Entergy Texas, Inc. v. Public Utility Commission of Texas, Office of Public Utility Counsel, and Texas Industrial Energy Consumers
03-14-00709-CV
| Tex. App. | Feb 18, 2015Background
- ETI sought to recover unrecovered costs under a CGS tariff, but the Commission severed the program and adopted a revised CGS framework in which the CGS supplier provides firm power and ETI avoids capacity costs.
- The legislature amended PURA § 39.452 to authorize CGS tariffs and require rates to recover unrecovered costs from the tariff’s implementation.
- The Commission adopted a revised CGS program in Docket 38951 capping CGS load at 115 MW and shifting capacity costs to CGS suppliers or CGS participants.
- ETI argued for lost revenues/embedded generation costs as unrecovered costs, while the Commission concluded only implementation and administration costs would be unrecovered.
- The district court upheld the Commission’s order, and this appeal follows by ETI and TIEC (appellee) appealing the district court’s judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Commission’s unrecovered-cost finding rests on substantial evidence and PURA §39.452(b). | ETI argued for lost revenues; unrecovered costs include embedded generation costs. | Commission properly limited unrecovered costs to start-up, on-going implementation, and backup power. | Affirmed: only implementation/administration costs are unrecovered; no lost revenues. |
| Whether pre-implementation regulatory costs may be charged as CGS implementation costs. | ETI sought surcharges for pre-implementation costs. | Costs incurred independent of CGS implementation are not recoverable as unrecovered costs. | Affirmed: pre-implementation costs cannot be charged as CGS implementation costs. |
| Whether ETI is entitled to interest on CGS implementation costs. | ETI claimed carrying costs/interest should be recoverable. | Statute does not authorize interest on CGS costs; rate-case precedent denies interest. | Affirmed: no interest on CGS implementation costs. |
Key Cases Cited
- CenterPoint Energy Houston Electric, LLC v. Public Util. Comm’n of Tex., 354 S.W.3d 899 (Tex.App.—Austin 2011, no pet.) (lost revenues not recoverable as costs; statutory language dictates costs unrecovered, not revenues)
- CenterPoint Energy Houston Electric, LLC v. Public Util. Comm’n of Tex., 408 S.W.3d 910 (Tex.App.—Austin 2013, pet. Denied) ( CenterPoint 2011 rationale applied to CGS context; evidentiary record considered)
- R.R. Comm’n v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619 (Tex. 2011) (statutory language must express intent to recover lost revenues; costs and revenues distinguished)
- City of El Paso v. Pub. Util. Comm’n, 883 S.W.2d 179 (Tex. 1994) (statutory interpretation and reviewing agency determinations)
- Reliant Energy, Inc. v. Pub. Util. Comm’n, 153 S.W.3d 174 (Tex. App.—Austin 2004, pet. denied) (precedent on review of regulatory costing)