Utah State Coalition of Sr. Citizens v. Utah Power and Light Co.

• Decision Date: 12 June 1989
• Docket Number: No. 20152,20152
• Parties: UTAH STATE COALITION OF SENIOR CITIZENS, Utility Consumer Action Group, Salt Lake Community Action Program, Utah Issues Information Program, Utah Welfare Rights Organization, and Crossroads Urban Center, Plaintiffs and Appellants, v. UTAH POWER AND LIGHT COMPANY, Defendant and Appellee.
• Court: Utah Supreme Court

Page 632

776 P.2d 632

104 P.U.R.4th 534

UTAH STATE COALITION OF SENIOR CITIZENS, Utility Consumer Action Group, Salt Lake Community Action Program, Utah Issues Information Program, Utah Welfare Rights Organization, and Crossroads Urban Center, Plaintiffs and Appellants, v. UTAH POWER AND LIGHT COMPANY, Defendant and Appellee.

No. 20152.

Supreme Court of Utah.

June 12, 1989.

Bruce Plenk, Salt Lake City, for plaintiffs and appellants.

Robert Gordon, David Lloyd, Edward Hunter, Salt Lake City, for defendant and appellee.

ZIMMERMAN, Justice:

Plaintiffs are several nonprofit organizations that represent elderly or low-income consumers of electric power. These groups include the Utah State Coalition of Senior Citizens, the Utility Consumer Action Group, the Salt Lake Community Action Program, the Utah Issues Information Program, the Utah Welfare Rights Organization, and the Crossroads Urban Center. Defendant Utah Power and Light Company ("UP & L") is a regulated electric utility.

In November of 1979, plaintiffs petitioned the Utah Public Service Commission ("PSC") to issue a moratorium on all involuntary utility service terminations during the winter months and initiate rule-making proceedings to establish rules regarding winter termination of utility service by all utilities under the jurisdiction of the PSC. A series of hearings was held in December of 1979 and April and August of 1980. In February of 1981, the PSC adopted rules on the subject, which were clarified in May of 1981. ¹ In May of 1982, plaintiffs petitioned the PSC for an award of attorney fees under the federal Public Utility Regulatory Policies Act ("PURPA"). See Public Utility Regulatory Policies Act of 1978, Pub.L. No. 95-617, 92 Stat. 3117, § 122, 16 U.S.C. § 2632 (1982). The PSC denied the petition in July of 1982. Plaintiffs then brought this original action against UP & L in district court under the same statute. Plaintiffs claimed they satisfied the statutory requirements for an award of attorney fees, to wit: (i) that no "alternative means for assuring representation" of plaintiffs before the PSC was provided by the State and (ii) that plaintiffs' participation had substantially contributed to the adoption by the PSC of rules on winter terminations. PURPA, § 122(a)(1); 16 U.S.C. § 2632(a)(1) (1982). UP & L opposed the request and filed a motion for summary judgment. The trial court granted the motion without opinion and dismissed the action. Because we find that a statutory "alternative means" was not provided, we reverse on that issue and remand for further proceedings on the second question--whether plaintiffs' participation "substantially contributed" to the PSC's adoption of the position they advocated.

A grant of summary judgment is appropriate only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Utah R.Civ.P. 56(c). Geneva Pipe Co. v. S & H Ins. Co., 714 P.2d 648, 649 (Utah 1986). In determining whether the trial court properly found that there was no genuine issue of fact, we view the facts and inferences therefrom in the light most favorable to the losing party. Id. at 649. And in deciding whether the trial court properly granted judgment as a matter of law to the prevailing party, we give no deference to the trial court's view of the law; we review it for correctness. Ron Case Roofing and Asphalt Paving, Inc. v. Blomquist, 773 P.2d 1382, 1384-85, (Utah 1989).

In this Court, the positions of the parties mirror their positions below. Plaintiffs claim they are entitled to attorney fees because they have satisfied the two requirements of section 122 of PURPA, to wit: that no "alternative means for assuring representation of electric consumers" before the PSC was provided by the state and that plaintiffs had substantially contributed to a position adopted by the PSC after hearings. In response, UP & L claims that the participation in the hearings of two state agencies, the Division of Public Utilities and the Committee of Consumer Services, provided the "alternative means" required by the statute and, therefore, plaintiffs' claim is barred. UP & L also contends that the district court did not have jurisdiction to consider plaintiffs' challenge to the PSC's denial of the fee request because at the time this action arose, section 54-7-16 of the Code vested in this Court exclusive jurisdiction over all attacks on PSC orders. Even if plaintiffs are entitled to their costs of participation in the hearings, UP & L contends that it is unfair to burden it with that entire cost because several other utilities were also involved in those hearings.

This case involves a somewhat complicated federal statutory scheme; therefore, some introduction to PURPA is required. In November of 1978, Congress enacted PURPA, in part to encourage energy conservation and to provide equitable retail rates for electricity consumers. The statute accordingly set out rate-making and utility service standards designed to further this purpose. Although Congress favored certain changes in the regulation of public utilities, it did not attempt to abrogate traditional state control of utility regulation by imposing these changes directly on local utilities. Therefore, it required that each state's regulatory authority hold public hearings to determine whether any or all of the proposed standards relating to utility service enumerated in PURPA should be adopted. ² See PURPA, § 113, 16 U.S.C. § 2623 (1982). PURPA required that the hearings be completed and the standards adopted or rejected within two years. Id.

While the states were not required to adopt the PURPA standards, Congress wanted to ensure that the viewpoints of all electricity consumers were adequately represented in state administrative proceedings, including those who might not be able to otherwise afford the costs of participation, which would include costs of retaining counsel and hiring needed experts. Therefore, Congress provided two mechanisms to ensure adequate representation of the views of all affected by the outcome of the hearings. First, if certain criteria were met, an intervenor's costs of representation are reimbursed by the electric utilities involved in the hearings. An intervenor meeting the statutory criteria can recover its costs from the utility either by obtaining an order from the state regulatory authority directing the utility to pay, if the regulatory authority has adopted a procedure for making such awards, or by bringing a civil action in state court against the utility. ³ PURPA, § 122(a)(2), 16 U.S.C. § 2632(a)(2); H.R.Rep. No. 1750, 95th Cong., 2d Sess., reprinted in 1978 U.S.Code Cong. & Admin.News 7659, 7797, 7816-17 [hereinafter H.R.Rep. No. 1750]. Second, the statute provides that the state, the state regulatory authority, or the nonregulated utility (if the proceedings involve a nonregulated utility) can assume the costs of an intervenor's participation by establishing a mechanism either for directly compensating a qualified intervenor for its costs of participation or for directly representing the intervenor in the proceedings via an adequately funded office of public counsel. ⁴

Against this background, UP & L's contentions are better understood. It seeks to avoid liability for any of plaintiffs' costs of participation by arguing that the state exercised the option in section 122(b) of PURPA to assume those costs by providing for the participation in the hearings of two state agencies that represent consumers, the Division of Public Utilities and the Committee of Consumer Services. UP & L contends that this participation constituted the "alternative means for assuring representation" contemplated by the statute and, since plaintiffs' expenditures duplicated the state's, reimbursement should be denied. Plaintiffs contend that neither state agency's participation in the hearings constituted an "alternative means" because both agencies were incapable of adequately representing plaintiffs' interests.

The question of when publicly funded counsel will constitute an adequate "alternative means for assuring representation" sufficient to bar an intervenor's claim for an award of attorney fees under PURPA has never been addressed in Utah. In other states, two different approaches have emerged. The first, termed a "case-by-case approach," originated in the New York courts. Under this approach, the mere fact that a publicly funded counsel appears in a PURPA hearing does not mean that the state has satisfied the alternative means option. The New York courts require that there be a particularized inquiry in each case into the adequacy of the counsel's funding and the existence of conflicts among the various interests it represented. In the absence of adequate funding or in the presence of conflicts, a public counsel does not constitute an "alternative means for assuring representation" and does not preclude the recovery of an intervenor's costs. See United Tenants of Albany, Inc. v. Niagara Mohawk Power Corp., 127 Misc.2d 957, 960, 487 N.Y.S.2d 467, 471 (N.Y.Sup.Ct.1984), aff'd, 115 A.D.2d 978, 497 N.Y.S.2d 1019 (N.Y.App.Div.1985); accord Rodriguez v. Orange and Rockland Utils., Inc., 123 A.D.2d 613, 506 N.Y.S.2d 888 (N.Y.App.Div.1986). ⁵

The second approach to determining what constitutes the provision of an "alternative means for assuring representation" has been termed a "per se" approach and originated in the Washington courts. See POWER v. Washington Water Power Co., 99 Wash.2d 289, 295, 662 P.2d 374, 378 (1983), aff'd and modified on rehearing, 102 Wash.2d 260, 684 P.2d 716 (1984). In POWER, the Washington court rejected the contention that conflicts among classes of ratepayers require that different classes with particular viewpoints receive separate representation. Under this approach, participation by a special assistant attorney general per se satisfies the PURPA alternative means criteria so long...