Infinite Energy v. GEORGIA PUBLIC SERVICE, A02A1177.
| Decision Date | 08 October 2002 |
| Docket Number | No. A02A1177.,A02A1177. |
| Citation | 572 S.E.2d 91,257 Ga. App. 757 |
| Parties | INFINITE ENERGY, INC. v. GEORGIA PUBLIC SERVICE COMMISSION et al. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Arnall, Golden & Gregory, Allen I. Hirsch, Henry R. Chalmers, Atlanta, Aaron M. Danzig, for appellant.
Thurbert E. Baker, Atty. Gen., Robert S. Bomar, Deputy Atty. Gen., Daniel S. Walsh, Asst. Atty. Gen., Rogers & Hardin, Robert B. Remar, Kimberly L. Myers, for appellees.
This is an appeal from a superior court judgment affirming a decision of the Georgia Public Service Commission. The appeal is without merit, and we therefore affirm the judgment of the superior court.
Atlanta Gas Light Company is an electing distribution company under the Natural Gas Competition and Deregulation Act.1 As a distribution company, Atlanta Gas Light does not sell natural gas directly to customers, but provides the distribution system used by certified marketers to deliver gas to their customers.
The marketers estimate how much gas their respective customers will use and then supply Atlanta Gas Light with gas for delivery to the customers. But because marketers cannot predict exactly how much gas their customers will use, they sometimes supply less gas than their customers actually consume. Their customers then end up using gas that was delivered by another marketer. But regardless of who supplied the gas, the marketers charge their customers for the gas they actually use. This means that some marketers sell gas they did not tender to Atlanta Gas Light, while others tender gas that they did not sell.
Consequently, there must be a process in place to reconcile, or "true up," the amount of gas a marketer delivers to Atlanta Gas Light with the actual amount of gas used by that marketer's customers. Without such a process, some marketers would end up subsidizing the sales of—providing free gas to—other marketers.
The Georgia Public Service Commission, which regulates Atlanta Gas Light's distribution service, addressed the need for such a true-up process. In June 1998, the Commission issued an order providing that each month Atlanta Gas Light shall be responsible for truing up the difference between a marketer's gas deliveries and its consumption. Atlanta Gas Light did not oppose a true-up process, but petitioned the Commission to reconsider several matters. On September 18, 1998, the Commission ruled on the petition, ordering that Atlanta Gas Light must perform the true-up on a quarterly, rather than a monthly, basis; that it shall recover costs of the true-up service; that it is responsible only for performing the true-up calculations and giving the results to the marketers; and that the marketers are then responsible for resolving the volume differentials amongst themselves.
On October 1, 1999, several marketers and Atlanta Gas Light filed a proposed methodology for resolving the volume differentials by either exchanging money or swapping gas. But marketer Infinite Energy, Inc. opposed the proposal, arguing that it should not apply retroactively. On April 5, 2000, the Commission approved the true-up settlement methodology and ordered that it apply from November 1, 1998, when marketers had commenced service. Infinite Energy moved the Commission to reconsider its order, and the Commission denied the motion.
On June 12, 2000, Infinite Energy petitioned for judicial review of the Commission's decision, arguing that the true-up methodology should not apply retroactively to November 1, 1998. The superior court affirmed the Commission's decision. Infinite Energy appeals from the court's ruling.
1. Infinite Energy contends that the trial court used the wrong standard to review the Commission's decision. Infinite Energy claims that the court improperly used a "clearly erroneous" standard of review rather than conducting a de novo review of the decision. The claim is without merit.
The appropriate standards for judicial review of agency decisions are set forth in OCGA § 50-13-19(h), which provides:
The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority of the agency; (3) Made upon unlawful procedure; (4) Affected by other error of law; (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
Pursuant to this Code section, courts review agency findings of fact to determine whether they are supported by any evidence.2 And in considering agency conclusions of law, courts conduct a de novo review. 3
In the instant case, the superior court correctly notes in its judgment that OCGA § 50-13-19 sets forth the review procedure, and that findings of fact are reviewed under the any evidence standard. The court's judgment does not state that contested conclusions of law by the Commission are subject to de novo review.
But the mere absence of those words from the court's written judgment does not mandate a finding that the court applied the wrong standard of review.4 5
The record here does not affirmatively show that the trial court used an improper standard to review any contested legal conclusions by the Commission. We have reviewed the court's written judgment and find nothing in it affirmatively showing that the court improperly reviewed any legal conclusions. And Infinite Energy has not pointed to any legal conclusions that it contested and which the court then failed to subject to a de novo review.
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