State ex rel. Utilities Commission v. Edmisten

• Decision Date: 21 December 1976
• Docket Number: No. 131,131
• Citation: 291 N.C. 361,230 S.E.2d 671
• Parties: STATE of North Carolina ex rel. UTILITIES COMMISSION and Duke Power Company, Applicant, v. Rufus L. EDMISTEN, Attorney General, and Great Lakes Carbon Corporation, Inc., Intervenors.
• Court: North Carolina Supreme Court

Page 671

230 S.E.2d 671

291 N.C. 361

STATE of North Carolina ex rel. UTILITIES COMMISSION and Duke Power Company, Applicant, v. Rufus L. EDMISTEN, Attorney General, and Great Lakes Carbon Corporation, Inc., Intervenors.

No. 131.

Supreme Court of North Carolina.

Dec. 21, 1976.

Rufus L. Edmisten, Atty. Gen. by I. Beverly Lake, Jr., Deputy Atty. Gen., Raleigh, for intervenor appellant Atty. Gen. of North Carolina.

Byrd, Byrd, Ervin & Blanton, P.A. by Robert B. Byrd, Morganton, for intervenor appellant Great Lakes Carbon Corp., Inc.

Steve C. Griffith, Jr., George M. Thorpe, and Kennedy, Covington, Lobdell & Hickman by Clarence W. Walker and John M. Murchison, Jr., Charlotte, for appellee Duke Power Co.

Edward B. Hipp, Commission Atty., and John R. Molm, Associate Commission Atty., Raleigh, for appellee North Carolina Utilities Commission.

Hovis, Hunter & Eller by Thomas R. Eller, Jr., Charlotte, for amicus curiae North Carolina Textile Manufacturers Association, Inc.

EXUM, Justice.

The material facts in this case are almost identical to those in our decision filed this date in No. 39, Fall Term 1976, Utilities Commission v. Edmisten, Attorney General, N.C., 230 S.E.2d 651 (the 'CP&L case'), and the legal questions presented are essentially the same. The appealing intervenors challenged first in the Court of Appeals both interim and final orders of the Utilities Commission permitting the utility to use as an adjunct, or rider, to its regular rate schedules a fuel adjustment clause. The Court of Appeals affirmed the Utilities Commission and the intervenors bring their challenge to us.

The facts are fully set out in the Court of Appeals' opinion and will not be repeated at length here. They may be briefly summarized as follows: The utility, Duke Power Company, having pending before the Commission an application for a general rate increase, filed on November 30, 1973, an application for permission to use a coal adjustment clause, identical in operation to the fossil fuel adjustment clause described in the CP&L case except that it applied only to the utility's coal purchases. In its application, supported by factual data pointing to the dramatic and frequent increases in the cost of coal, the utility sought permission to use the coal clause on bills rendered on and after January 1, 1974, with respect to coal burned on and after November 1, 1973. After allowing, for good cause shown, interim rate increases in the general rate case, the Commission on December 19, 1973, entered, also upon good cause shown, an Ex parte order permitting the utility to place into effect pending 'further review and final disposition' the coal cost adjustment clause 'on bills rendered on and after January 19, 1974 for service rendered on and after December 19, 1973 with respect to coal burned on and after November 1, 1973 . . ..' In this Ex parte order the Commission consolidated further proceedings regarding the coal clause question with the proceedings in the general rate case. The Attorney General, intervenor, filed exceptions and notice of appeal to this Ex parte order. This appeal was ultimately dismissed on the ground that the Ex parte order was interlocutory in nature and not a final order from which an appeal could be taken. Morgan, Attorney, General, v. Power Co., 22 N.C.App. 497, 206 S.E.2d 507 (1974), Cert. denied and appeal dismissed, 285 N.C. 759, 209 S.E.2d 282 (1974) (Lake, J., dissenting).

Simultaneously with the filing of his notice of appeal, the Attorney General moved the Commission to postpone the effective date of its Ex parte order pending judicial review or further investigation, and also moved that the Commission either rescind this order or modify it to provide for an undertaking for refund.

While the appeal was pending, the Commission initially denied all motions of the Attorney General. Later, on April 16, 1974, on its own motion, the Commission, referring to similar action by it in the CP&L case and a similar case involving Virginia Electric and Power Company, modified its December 19, 1973, order so as to provide that all monies collected thereunder be subject to an undertaking for refund. The utility, in its initial application for the coal clause, had requested that it be put into effect on an interim basis subject to refund.

Thereafter, between May 28 and July 23, 1974, full public hearings on the utility's general rate increase application and its application for permission to use he coal clause were held. The evidence in support of the coal clause was very like that adduced in the CP&L case. After these hearings, the Commission on September 10, 1974, finding Inter alia, that the utility had 'reasonably and justly implemented' the coal adjustment clause approved all monies collected and to be collected pending a final order and rescinded the refund provisions with regard to these monies.

On October 10, 1974, the Commission issued its final order regarding the coal adjustment clause in which it made full findings of fact and conclusions of law similar to those it made in the CP&L case. This order: (1) approved a Fossil fuel...