Dayton Power & Light Co. v. Public Utilities Commission

Paul W. Brown, J.,

concurring.

The traditional doctrines associated with the rate-making process used in utility regulation developed in an era when the economy was markedly different from that of today. Om *219 nipresent inflation and high interest rates have greatly increased the difficulty of utility operation on private capital, and rate-making has not been completely responsive to this economic environment. See Note, The Use of The Future Test Year in Utility Rate-Making, 52 Boston Univ. L. Rev. 791. Although the problems raised by the appellant have been persuasively argued, I am constrained to concur in this judgment because of prior precedent on this matter. This court has repeatedly deferred to the expertise of the Public Utilities Commission and refrained from compelling an attrition allowance. Masury Water Co. v. Pub. Util. Comm. (1979), 58 Ohio St. 2d 147 ; Franklin Co. Welfare Rights Org. v. Pub. Util. Comm. (1978), 55 Ohio St. 2d 1 . This has resulted because our standard of review in this type of cause wisely does not seek to substitute this court’s judgment for that of the commission. It is not for us to strike out in a new regulatory direction. Our prior cases, however, should not be taken in any way to preclude such an allowance by the commission itself, should they deem it necessary in the public interest in light of peculiar economic circumstances. Clearly, the amicus brief of Mead Corp. et ah, in which such a large group of financially sophisticated corporate customers express fears that the order under appeal “has the probable effect of impairing and jeopardizing Dayton Power & Light’s continuing ability to serve as a dependable and reliable source of electrical energy,” indicates that the problem must be confronted by the commission and the public in a realistic way; for, if it is not, greater economic harm than high utility bills may ensue.

Holmes, J., concurs in the foregoing concurring opinion.