AG Processing Inc. v. Missouri Public Service Commission
408 S.W.3d 175
| Mo. Ct. App. | 2013Background
- AGP appeals the PSC Tariff Approval Order in Carrying Costs Case ER-2012-0024, challenging phase-in tariffs and carrying costs for KCP & L-GMO.
- Context includes the Rate Change Case ER-2010-0356 where the PSC approved a general rate increase and a $7 million phase-in for the L&P district.
- The PSC subsequently opened Carrying Costs Case and approved carrying costs at 3.25% per year, finding authority to order a phase-in under §393.155.1 and that carrying costs would be recoverable.
- Tariff sheets implementing the phase-in and carrying costs were filed and approved in May 2012; AGP sought rehearing.
- AGP argued lack of notice, authority to phase-in beyond requested amounts, and insufficiency of supporting evidence; the PSC denied rehearing.
- The court held that the PSC had jurisdiction, issues were not properly preserved for review, and AGP’s remaining arguments were addressed in related proceedings; the appeal was therefore denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction during writs of review | AGP—writs in Rate Change Case divested PSC of jurisdiction | PSC—carrying costs/phase-in orders implement but do not modify the appealed order | PSC had jurisdiction to implement, not modify, the Rate Change Case orders |
| Preservation of issues for review | AGP failed to timely rehear March 7, 2012 Order; seeks review of broader issues | Only issues decided in May 9, 2012 Tariff Approval Order are reviewable here | Issues not determined in Tariff Approval Order are not preserved for review |
| Adequacy of evidence for tariffs | Tariffs not supported by competent/substantial evidence | Reasonableness tied to prior orders; issues addressed in related case; not reviewable here | Tariff approval issues not reviewable on this record; not properly preserved |
| Notice to ratepayers and statutory factors | Failure to notify and consider all factors renders Tariff Approval unlawful | Not properly preserved; factors considered in underlying rate case; moot in this proceeding | Not properly preserved; issues arising from underlying rate case not reviewable here |
| Mootness of proceedings due to superseding order | Case moot because 2013 PSC order superseded carrying costs | Mootness not necessary to resolve because issues were not preserved | Mootness not reached; procedural defenses prevail over merits here |
Key Cases Cited
- State ex rel. Office of Pub. Counsel v. Mo. Pub. Serv. Comm’n, 331 S.W.3d 677 (Mo.App. W.D.2011) (PSC authority and procedures; rate cases authority)
- State ex rel. AG Processing, Inc. v. Pub. Serv. Comm’n, 120 S.W.3d 732 (Mo. banc 2003) ( PSC lawfulness standard; burden on challenger)
- State ex rel. Mo. Cable Telecomms. Ass’n v. Mo. Pub. Serv. Comm’n, 929 S.W.2d 768 (Mo.App. W.D.1996) (widely cited on writs of review and PSC jurisdiction during appeal)
- Campbell Iron Co. v. Public Service Commission, 296 S.W. 998 (Mo. 1927) ( PSC jurisdiction ceases upon issuance of a writ of review)
- State ex rel. A & G Commercial Trucking v. Pub. Serv. Comm’n, 168 S.W.3d 680 (Mo.App. W.D.2005) (MAPA gap-filler; PSC rules and procedures)