MAYOR OF CITY OF LANSING v. PSC
| Decision Date | 05 June 2003 |
| Docket Number | Docket No. 243182. |
| Citation | 666 N.W.2d 298,257 Mich. App. 1 |
| Parties | MAYOR OF the CITY OF LANSING, City of Lansing, and Ingham County Commissioner Lisa Dedden, Appellants, v. PUBLIC SERVICE COMMISSION and Wolverine Pipe Line Company, Appellees. |
| Court | Court of Appeal of Michigan — District of US |
James D. Smiertka, City Attorney, and John M. Roberts Jr., Margaret E. Vroman, and Brian W. Bevez, Assistant City Attorneys, Lansing, for the Mayor of the City of Lansing, the City of Lansing, and Lisa Dedden.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and David A. Voges and William W. Derengoski, Assistant Attorneys General, for the Public Service Commission.
Dykema Gossett, PLLC by Albert Ernst and Christine Mason Soneral, Lansing; Paul O'Konski, of counsel, Houston, TX, for Wolverine Pipe Line Company.
Before: TALBOT, P.J., and SAWYER and O'CONNELL, JJ.
Appellants Mayor of the city of Lansing,1 the city of Lansing, and Ingham County Commissioner Lisa Dedden appeal as of right from an order of the Public Service Commission (PSC) authorizing Wolverine Pipe Line Company's application to construct and operate a twenty-sixmile liquid-petroleum pipeline in the right-of-way of Interstate Highway 96 (I-96) in the city of Lansing and Ingham County.
This case presents an issue of first impression: Whether M.C.L. § 247.183, as amended in 1994, requires a petroleumpipeline company to seek the consent of the affected local governments for the construction of a pipeline project and, if so, whether such consent should be obtained before seeking the PSC's approval for the project. We hold that the statute, as amended, requires the consent of the affected local governments. However, such consent need not be obtained before seeking the PSC's approval. Therefore, we affirm the PSC's order.
Wolverine's application with the PSC in the instant case stems from an earlier application, PSC Case No. U-12334, in which Wolverine requested permission to construct and operate a liquid-petroleum pipeline. In U-12334, the PSC found that a need for the proposed pipeline existed and it granted the application, except for a portion of the pipeline that was routed between I-96 and LaPaugh Station in Clinton County. Wolverine withdrew that portion of the route design from the PSC's consideration before the PSC issued its order in that case.
Wolverine subsequently filed the instant application, PSC Case No. U-13225, requesting approval for an alternative pipeline route to replace the portion of the route that it previously withdrew from the PSC's consideration. Unlike the former route, the majority of the proposed twenty-six-mile route will be contained within the I-96 right-of-way. About twenty-two miles of the right-of-way is controlled by the Michigan Department of Transportation, while the remaining portion is owned privately, necessitating Wolverine to obtain easements. This route runs partially through the city of Lansing and Ingham County.
The mayor of the city of Lansing, the city of Lansing, and Commissioner Dedden2 intervened in this case. The PSC staff appeared generally pursuant to 1999 AC, R. 460.17307. At the conclusion of Wolverine's proofs at the evidentiary hearing before the PSC referee, the city of Lansing moved to dismiss the case for lack of subject-matter jurisdiction. The referee took the motion under advisement and the parties subsequently agreed to raise the jurisdiction question in their briefs before the PSC. In its brief before the PSC, the city moved to dismiss Wolverine's application for lack of subject-matter jurisdiction on the ground that Wolverine filed the application without obtaining the city's consent to construct the pipeline. The city claimed that its consent was required by Const 1963, art 7, § 29, M.C.L. § 247.183(1) and 247.184, and PSC rule, 1999 AC, R. 460.17601(2)(d). In response, Wolverine argued that the PSC need not determine whether Wolverine was required to seek the city's consent. Rather, Wolverine claimed that the PSC should only determine whether Rule 460.17601(2)(d) required Wolverine to submit the city's consent with its application. Similarly, the PSC staff argued that the language of the rule did not expressly provide that Wolverine was required to submit with its application proof of the consent of any local government.
The PSC determined that no law or rule required Wolverine to submit with its application proof of the consent of the affected local governments. The PSC also determined that Wolverine had demonstrated a need for the pipeline and that the pipeline was reasonably designed and routed. Accordingly, it approved the application with certain safety conditions that had been proposed by the city. The mayor of the city of Lansing, the city, and Dedden appealed as of right from the PSC order. This Court denied the city's motion for a stay and a subsequent motion for reconsideration. This Court denied Wolverine's motion to affirm, but granted its motion to expedite this appeal.
This Court's review of PSC orders is relatively narrow in scope. In re MCI Telecom Corp. Complaint, 240 Mich. App. 292, 303, 612 N.W.2d 826 (2000). The standard of judicial review of a decision of the PSC is whether that decision is lawful and supported by competent, material, and substantial evidence on the whole record. Const. 1963, art. 6, § 28. A party challenging an order of the PSC bears the burden of proving by clear and satisfactory evidence that the order is unlawful or unreasonable. M.C.L. § 462.26(8); M.C.L. § 484.2203(8). "A decision of the PSC is unlawful when it involves an erroneous interpretation or application of law, and unreasonable when it is unsupported by the evidence." In re Sprint Communications Co., LP, Complaint, 234 Mich.App. 22, 34, 592 N.W.2d 825 (1999). This case also requires this Court to construe the relevant statutory provisions. Issues of statutory construction present questions of law and are reviewed de novo. Florida Leasco, LLC v. Dep't. of Treasury, 250 Mich.App. 506, 507, 655 N.W.2d 302 (2002).
The city first argues that the PSC improperly interpreted Rule 460.17601 of the PSC's Rules of Practice and Procedure when it determined that the rule did not require Wolverine to submit with its application the city's consent for the project. PSC Rule 460.17601, governing new constructions of public utilities, provides, in pertinent part:
(1) An entity listed in this subrule shall file an application with the commission for the necessary authority to do the following:
(a) A gas or electric utility within the meaning of the provisions of Act No. 69 of the Public Acts of 1929, as amended, being § 460.501 et seq. of the Michigan Compiled Laws, that wants to construct a plant, equipment, property, or facility for furnishing public utility service for which a certificate of public convenience and necessity is required by statute.
* * *
(d) The municipality from which the appropriate franchise or consent has been obtained, if required, together with a true copy of the franchise or consent.
In this case, Wolverine's application with the PSC was filed under Rule 460.17601(1)(c). The city argues that the language of subrule 601(1)(c) requires an applicant such as Wolverine to obtain prior consent from the local governments affected by a project. We disagree. Subrule 601(1)(c) clearly and unambiguously provides that a pipeline corporation such as Wolverine is required by statute to obtain the PSC's approval for any new construction project. The subrule directs the reader to Act No. 16 of MLC 483.1 et seq., as the governing body of law. 1929 PA 16, M.C.L. § 483.1 et seq., regulates the buying, selling, and transporting of crude oil and petroleum products through pipelines. It also regulates the use of public highways for that purpose. The city has not pointed to any portion in the statute, and we have not found any, that requires a person acting under 1929 PA 16 to submit with its application the consent of the affected local governments.
The parties also dispute the meaning of the words "if required" in subrule 601(2)(d). The city contends that it means "if required by law," while the PSC staff and Wolverine contend that it means "if required by any of the provisions of subrule (1)." Because the PSC, as a creature of the Legislature, is without authority to establish rules that violate statutory rules and regulations, M.C.L. § 483.8, we conclude that the requirement provision in subrule 601(2)(d) would refer back to the statutory provisions listed in subrule 601(1). As previously discussed, M.C.L. § 483.1 et seq., does not require the prior consent of the affected local governments. Given the above, we conclude that the PSC properly interpreted this rule.
The city also asserts that Const. 1963, art. 7, § 29 and subsection 13(1) of the state highway code, M.C.L. § 247.183(1),...
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