Legislative Utility Consumers' Council v. Public Utilities Commission

• Decision Date: 02 December 1977
• Docket Number: No. 7717,7717
• Citation: 380 A.2d 1083,117 N.H. 972
• Parties: , 23 P.U.R.4th 128 LEGISLATIVE UTILITY CONSUMERS' COUNCIL and Volunteers Organized in Community Education v. PUBLIC UTILITIES COMMISSION, the State of New Hampshire and Public ServiceCompany of New Hampshire.
• Court: New Hampshire Supreme Court

Page 1083

380 A.2d 1083

117 N.H. 972, 23 P.U.R.4th 128

LEGISLATIVE UTILITY CONSUMERS' COUNCIL and Volunteers Organized in Community Education v. PUBLIC UTILITIES COMMISSION, the State of New Hampshire and Public ServiceCompany of New Hampshire.

No. 7717.

Supreme Court of New Hampshire.

Dec. 2, 1977.

Steven W. Ruback, Concord, by brief and orally, for the Legislative Utility Consumers' Council.

Dom S. D'Ambruoso, Concord, and Warren E. Waters, Concord, for the Public Utilities Commission.

Sulloway, Hollis, Godfrey & Soden, and Martin L. Gross, Concord, for Public Service Company of New Hampshire.

PER CURIAM.

This is an appeal under RSA 541:6 from an order of the Public Utilities Commission (hereinafter "commission") which authorized Public Service Company of New Hampshire to apply a fuel adjustment rate of $1.38 per 100 kilowatt hours to retail customer billings in the month of February 1977. The same order denied certain motions of the Legislative Utility Consumers' Council and Volunteers Organized In Community Education to reduce the fuel adjustment rate. For the reasons indicated hereinafter, we uphold the order of the commission and dismiss the appeal.

The Public Service Company of New Hampshire has a fuel adjustment clause as part of its tariff. This clause operates to recover increased costs of fossil fuels over the amount those costs were in 1971. Each month the commission holds a public hearing pursuant to RSA 378:3-a (Supp.1976) in order to approve the fuel adjustment charge for the following month. The amount of the charge is based on the cost of fossil fuel during the month preceding the hearing. This procedure therefore allows the utility companies to recover the appropriate costs two months after they are incurred. In the present case, public hearings were held in January 1977 in order to determine the appropriate fuel adjustment rate for February 1977. Public Service Company's proposed fuel adjustment rate for February was based on actual costs of fuel burned to supply energy in the month of December 1976.

During the month of December 1976, the Public Service Company suffered unscheduled outages at its Merrimack II generating station. Merrimack II is a coal-fired generating unit which is designed to be the basic source of electricity for the utility company. It was out of service for twenty-four days in December 1976 due to equipment failures. As a result of these outages, Public Service Company had to switch over to its oil-fired electrical generators, which resulted in the burning of a higher cost fossil fuel. The commission allowed these higher costs to be passed on through the February 1977 fuel charge to the consumer. The Public Service Company concedes that the charge would have been lower if Merrimack II had been operational in December 1976.

The plaintiffs contend that the commission's allowance of these higher costs in the fuel adjustment charge resulted in an unreasonable and unjust increase in the utility rates. RSA 378:7. Specifically, plaintiffs argue that the commission should have allowed a fuel charge which would have reflected the costs of fossil fuel if the unscheduled outages had not occurred. In order to prevail, the plaintiffs must demonstrate "by a clear preponderance of the evidence . . . that such order is unjust or unreasonable." RSA 541:13.

Determination of rates to be charged by utilities is not an exact science, New England Tel. & Tel. Co. v. State, 113 N.H. 92, 302 A.2d 814 (1973), and the burden placed on plaintiffs under RSA 541:13 reflects this fact. The cornerstone for our review of the commission's decision is...