Idaho Power Co. v. Idaho Public Utilities Commission, s. 13869

Citation639 P.2d 442,102 Idaho 744
Decision Date30 December 1981
Docket Number13870,Nos. 13869,s. 13869
PartiesIn the Matter of the Consideration of the Advertising Standards set Forth in Sections 113(b)(3), 113(b)(5) and 303(b)(2) of the Idaho Public Utility Regulatory Policies Act of 1978. IDAHO POWER COMPANY, Appellant Cross-Respondent, v. The IDAHO PUBLIC UTILITIES COMMISSION and the Committee for Fair Rates, Respondents Cross-Respondents, and The Idaho Citizens Coalition, Respondent Cross-Appellant. INTERMOUNTAIN GAS COMPANY, Appellant Cross-Respondent, v. The IDAHO PUBLIC UTILITIES COMMISSION, Respondent Cross-Respondent, and The Idaho Citizens Coalition, Intervenor Cross-Appellant.
CourtUnited States State Supreme Court of Idaho
Barton L. Kline, Larry D. Ripley & Robert M. Tyler, Jr. of Elam, Burke, Evans, Boyd & Koontz, Boise, for appellant-cross respondent Idaho Power Co

T. N. Ambrose of Moffatt, Thomas, Barrett & Blanton, Boise, for appellant-cross-respondent Intermountain Gas Co.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., John J. McMahon and Michael S. Gilmore, Deputies Atty. Gen., for respondent cross-respondent Idaho Public Utilities Commission.

Peter C. Wagstaff, Coeur d'Alene, for respondent-intervenor Committee for Fair Rates.

Raymond C. Givens, Coeur d'Alene, for Idaho Citizens Coalition, respondent in 13869 and intervenor cross-appellant in 13870.

McFADDEN, Justice.

On November 9, 1978, President Carter signed the Public Utility Regulatory Policies Act of 1978, 16 U.S.C. § 2601 et seq., hereinafter referred to as PURPA or the Act. 16 U.S.C. § 2631(a) authorizes any electric consumer (among others) to intervene and participate as a matter of right in any rate making proceeding or other appropriate regulatory proceeding relating to rates or rate design which is conducted by a state regulatory authority. 16 U.S.C. § 2632(a) (1) establishes the electric utilities' liability to compensate such consumer intervenors for certain fees and costs incurred to prepare and advocate their positions. The section further provides that a consumer may collect such fees and costs in a civil action unless the state regulatory authority has adopted a reasonable procedure for determining the amount of and for including an award of, such fees and costs in its order in the proceeding. 16 U.S.C. § 2632(a) (2).

The instant appeals brought by Idaho Power and Intermountain Gas, and the cross appeal of the Idaho Citizens Coalition, place at issue the Idaho Public Utilities Commission's authority to promulgate rules and regulations providing for the compensation to intervenors for attorney fees and costs incurred in PURPA proceedings and then making an award pursuant to the promulgated procedure in a subsequent proceeding. In order to fully understand the nature and scope of this issue it is necessary to first review the scheme of PURPA, and then discuss the proceedings conducted by the Commission and the challenged orders which it issued.

PURPA, by virtue of its Titles I and III (16 U.S.C. § 2611 et seq.) required that state regulatory authorities undertake a comprehensive review of several policies affecting regulated electric and natural gas utilities. 16 U.S.C. §§ 2621-2627 required state regulatory authorities to consider whether it would adopt six ratemaking standards (see 16 U.S.C. § 2621(d)), five other unrelated standards (see 16 U.S.C. § 2623(b)), and the standard concerning lifeline rates (see 16 U.S.C. § 2624). Among the five standards of 16 U.S.C. § 2623(b) is the standard relating to utility advertising and transmittal of information to consumers. See 16 U.S.C. §§ 2623(b)(3) and 2625(f).

Pursuant to 16 U.S.C. § 2623(a), the Commission was required to conduct public hearings to decide whether to adopt the standards enumerated in § 2623(b), including the standard relating to utility advertising and transmittal of information to consumers. As in the consideration of all other standards listed in subtitle B of Title I, the proceeding to consider this standard was subject to subtitle C's provisions concerning intervention and judicial review. The pertinent sections are 16 U.S.C. §§ 2631 and 2632.

2631. "INTERVENTION IN PROCEEDINGS.

(a) AUTHORITY TO INTERVENE AND PARTICIPATE.-In order to initiate and participate in the consideration of one or more of the standards established by subtitle B or other concepts which contribute to the achievement of the purposes of this title, the Secretary (of Energy), any affected electric utility, or any electric consumer of an affected electric utility, may intervene and participate as a matter of right in any ratemaking proceeding or other appropriate regulatory proceeding relating to rates or rate design which is conducted by a state regulatory authority ...."

2632. "CONSUMER REPRESENTATION.

(a) COMPENSATION FOR COSTS OF PARTICIPATION OR INTERVENTION.-(1) If no alternative means for assuring representation of electric consumers is adopted in accordance with subsection (b) and if an electric consumer of an electric utility substantially contributed to the approval, in whole or in part, of a position advocated by such consumer in a proceeding concerning such utility, and relating to any standard set forth in subtitle B, such utility shall be liable to compensate such consumer (pursuant to paragraph (2)) for reasonable attorneys' fees (2) A consumer entitled to fees and costs under paragraph (1) may collect such fees and costs from any electric utility by bringing a civil action in any State court of competent jurisdiction, unless the State regulatory authority ... has adopted a reasonable procedure pursuant to which such authority ...

expert witness fees, and other reasonable costs incurred in preparation and advocacy of such position and such proceeding (including fees and costs of obtaining judicial review of any determination in such proceeding with respect to such position).

(A) determines the amount of such fees and costs, and

(B) includes an award of such fees and costs in its order in the proceeding.

(3) The procedure adopted by such State regulatory authority ... under paragraph (2) may include a preliminary proceeding to require that

(A) as a condition of receiving compensation under such procedure such consumer demonstrate that, but for the ability to receive such award, participation or intervention in such proceeding may be a significant financial hardship for such consumer, and

(B) persons with the same or similar interests have a common legal representative in the proceeding as a condition to receiving compensation.

(b) ALTERNATIVE MEANS.-Compensation shall not be required under subsection (a) if the State (or) the State regulatory authority ... has provided an alternative means for providing adequate compensation to persons-

(1) who have, or represent, an interest-

(A) which would not otherwise be adequately represented in the proceeding, and

(B) representation of which is necessary for a fair determination in the proceeding, and

(2) who are, or represent an interest which is, unable to effectively participate or intervene in the proceeding because such persons cannot afford to pay reasonable attorneys' fees, expert witness fees, and other reasonable costs of preparing for, and participating or intervening in, such proceeding (including fees and costs of obtaining judicial review of such proceeding)."

In response to the requirements of PURPA, the Commission has conducted several generic proceedings. Among the earlier proceedings was a proceeding to consider promulgation of intervenor funding rules. This proceeding, entitled "In the Matter of Compensation for Consumer Intervenors in PURPA-Related Proceedings," Case No. P-300-10, culminated in the adoption of intervenor funding rules in Order No. 15121.

These rules generally provided for the compensation of selected consumer intervenors found by the Commission to have contributed to a given PURPA-related proceeding. The Commission would determine eligibility under the rules, and could set ceilings on the maximum amount of an intervenor's expenses which would be recoverable. Under the rules, the Commission could limit the rate of legal and expert compensation to that commensurate with prevailing rates in the northwest for like kind and quality of service. The compensation would be assessable against each electrical utility affected by the proceeding and a formula for assessment based on total retail kwh sales was included in the rules. Idaho Power and Intermountain Gas had notice of this proceeding; however, no objections were entered nor were any requests for rehearing made or appeals taken from Order no. 15121.

Later, in Case No. P-300-13, the PURPA standards concerning utility advertising and information to consumers were considered. Among the five non-ratemaking standards set forth in PURPA, only two, those concerning advertising and termination of service, relate to natural gas as well as electrical utilities. Therefore, at the initiation of Case No. P-300-13, the Commission ordered consideration of the advertising standard combined for both electrical and natural gas utilities. Two weeks later, the Commission issued Order No. 15120 stating that the The Idaho Citizens Coalition (ICC) petitioned to intervene in Case No. P-300-13, and applied for intervenor funding. Objections to such funding were filed by Idaho Power Company and Washington Water Power. Additional petitions to intervene in this proceeding were filed by Intermountain Gas Company and the Committee for Fair Rates (CFR). The CFR also applied for intervenor funding. All petitions to intervene were granted.

scope of Case No. P-300-13 would be expanded beyond the PURPA minimum to include consideration of whether the information to consumers standard would apply to natural gas utilities as well as to electrical.

The Commission issued Order No. 15255 in January, 1980, ruling on the application for intervenor funding. The Commission determined that ICC and CFR were essentially...

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