CONSUMERS POWER COMPANY v PUBLIC SERVICE COMMISSION
Docket Nos. 111482, 111483, 111486, 111487, 111719-111726
Supreme Court of Michigan
Decided June 29, 1999
460 Mich. 148
Argued March 11, 1999 (Calendar No. 11).
A referee concluded that the PSC was not preempted by federal law from authorizing retail wheeling and that retail wheeling did not unconstitutionally impair contractual obligations. The referee further determined that, while a third-party provider need not obtain a municipal franchise under
The PSC rejected the referee‘s proposed decision, concluding that it may implement a retail wheeling program under the electric transmission act,
The plaintiffs appeal, limited to whether the PSC exceeded its authority in ordering the electric utilities to transmit electricity produced and sold by other suppliers to customers in their service areas.
In an opinion by Justice CORRIGAN, joined by Chief Justice WEAVER, and Justices TAYLOR and YOUNG, the Supreme Court held:
The PSC lacks statutory authority to order a utility to transmit a third-party provider‘s electricity through its system to a customer. Thus, it lacked the statutory authority to implement the experimental retail wheeling program.
- The Public Service Commission has no common-law powers. It possesses only that authority granted by the Legislature. In this case, the PSC relies on the electric transmission act, the public service commission act, the railroad commission act, and
1929 PA 69 . It initially characterizes its retail wheeling program as ratemaking, thus falling within its authority under§ 7 of the electric transmission act and§ 22 of the railroad commission act. The challenged portion of the order, however, does not involve ratemaking. While the PSC can encourage a specific management decision through the exercise of its ratemaking power, it may not directly order the utility to make the decision. Absent specific statutory authority, the decision whether to provide the service rests with the utility‘s management. - The PSC also asserts that
§ 6 of the public service commission act grants it broad authority over all matters pertaining to public utilities, including the power to order retail wheeling. However, the broad language of§ 6 serves as an outline of the PSC‘s jurisdiction, not a grant of specific powers. Because§ 6 furnishes no grant of specific powers, it provides no support for the PSC‘s order in this case. Likewise, the electric transmission act does not grant the PSC the authority to order retail wheeling, nor does the railroad commission act or1929 PA 69 .
Reversed.
Justice BRICKLEY, joined by Justices CAVANAGH and KELLY, dissenting, stated that the question in this case is determined by
Given that the language of the relevant statute is ambiguous, that there is no clear indication of the Legislature‘s intent, and that the PSC exercises some of the Legislature‘s policy-making authority in this area, the Supreme Court should avoid striking down the policy decision inherent in the PSC‘s permissible interpretation of the electric transmission act, and adopt a rule that it should defer to an agency‘s permissible, policy-based interpretation of the statutes it administers.
The PSC may infringe a utility‘s management powers if such infringement is contemplated in the PSC‘s enabling legislation. Thus, the order at issue is not invalid as an infringement on the management prerogatives of the appellant utilities.
David A. Mikelonis, Jon R. Robinson, and H. Richard Chambers; and Loomis, Ewert, Parsley, Davis & Gotting (by Harvey J. Messing and Gary L. Field) for Consumers Energy Company.
Foster, Swift, Collins & Smith, P.C. (by William K. Fahey and Stephen J. Rhodes), and Raymond O.
Fraser, Trebilcock, Davis & Foster, P.C. (by David E. S. Marvin and Michael L. Brady), for Dow Chemical Company.
Clark, Hill, P.L.C. (by Robert A.W. Strong), for Association of Businesses Advocating Tariff Equity.
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, J. Peter Lark, Assistant in Charge, and Robert L. Mol, Assistant Attorney General, for Attorney General.
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, David A. Voges, and Henry J. Boynton, Assistant Attorneys General, for Public Service Commission.
Amici Curiae:
Cleary, Gottlieb, Steen & Hamilton (by Sara D. Schotland) and Clark, Hill, P.L.C. (by Robert A.W. Strong), for Electric Consumers Resource Council, American Iron and Steel Institute, and Chemical Manufacturers Association.
OPINION OF THE COURT
CORRIGAN, J. We granted leave in these cases to determine whether defendant Michigan Public Service Commission (PSC) exceeded its statutory authority in ordering the Detroit Edison Company and Consumers Power Company to engage in “retail wheeling.” We hold that the PSC lacks the authority to order retail wheeling. Therefore, we reverse the Court of Appeals and vacate the PSC order implementing the experimental retail wheeling program.
In 1992, the Association of Businesses Advocating Tariff Equity (ABATE) petitioned the PSC for an experimental retail wheeling program involving industrial customers. Under retail wheeling, the customer, or “end-user,” contracts for electricity with a supplier other than the utility that owns the power lines in the geographic area in which the customer is located. The other supplier, or “third-party provider,” uses the local utility‘s system to transmit the electricity to the end-user. The local utility is compensated for the use of its system.
Retail wheeling effectively “unbundles” a local utility‘s production and distribution services. Traditionally, a local utility provided a “bundled” product; it generated the electricity and transmitted it to end-users connected to its system of power lines. The industry has, however, undergone changes in recent years. Local utilities have interconnected with one another to form a nationwide grid. Thus, a utility can transmit electricity to an end-user who is not directly connected to its system. When a third-party provider supplies electricity to these end-users, the intermediate utilities are said to “wheel” electricity across their systems. A retail wheeling program requires local utilities to provide these transmission services.
Acting on ABATE‘s petition, a referee presided over a contested case hearing and issued a proposal for decision. The referee concluded that the PSC was not preempted by federal law from authorizing retail wheeling and that retail wheeling did not unconstitutionally impair contractual obligations. The referee further determined that, while a third-party provider
The referee recommended that the PSC allow retail wheeling only if the end-user‘s local utility agreed to provide the service. After examining the statutory framework, the referee concluded that the PSC cannot compel a utility to provide retail wheeling services, but may establish tariffs setting the price, terms, and conditions of a voluntarily provided service. The referee proposed that the PSC negotiate and authorize voluntary retail wheeling programs for Consumers Power and Detroit Edison.
The PSC rejected the referee‘s proposed decision, concluding that it may implement a retail wheeling program under the electric transmission act,
The Court of Appeals affirmed the PSC order in all respects.4 It determined that the PSC has statutory authority to implement an experimental retail wheeling program, reasoning as follows:
While the PSC has only those powers conferred on it by the Legislature, [Union Carbide Corp v Public Service Comm, 431 Mich 135, 146; 428 NW2d 322 (1988)], the interpretation given to statutes by the agency charged with applying them is entitled to great deference. In re Quality of Service Standards for Regulated Telecommunication Services, 204 Mich App 607, 612; 516 NW2d 142 (1994). The PSC did not cite specific sections of Act 106, Act 3, or Act 300 when concluding that those statutes authorize it to implement an experimental retail wheeling program; however, an examination of various provisions of those statutes demonstrates that they support the PSC‘s decision. Section 2 of Act 106,
MCL 460.552 ;MSA 22.152 , gives the PSC “control and supervision of the business of transmitting and supplying electricity . . . .” Supplying electricity must be deemed to include the act of delivering electricity to a customer. Section 6 of Act 106,MCL 460.556 ;MSA 22.156 , allows the PSC to order service to be rendered in any case in which such an order is reasonable. Section 6 of Act 3,MCL 460.6 ;MSA 22.13(6) , authorizes the PSC to regulate services and conditions of service. While this section does not contain a grant of specific powers, it construes the extent of the PSC‘S jurisdiction and grants the PSC broad authority. Attorney General v Public Service Comm, 122 Mich App 777, 786-787; 333 NW2d 131 (1983). Under Act 300, the PSC possesses the same authority over utilities as did the Railroad
Commission over railroads. Union Carbide, supra at 156. Section 22 of Act 300,
MCL 462.22 ;MSA 22.41 , authorizes the PSC to investigate and order adequate service to be rendered. [227 Mich App 451-452.]
The Court further determined that the PSC order does not infringe the utilities’ right to control their management activities. The Court reasoned that utilities are not required to construct new facilities, compelled to engage in a specific management practice, or required to enter into any particular contract. Thus, the Court concluded, the PSC order is lawful and reasonable because it does not dictate the substance of management decisions. The Court of Appeals rejected the parties’ other challenges to the PSC order.
This Court granted plaintiffs Consumers Power Company, Detroit Edison Company, and the Attorney General their respective applications for leave to appeal, limited to whether the PSC exceeded its authority in ordering the electric utilities to transmit electricity produced and sold by other suppliers to customers in the service area of the utility.5
II. DISCUSSION
The Public Service Commission has no common-law powers. It possesses only that authority granted by the Legislature. Union Carbide, supra at 146. Moreover, this Court strictly construes the statutes which confer power on the PSC. As this Court explained in Union Carbide, supra at 151, quoting Mason Co Civic Research Council v Mason Co, 343 Mich 313, 326-327; 72 NW2d 292 (1955):
“The power and authority to be exercised by boards or commissions must be conferred by clear and unmistakable language, since a doubtful power does not exist.”
In construing the statutes empowering the PSC, this Court does not weigh the economic and public policy factors that underlie the action taken by the PSC. Retail wheeling implicates many policy concerns, from the most basic questions whether a consumer should be able to choose an electricity supplier and what market structure will ensure adequate power supply to consideration of arguable secondary effects on the environment and shareholders. See, generally, Vander Veen, Michigan is now entering a new electrical energy field: Competition, 78 Mich B J 164 (1999). The Legislature, not this Court, is the body that must consider these questions and weigh the economic and social costs and benefits of restructuring. As this Court observed in Huron Portland Cement Co v Public Service Comm, 351 Mich 255, 262; 88 NW2d 492 (1958):
Those are matters of legislative concern. We have had presented to us . . . an issue of law, the statutory authority of the commission in the light of the facts before us to order the service, and upon that, and that only, do we propose to pass.
In this case, the PSC relies on the electric transmission act,6
A. RATEMAKING POWER
The PSC initially characterizes its retail wheeling program as ratemaking, thus falling within its authority under
This Court explained in Union Carbide, supra at 148, that the PSC‘s authority to regulate a utility‘s rates and charges does not include the power to make management decisions. We quoted Missouri ex rel Southwestern Bell Telephone Co v Public Service Comm, 262 US 276, 289; 43 S Ct 544; 67 L Ed 981 (1923), to emphasize our point:
It must never be forgotten that while the State may regulate with a view to enforcing reasonable rates and charges, it is not the owner of the property of public utility companies and is not clothed with the general power of management incident to ownership. [Union Carbide, supra at 148-149.]
In Union Carbide, we concluded that, although the PSC could preclude a utility from passing along increased charges incurred from its noneconomic operation of facilities, it could not order the utility to cease those operations. In other words, the PSC can encourage a specific management decision through the exercise of its ratemaking power, but it may not directly order the utility to make the decision. Similarly, in Huron Portland Cement, supra, this Court considered whether the PSC had the authority to order
In this case, the PSC attempts to compel utilities to provide a new service—the transmission of electricity from a third-party provider‘s system to an end-user who is not directly connected to that system. Retail wheeling would require that utilities accept power from suppliers chosen not by management, but by an end-user, and necessitate the negotiation of new interconnection agreements or modification of existing ones. Further, the utility would have to adjust its own production and purchases of power to ensure sufficient capacity to transmit the third-party provider‘s electricity. Absent a statute clearly conferring on the PSC the power to order such service, the decision to provide the service lies within the province of the utility‘s management, not the PSC. Union Carbide, supra at 151; Huron Portland Cement, supra at 261.
B. THE PUBLIC SERVICE COMMISSION ACT
The PSC next asserts that
The public service commission is vested with complete power and jurisdiction to regulate all public utilities in the state except a municipally owned utility, the owner of a renewable resource power production facility as provided in section 6d, and except as otherwise restricted by law. The public service commission is vested with the power and jurisdiction to regulate all rates, fares, fees, charges, services, rules, conditions of service, and all other matters pertaining to the formation, operation, or direction of public utilities. The public service commission is further granted the power and jurisdiction to hear and pass upon all matters pertaining to, necessary, or incident to the regulation of public utilities, including electric light and power companies, whether private, corporate, or cooperative; water, telegraph, oil, gas, and pipeline companies; motor carriers; and all public transportation and communication agencies other than railroads and railroad companies.
This Court has consistently held, however, that the broad language of
The broad language [of
§ 6 ] furnishes no grant of specific powers. It is an outline of jurisdiction in the commission and does not purport to be more. If, indeed, the general language quoted had the effect of vesting particular, specific, powers in the commission, not only would a constitutional question be presented arising from an asserted lack of standards . . . , but there would have been no need whatever for the many statutes enacted (both before and after the effective date ofPA 1939, No 3 ) vesting specific powers in the commission. [Huron Portland Cement, supra at 263.9]
C. THE ELECTRIC TRANSMISSION ACT
The PSC argues that the electric transmission act,
When electricity is generated or developed by steam, water or other power, within 1 county of this state, and transmitted and delivered to the consumer in the same or some other county, then the transmission and distribution of the same in or on the public highways, streets and places, the rate of charge to be made to the consumer for the electricity so transmitted and distributed and the rules and conditions of service under which said electricity shall be transmitted and distributed shall be subject to regulation as in this act provided. [
MCL 460.551 ;MSA 22.151 .]The Michigan public utilities commission, hereinafter referred to as “the commission” shall have control and supervision of the business of transmitting and supplying electricity as mentioned in the first section of this act and no public utility supplying electricity shall put into force any rate or charge for the same without first petitioning said commission for authority to initiate or put into force such rate or charge and securing the affirmative action of
the commission approving said rate or charge. [
MCL 460.552 ;MSA 22.152 .]
Contrary to the PSC‘s assertion,
The power to regulate the “transmission and distribution” of electricity under
“There is, of course, no doubt that a utility must render adequate service to its patrons, and the general assembly recognizing that at times service might be inadequate has provided a means whereby a utility may be compelled by the commission to improve its services and facilities. The commission has the power to require adequate service under sections 614-21 and 614-27, General Code, but services and rates, although related, are not wholly dependent on each other. As to rates the question is whether the company is receiving a just and reasonable return on the value of its existing property; the question as to adequate service
is whether the company is rendering or is capable of rendering reasonable service with its existing property or whether by improvements, either in the use of the property it owns or by new installations, this can be done.”
As used in
The word “service” has different meanings. We construe words and phrases in statutes according to the common usage of the language, but give technical words and phrases their “peculiar and appropriate” meaning.
Thus, under any definition, the term “service” does not refer to a utility‘s transmission of electricity for another provider. To construe the phrase “conditions of service” as encompassing a requirement that one utility transmit another provider‘s electricity would require an interpretation that stretches well beyond the plain statutory language. As we reiterated in Union Carbide, supra at 151, however, the PSC has only those powers conferred by clear statutory language. The power conferred by
We further note that only electricity generated or developed “within 1 county of this state, and transmitted and delivered to the consumer in the same or some other county” falls within the scope of the electric transmission act.
The PSC also relies on
The commission shall have power in its discretion to order electric current for distribution to be delivered at a
suitable primary voltage, to any city, village or township through which a transmission line or lines may pass; to order service to be rendered by any such electric utility in any case in which it will be reasonable for such service to be ordered . . . . [
MCL 460.556 ;MSA 22.156 .]After investigation and hearing, the commission may by order fix the price of electricity to be charged by the electric utility within lawful limits. . . . The commission may establish by order rules and conditions of service that are just and reasonable. [
MCL 460.557(2) ;MSA 22.157(2) .]
These provisions do not grant the PSC broad authority to order retail wheeling. The first clause of
The PSC contends that it may order retail wheeling under
By statute, the Legislature required railroads to transfer and deliver freight, cars, or passengers carried on another line that are destined to a point on its line or a connecting line.
E. 1929 PA 69
The PSC further argues that the requirement under
“The requirement of a certificate of convenience and necessity may enable the commission to prevent the needless multiplication of companies serving the same territory, and at the same time to avoid a wasteful duplication of capital facilities, thus keeping the investment at the lowest figure consonant with satisfactory service. By protecting the utility from unnecessary competition, the risks inherent in the utility investments are reduced and the cost of capital is
III. CONCLUSION
We express no view regarding the public policy implications of retail wheeling. The economic wisdom of the program is not our concern. See Huron Portland Cement, supra at 261. The question before us involves the PSC‘s statutory authority. We conclude that the PSC lacks statutory authority to order a utility to transmit a third-party provider‘s electricity through its system to a customer. Thus, the PSC lacked the statutory authority to implement the experimental retail wheeling program. We therefore reverse the judgment of the Court of Appeals and vacate the PSC order implementing the program.
WEAVER, C.J., and TAYLOR and YOUNG, JJ., concurred with CORRIGAN, J.
BRICKLEY, J. (dissenting). The majority misinterprets the statutory language relevant to this case and mistakenly characterizes retail wheeling as infringing the managerial prerogatives of the appellant utilities. For these reasons, I respectfully dissent.
I
At issue in this case is the Public Service Commission‘s interpretation of the statutes in which the Legislature delegated authority to the PSC to oversee electric utilities in Michigan. The majority “grant[s] no
While I agree with much of what the majority holds, I cannot agree that the relevant section of the electric transmission act has a “plain meaning.”1 This statute can conceivably bear the meaning imposed on it by the majority, but the PSC‘s interpretation is more in accord with the meaning of the relevant statutory language and with the context of the statute itself. This case also demonstrates that courts should defer to an agency‘s reasonable interpretation of the statutes it is designated to enforce.
A
The majority holds that the electric transmission act,
Section 6 provides, in relevant part, that
[t]he commission shall have power in its discretion to order electric current for distribution to be delivered at a suitable primary voltage, to any city, village or township through which a transmission line or lines may pass; to order service to be rendered by any such electric utility in any case in which it will be reasonable for such service to be ordered. . . .
The language of this section bears repeating: the PSC has “power in its discretion to order electric current for distribution to be delivered . . . .” Id. (emphasis supplied). This first clause of
The majority also errs in its interpretation of the second clause of
“Service,” as the majority notes elsewhere in its opinion, means “‘[t]he furnishing of water, heat, light and power, etc., services by utility.‘” Id. at 163, quoting Black‘s Law Dictionary (6th ed), p 1368. The majority looks no further into this definition, however, and concludes that the word “service” necessarily denotes the joint production and transmission of electric current. The definition of “service” is not so constrained, however, as a closer look at the majority‘s definition reveals.
While “service” means the “furnishing of . . . power,” “furnish” is defined in the same dictionary as “[t]o supply, provide, or equip, for accomplishment of a particular purpose.” Id. at 675.3 “Supply” is defined as “the act of furnishing what is wanted,” id. at 1439, and a “supplier” is “[a]ny person engaged in the business of making a consumer product directly or indirectly available to consumers; includes all persons in the chain or production and distribution of a consumer product . . . .” Id.4
Unlike the majority, I cannot conclude that the word “service” can only mean the joint act of producing the commodity in question and delivering it to the consumer. Indeed, the common definitions of the relevant terms allow for “service” to include separate production, separate distribution, or both together.5 In light of these common definitions, and the distinction made by the first clause of
The majority‘s statutory analysis ignores the first clause of
B
This case also presents an important question of this state‘s jurisprudence: whether the agency or the courts should have the authority to determine which of several permissible interpretations should be given to an agency‘s jurisdictional statute. Clearly, where the language of the statute in question is plain, statutory construction is not permissible by any authority, and no real question is presented. Ludington Service Corp v Acting Comm‘r of Ins, 444 Mich 481, 505; 511 NW2d 661 (1994), amended 444 Mich 1240 (1994); see Chevron USA, Inc v Natural Resources Defense Council, Inc, 467 U.S. 837, 843, n 9; 104 S Ct 2778; 81 L Ed 2d 694 (1984). As discussed in part I(A), however, that is not the situation presented by the instant case.
The majority‘s interpretation of
1
This Court has not always been consistent regarding the degree of deference courts should give to an agency‘s interpretation of the statutes the Legislature
This Court has also noted that
“[t]he construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration and ought not to be overruled without cogent reasons.” [Magreta, supra at 519, quoting Boyer-Campbell Co v Fry, 271 Mich 282, 296; 260 NW 165 (1935), in turn quoting United States v Moore, 95 US (5 Otto) 760, 763; 24 L Ed 588 (1877).]
This rule has been followed in a number of our cases, without reference to the length of time the administrative interpretation has been in existence. Adrian School Dist v MPSERS, 458 Mich 326, 336; 582 NW2d 767 (1998); Empire Iron Mining Partnership v Orhanen, 455 Mich 410, 416; 565 NW2d 844 (1997); Breuhan v Plymouth-Canton Comm Schools, 425 Mich 278, 282-283; 389 NW2d 85 (1986); see People ex rel Simmons v Anderson, 198 Mich 38, 47; 164 NW 481 (1917).
Some of our cases have stated that our Court, “in common with all modern courts, give[s administrative interpretations] ‘respectful consideration’ as one of the factors to be considered in arriving at the probable legislative intent.” Lorraine Cab v Detroit, 357 Mich 379, 384; 98 NW2d 607 (1959), citing Howard Pore, Inc v State Comm‘r of Revenue, 322 Mich 49; 33 NW2d 657 (1948).6 This rule was also stated in Boyer-Campbell, supra at 297, and Owosso Bd of Ed v Goodrich, 208 Mich 646, 652; 175 NW 1009 (1920).
In perhaps our most candid statement, we noted that appellate courts “will give the agency‘s construction such weight as [they] conclude[] is appropriate on full consideration of the statutory criteria and the record of the case on review.” West Bloomfield Hosp v Certificate of Need Bd, 452 Mich 515, 524; 550 NW2d 223 (1996). I am concerned that our standard of review of the legal interpretations of agencies is inconsistent. I believe that predictability in this area may only be achieved by determining the principles underlying such review.
2
The majority provides the firmest ground for such an underlying principle when it states that, “[i]n construing the statutes empowering the PSC, this Court does not weigh the economic and public policy factors that underlie the action taken by the PSC.” Ante at 156. I agree with this statement, and I suggest that we can avoid making a policy decision in this case by recognizing the Legislature‘s delegation of certain pol-
The Legislature‘s ability to delegate authority to an agency is bounded only by the constitution, and there is no allegation of unconstitutional delegation of legislative authority in this case. Cf. City of Livonia v Dep‘t of Social Services, 423 Mich 466, 501-505; 378 NW2d 402 (1985). Therefore, given that the relevant statutory language is ambiguous, that there is no clear indication of the Legislature‘s intent, and that the PSC exercises some of the Legislature‘s policy-making authority in this area, this Court should avoid striking down the policy decision inherent in the PSC‘s permissible interpretation of the electric transmission act.
The United States Supreme Court has held that “the principle of deference to administrative interpretations”
“has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations.” [Chevron, supra at 844, quoting United States v Shimer, 367 US 374, 382; 81 S Ct 1554; 6 L Ed 2d 908 (1961) (citations omitted).]
The Court further stated that if the agency‘s choice represents
“a reasonable accommodation of conflicting policies that were committed to the agency‘s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.” [Id. at 845, quoting Shimer, supra at 383.]
The United States Supreme Court has also extended this rule to sanction deference to an agency‘s interpretation of its jurisdiction under its enabling legislation, noting that “there is no discernible line between an agency‘s exceeding its authority and an agency‘s exceeding authorized application of its authority. To exceed authorized application is to exceed authority.” Mississippi Power & Light Co v Moore, 487 US 354, 381; 108 S Ct 2428; 101 L Ed 2d 322 (1988) (Scalia, J., concurring and citing cases).
For these reasons, and because of a lack of reliable guideposts in determining legislative intent in this case, I would adopt a rule that this Court defer to an agency‘s permissible, policy-based interpretation of the statutes that it administers.
II
The majority also holds that the PSC order at issue is invalid as an infringement on the management prerogatives of the appellant utilities. Ante at 159. Because the majority‘s own analysis concedes that the PSC may infringe the appellant utilities’ management powers if such infringement is contemplated in the PSC‘s enabling legislation, I disagree that the PSC‘s orders at issue run afoul of this Court‘s decisions in Huron Portland Cement Co v Public Service Comm, 351 Mich 255; 88 NW2d 492 (1958), and Union Car-bide, supra.8 Ante at 159 (“[A]bsent specific statutory authority, the decision whether to provide the service rests with the utility‘s management“).
The majority notes that, in Union Carbide, “we concluded that, although the PSC could preclude a utility from passing along increased charges incurred from its noneconomic operation of facilities, it could not order the utility to cease those operations.” Ante at 158; see Union Carbide, supra at 149-150. Our Union Carbide decision hinged on the fact that there were no specific statutes that gave the PSC the power to forbid the noneconomic operation of facilities. Union Carbide, supra at 150-162.
Furthermore, we specifically noted that the PSC‘s ratemaking power was sufficient to “exclude[] from Consumers’ base rates the increased fuel costs stemming from noneconomic operation . . . . Thus, the commission prevented Consumers’ noneconomic operation . . . from adversely affecting both the utility‘s base rates as well as the charges passed through to ratepayers . . . .” Id. at 149. For this reason, the PSC‘s ratemaking power achieved its stated purpose without shutting down the noneconomic operations, rendering any further use of that power unlawful as beyond its own terms.
Similarly, in Huron Portland Cement, we noted that “[t]his is not a case where a utility, already servicing a city, arbitrarily refuses to take on a new (or expanded) burden, for Consumers has never supplied
We held against the PSC‘s exercise of power in that case because Consumers’ power lines did not pass through the communities in question. Therefore, “those cases involving an undertaking of service to an area, particularly where a statute empowers the commission to order reasonable extensions of the mains and service . . . , are not controlling on the issue before us.” Id. at 261 (citations omitted).
For these reasons, I find no guidance in either Portland Huron Cement or Union Carbide. The question in this case is determined by
III
Because
CAVANAGH and KELLY, JJ., concurred with BRICKLEY, J.
Notes
The statute limits the scope of the PSC‘s power under this section to “any city, village or township through which a transmission line or lines may pass . . . .”
In stark contrast, the order at issue in the instant case would compel the appellant utilities to deliver electric current over their already existing transmission lines.
The Random House dictionary goes on to define “supply” as “1. to furnish or provide (a person, establishment, etc.) with what is lacking or requisite: supplying the poor with clothing. 2. to furnish or provide (something wanting or requisite): supplied needed water to the region.” Random House Webster‘s, supra, pp 1295, 1343. The American Heritage dictionary defines “provide” as “1. To furnish; supply: provide food and shelter for a family. 2. To make available; afford: a room that provides ample sunlight through French windows.” American Heritage Dictionary, supra, p 1458. None of these definitions carry the implication that the supplier or provider of the commodities in question had to have produced or manufactured them before providing or supplying them to the recipients.