should not consider disallowed expenses in assessing a utility's revenue requirement. ⁽¹⁸⁾ However, if disallowed but deductible expenses are not considered in calculating a utility's federal income tax expense for rate-making purposes, the ratepayers will indirectly incur a percentage of those disallowed expenses equal to the utility's federal income tax rate.

Gulf States and the Commission contend that subjecting disallowed capital expenses to the actual taxes paid doctrine would violate the "normalization" requirement of the Internal Revenue Code. The Internal Revenue Code allows a utility to depreciate its capital assets on an accelerated basis while calculating its income tax expenses for rate-making purposes on a straight-line basis. Consequently, in the initial period that the utility depreciates an asset, ratepayers will pay a higher level of income tax expenses than the utility actually pays. In later periods, however, the income tax expenses calculated for rate-making purposes will be less than those actually paid. Thus, normalization is a process for allocating the burdens and benefits of federal taxes and deductions over the life of the asset. ⁽¹⁹⁾ Gulf States and the Commission contend that requiring them to pass the tax savings of disallowed capital expenses to ratepayers would violate normalization requirements and prevent the utility from depreciating its capital assets on an accelerated basis. We disagree with this argument.

In GTE-SW, we rejected GTE's contention that the actual taxes paid doctrine would violate normalization requirements. 833 S.W.2d at 166-67. Normalization concerns the allocation of tax savings from allowable expenses. Under normalization, the ratepayers never pay more income tax expenses than those tax expenses actually incurred by the utility over time. Income tax expenses higher than those actually incurred by the utility during the early life of an asset are eventually offset in later periods by income tax expenses that are lower than those actually paid. Id. This spreading of allowable expenses, however, is far different than calculating tax expenses for rate-making purposes by pretending that the disallowed expenses are not going to be deducted from the actual federal taxes paid by the utility. As a consequence, we see no reason in the present case to depart from our conclusion in GTE-SW that the actual taxes paid doctrine does not violate normalization requirements, even if the tax savings at issue arise from disallowed capital, as opposed to non-capital, expenditures. Accordingly, we overrule all of Gulf States' and the Commission's points of error.

CONCLUSION

We affirm that part of the district court's judgment remanding the case to the Commission on the federal income tax questions, but reverse the district court's affirmance of the Commission's order adopting the NUS, and render judgment that that portion of the Commission order be reversed and the cause remanded to the Commission generally for action consistent with this opinion.

Mack Kidd, Justice

Before Justices Powers, Kidd and B. A. Smith

Affirmed in Part; Reversed and Rendered in Part

Filed: November 3, 1993

Publish

1.   This hearing encompassed 51 days of testimony between September 5, 1989, and December 18, 1990.

2.   The City of New Waverly participated in the settlement negotiations, but withdrew its support for the settlement proposal after the Commission issued its initial final order on March 22, 1991.

3.   Following motions for rehearing, the Commission issued a second final order, dated May 2, 1991, which did not significantly depart from the substance of the first order.

4.   Tex. Rev. Civ. Stat. Ann. art. 1446c (West Supp. 1993).

5.   The Administrative Procedure and Texas Register Act is nonsubstantively codified in the Government Code and renamed the Administrative Procedure Act. Act of May 4, 1993, 73d Leg., R.S., ch. 268, sec. 1, §§ 2001.001-.902, 1993 Tex. Sess. Law Serv. 587, 737-54 (to be codified as Administrative Procedure Act, Tex. Gov't Code Ann. § 2001.001-.902) (effective Sept. 1, 1993).

6.   The requirement that there be evidentiary support for the Commission's decision is equally applicable in the case of an NUS because the Commission's resolution of the case must be on the merits. "[E]ven if there is a lack of unanimity [in the stipulation], it may be adopted as a resolution on the merits." Placid Oil Co. v. FPC, 483 F.2d 880, 893 (5th Cir. 1973) (emphasis in original).

7.   The relevant text of APA § 2001.141(b) states, "A decision that may become final under Section 2001.144 must include findings of fact and conclusions of law, separately stated." A.P.A. § 2001.141(b).

8.   ⁸  Cities of Abilene addressed the concern that the adoption of an NUS might raise a due-process problem by unintentionally shifting the burden of proof from the utility to the opponents of the NUS. Cities of Abilene, 854 S.W.2d at 938-39.

9.   ⁹  The text of PURA states: "It shall be the duty of the regulatory authority to insure that every rate made, demanded, or received by any public utility, or by any two or more public utilities jointly, shall be just and reasonable." PURA § 38.

10.   The Commission's factual findings also included references to attached schedules detailing the underlying variables supporting the rate-base increase approved by the Commission.

11.   The examiner's report issued in this case contained 234 findings of fact. The Commission's final order adopted 72 findings of fact.

12.   In its final order the Commission declared that it was "not endorsing or approving any ratemaking principle or method underlying the [NUS] Joint Recommendation."

13.   The rate of return, when multiplied by a utility's total invested capital, yields the return that the utility is allowed on its assets. This variable is added to operating costs, tax costs and other expenses to calculate the utility's revenue requirement, which is a critical factor in determining the amount of the rate-base increase.

14.   The Commission's finding of fact number 10 states:

The Commission finds rates consistent with the [NUS] filed on March 20, 1991, to be reasonable and in the public interest and that the reasonable and necessary Texas retail base rate electric revenue requirement of Gulf States is $449,546,125. This revenue requirement represents a $30 million increase in Texas retail base rates.

15.   The Commission's final order did not include schedules or other calculations supporting the $30 million rate-base increase.

16.   It is true that in this case the vast majority of contesting parties agreed to the NUS. However, the rule contended for by the dissent makes no distinction whether a minority or majority of the contestants agree to settle. Furthermore, it is noteworthy that one of the nonsettling parties was OPUC whose public duty is to represent residential and small commercial ratepayers before the Commission. The dissent continually refers to this NUS as an "agreed settlement" between the essential parties to the case. Surely, the dissent does not suggest that OPUC's presence is non-essential or irrelevant to the disposition of this contested-case.

17.   These disallowed expenses arose from the utility's River Bend Nuclear Plant project. In an earlier rate case, the Commission concluded that Gulf States had not met its burden of proving that $1.4 billion of the project's costs were prudent and, consequently, disallowed those expenditures for rate-making purposes. See Coalition of Cities for Affordable Util. Rates v. Public Util. Comm'n, 798 S.W.2d 560 (Tex. 1990).

18.   PURA § 41(c)(3).

19.   See generally Elizabeth Warren, Tax Accounting in Regulated Industries: Limitations on Rate Base Exclusions, 31 Rutgers L. Rev. 187, 187-94 (1978).