Petition — Public Service Commission v. Washington Gas Light Co.

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8 y ba 1 6 5 S Oftice-Supreme Court, U.S.

FILED

No. apR Ll 1983

ALEXANDER L. STEVAS,

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

PUBI.IC SERVICE COMMISSION

OF THE DISTRICT OF COLUMBIA,

Petitioner,

Vs

WASHINGTON GAS LIGHT COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE DISTRICT OF COLUMBIA

COURT OF APPEALS

Lloyd N. Moore, Jr.

Counsel of Record

for Petitioner

Public Service Commission

of the District of Columbia

451 Indiana Avenue, N.W.

Washington, D.C. 20001

Tel. (202) 727-3050

Of Counsel:

Michael E. Geltner

Michael d. Newsoin

THE CASILLAS PRESS. INC — 1717 K Street NW — Washington, D.C. — 223-1220

QUESTION PRESENTED

Whether the Federal Energy Regulatory Commission

exceeded its jurisdiction under the Natural Gas Act when

it decided to approve the annual budgets of Gas Research

Institute, a research, development and demonstration

organization engaged in research into synthetic gas and

other subjects beyond FERC’s regulatory jurisdiction, and

to authorize the cost of Gas Research Institute’s activities

to be added to the wholesale cost of natural gas, requiring

State and local regulatory Commissions to pass that cost

on to consumers.

*Parties to the proceeding in the District of Columbia Court of Ap-

peals, in addition to the Public Service Commission of the District of

Columbia and Washington Gas Light Company, included the Office

of People’s Counsel of the District of Columbia. Gas Research In-

stitute filed a brief as amicus curiae.

eas

TABLE OF CONTENTS

Page

CRS HO PRESENTED unc cc ccccccccccccncncccccsevens i

TABLE OF AUTHORITIES ............. ccc cece cece ee eens iv

PUPP MEY ccc crccccccescccteccccenvevceesescees ]

PEPE ROUIOE civic ccncuncnscccecceccesccccccncseccuense 2

PNET CIEE VEE cccccccccccccccccesccesccesscaccees 3

STATEMENT OF THE CASE .............6 00 cee ce eens 3

REASONS FOR GRANTING

PP TT rr Tee er err rrr rr rere eye 7

IE sa ccdcvdcretccesacecscececenscareseseasnees 13

APPENDIX

Opinion of District of Columbia

Court of Appeals, Entered October 29, 1982 ............5. la

Order of District of Columbia Court

of Appeals Denying Petition for Re-

hearing, Entered January 21, 1983 0.0.0... ceca 26a

Excerpts from Proposed Opinion and Interii

Order of the Commission, Issued October 3,

SE Scie hn io 656544049 44544,04454054840440400044450 048 28a

Excerpts from Final Opinion and Order

of the Commission, Issued November 10,

DS aiaied 6.44.5529.904400544440421054404000 104 84R EES 33a

Excerpts from Order of the Commissicn

Denying Applications for Reconsideratiun,

Issued December 24, 1980 2.0.0.6 cee eee 34a

Natural Gas Act, §§ 2,4, 8, & 16 2.0... ccc cee eee 34a

iv

TABLE OF AUTHORITIES

Case: Page

Davis v. United States,

ee es Ss co ncendenutuasanieeesaaeeeedienes 12

Davis v. United States,

en SE co 2 os G4456 she obs BPE CeEAR AER ERS 12

F.P.C. v. Texaco, Inc.,

el errr PrerT yee) errr ere Tyee 6

Henry v. F.P.C.,

168 U.S. App. D.C. 173, 513 F.2d 395 (1975) ........... 7,10, 11

John Hancock Ins. Co. ». Bartels,

eh, << 6n0isb00a0 545 6440064085550 40884005 12

Maggio v. Zeitz,

SE va vucdned chive Sake Uber e ests eee teeKe 13

Narragansett Electric Co. v. Burke,

381 A.2d 1358 (R.1. 1977), cert. denied

og S&T ec ee Poe etree rer nt apa 8

Office of Consumers’ Counsel v. F.E.R.C.,

210 U.S. App. D.C. 315, 655 F.2d 1132 (1980) ....... 7,10, 11,12

Potomac Electric Power Co. v. Public Service

Commision, 402 A.2d 14 (D.C. App.) cert. denied,

Se RS sok cp rua s dee cba weea ek 8 Code baba aees 3

Public Utilities Commission of Colorado v. F.E.R.C.,

102 S.Ct. 2009, 456 U.S..___, 213 U.S. App. D.C. 1,

660 F.2d 821 (1981), cert. denied, (1982) ...... 4, 5,6, 7, 8,9, 11, 12

Public Utilities Commission of New York v. F.E.R.C.,

177 U.S. App. D.C. 245, 543 F.2d 392 (1976) .......... eee 7

Scott v. United States,

SD, an cry lakes habene sabe banteevecaaens> 12

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

No.

PUBLIC SERVICE COMMISSION

OF THE DISTRICT OF COLUMBIA,

Petitioner,

Vv.

WASHINGTON GAS LIGHT COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE DISTRICT OF COLUMBIA

COURT OF APPEALS

OPINIONS BELOW

The opinion of the District of Columbia Court of Ap-

peals which this petition seeks to have the court review is

officially reported at 452 A.2d 375 (D.C. App. 1982). It is

reproduced in the appendix, starting at la.

The orders of the Public Service Commission of the

District of Columbia are reported at 39 PUR 4th 161

(D.C.P.S.C. 1980).' There is no official report. Pursuant

'The Commission first issued a proposed opinion and interim

order. Excerpts are at 28a. Commissioner Long filed a partial concur-

ring and dissenting opinion. The Commission then issued a final opi-

nion and order. Excerpts are at 33a. Finally, the Commission issued

an order denying applications for reconsideration. Excerpts are at

34a.

2

to authorization of the Clerk, ten copies of the orders of

the Public Service Commission of the District of Colum-

bia have been lodged with the Clerk’s Office. Excerpts,

containing all of those portions of the orders relevant to

this petition are reproduced in the appendix, starting at

28a.

JURISDICTION

The Judgment of the District of Columbia Court of Ap-

peals which this petition seeks to have the court review was

entered on October 29, 1982. Petitioner filed a timely peti-

tion for rehearing in the District of Columbia Court of

Appeals which that court denied without opinion on

January 21, 1983. This petition is filed within 90 days of

that date.

This court has jurisdiction to review the judgment of the

District of Columbia Court of Appeals by writ of cer-

tiorari pursuant to 28 U.S.C. § 1257(3).

STATUTES

Natural Gas Act §§ 2, 4, 8 and 16.?

STATEMENT OF THE CASE

On June 29, 1979, Respondent Washington Gas Light

Company (“Washington Gas”) filed a rate increase ap-

plication which led to proceedings before Petitioner Public

Service Commission of the District of Columbia (“the

Commission”). The proceedings were designated Formal

Case No. 722. One of the issues which the Commission

had to address in Formal Case No. 722 was whether it was

*See Appendix, pp. 34a-4la.

3

required to permit Washington Gas to treat Washington

Gas’ costs for its allocable share of the budget of Gas

Research Institute (“GRI”) as an operating expense.

GRI is a research, development and demonstration

organization whose members consist of wholesale and

retail gas companies, including Washington Gas and its

wholesale suppliers, Columbia Gas and Transco (“the

pipelines”). GRI engages in research into a variety of gas

related issues, much of it involving synthetic gas. The

Federal Energy Regulatory Commission (“FERC”) is

authorized to regulate the wholesale price of natural gas

under § 4 of the Natural Gas Act. Although FERC has no

Statutory authority to supervise or regulate research

organizations, FERC decided to assume jurisdiction to ap-

prove GRIs’ budgets and to authorize GRI to impose

charges upon its members. Under this scheme, FERC

authorized the member pipelines to include their GRI

assessments in the wholesale price of natural gas to

retailers, such as Washington Gas.

In Formal Case No. 722, the Commission decided to use

the calendar year ending December 31, 1979 as its test

year.» The Commission was then faced with deciding

whether it was obliged by FERC preemption to permit

Washington Gas to recover its GRI surcharges as

operating expenses* without independently reviewing the

reasonableness of those charges, as it must for all other

such expenses.

>Under District of Columbia law, the Commission engages in tradi-

tional test year ratemaking in which it examines the rate base, rate of

return and expenses on the basis of a particular year’s data and, if that

year’s data warrants it, authorizes a prospective change in public utili-

ty rates. See Potomac Electric Power Co. v. Public Service Commis-

sion, 402 A.2d 14 (D.C. App.), cert denied, 444 U.S. 926 (1979).

‘During the test year, the GRI surcharge from the pipelines to

Washington Gas was .047 center per therm.

—_— es

4

Washington Gas contended that FERC’s action in

regulating GRI and authorizing GRI’s expenses to be add-

ed as a surcharge to the wholesale cost of natural gas com-

pletely preempted state and local regulatory commissions

from independently inquiring for retail ratemaking pur-

poses into the reasonableness of Washington Gas’ GRI

payments. People’s Counsel, a statutory party to Commis-

sion proceedings, contended that the Commission retained

authority, despite FERC’s approval of the surcharge, to

determine whether Washington Gas’ GRI expense was

beneficial to District of Columbia ratepayers and, if the

Commission determined that it was not, to refuse to per-

mit Washington Gas to treat the surcharge as an operating

expense for ratemaking purposes.

On October 3, 1980, the Commission issued its Propos-

ed Opinion and Interim Order in Formal Case No. 722.

(Excerpted at 28a) Having heard evidence on GRI’s pro-

gram, the Commission concluded that the benefits to the

immediate consumer were “indirect at best” and will be

substantially less to residential consumers than to in-

dustrial and commercial customers and to gas utility com-

panies in general. (3la-32a) Although the Commission

found that Washington Gas’ stockholders stood to receive

a substantially greater benefit from GRI than _ its

customers, the Commission decided to allow Washington

Gas’ test year GRI charge as an operating expense because

the amount was small and because there was some promise

of benefit to consumers.‘

*The order noted that the Commission was aware that FERC’s Opi-

nion No. 64, which reviewed GRI, was under review on the preemp-

tion issue in Public Utilities Commission of Colorado v. FERC, 213

U.S. App. D.C. 1, 660 F.2d 821 (1981), cert denied, 456 U.S.__, 102

S.Ct. 2009 (1982), which was at that time still undecided.

5

Washington Gas filed exceptions to the Commission’s

proposed opinion. It noted that its GRI surcharge had

been raised by an increase in the per therm rate, effective

January 1, 1981, and sought to have the Commission

reflect that change in its authorized retail rates. In its Final

Opinion and Order, filed November 10, 1980, the Com-

mission denied Washington Gas’ exception. The Commis-

sion declined to approve the post-test year per term in-

crease, because, “although approved by FERC, [it] has

not been shown to be justified on a record before this

Commission.” (33a)

Washington Gas pressed the same issue by application

for reconsideration, and, in an order entered December

24, 1980, the Commission ruled that, since Public Utilities

Commission of Colorado v. FERC, supra, was still pen-

ding, the post-test year increase lacked the certainty

necessary to require rate order adjustment. (34a)

On appeal to the District of Columbia Court of Ap-

peals, Washington Gas raised the issue of Commission

authority to deny automatic pass through of its GRI per

therm surcharge, contending that the Commission was

wholly preempted by FERC’s assumption of jurisdiction

over GRI. People’s Counsel intervened in the appeal and

argued that, despite FERC approval, the Commission re-

tained authority to review GRI’s potential benefit to

ratepayers before approving expense treatment of the GRI

surcharge. The Commission’s position was that, until the

District of Columbia Circuit finally decided the Colorado

case, the GRI surcharge lacked the certainty to justify

post-test year rate adjustment. Its contention was that,

while it could not reexamine the appropriateness of a

FERC — approved wholesale rate surcharge, it was not

obliged to authorize the retail utility to pass through such

6

a surcharge if FERC’s approval of it was ultra vires, the

point in issue in the Colorado case.

While this case was pending before the District of Col-

umbia Court of Appeals, the District of Columbia Circuit

decided the Colorado case, affirming FERC’s authority to

regulate GRI. Public Utilities Commission of Colorado v.

FERC, 213 U.S. App. D.C. 1, 660 F.2d 821 (1981). The

Public Utilities Commission of Colorado bypassed sug-

gesting rehearing en banc and sought review here.® On

April 26, 1982, this court denied certiorari. 456 U.S.__.,

102 S.Ct. 2009.

The Commission then was granted leave to file a sup-

plemental memorandum in the District of Columbia Court

of Appeals. The Commission requested the court to sus-

tain its denial to Washington Gas of the post-test year ad-

justment on the alternative ground that, since FERC lack-

ed authority to regulate GRI, the Commission was obliged

to review Washington Gas’ payments for GRI expenses

before approving rate treatment. Noting that this court

had denied Colorado’s petition, the Commission contend-

ed that the District of Columbia Court of Appeals had

authority to independently examine the issue of FERC

jurisdiction and that it should do so, since such action

would create the conflict which this court might see as

necessary to grant review.’ The Commission then argued

*The Commission and several state regulatory commissions filed

briefs as amici curiae urging the court to accept the Colorado Case.

‘Appellate review of FERC decisions can be sought in the District

of Columbia Circuit or the circuit in which the natural gas company

has its principal place of business. See F.P.C. v. Texaco, Inc., 377

U.S. 33 (1954); 15 U.S.C. § 717r(b). Since GRI is not a natural gas

company, the practical effect of the law is to limit review to the

District of Columbia Circuit.

7

to the court of appeals that, since a large part of GRI’s ac-

tivities involved research into synthetic gas* or subjects far

removed from natural gas and Congress had specifically

denied FERC authority to regulate synthetic fuels,’ FERC

exceeded its authority when it undertook to regulate GRI

and authorize rate treatment of its budget.

In an opinion filed October 29, 1982, the District of

Columbia Court of Appeals held that the Commission had

no authority to inquire into the reasonableness of the GRI

surcharge. (20a) The court declined the Commission’s re-

quest to hold that FERC had exceeded its jurisdiction,

because “[rjeview of the rulings of FERC is vested by

statute in the United States Court of Appeals, not this

court.”'" (21a) The Commission’s timely application for

rehearing was denied January 21, 1983. (26a)

REASONS FOR GRANTING THE WRIT

It is important that the integrity of basic regulatory

systems be maintained in the face of overreaching by

FERC, that the careful balance which Congress ordained

between federal and state regulation of interstate natural

gas sales be defended.

The court below, however, squarely held that the Com-

mission had no authority to disallow the GRI surcharge as

‘See Public Utilities Commission of Colorado v. FERC, supra, 660

F.2d at 825-826.

*See Office of Consumer's Counsel v. FERC, 210 U.S. App. D.C.

315, 655 F.2d 1132 (1980); Public Service Commission of New York v.

F.P.C., 177 U.S. App. D.C. 245, 543 F.2d 392 (1976); Henry v.

F.P.C., 168 U.S. App. D.C. 137, 513 F.2d 395 (1975).

‘Since the court of appeals concluded that its reversal of the Com-

mission on the GRI issue did not render the entire rate order

unreasonable, it did not remand on that point for modification of the

rate order. (24a-25a)

a reasonable operating expense and that the Commission

was unauthorized to consider whether the GRI surcharge

benefits District of Columbia ratepayers. As a conse-

quence, the court has stripped those ratepayers of any

meaningful protection — heretofore afforded by the D.C.

Commission — from having to bear the cost of programs

that may be of no benefit to them whatsoever.

GRI clearly is not a natural gas company within the

meaning of the Natural Gas Act, for GRI, a research and

development organization, is engaged neither in the trans-

portation of natural gas in interstate commerce nor the

sale of natural gas in interstate commerce for resale.''

Thus no basis exists under the Natural Gas Act for FERC

to regulate or approve GRI surcharges, much less to

obligate state commissions'? to pass those charges through

to consumers without regard to any benefit therefrom for

the local ratepayers.

The problem stems from the rule that, when FERC

authorizes a charge to be placed on wholesale rates,

regulators of retail sales of natural gas must permit the

charges authorized by FERC to be passed on to the retail

ratepayers as part of the cost of purchased gas. See, e.g.,

Narragansett Electric Co. v. Burke, 381 A.2d 1358 (R.1.

1977), cert. den., 435 U.S. 972 (1978). On the other hand,

where FERC does not regulate a charge on wholesale

rates, retail commissions, such as the D.C. Commission,

may determine the reasonableness of the charge before ad-

ding it to the retail rates. Thus, any increase of FERC

''See FERC opinion No. 11 quoted in Public Utilities Comm'n of

Colorado v. FERC, supra, 660 F.2d at 823.

'2While the D.C. Commission is not a “state” regulatory commis-

sion and was created by an Act of Congress, it functions like a state

commission in regulating retail natural gas sales.

9

regulatory jurisdiction decreases the regulatory jurisdic-

tion of state retail commissions; FERC’s usurpation of

authority regarding GRI charges reduces the authority of

State commissions. The decision below graphically il-

lustrates that proposition and shows the harm that accor-

dingly befalls retail ratepayers. Because of this harm, the

direct result of overreaching by FERC, a writ of certiorari

should issue to review the decision below.

It is important that courts and agencies maintain the in-

tegrity of basic regulatory systems mandated by Congress.

That integrity is destroyed when loose and casual scrutiny

by FERC of the potential benefit to ratepayers of GRI

charges is substituted for the close scrutiny of the D.C.

Commission.

It is also important that the integrity of basic regulatory

systems created by Congress not fall prey to actions that

run directly counter to the will of Congress.

Much of research and development work proposed to be

undertaken by GRI involves something other than natural

gas as such. See Public Utilities Commission of Colorado

v. FERC, supra, 660 F.2d 821, 825 n.9. While it might be

desirable for FERC to administer — and raise money for

— a varied research program in the name of conservation

of dwindling gas supplies, the fact remains that Congress

has denied FERC such authority. The decision below con-

flicts with that decision of Congress.

Synthetic fuels provide the most obvious example of

how overreaching by FERC given legal sanction by the

decision below violates Congressional intent. Several of

GRI’s research areas concern synthetic fuels. Congress,

however, has legislated on this subject, creating, in-

ter alia, the Synthetic Fuels Corporation, 42 U.S.C.

10

§§ 8701 ef seq.'* Under the Act, the corporation may pro-

vide financial assistance of various types to research and

development projects in an amount of up to $88 billion.

See, e.g., 42 U.S.C. §§ 8772(c)(11), 8751. That munificent

sum of money does not, however, come from gas

ratepayers as such. Congress has determined that financial

support for synthetic fuels development should come from

sources other than ratepayers. Nothing in the Act refers to

FERC or to ratepayers. FERC approval of GRI charges

for synthetic fuels research conflicts with Congressional

intentions. '°

It is important that the decisional law in this area be

both internally consistent and supportive of basic

regulatory systems. The decision below, treats the Col-

orado decision as controlling. The latter decision is,

however, directly inconsistent with Henry v. F.P.C., 168

U.S. App. D.C. 137 513 F.2d 395 (1975) and Office of

Consumers’ Counsel v. FERC, 210 U.S. App. D.C. 315,

655 F.2d 1132 (1980).

In Henry, supra, three applications were filed before

FERC pursuant to § 7(c) of the Natural Gas Act'® for cer-

tificates of public convenience and necessity. The facilities

involved included plant for the manufacture and transpor-

tation of synthetic gas and plant for the mixing of syn-

thetic and natural gas. The court, affirming the FPC, held

that the FPC had no jurisdiction over plant devoted to the

'*This legislation is part of the Energy Security Act of 1980, P.L.

96-294.

'*The Energy Security Act of 1980 includes other titles concerning,

inter alia, biomass energy and alcohol feels, renewable energy in-

itiatives, solar energy and energy conservation, and geothermal reser-

voirs. In none of these areas does it appear that Congress meant for

FERC to saddle ratepayers with research costs.

'S15 U.S.C.A. § 717f(c).

11

production or transportation of synthetic gas prior to its

mixture with natural gas from wells.

In Office of Consumers’ Counsel, supra, a consortium

of natural gas companies sought a § 7(c) certificate for a

coal gasification plant and a pipeline to transport the syn-

thetic gas to a point where it would be commingled with

natural gas and sold. FERC granted the application. On

appeal the District of Columbia Circuit reversed, holding

on the basis of Henry that FERC had no regulatory

jurisdiction over any aspect of synthetic gas production or

development prior to its commingling with natural gas.

FERC had argued that its action merely authorized future

sales of commingled gas. The court rejected the argument,

finding that the proposal at issue was in fact a financing

device rather than a gas supply project, that the

hypothetical sale of commingled gas was remote in time,

place and even probability, and that FERC would regulate

the plant during the construction and preoperation period,

a time during which, of course, there would be no syn-

thetic gas from the plant to commingle with natural gas.

It is entirely clear, in light of Henry and Office of Con-

sumers’ Counsel, that FERC has no regulatory jurisdiction

of synthetic gas plant. And yet the court below implements

the Colorado decision, to the effect that FERC can never-

theless regulate and guarantee rate treatment of synthetic

fuel research development and demonstration and for

research into appliance, performance and technology,

even though few of the GRI’s research activities cited in

the FERC opinions independently fall under FERC

jurisdiction and even though none of them are any more

closely related to a jurisdictional event — the transporta-

tion or sale for resale of natural gas — than was the plant

at issue in Office of Consumers’ Counsel.

12

The court below held that review of FERC actions was

vested only in the United States Court of Appeals. If it is

correct, it underscores the need for this court to consider

the merits of this case; neither state supreme courts nor

other circuits would have authority to decide the issue of

FERC authority differently from the District of Columbia

Circuit. Consequently only that court and this one can set

matters right. Sinc. the District of Columbia Circuit has

not done so, only this court can. It is important that the

writ of certiorari should issue for this purpose.

The decision of the court of appeals in Public Utilities

Commission of Colorado v. FERC, supra, is in conflict

with the same court’s earlier opinion in Office of Con-

sumer’s Counsel v. FERC, 210 U.S. App. D.C. 315, 655

F.2d 1132 (1980). While there has been some expression

that an intracircuit conflict is for the court of appeals itself

to resolve through its en banc procedure, '* the existence of

such a conflict must be weighted with other factors in

deciding whether to grant certiorari. For example, the

combination of an intracircuit conflict with an important

question does justify the issuance of a writ of certiorari.

See John Hancock Ins. Co. v. Bartels, 308 U.S. 180, 181

(1939). See also Scott v. United States, 436 U.S. 128

(1978), in which the combination of conflicting views

among the judges of the District of Columbia Circuit and

the importance of the question led this court to grant cer-

tiorari where it had earlier denied the writ to the same issue

presented on interlocutory review. In addition, where the

area of the law is a specialized one and the problems have

'In Davis v. United States, 405 U.S. 933 (1972), the court denied

certiorari when the solicitor general so argued. See Davis v. United °

States, 417 U.S. 333, 340 (1974). Davis, however, was a criminal case

in which the litigant could and did present the issue again in a col-

lateral proceeding. That is not the case here.

13

arisen and will continue to arise within one circuit,'” it is

most appropriate for this court to exercise its discretion to

intervene and resolve the conflict. See Maggio v. Zeitz,

333 U.S. 56, 59-60 (1948). The latter category applies par-

ticularly to this case and the court from which it comes.

See note 7, supra.

CONCLUSION

The court should issue a writ of certiorari to review the

issue of FERC regulatory authority.

Respectfully submitted,

/§/.

Lloyd N. Moore, Jr.

Counsel of Record

for Petitioner

Public Service Commission

of the District of Columbia

451 Indiana Avenue, N.W.

Washington, D.C. 20001

Tel: (202) 727-3050

Of Counsel:

Michael E. Geltner

Michael d. Newsom

'’In this instance, while the decision in Public Utilities Commission

of Colorado, supra, was written for the District of Columbia Circuit,

it was authorized by a visiting district judge.

APPENDICES

Opinion of District of Columbia

Court of Appeals, Entered October 29, 1982 .........

Order of District of Columbia Court

of Appeals Denying Petition for Re-

hearing, Entered January 21,1983 .................

Excerpts from Proposed Opinion and Interim

Order of the Commission, Issued October 3,

EERE ES Aig cee is AS <a face ae

Excerpts from Final Opinion and Order

of the Commission, Issued November 10,

FOE eek aah aw eee 6s VER SEES 505.0999 64056 OM ws

Excerpts from Order of the Commission

Denying Applications for Reconsideration,

SSG EUCOID EE 24, T9GO oi cc cc ecccccsccccenusves

Natural Gas Act, §§ 2,4, 8,&16 ..........cccecuees

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 81-229

WASHINGTON GAS LIGHT COMPANY, PETITIONER,

V.

PUBLIC SERVICE COMMISSION OF THE

DISTRICT of COLUMBIA, RESPONDENT,

OFFICE OF PEOPLE’S COUNSEL OF THE

DISTRICT of COLUMBIA, INTERVENOR.

No. 81-232

OFFICE OF PEOPLE’S COUNSEL OF THE

DISTRICT of COLUMBIA, PETITIONER,

Vv.

PUBLIC SERVICE COMMISSION OF THE

DISTRICT of COLUMBIA, RESPONDENT,

WASHINGTON GAS LIGHT COMPANY, INTERVENOR.

Petitions for Review of an Order of the

Public Service Commission

(Argued September 24,1981 Decided October 29, 1982)

Telemac N. Chryssikos, with whom Lewis Carroll and

Monte R. Edwards were on the briefs, for petitioner in

No. 81-229 and intervenor in No. 81-232.

[2385]

2a

Lloyd N. Moore, Jr., Genera) Counsel, for respondent.

Elizabeth A. Noel, Deputy People’s Counsel, with whom

Brian J. H. Lederer, People’s Counsel, was on the briefs,

for intervenor in No. 81-229 and petitioner in No. 81-232.

James M. Broadstone, Christopher T. Boland, Peter C.

Lesch, and Steve Stojic filed an amicus curiae brief on

behalf of Gas Research Institute.

Before KELLY, HARRIS * and BELSON, Associate Judges.

BELSON, Associate Judge: Petitioner, Washington Gas

Light Company (WGL or Company) sought a rate in-

crease of $17.8 million. Cross petitioner, Office of Peo-

ple’s Counsel (OPC) generally opposed it. On November

10, 1980 the Public Service Commission of the District of

Columbia (PSC or Commission) awarded an increase of

$11.9 million. Both WGL and OPC were dissatisfied and

petitioned this court for redress. We conclude that the

PSC made two erroneous rulings unfavorable to WGL,

but that the errors were not consequential enough to war-

rant remand with instructions to grant relief. We also

conclude that the Commission failed to explain its reasons

for the adoption of a formula used to allocate certain ex-

penses among the three jurisdictions served by WGL, and

remand for the necessary explanation.

The ratemaking proceedings commenced on June 29,

1979, upon application by WGL for a permanent increase

in its rates and charges for retail gas service within the

District of Columbia. Evidentiary hearings began in

January, 1980, and concluded in April, 1980. On October

* Associate Judge HARRIS retired from this court effective

February 5, 1982, and did not participate in the disposition of

this appeal.

[2386]

eee ee a Se ia

3a

3, 1980, the Commission issued a Proposed Order, which

was followed by a Final Order on November 10, 1980,

approving a new rate schedule effective as of that date.

Applications for reconsideration filed by the parties were

denied on December 24, 1980, and these petitions for re-

view followed.

WGL appeals the Commission’s disallowance of in-

creased Gas Research Institute expenses approved by the

Federal Energy Regulatory Commission (FERC) and the

disallowance of market pressure and flotation cost adjust-

ments. OPC appeals the Commission’s decisions concern-

ing WGL’s cash working capital allowance and the

amount of the market re-entry adjustment to WGL’s rev-

enue requirement. Both parties appeal the Commission’s

adoption of the modified “Massachusetts Formula” to

allocate a share of administrative and general expenses

to District of Columbia operations.'

I. Scope oF REVIEW

The limited nature of our review of orders of the PSC

is defined by D.C. Code 1981, § 43-906 which provides:

[R]eview by the Court shall be limited to ques-

tions of law, including constitutional questions;

and the findings of fact by the Commission shall

be conclusive unless it shall appear that such

findings of the Commission are unreasonable,

arbitrary, or capricious.

In addition, both parties reassert their claims of error

made in an appeal from a previous rate order. Our decision

in Washington Gas Light Company v. Public Service Commis-

sion, D.C.App., ——-A.2d (No. 79-587, Sept. 10, 1982),

which issued during the pendency of this appeal is dispositive

as to those “carry over issues,” and we therefore do not ad-

dress them on this appeal.

[2387}

4a

We have discussed the scope of our review in several

opinions.’ There is no need to repeat here what we have

said before. However, one aspect of our review function

bears emphasis. In Federal Power Commission v. Hope

Natural Gas Co., 320 U.S. 591, 602 (1944), the United

States Supreme Court stated:

It is not theory but the impact of the rate order

which counts. If the total effect of the rate order

cannot be said to be unjust and unreasonable,

judicial inquiry under the Act is at an end. The

fact that the method employed to reach that re-

sult may contain infirmities is not then impor-

tant.

That language has often been quoted, and properly so,

to underscore the narrow review powers of the courts in

this area. Since our review power over the PSC is com-

parable to the authority vested in the federal courts to

review Federal Energy Regulatory Commission orders,

the language is applicable here. Washington Public In-

terest Organization v. Public Service Commission, D.C.

App., 393 A.2d 71, 75 (1978), cert. denied, 444 U.S. 926

(1979). Yet the language is somewhat broad, especially

in its emphasis on the end result. Obviously, it does not

mean that the courts are not to review at all the methods

by which the agency arrives at its result. The United

States Supreme Court has recognized the regulatory com-

mission’s duty to indicate “fully and carefully the methods

by which, and the purpose for which it has chosen to act.”

* See Metropolitan Washington Board of Trade v. Public

Service Commission, D.C.App., 482 A.2d 343, 350-52 (1981) ;

Also illustrative are Washington Gas Light Company v. Pub-

lic Service Commission, supra, slip op. at 5; People’s Counsel

v. Public Service Commission, D.C.App., 399 A.2d 48 (1979) ;

Washington Public Interest Organization v. Public Service

Commission, D.C.App., 393 A.2d 71, 75 (1978), cert. denied,

444 U.S. 926 (1979).

[2888}

rl el ell TO

Sa

Permian Basin Area Rate Cases, 390 U.S. 747, 792

(1968). Some elaboration is required, therefore, in order

to apply the language in Hope to a case like the one be-

fore us.

That elaboration has been forthcoming in cases such as

Washington Public Interest Organization, and Mississippi

River Fuel Corp. v. Federal Power Commission, 82 U.S.

App.D.C. 208, 163 F.2d 433 (1947). In the former,

Judge Ferren wrote for this court:

While it is true that a regulatory commission

cannot be faulted for its methodology if the

“total effect of the rate order cannot be said to

be unjust and unreasonable,” Federal Power

Comm'n v. Hope Natural Gas Co., supra, 320

U.S. at 602, 64 S.Ct. at 288, it is also true that

the methodology must be disclosed for the bear-

ing it may have on that overall judgment. Ab-

sent precise explanation of methodology as ap-

plied to the facts of the case, there is no way for

a court to tell whether the Commission, how-

ever expert, has been arbitrary or unreason-

able. [Washington Public Interest Organization

v. Public Service Commission, supra at 76-77.)

Earlier in Mississippi River Fuel Corp., supra, Judge

Prettyman had written:

... The discretion which must be exercised is

that of the Commission. Congress has confided

that function to it. At the same time, Congress

has forbidden arbitrary actions and has imposed

upon the courts a duty of review in that respect.

Arbitrary action, if it means anything, means

action not based on facts or reason. The discre-

tion and judgment confided in the Commission

must be exercised upon facts and for reason.

[2889]

6a

The duty to review imposed upon the courts re-

quires that the facts be found and the reasons

stated. Otherwise, the courts cannot determine

whether a given action is or is not arbitrary.

The Congressional provisions extend to com-

plicated, difficult matters as well as to simple

questions. The courts cannot evade their re-

sponsibility merely because the subject matter

is obscure. And neither can they be required to

probe the minds of the agency for unfound facts

or unexpressed reasons. The coordination of the

two functions of administrative discretion and

judicial review requires that the facts upon

which the discretion is exercised, and the rea-

sons, be clearly and completely stated. When

the matter is complicated, the necessity is

greater. (Id. at 214, 163 F.2d at 439 (footnotes

omitted) .]

Where the PSC has accompanied its ruling with the

required full and careful explanation, that ruling is en-

titled to great deference. In Metropolitan Washington

Board of Trade v. Public Service Commission, D.C.App.,

432 A.2d 348, 352 (1981), Judge Gallagher stated for

this court:

Once the Commission has satisfied this initial

burden and has issued a decision, however, the

burden of petitioner on appeal to demonstrate

reversible error is considerable. More than a

difference of opinion with the Commission must

be asserted, for “(t]he court’s responsibility is

not to supplant the Commission’s balance of

{the relevant public) interests with one more

nearly to its liking, but instead to assure itself

that the Commission has given reasoned con-

(2890)

7a

sideration to each of the pertinent factors.” Id.

Petitioner therefore must establish “clearly and

convincingly a fatal flaw in the action taken

..+” [Quoting Goodman v. Public Service Com-

mission, D.C.App., 309 A.2d 97 at 101 (1973).]

In reviewing the actions of the PSC which are the sub-

jects of the challenges before us, we bear in mind both

the deference to be paid the agency’s authority and ex-

pert judgment and our responsibility to see to it that we

have before us the full and careful explanation of the

basis for agency action necessary to permit us to carry

out the review function demanded by statute and prece-

dent.

We will first address contentions which relate to rate

base, and then proceed to issues relating to rate of re-

turn, revenues, and expenses.

II. CASH WORKING CAPITAL ALLOWANCE

OPC asserts that the Commission erred in that the

cash working capital allowance it awarded WGL was

excessive. Cash working capital allowance is defined as

“an amount which the company (investors) must supply

from its own funds for the purpose of enabling it to

meet current obligations as they arise due to the time

lag between payment of expenses and collection of reve-

nues.” People’s Counsel v. Public Service Commission,

D.C.App., 399 A.2d 43, 46 (1979) (citation omitted)

(emphasis in original). Since investors are entitled to

a return on these advances, a cash working capital allow-

ance is included in the rate base.

WGL requested a cash working capital allowance of

$6,084,750. OPC recommended an allowance of negative

$537,000. The Commission denied WGL’s request for

[2391]

Ra

inclusion of compensating bank balances in the allowance,

but otherwise approved WGL’s request and awarded the

company a cash working capital allowance of $5,453,000,

Although the company requested a higher amount, it does

not appeal this portion of the Commission's order. OPC

appeals the amount of the cash working capital allowance

on five grounds.

As we noted earlier, the scope of our review is narrow.

Id, at 45. Initially, the utility has the burden of proving

its need for cash working capital. /d. at 47. Once the

utility has borne this burden, however, and the Commis-

sion has determined the amount needed, we may not set

aside the amount authorized by the Commission absent an

abuse of discretion. Jd. With these precepts in mind, we

proceed to an analysis of the particular objections by the

OPC to the amount of cash working capital allowance

authorized by the Commission.

A. Incremental Income Taxes

OPC contends that the cash working capita! allowance

shou:d have been reduced by the amount of the incre

mental income taxes associated with the increased reve

nues from the rate increase. The Commission, however,

rejected such an adjustment, noting that additional taxes

would have “no effect on the computed expense lag.” The

Company used a lead-lag study,’ based upon test period

experience data, to calculate the cash working capital al-

lowance. In the lead-lag study relied upon by the Com-

*In a lead-lag study, the average dollar day lag in the re-

ceipt of revenues and the average dollar day lead in the pay-

ment of expenses are computed. From this, a composite ex-

pense lag is calculated. This composite expense lag is multi-

plied by the average daily cash requirement to determine the

cash working capital allowance.

[2892]

9a

pany, dollar day lead or lag times were assigned to income

tax payments and, thus, the incremental tax payments

were taken into account in the Company’s calculations. In

choosing to credit the Company’s cash working capital

allowance calculation, the Commission implicitly took into

consideration the fact that actual expenses and actual

revenues in the utility’s actual year may vary from those

in the test year used in the study; this, however, should

have no effect on the calculated expense lag. We defer to

the Commission's use of a lead-lag methodology in calcu-

lating cash working capital alowance and, consequently,

conclude that the Commission did not err in refusing to

reduce the cash working capital allowance by the amount

of the incremental income taxes.

B. Gross Receipts Tax

D.C. Code 1981, § 47-2501 provides that each gas

company must make an affidavit

on or before the 1st day of August each year as

to the amount of its . . . gross earnings or gross

receipts, as the case may be, for the preceding

year ending the 30th day of June, and each gas

company ... shall pay to the Collector of Taxes

of the District of Columbia per annum 6 per

centum on such gross receipts... .

OPC asserts that the gross receipts taxes are paid

after the money for these taxes is collected from the

customers and, consequently, the cash working capital al-

lowance should be reduced a corresponding amount. The

Commission found no merit in this argument. It con-

cluded that although the tax liability was calculated on

the previous year’s gross receipts, the taxes were actually

paid in three advance installments. After examining the

[ 2393)

10a

record, we conclude that there is sufficient evidence to

support the Commission’s determination that the gross re-

ceipts taxes were prepaid and, consequently, should not

be deducted from the cash working capital allowance.

C. Levelized Billing Plan

OPC also argues that WGL’s use of a levelized billing

plan reduces its need for cash working capital. The Com-

mission, noting that WGL’s estimate of the net expense

lag was actually too low, found that OPC’s proposed ad-

justment was not convincing in light of the other evidence

introduced. Again, we find sufficient evidence in the

record to support this conclusion.

D. Jurisdictional Computation

The Commission agreed with OPC’s position that the

cash working capital allowance should be calculated on a

jurisdictional rather than a systemwide basis. However,

in order to give WGL sufficient notice of the change, the

Commission deferred implementation of the change until

the next rate proceeding. OPC contends that the Commis-

sion abused its discretion in postponing the implementa-

tion of the jurisdictional computation. Finding no such

abuse, we defer to the Commission’s determination.

E. Accrued Interest

Finally, OPC asserts that the cash working capital

allowance should be reduced by the amount of accrued

interest owed to bondholders. In People’s Counsel v.

Public Service Commission, supra at 49-50, we directed

the Commission’s attention to Re lowa Power and Light

Co., 6 P.U.R.4th 446 (1974) (dedueting the amount of

accrued interest on long-term debt from the cash working

[2394]

lla

capital allowance), for the Commission’s “serious con-

sideration in formulating the rate base in future proceed-

ings.” People’s Counsel v. Public Service Commission,

supra at 50. However, we declined to remand for further

consideration the Public Service Commission’s decision not

to reduce WGL’s cash working capital allowance by the

amount of the accrued interest because “the matter [was]

of insufficient magnitude to merit the unraveling of a

complex rate structure solely on this account.” /d.

In the proceedings being reviewed, the Commission has

again declined to reduce the cash working capital allow-

ance by the amount of the accrued interest on bonds, stat-

ing that it was “no more disposed to adopt such an argu-

ment than in the past” and citing only People’s Counsel

v. Public Service Commission, supra, and its order No.

7135 in Re Potomac Electric Power Co., 36 P.U.R.4th

139 (1980). We note that in an order ot cited, Re

Potomac Electric Power Co., 29 P.U.R.4th 517, 555-57

(1979), the Commission gave several reasons for its de

cision to include only cash operating expenses in the

calculation of the cash working capital allowance. Es-

sentially, the Commission concluded that interest expense

is not an operating or “above the line” expense and it

should not be selectively included in the cash working

capital allowance, just as other “below the line” or non-

cash expenses are not so included. Since the Commission

has clearly articulated a bas’s for its treatment of ac-

crued interest, we refer to its ruling.

In light of our analyses of the five objections OPC

interposed to the Commission’s determination of cash

working capital allowance, we decline to overturn the

Commission’s ruling in that regard.

[2395]

12a

III. MARKET PRESSURE AND FLOTATION COSTS

ADJUSTMENT

WGL asserts that the Commission erred in disallow-

ing its request for an adjustment to its rate of return

for market pressure and flotation costs associated with

the issuance of new stock. Market pressure refers to the

depression in the price of stock which occurs when ad-

ditiona] stock is issued; flotation costs are costs incurred

in issuing the additional stock, for example, underwriting

costs, attorneys’ and accountants’ fees, etc. When new

stock is issued by a utility, these costs properly are con-

sidered in calculating the rate of return.

Among the factors a regulatory agency must consider

in setting a utility’s rate of return is the return an in-

vestor must receive in order to enable the utility to com-

pete successfully for capital. The regulatory agency is

obliged to allow a rate of return to equity holders that

is “sufficient to assure confidence in the financial in-

tegrity of the enterprise, so as to maintain its credit and

attract capital.” Federal Power Commission v. Hope

Natural Gas Co., supra at 603. See also Blucfield Water

Works & Improvement Co. v. Public Service Commission

of the State of West Virginia, 262 U.S. 679 (1923).

The rate of return required to attract capital invest-

ment is referred to as the “cost of equity.” The Com-

mission calculated WGL’s cost of equity by the discounted

cash flow (DCF) method. That method takes into account

an investor’s anticipated income from dividends and capi-

tal gain upon eventual sale of the stock in order to ar-

rive at an estimated rate of return which the investor

must receive in order to induce him to invest in the utility

stock. The cost of equity arrived at by the DCF method

is referred to as the “bare-bones” cost of equity, i.e., the

cost of equity determined solely on the basis of current

[2396 |

ap gr ee

13a

dividend returns and anticipated growth, without adjust-

ment for factors such as the issuance of additional stock.

In the instant case, the Commission set the cost of

equity to WGL as a return on equity of 13.25%.* WGL

does not appeal this determination of the “bare-bones”

cost of equity, but appeals the Commission’s refusal to

adjust the rate of return upward to reflect market pres-

sure and flotation costs expected to result from WGL’s

anticipated issuance of additional common stock in 1981.

The Commission concedes that the rate of return allowed

to equity holders should include an allowance for market

pressure and flotation costs when additional stock is is-

sued, but justifies its refusal to grant the allowance here

on the grounds that WGL did not present sufficient evi-

dence that it would issue additional stock in the near

future to warrant granting the allowance.®

The record reflects that WGL Chief Financial Offi-

cer, Patrick J. Maher, in testimony filed with the Com-

mission on March 31, 1980, stated that WGL planned a

public offering of common stock in 1981, and that on

April 8, 1980, Mr. Maher testified that a five-year plan

to issue stock, including a projected issuance of fifteen

to twenty million dollars worth of common stock in 1981,

had been approved by the WGL'‘ Board of Directors in

March, 1980.

In its Proposed Order, the Commission noted that Mr.

Maher was “probably in the best position to determine

* Commission’s Final Order No. 7209, ordering paragraph B,

at 2, Nov. 10, 1980.

5 Commission’s Proposed Order No. 7193, ordering para-

graph D, at 32, Oct. 3, 1980.

[2397]

14a

[WGL’s] need for new equity,” and that he “indicated

quite strongly” that approximately fifteen to twenty mil-

lion dollars in new equity would be needed in 1981. Yet,

the Commission concluded that the evidence submitted to

it indicated “little more than a possibility” of a new is-

suance of common stock.* We disagree. The evidence be-

fore the Commission in the form of testimony of the com-

pany’s Chief Financial Officer was that the Board of

Directors had approved the issuance of common stock

having a value of approximately fifteen to twenty million

dollars. As the Commission itself concedes, WGL’s fail-

ure to announce a more specific plan regarding the is-

suance was “not unusual since such information com-

monly is released only shortly in advance [of actual

issuance].’’”

We conclude that the evidence concerning WGL’s pro-

jected issuance of common stock in 1981 was such that

it was unreasonable for the Commission to deny an ad-

justment to the rate of return to reflect the market pres-

sure and flotation costs associated with the issuance.*

We hold, therefore, that the Commission’s refusal to grant

the adjustment was error.

* Id.

7 Id.

*In our review of the evidence before the Board on this

issue, we did not consider Mr. Maher's reported statement to

the Maryland Public Service Commission, as represented to

the Commission by WGL in its Exceptions to the Commis-

sion’s Proposed Order, nor did we consider WGL’s application

to the Commission in March, 1981, for authorization to issue

new common stock; the statement and application were not

properly before the Board as evidence in the proceedings un-

der review here.

[2398]

Sa

IV. MARKET RE-ENTRY

OPC contends that the Commission’s decision to re-

duce WGL’s revenue requirement by only $600,000 by

reason of market re-entry was not supported by substan-

tial evidence. The term market re-entry as used here

refers to the anticipated growth in sales expected to be

realized by WGL as a result of relaxation of restrictions

on the Company’s extension of its service to new cus-

tomers. The restrictions were imposed by the Commis-

sion in 1972 due to a shortage of natural gas. As the

availability of gas increased, the restrictions were eased

and, in 1978, the Commission approved a plan for gradual

increase in the number of WGL customers.

Additional sales by WGL under the program began in

approximately October, 1979, and were considered in the

calculation of the Company’s cost-of-service for 1979. In

addition, the Commission reduced the Company’s annual

revenue requirement by $600,000 in consideration of pros-

pective sales increases. WGL does not appeal the Com-

mission’s order with respect to the adjustment to the rev-

enue requirement. OPC, however, contends that the Com-

mission’s decision is unsupported by substantial record

evidence.

In proceedings before the Commission, WGL contended

that no revenue adjustment was necessary to account for

market re-entry. At the same time the Company pro

jected an increase in future sales which the Commission

calculated would have the net effect of reducing the reve-

nue requirement by $423,891 annually. Commission staff

estimated a gross increase in Company revenues of

$5,896,000 annually resulting in a net reduction to the

revenue requirement of approximately $795,000 annually.

OPC projected a $6,444,000 annual increase in gross rev-

enues with a resultant reduction to revenue requirement

of $927,872.

[2399]

I6a

The requirement of the District of Columbia Adminis-

trative Procedure Act, D.C. Code 1981, § 1-1509(e), that

agency decisions be accompanied by findings of fact and

supported by substantial evidence imposes upon the agency

the duty to make findings of basic facts upon which the

agency decision rests. Put another way, the agency must

“show on what it relied in reaching its decision.” Citizens

Association of Georgetown, Inc. v. District of Columbia

Zoning Commission, D.C.App., 402 A.2d 36, 42 (1979),

quoting Miller v. Commission on Human Rights, D.C.

App., 339 A.2d 715, 719 (1975). Moreover, the agency

decision must rationally follow from the facts. Citizens

Association of Georgetown, Inc. v. District of Columbia

Zoning Commission, supra at 41.

In its Proposed Order, the Commission set forth find-

ings of fact and cited to record evidence in support of

its determination that the estimates of future sales pro-

vided by the parties were deficient.’ The Commission’s

stated reasons for ordering a $600,000 reduction to

WGL’s revenue requirement were that the net effect of

the sales growth forecast by WGL was “too conservative ;”

the estimates by staff and OPC might prove to be “un-

realistically high: an increase in sales was “a virtual

certainty,” and the rate of growth in sales was “slower

than anticipated.” The Commission made no express find-

ings, however, to underpin the revenue adjustment it ulti-

mately ordered.

Thus, there is some merit in OPC’s contention that the

Commission’s conclusion is not properly supported by its

findings. We must recognize, at the same time, that

implicit in its determination of a revenue requirement re-

duction is a PSC estimate of the amount of sales growth

WGL will experience due to its re-entry into the market.

* Order No. 7193 at 35-40.

[2400]

17a

The record provided the Commission with sufficient evi-

dence on the market re-entry issue to provide an adequate

basis for decision, although, necessarily, the evidence con-

sisted in large part of estimates and projections. In view

of the Commission’s implicit finding as to sales growth,

we decline to set aside its decision in this regard.

V. GAS RESEARCH INSTITUTE EXPENSES

WGL challenges the Commission’s refusal to allow the

company to recover, as operating costs, projected increases

in the wholesale cost of natural gas attributable to in-

creases in Gas Research Institute surcharges effective

January 1, 1981. The Commission limited the Company’s

recovery to the “current amount” of Gas Research In-

stitute surcharges, t.e., the amount paid by WGL in the

test year, 1979, approximately $93,000.'°

The Gas Research Institute (GRI) is a non-profit re-

search and development corporation supported by the nat-

ural gas industry. Its members include interstate pipe-

line and distribution companies. GRI’s costs are assessed

its members who, in turn, incorporate the cost of their

contributions into the rates they charge their retail utility

customers such as WGL. Before the interstate whole-

salers can raise their rates to reflect increases in their

assessed contributions, they must receive approval from

FERC."

The Natural Gas Act, 15 U.S.C. §8§ 717 et seq. (1976),

authorizes FERC to regulate the interstate transporta-

1° Commission Order 7209, ordering paragraph E at 4 (No-

vember 10, 1980).

'' The FERC was created pursuant to 42 U.S.C. §§ 7101 et

seq. (Supp. II 1978) and Executive Order No. 12009, 42 Fed.

Reg. 46267 (1977), and as of October i, 1977, assumed the

functions of the Federal Power Commission (FPC).

{2401}

Ra

tion and sale of natural gas, including approving rates

charged in interstate sales. So that wholesale companies

need not petition FERC for permission to raise their

rates whenever their assessed contributions are raised,

FERC allows research and development corporations such

as GRI to submit to FERC for approval a proposed

budget, including contributions assessments. FERC ap-

proval of the research and development organization’s

plan constitutes approval of the member companies’ con-

tributions to the organization, including the wholesale rate

increase reflecting the higher assessments.

Since a wholesaler’s rates reflect contributions to GRI,

any increase in GRI costs to the wholesaler results in a

higher purchase cost of gas to the local utility. The local

utility’s purchase cost is an operating expense and is

properly included in the cost of service,

WGL purchases natural gas from two wholesale com-

panies, Columbia Gas Transmission Corporation and

Transcontinental Gas Pipeline Corporation. Both whole

salers are members of GRI. In September 1980, FERC

approved an increase in GRI assessments from .048 per

Mcf,’* to .056 cents per Mef. effective January 1, 1981."

In the ratemaking proceeding under review here, WGL

requested that it be allowed to raise its rates to reflect

the correspondingly increased wholesale costs resulting

from the increased GRI surcharges approved by FERC,"*

The Commission granted WGL permission to charge rates

reflecting the Company's GRI contribution as of October,

‘? One Mef. is 1,000 cubic feet.

FERC Opinion No, 96, Ordering Parayraph (B) at 18

(Sept. 30, 1980).

’WGL estimated its yearly contributions to GRI from

1980 to 1984 inclusive, to be: 1980—$127,109; 1981—

$175,665; 1982—$213,930; 1983—$246,846; 1984—$254,162.

[2402)

19a

1979, but refused to allow an adjustment to reflect the

increase effective January, 1981. The Commission justi-

fied its decision on the grounds that the FERC approved

increase was not a “known and measurable expense,” and

that few benefits would accrue to District of Columbia

ratepayers as a result of GRI activities.

The Commission agrees that the entire wholesale cost

of gas is recoverable by WGL as a cost of service, It is

the Commission’s position, however, that the authority of

FERC to approve GRI charges to member companies was

in question at the time of the present ratemaking pro-

ceeding, and thus that portion of wholesale costs attribu-

table to GRI charges was not a measurable and certain

expense. The Commission further contends that, even if

FERC is found to have authority to approve the GRI

increase, the Commission acted properly in denying the

GRI charges and that the correct procedure was for the

Company to return to the Commission and ask for a rate

increase when the issue of FERC jurisdiction was settled.

At the time the Commission issued its order, a suit was

pending in the United States Court of Appeals for the

District of Columbia Circuit challenging FERC’s juris-

diction to approve GRI charges to member companies.

Subsequent to the Commission’s order in the present case,

the court ruled that FERC has jurisdiction to approve

GRI’s program and budget and to rule on applications for

rate increases submitted by GRI on behalf of the juris-

dictional members. Public Utilities Commission of the

State of Colorado v, Federal Energy Regulatory Com-

mission, 660 F.2d 821, 825 (D.C.Cir. 1981), cert. denied,

— U.S. ——, 102 S.Ct. 2009 (1982) .”

18 We agree with OPC that nothing in the holding of the

case can be read as extending FERC’s jurisdiction to the issue

[24038]

20a

The issue before us is whether the Commission erred

in disallowing the increased GRI charges as reasonable

operating expenses on the grounds that the above appeal

was pending at the time of the Commission’s decision.

We hold that it did. It is well settled that the Na‘u al

Gas Act provides for exclusive federal regulation of in-

terstate wholesales of natural gas. See Northern Natural

Gas Company v. State Corporation Commission of Kan-

sas, 372 U.S. 84 (1963) ; Illinois Natural Gas Compzny v.

Central Illinois Public Service Commission, 314 U.S, 498

(1942). State and local commissions have no authority,

therefore, to inquire into the reasonableness of wholesale

rates, but must allow them as reasonable ope ating ex-

penses. See, e.g., Citizens Gas Users Association v. Public

Utilities Commission of Ohio, 165 Ohio St. 536, 188 N.E.

2d 383 (1956); City of Chicago v. Illinois Commerce

Commission, 13 Ill.2d 607, 150 N.E.2d 776 (1958);

United Gas Corp. v. Mississippi Public Service Commis-

sion, 127 So.2d 404 (Miss. 1961).'"

of whether increased wholesale costs shall be passed through

to retail customers by the local utility. The determination of

the extent to which wholesale costs should be reflected in local

utility rates lies exclusively with local utility commissions.

See Narragansett Electric Co. v. Burke, 381 A.2d 1358, 1363

(R.I. 1977), cert. denied, 435 U.S. 972 (1978).

The Commission’s refusal to allow increased GRI charges

to be reflected in retail rates in the instant case, however, was

based upon the Commission’s erroneous conclusion that the

increase in wholesale costs was not a just and reasonable op-

erating expense, rather than upon a determination that the

expense should not be passed through to retail customers.

1° The highest courts of at least two jurisdictions have held

that state utility commissions are not free to disallow, as op-

erating expenses, wholesale rates filed with, but not yet ap-

proved by, the FERC. See Narragansett Electric Co. v. Burke,

supra; United Gas Corp. v. Mississippi Public Service

Comm’n., supra.

12404 |

2la

In the instant case, the Commission chose to disregard

a final FERC order approving wholesale rates on the

ground that FERC’s jurisdiction had been challenged by

another utility commission in a petition for judicial

review of the order. The Commission ignored the fact

that in the avsence of a stay the FERC order, as a final

agency order, was fully in effect during proceedings for

review. Jupiter Corp. v. Federal Power Commission, 137

U.S.App.D.C. 295, 308, 424 F.2d 783, 791 (1969), cert.

denied, 397 U.S. 937 (1970); Ecee, Inc. v. Federal Power

Commission, 526 F.2d 1270, 1274 (5th Cir.), cert. denied,

429 U.S. 867 (1976).

We hold that the Commission had no authority to dis-

allow as a reasonable operating expense the wholesale

purchase cost of natural gas approved by FERC, includ-

ing that portion of wholesale costs attributable to GRI

surcharges to become effective January 1, 1981. Because

we hold that the Commission had no jurisdiction to rule

on the reasonableness of such surcharges, we need not

reach, and the Commission was unauthorized to consider,

the issue whether the GRI charges benefit the District of

Columbia ratepayers.

Finally, we decline PSC’s invitation to rule that the

United States Court of Appeals erred in Colorado and to

hold that FERC was without jurisdiction to approve GRI

expenses as a part of the wholesale rate paid by gas

retail companies including WGL. Review of the rulings

of FERC is vested by statute in the United States Court

of Appeals, not this court. See 15 U.S.C. § 717r(b)

(1976).

VI. MODIFIED MASSACHUSETTS FORMULA

WGL serves consumers in the District of Columbia,

Maryland and Virginia. Both WGL and OPC assert that

the Commission erred in adopting a new formula for al-

(2405)

224

locating to the District of Columbia its fair share of

administrative and general [A&G] expenses

In Formal! Case No. 686, the Commission directed WGL

to:

[Either reflect A&G expenses allocation solely

according to a modified “Massachusetts For-

mula” or if it nonetheless still advocate[d] a

different approach, present a complete alternate

cost of service which reflects allocation under

modified “Massachusetts Formula.” [Commis-

sion Order No. 6051, ordering paragraph C at

76.)

The Massachusetts Formula, originally used by the

Massachusetts Department of Revenue to determine the

amount of tax owed to Massachusetts by corporations do-

ing some of their business in the state, allocates admin-

istrative and general expenses by employing an average

of the percentage of property, wages and (twice the per-

centage of) sales related to the jurisdiction. Formerly,

the Commission had permitted WGL to allocate admin-

istrative expenses not directly assignable to a jurisdiction

on the basis of a factor, expressed in terms of labor ex-

penses, which was a composite of a number of factors

including therm sales, plant, and labor. At the rate

proceeding below, WGL continued to use its existing

method for allocating A&G expenses and presented a com-

parative statement showing the revenue requirement us-

ing the “Massachusetts Formula” for allocating A&G

expenses. OPC advocated that all A&G expenses—both

labor-related and non-labor-related—be allocated accord-

ing to the modified Massachusetts Formula and that an

adjustment of $1.5 million be made to the revenue re-

quirement.

[2406]

23a

In its order the Commission purported to adopt a modi-

fied Massachusetts Formula, and stated that it allocated

labor-related A&G expenses in the same manner as all

A&G expenses had been allocated in the past and non-

labor-related expenses on the basis of a simple average of

the jurisdiction’s share of plant, sales and labor.’’ The

Commission reduced WGL’s allocation of A&G expenses

to the District of Columbia by $856,000. WGL contends

that the Commission’s decision to adopt the modified

Massachusetts Formula for allocating A&G expenses is

not supported by substantial evidence, lacks the requisite

findings of fact and jeopardizes the company’s ability to

recover its cost of service in the Washington metropolitan

area. OPC supports the use of the modified Massachu-

setts Formula, but argues that the record does not sup-

port the amount of the adjustment made by the Commis-

sion.

As we observed in the discussion above of the scope of

our review, “[b]efore meaningful judicial review to de-

termine the reasonableness of a Commission decision is

possible, the Commission, of course, must satisfy its own

burden: to base its decision on sufficient evidence and to

explain its actions ‘fully and carefully.’” Metropolitan

Washington Board of Trade v. Public Service Commission,

supra at 351; See Washington Public Interest Organiza-

tion v. Public Service Commission, supra at 75-78; Missis-

sippi River Fuel Corp. v. Federal Power Commission,

17 OPC questions the Commission’s actual application of the

Modified Massachusetts Formula. Although the Commission

gave a general description of its concept of the Modified Mas-

sachusetts Formula in its order, it failed to elaborate on its

methodology, i.e., disclosure of the percentages of revenue,

plant and labor allocated to each jurisdiction, and a breakdown

of the administrative and general expenses subaccounts into

labor and non-labor-related expenses.

{2407]

24a

supra at 224, 1638 F.2d at 433. Although our review

function is narrow, before we can give deference to the

Commission’s choice of methodology, that methodology

must be fully disclosed. Washington Public Interest Or-

ganization v. Public Service Commission, supra at 76-77.

In its order, the Commission failed to explain the rea-

sons for its choice of the so-called Modified Massachusetts

Formula, the method it used to employ that formula, and

the calculation of the amount of the adjustment to the

District’s share of A&G expenses."* In the absence of such

an explanation, it is impossible for us to determine

whether the Commission’s choice of the Modified Massa-

chusetts Formula is reasonable. Therefore, we must

remand the case to the Commission for an explanation

of precisely what formula was used, why that formula

was chosen, and how the amount of the adjustment was

computed. See Washington Public Interest Organization

v. Public Service Commission, supra at 78; Mississippi

River Fuel Corp. v. Federal Power Commission, supra at

227, 163 F.2d at 436.

VII. REMEDY

We reverse the Commission’s refusal to adjust the rate

of return to reflect market pressure and flotation costs

associated with the issuance of common stock and its

disallowance of the projected increases in GRI surcharges

as operating expenses. In light of the relatively small

amounts of revenue involved, see People’s Counsel v. Pub-

lic Service Commission, supra at 50, and the policy

against retroactive ratemaking, see Bebchick v. Washing-

46 From its order, it is impossible for us to determine which

party’s exhibits and calculations, if any, the Commission

credited and relied upon in adopting its version of the Modi-

fied Massachusetts Formula.

[2408]

25a

ton Metropolitan Area Transit Commission, 158 U.S.App.

D.C. 79, 85, 485 F.2d 858, 864 (1973); Payne v. Wash-

ington Metropolitan Area Transit Commission, 134 U.S.

App.D.C. 321, 329-31, 415 F.2d 901, 909-11 (1968), how-

ever, we do not remand these aspects of the order for

recalculation of the revenue requirement."®

We remand the Commission’s adoption of the Modified

Massachusetts Formula for an explanation of its reasons

for choosing this formula. In this regard, we note that

we have

not reversed the conclusions of the Commission,

except in the procedural sense necessary to a re-

mand. [We have] remanded the case for clarifi-

cation where clarity is not present, and for com-

pletion where incompleteness now exists. When

the findings and conclusions are complete and

clear, the court will then, if appropriate proceed-

ings are brought, consider whether the ultimate

rulings of the Commission are within the per-

missible bounds of its power. [Mississippi River

Fuel Corp. v. Federal Power Commission, supra

at 227, 163 F.2d at 452.]

See also Washington Public Interest Organization v. Pub-

lic Service Commission, supra.

In all other respects, the order under review is affirmed.

Affirmed in part; reversed in

part; remanded for further

proceedings in part.

'» We observe that, in view of our rulings herein, there

is no aspect of the GRI or market pressure-flotation cost

issues that will require PSC consideration upon our remand

on the issue of allocation of A&G expenses.

[2409]

Dae

26a

DISTRICT OF COLUMBIA COURT OF APPEALS

500 INDIANA AVENUE, N.W.

WASHINGTON, D.C, 20001

(202) 638-71 13 DISTRICT OF COLUMBIA

COURT OF APPEALS

FILED JAN 21 1983

Nos. 81-229 and 81-232

Clerk

WASHINGTON GAS LIGHT COMPANY, Petitioner,

Vv.

PUBLIC SERVICE COMMISSION OF

THE DISTRICT OF COLUMBIA, Respondent.

OFFICE OF PEOPLE’S COUNSEL, Intervenor.

BEFORE: Newman, Chief Judge; *Kelly, Kern, Nebeker,

Mack, Ferren, Pryor, *Belson, and Terry,

Associate Judges.

ORDER

On consideration of respondent’s petition for rehearing

or rehearing en banc and the supplemental memorandum

in support thereof, it is

ORDERED for the merits division* that respondent’s

petition for rehearing is denied; it appearing that no judge

of this court has called for a vote thereon, it is

27a

FURTHER ORDERED that respondent’s petition for

rehearing en banc is denied.

PER CURIAM

Copies to:

Lewis Carroll, Esq.

1100 H Street NW, 20080

Lloyd N. Moore, Jr., Esq.

451 Indiana Avenue NW, 20001

Brian J.H. Lederer, Esq.

1012 14th Street NW, #303, 20005

James M. Broadstone, Esq.

821 15th Street NW, 20005

28a

APPENDIX

Excerpt from Proposed Final Order in F.C. No. 722

Order No. 7193

F. Gas Research Institute

The Gas Research Institute (GRI) was formed in 1977 to

coordinate and accelerate critically needed research into

gaseous fuels. It replaced the American Gas Association’s

efforts in this area. The membership of GRI consists of

137 distribution companies, 28 interstate pipeline com-

panies and 24 municipal utilities and represents the vast

majority of gaseous fuel suppliers in the United States.

WGL is a member as is Columbia and Transco, WGL’s

pipeline suppliers. The research and development program

under GRI is reviewed by its advisory council, research

coordination panel, industry technical advisory commit-

tee, and municipal gas system advisory committee, which

evaluate GRI research from the viewpoints of economic,

consumer, environmental, scientific, industrial and

regulatory interests.

WGL states that each year GRI submits its five-year

research plan and budget to FERC for review and ap-

proval to insure that the its activities are prudent, well-

designed, and in the public interest. Once approved, the

costs of funding the research program are embodied in the

wholesale cost of gas. WGL is thereafter assessed by its

pipeline suppliers for these charges as part of its gas bills.

WGL’s portion of the charges as part of its gas bills.

WGL’s portion of the costs through October 1979 which is

allocated to the District of Columbia operations is $93,000

(WGL Exh. H, p. 7). However, GRI’s budget continues to

—————— a Cl

29a

grow throughout its most recent five-year forecast period

and, with it, WGL’s share. Thus, WGL’s projected con-

tributions to G.R.I. on a D.C. basis are $127,109 for 1980,

$175,665 for 1981, $213,930 for 1982, $246,846 for 1983,

and $254,162 for 1984 (OPC brief, p. 233.)

WGL argues that a utility is entitled to charge all of its

legitimate operating expenses to its ratepayers and that its

GRI assessment is no different than the expenses it incurs

for any other utility operation. It cites Mississippi Fuel

Corporation v. FPC, 163 F.2d 433 at 437 (D.C. Cir. Ct.

1947) and West Ohio Gas Company v. Ohio Public

Utilities Commission, 294 U.S. 63 at 72 (1975) for the pro-

position that the allowed return on investment, which is

that amount over and above expenses, must be proved and

that the court — and presumably this regulatory agency —

should not substitute is judgment for a utility’s as to the

appropriate amount of an expenditure.

WGL claims that were it not to pay its assessment it

would not be able to buy its gas supplies, in that the assess-

ment is merely one component of WGL’s commodity cost

of gas which it is legally entitled to recover. WGL claims

that neither the District of Columbia Commission nor the

company has any control or any right of control over the

company’s commodity costs except to the extent that each,

by intervention in federal rate proceedings, exercises its

powers of persuasion.

WGL maintains that the GRI research and development

programs benefit the ratepayers by improving the gas sup-

ply, promoting the conservation of natural gas and safety

programs, improving environmental quality, and

eliminating fragmented and often duplicative research

which individual companies might otherwise undertake. In

view of the foregoing, WGL maintains that the entire

Wa

amount allocated to GRI in its cost of service study should

be allowed by the Commission.

Staff's position is similar to that of WGL. Staff argues

that the Federal Energy Regulatory Commission has

specifically authorized the GRI surcharge for interstate

gas as a reasonably incurred operating expense under the

“filed rate doctrine.” The charge, staff maintains, is also

recognized as a component of the legal rate charged to

WGL. Narrangansett Electric Company v. Bruke, 381

A.2d 1358, 1362 (R.I. 1977), cert. denied 435 U.S. 972

(1978). Staff also agrees with WGL that as the company

has no realistic choice but to pay the rate included in the

GRI charge, equity would demand that these increased

costs be recovered in a rate adjustment.

OPC equates this issue with the AGA expense issue, in

that WGL has to carry the burden on the record of the

propriety of these expenses. OPC cites the case of Re:

Western Slope Gas Company (Decision No. C79-907,

1979), a Colorado decision which denied a utility its re-

quest for automatic flow-through of the GRI assessment

but did permit the company to set out the charge in the

context of the general revenue investigation. OPC main-

tains that the record in this proceeding has failed to specify

or quantity potential benefits to customers from WGL’s

participation in GRI. OPC submits that D.C. ratepayers

can expect little or no benefits from WGL’s proposed

funding of GRI.

OPC maintains that the benefits of GRI will go to

manufactures first, appliance dealers second and WGL

and its ratepayers third. The benefit wold flow through to

the ratepayer only to the extent that he utilizes and pur-

chases the new, efficient gas appliances.

3la

OPC contends thai the Commission’s duty to establish

rates has not been usurped by the actions of FERC in ap-

proving the GRI budget. OPC submits that the District of

Columbia Commission has independent authority to

determine the ratemaking treatment of GRI on its own, ir-

respective of the manner in which FERC has decided the

issue. OPC concedes, however, that there is controversy

over the question of whether the FERC decision preempts

this Commission from disallowing the GRI contribution.

This preemption is being challenged in the case of State of

Colorado v. FERC (D.C. Cir., C.A. No. 80-117). OPC

would have the Commission reserve decision on this mat-

ter and render a separate decision when the legal authority

issue is resolved by the court in the above captioned case.

We do not contest the viability of the proportionate

assessment by WGL’s pipeline suppliers of its share of

GRI’s annual costs. We also are aware that FERC has

decided not to mandate shareholder contributions by its

member companies to meet GRI’s annual budgetary

needs.*’ Such action, however, does not predetermine our

obligation to assure that the D.C. ratepayers are charged

no more than is reasonably necessary by WGL for the

maintenance of safe, efficient and adequate gas service.

We recognize that the GRI program may provide some

benefits to ratepayers in the future. Nevertheless, insofar

as the immediate consumer is concerned, these bencfits are

indirect at best and, in our opinion, will be substantially

less to residential consumers — which comprise the ma-

jority of WGL’s customers, both in terms of absolute

37Gas Research Institute, Order Denying Request to Require

Shareholder Contributions, Docket No. RP 78-76, issued May 23,

1979.

32a

numbers and in volumes of gas consumed — than they will

be to industrial and commercial customers and to the gas

utility companies in general.

In Order No. 6051, pp. 69-71, we considered whether

certain payments made by WGL to the American Gas

Association in support of its activities were properly in-

cluded as an expense to be charged to WGL’s ratepayers.

We concluded that they should not be so charged because

there was no evidence that the activities financed served to

improve customer service. Although GRI’s program dif-

fers in major respects from that of AGA, the principle

underlying the decision on cost recovery is the same.

In our opinion WGL and its stockholders stand to

receive a substantially greater benefit from the company’s

participation in GRI than will the customers themselves.

Nevertheless, at this time WGL’s share of GRI’s costs is

relatively small — $93,000 — and a number of activities

being engaged in by GRI do hold at least a promise of pro-

viding some general benefit to all gas consumers, including

those of WGL. Accordingly, we shall allow the current

amount in this case as part of the wholesale commodity

cost of gas to the company. Any increases above this

amount will be considered in later cases. In addition, we

will expect WGL to review critically GRI’s annual

budgetary submissions and to participate fully in any pro-

ceedings on this subject before that agency.

oe Eee

33a

Excerpt from Final Order In F.C. No. 722

Order No. 7209

E. Gas Research Institute

In Order No. 7193 we concluded that WGL should be

permitted to recover the “current amount” of the charges

included in its wholesale gas cost which is utilized to meet

the operational costs of the Gas Research Institute. This

current rate is 0.047 cents per therm which in 1979

amounted to $93,000, allocated to WGL’s operations in

the District. We also stated that any increases above the

current amount “... will be considered in later rate

cases.” Order No. 7193, p. 61. WGL notes that the charges

it must pay have already been increased, effective January

1, 1981, and requests that it be permitted to collect the ef-

fective GRI portion of its wholesale gas rates as fixed from

time to time by appropriate authority.

WGL’s exception is denied. We are aware (and were

aware at the time the Proposed Opinion issued) that the

per therm assessment would be increased effective January

1, 1981. Nevertheless, no increase over the current per

therm charge was authorized since the increase has not

been proven on the information before us and, although

approved by FERC, has not been shown to be justified on

a record before this Commission. Absent such justifica-

tion we have no way of evaluating the merit of the increase

or the proper amount to be accepted as allocable to

District of Columbia ratepayers.

34a

Excerpt From Order Denying Reconsideration

in F.C. No. 722

Order No. 7237

As noted earlier, WGL objects to our decision not to

reflect in these rates the increased GRI funding jassess-

ment it will beging paying on January 1, 1981, as part of

its pipeline suppliers’ FERC filed rates. We do not accept

this adjustment as a known change, required to be re-

flected in these rates. Although the Supreme Court of

Rhode Island in Narragansett Electric Co. v. Burke, 381

A.2d 1358 (RI. 1977), cert. denied, 435 U.S. 972 (1978),

rejected an attempt by that state’s commission to deny

recovery in retail rates of any portion of the FERC-

established wholesale rates. We believe that the issued of

WGL’s assessment rate for the support of GRI has not

been finally resolved. The FERC approved rate is

undergoing judicial review. See Colorado PUC v. FERC,

CADC, No. 80-1117; see also Office of Consumers’

Counsel v. FERC, _ Fed.2d _., CADC, No.

80-1303, et al issued December 8, 1980. Assuming the

revised rate is overturned, WGL, not having paid the in-

crease, will not be required to make refunds to its

customers. If the rate is sustained, WGL can seek current

recovery via the filing of a proper rate change request. The

fact that an exact matching of cost and revenues may not

take place provides no basis for an additional allowance

under existing circumstances.

Natural Gas Act § 2, 15 U.S.C. § 717a. Definitions

When used in this chapter, unless the context

otherwise requires -

(1) “Person” includes an individual or a cor-

poration.

35a

(2) “Corporation” includes any corporation,

joint-stock company, partnership, association,

business trust, organized group of persons

whether incorporated or not, receiver or

receivers, trustee or trustees of any of the forego-

ing, but shall not include municipalities as

hereinafter defined.

(3) “Municipality” means a city, county, or

other political subdivision or agency of a State.

(4) “State” means a State admitted to the

Union, the District of Columbia, and any

organized Territory of the United States.

(5S) “Natural gas” means either natural gas un-

mixed, or any mixture of natural and artificial

gas.

(6) “Natural-gas company” means a person

engaged in the transportation of natural gas in

interstate commerce, or the sale in interstate

commerce of such gas for resale.

(7) “Interstate commerce” means commerce

between any point in State and any point outside

thereof, or between points within the same State

but through any place outside thereof, but only

insofar as such commerce takes place within the

United States.

(8) “States commission” means the regulatory

body of the State or municipality having jurisdic-

tion to regulate rates and charges for the sale of

natural gas to consumers within the State or

municipality.

(9) “Commission” and “Commissioner”

means the Federal Power Commission, and

member thereof, respectively.

36a

Natural Gas Act § 4, 15 U.S.C. § 717c. Rates and charges;

schedules; suspension of new rates

(a) All rates and charges made, demanded, or

received by any natural-gas company for or in

connection with the transportation or sale of

natural gas subject to the jurisdiction of the

Commission, and all rules and regulations affect-

ing or pertaining to such rates or charges, shall

be just and reasonable, and any such rate or

charge that is not just and reasonable is declared

to be unlawful.

(b) No natural-gas company shall, with

respect to any transportation or sale of natural

gas subject to the jurisdiction of the Commis-

sion, (1) make or grant any undue preference or

advantage to any person or subject any person to

any undue prejudice or disadvantage, or (2)

maintain any unreasonable difference in rates,

charges, service, facilities, or in any other

respect, either as between localities or as between

classes of service.

(c) Under such rules and regulations as the

Commission may prescribe, every natural-gas

company shall file with the Commission, within

such time (not less than sixty days from June 21,

1938) and in such form as the Commission may

designate, and shall keep open in convenient

form and place for public inspection, schedules

showing all rates and charges for any transporta-

tion or sale subject to the jurisdiction of the

Commission, and the classifications, practices,

and regulations affecting such rates and charges,

together with all contracts which in any manner

affect or relate to such rates, charges, classifica-

tions, and services.

37a

(d) Unless tne Commission otherwise orders,

no change shall be made by any natural-gas com-

pany in any such rate, charge, classification, or

service, or in any rule, regulation, or contract

relating thereto, except after thirty days’ notice

to the Commission and to the public. Such notice

shall be given by filing with the Commission and

keeping open for public inspection new schedules

stating plainly the change or changes to be made

in the schedule or schedules then in force and the

time when the change or changes will go into ef-

fect. The Commission, for good cause shown,

may allow changes to take effect without requir-

ing the thirty days’ notice herein provided for by

an order specifying the changes so to be made

and the time when they shall take effect and the

manner in which they shall be filed and pub-

lished.

(e) Whenever any such new schedule is filed

the Commission shall have authority, either

upon complaint of any State, municipality, State

commission or gas distributing company, or

upon its own initiative without complaint, at

once, and if it so orders, without answer or for-

mal pleading by the natural-gas company, but

upon reasonable notice, to enter upon a hearing

concerning the lawfulness of such rate, charge,

classification, or service; and, pending such hear-

ing and the decision thereon, the Commission,

upon filing with such schedules and delivering to

the natural-gas company affected thereby a state-

ment in writing of its reasons for such suspen-

sion, may suspend the operation of such schedule

and defer the use of such rate, charge, classifica-

tion, or service, but not for a longer period than

five months beyond the time when it would

Ra

otherwise go into effect; and after full hearings,

either completed before or after the rate, charge,

classification, or service goes into effect, the

Commission may make such orders’ with

reference thereto as would be proper in a pro-

ceeding initiated after it had become effective. If

the proceeding has not been concluded and an

order made at the expiration of the suspension

period, on motion of the natural-gas company

making the filing, the proposed change of rate,

charge, classification, or service shall go into ef-

fect. Where increased rates or charges are thus

made effective, the Commission may by order re-

quire the natural-gas company to furnish a bond,

to be approved by the Commission, to refund

any amounts ordered by the Commission, to

keep accurate accounts in detail of all amounts

received by reason of such increase, specifying by

whom and in whose behalf such amounts were

paid, and upon completion of the hearing and

decision, to order such natural-gas company to

refund, with interest, the portion of such increas-

ed rates or charges by its decision found not

justified. At any hearing involving a rate or

charge sought to be increased, the burden of pro-

of to show that the increased rate or charge is

just and reasonable shall be upon the natural-gas

company, and the Commission shall give to the

hearing and decision of such questions

preference over other questions pending before it

and decide the same as speedily as possible.

Natural Gas Act § 8, 15 U.S.C. § 717g. Accounts;

records; memoranda

(a) Every natural-gas company shall make,

keep, and preserve for such periods, such ac-

ie > a ae

39a

counts, records of cost-accounting procedures,

correspondence, memoranda, papers, books,

and other records as the Commission may by

rules and regulations prescribe as necessary or

appropriate for purposes of the administration

of this chapter: Provided, however, That nothing

in this chapter shall relieve any such natural-gas

company from keeping any accounts, memoran-

da, or records which such natural-gas company

may be required to keep by or under authority of

the laws of any State. The Commission may

prescribe a system of accounts to be kept by such

natural-gas companies, and may classify such

natural-gas companies and prescribe a system of

accounts for each class. The Commission, after

notice and opportunity for hearing, may deter-

mine by order the accounts in which particular

outlays or receipts shall be entered, charged, or

credited. The burden of proof to justify every ac-

counting entry questioned by the Commission

shall be on the person making, authorizing, or

requiring such entry, and the Commission may

suspend a charge or credit pending submission of

satisfactory proof in support thereof.

(b) The Commission shall at all times have ac-

cess to and the right to inspect and examine all

accounts, records, and memoranda of natural-

gas companies; and it shall be the duty of such

natural-gas companies to furnish to the Commis-

sion, within such reasonable time as the Commis-

sion may order, any information with respect

thereto which the Commission may by order re-

quire, including copies of maps, contracts,

reports of engineers, and other data, records,

and papers, and to grant to all agents of the

Commission free access to its property and its ac-

40a

counts, records, and memoranda when requested

so to do. No member, officer, or employee of the

Commission shall divulge any fact or informa-

tion which may come to his knowledge during

the course of examination of books, records,

data, or accounts, except insofar as he may be

directed by the Commission or by a court.

(c) The books, accounts, memoranda, and

records of any person who controls directly or in-

directly a natural-gas company subject to the

jurisdiction of the Commission and of any other

company controlled by such person, insofar as

they relate to transactions with or the business of

such natural-gas company, shall be subject to ex-

amination on the order of the Commission.

Natural Gas Act § 16, 15 U.S.C. § 717(c). Administrative

powers of Commission; rules, regulations, and orders

The Commission shall have power to perform

any and all acts, and to prescribe, issue, make,

amend, and rescind such orders, rules, and

regulations as it may find necessary or ap-

propriate to carry out the provisions of this

chapter. Among other things, such rules and

regulations may define accounting, technical,

and trade terms used in this chapter; and may

prescribe the form or forms of all statements,

declarations, applications, and reports to be filed

with the Commission, the information which

they shall contain, and the time within which

they shall be filed. Unless a different date is

specified therein, rules and regulations of the

Commission shall be effective thirty days after

publication in the manner which the Commission

Shall prescribe. Orders of the Commission shall

be effective on the date and in the manner which

4la

the Commission shall prescribe. For the purposes

of its rules and regulations, the Commission may

classify persons and matters within its jurisdic-

tion and prescribe different requirements for dif-

ferent requirements for different classes of per-

sons or matters. All rules and regulations of the

Commission shall be filed with its secretary and

shall be kept open in convenient form for public

inspection and examination during reasonable

business hours.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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