Cities of Anaheim, Riverside, Banning, Colton & Azusa v. Federal Energy Regulatory Commission

concurring:

I concur in the majority opinion, except for the portion contained in footnote 3. In that footnote the majority summarily dismisses a question raised by the cities that deserves our consideration. The cities challenge the West Texas policy on its merits, contending that the policy is contrary to consumers’ interests and therefore contrary to the Federal Power Act itself.

There is some merit to petitioners’ argument. The suspension policy set forth in West Texas permits rate increases that preliminary studies show to be excessive by up to ten percent to go into effect before FERC determines their lawfulness. 1 Because agency evaluation is often protracted, the final determination of the validity of an increase may not issue for several years. As petitioners point out, in the event that a rate increase is later determined to be excessive, customers will, in effect, have been lending money to the utilities. Although section 205(a) of the Federal Power Act, 16 U.S.C. section 824d(a) provides that refunds with interest may be ordered for rate increases subsequently found to be unreasonable, because of the time lapse between a rate increase and a refund there is no…

On March 31, 1982, Southern California Edison applied to the Federal Energy Regulatory Commission for a rate increase. Five California cities, wholesale customers of Edison, intervened in opposition. 1 When a utility files a new rate schedule with FERC (formerly the Federal Power Commission), the Commission can take one of three actions:

FERC has 60 days to decide which course to follow. 16 U.S.C. § 824d(d) (West Supp. 1983); Indiana & Michigan Electric Co. v. FPC, 502 F.2d 336, 341 (D.C.Cir.1974), cert. denied, 420 U.S. 946 , 95 S.Ct. 1326 , 43 L.Ed.2d 424 (1975).

In this case FERC chose the second of the three options. On May 28, 1982, the Commission suspended step one of the proposed rate increase, the portion at issue in this appeal, for one day only. FERC also scheduled a hearing on the merits of Edison’s proposal and preserved the cities’ right to a refund if the rates were ultimately found excessive. Southern California Edison Co., 19 FERC ¶ 61,209 (May 28, 1982). In fixing the suspension at one day, FERC purported to follow the policy set out in West Texas Utilities Co., 18 FERC ¶ 61,189 (Feb. 26, 1982).

The cities petitioned for rehearing claiming that Edison’s filing…