Caryn Watson Short
Charleston, West Virginia
Attorney for the Appellee,
The Public Service Commission
of West Virginia
Christopher L. Callas
Stephanie H. D. Mullett
Jackson & Kelly, PLLC
Charleston, West Virginia
Attorney for the Appellee,
Big Sandy Peaker Plant, LLC
JUSTICE ALBRIGHT delivered the Opinion of the Court.
CHIEF JUSTICE DAVIS and JUSTICE MAYNARD concur in part and dissent in part,
and reserve the right to file separate opinions.
JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
1. “'“'[A]n
order of the public service commission based upon its finding of facts will
not be disturbed unless such finding is contrary to the evidence, or is without
evidence to support it, or is arbitrary, or results from a misapplication
of legal principles.' United Fuel Gas Company v. The Public Service Commission,
143 W. Va. 33, 99 S.E.2d 1 (1957).” Syllabus Point 5, in part, Boggs
v. Public Service Comm'n, 154 W. Va. 146, 174 S.E.2d 331 (1970).'
Syllabus Point 1, Broadmoor/Timberline Apartments v. Public Service Commission,
180 W. Va. 387, 376 S.E.2d 593 (1988).” Syl. Pt. 1, Sexton v.
Public Service Commission, 188 W. Va. 305, 423 S.E.2d 914 (1992).
2. “In
reviewing
a Public Service Commission
order, we will first determine whether the Commission's order, viewed in light
of the relevant facts and of the Commission's broad regulatory duties, abused
or exceeded its authority. We will examine the manner in which the Commission
has employed the methods of regulation which it has itself selected, and must
decide whether each of the order's essential elements is supported by substantial
evidence. Finally, we will determine whether the order may reasonably be expected
to maintain financial integrity, attract necessary capital, and fairly compensate
investors for the risks they have assumed, and yet provide appropriate protection
to the relevant public interests, both existing and foreseeable. The court's
responsibility is not to supplant the Commission's balance
of these interests with one more nearly to its liking, but instead to assure
itself that the Commission has given reasoned consideration to each of the
pertinent factors.”
Syl.
Pt. 2, Monongahela Power
Co. v. Public Service Commission
, 166 W. Va. 423, 276 S.E.2d
179 (1981). 3. “The detailed standard for our review of
an order of the Public Service Commission contained in Syllabus Point 2 of
Monongahela Power Co. v. Public Service Commission, 166 W. Va.
423, 276 S.E.2d 179 (1981), may be summarized as follows: (1) whether the
Commission exceeded its statutory jurisdiction and powers; (2) whether there
is adequate evidence to support the Commission's findings; and, (3) whether
the substantive result of the Commission's order is proper.” Syl. Pt.
1, Central West Virginia Refuse, Inc. v. Public Service Commission,
190 W. Va. 416, 438 S.E.2d 596 (1993). 4. “The test as to whether or not a person,
firm or corporation is a public utility is that to be such there must be a
dedication or holding out either express or implied that such person, firm,
or corporation is engaged in the business of supplying his or its product
or services to the public as a class or any part thereof as distinguished
from the serving of only particular individuals; and to apply this test the
law looks at what is being done, not to what the utility or person says it
is doing.” Syl. Pt. 3, Wilhite v. Public Service Commission, 150
W. Va. 747, 149 S.E.2d 273 (1966).
6. “The Public Service Commission of West Virginia
has no jurisdiction and no power or authority except as conferred on it by
statute and necessary implications therefrom, and its power is confined to
the regulation of public utilities. It has no inherent power or authority.”
Syl. Pt. 2, Wilhite v. Public Service Commission, 150 W. Va. 747, 149
S.E.2d 273 (1966). 8. Any person or entity having a good faith reason
to file a complaint against a public utility under West Virginia Code §
24-4-6 (1923) (Repl. Vol. 2001) has standing to do so, notwithstanding the fact that such person or entity was not a party
to prior proceedings for a certificate of convenience and necessity or other
proceedings to which the complaint relates. 9. “The Public Service Commission was created
by the Legislature for the purpose of exercising regulatory authority over
public utilities. Its function is to require such entities to perform in a
manner designed to safeguard the interests of the public and the utilities.
Its primary purpose is to serve the interests of the public. Boggs v. Public
Service Commission, 154 W. Va. 146, 174 S.E.2d 331 (1970).” Syl.
Pt. 1, West Virginia-Citizen Action Group v. Public Service Commission,
175 W. Va. 39, 330 S.E.2d 849 (1985).
5. “The public service commission has the statutory
power and authority to control the facilities, charges and services of all public
utilities and to hear and determine the complaints of persons entitled to the
services which such utilities afford; and the only limitation upon such power
and authority is that the requirements shall not be contrary to law and that
they shall be just and fair, just and reasonable, and just and proper.”
Syl. Pt. 6, State ex rel. City of Wheeling v. Renick, 145 W. Va. 640,
116 S.E.2d 763 (1960).
7. Electric generation and transmission facilities
intended solely for the sale of electricity on the wholesale market are within
the statutory definition of a public utility set forth in West Virginia Code
§ 24-2-1 (1991) (Repl. Vol. 2001) whenever it appears that the electricity
produced will, in the course of distribution, ultimately be sold to the public.
10.
Where public funding is in fact a material part of the financing of public
utility construction, the Public Service Commission cannot discharge its duty
to the public interest simply by labeling the funding internal. At least a
general review of those plans is required, sufficient to inform the Public
Service Commission of the terms and conditions of such public funding, that
the public entity involved has consented or will consent to the plan in light
of all material facts, and that such plan does not offend the public interest
from the perspective of the Public Service Commission. Where it is subsequently
claimed that the terms and conditions of the public funding plan intended
to serve the public interest have not been substantially complied with,
the Public Service Commission has jurisdiction to compel compliance if that
is necessary.
Albright, Justice: This is an appeal by the Affiliated Construction
Trades Foundation (hereinafter “ACT” or “Appellant”),
a division of the West Virginia State Building and Construction Trades Council,
AFL-CIO, from an April 10, 2001, order of the Public Service Commission (hereinafter
“PSC”) dismissing a complaint filed by ACT. The Appellant requests
this Court to reverse the dismissal order, alleging that the PSC should consider
ACT's allegations that the Big Sandy Peaker Plant, LLC, (hereinafter “Big
Sandy”) violated the terms of a certificate of public convenience and
necessity authorizing the construction of the Big Sandy Peaker electric generation
plant in Wayne County, West Virginia. Through this appeal, ACT seeks to obligate
the PSC to investigate and proceed to a hearing on the complaint. Having thoroughly
reviewed the record, briefs, and arguments of counsel, we affirm the ultimate
decision of the PSC. Notwithstanding the technical mootness of the issues
raised on appeal, based upon the fact that the facility's construction is
now complete, we address the issues raised by ACT under established principles
allowing review where issues are of great public interest.
On December 13, 2000, ACT filed a complaint with
the PSC, alleging that Big Sandy had misrepresented certain material facts
to the PSC in obtaining the certificate of public convenience and necessity.
Act asserted that although the certificate application indicated that the
facility would be funded through “internal funding,” Big Sandy had
funded the project through industrial and commercial development revenue bonds.
Additionally, ACT asserted that although the certificate application indicated that the
construction would benefit the local economy, Big Sandy had not significantly
utilized a local workforce in the construction of the facility. In seeking a remedy for the alleged violations,
ACT requested that the PSC (1) revoke the certificate and order construction
to cease; (2) revoke the waiver of the obligation to submit certain information
to the PSC; (3) investigate the circumstances under which Big Sandy applied
for and obtained the certificate; (4) refuse to issue a new certificate until
the PSC determines that Big Sandy has complied with West Virginia Code §
24-2-11 (1983) (Repl. Vol. 2001), including the burden to demonstrate an improved
economy; and (5) order Big Sandy to hire exclusively local workers and contractors
for the construction and operation of the facility. On January 8, 2001, Big Sandy moved to dismiss ACT's
complaint, contending that ACT lacked standing and further maintaining that
ACT's allegations of misrepresentation or certificate violation were erroneous.
(See footnote 3)
The PSC dismissed ACT's complaint on April 10, 2001, finding that ACT was not a party to the certification,
that ACT alleged no violation of public utility law, and that the PSC did
not have authority to grant the relief sought. The PSC based its dismissal
order upon several considerations. First, the PSC noted that “ACT was
not a party to Big Sandy's certificate case and cannot untimely undo the certificate
proceeding via a formal complaint.” The PSC found that Big Sandy's plant
“is not a typical electric generating facility, built by a regulated
utility and to be paid for . . . with revenue received from the
utility's ratepayers.” The order of dismissal further recited that PSC
“considerations” for such cases must be “molded and adjusted
. . . on a case-by-case basis.” However, the PSC did address the substance
of ACT's allegations, explaining as follows:
In its appeal of the PSC dismissal order, ACT asserts
that this Court's determination should be limited to the issue of ACT's standing
to file a complaint with the PSC regarding Big Sandy's alleged violations. In
its responsive memoranda, however, the PSC and Big Sandy emphasize that the
matters at issue are actually broader than the threshold standing issue and
that the PSC based it dismissal order upon considerations other than standing,
as revealed in the quotations provided above. For purposes of appellate review,
it appears to this Court that the PSC dismissal order was based ACT's lack of
participation in the certificate process, as well as the fact that no specific
violation of utility law had been alleged and that the certificate, as issued,
neither limited Big Sandy's funding options nor required any particular workforce
composition.
In syllabus point two of Monongahela Power Co. v.
Public Service Commission, 166 W. Va. 423, 276 S.E.2d 179 (1981), we explained:
In light of the standards set forth above, this Court must determine whether
the PSC abused or exceeded it duties; whether the PSC's findings are contrary
to the evidence; and whether the result of the PSC's final order is proper in
light of the reasonable needs and expectations of the regulated entity and the
relevant public interests.
On April 7, 2000, Big Sandy filed an application
with the PSC, seeking a certificate of public convenience and necessity to construct
an electric generating facility
(See footnote 1) in Wayne County. Big Sandy
asserted in its application that it was not a public utility and was exclusively
a wholesale generator. The application also asserted that the proposed facility
was unregulated, citing federal law and the ongoing study of deregulation initiated
by the PSC at the direction of the West Virginia Legislature.
(See footnote 2) The application included the
following pertinent assertions concerning Big Sandy's plans for funding the
construction of the plant:
Big Sandy has the necessary
funding to construct and operate the Facility. Big Sandy will be responsible
for the construction and operation of the Facility and for the sale of electricity
generated at the Facility.
Big Sandy is currently planning
to utilize internal funding to develop and construct the Facility and to pay
for AEP's [American Electric Power] construction of the Transmission Line. After
the Facility begins commercial operation, Big Sandy may consider permanent financing
of the cost of the Facility and its investment in AEP's construction of the
Transmission Line.
The entire financial risk of
constructing and operating the Facility will be bourne by Big Sandy. If the
Facility were to become uneconomic as a result of changes in environmental regulations,
fuel costs, competition or reduced demand for power (which Big Sandy is confident will not be the case), Big Sandy, and
not the West Virginia ratepayers, will suffer the financial loss.
With regard to the proposed economic benefits, Big Sandy asserted as follows
in its application:
Construction and operation
of the Facility will provide a number of economic benefits. Approximately
75 workers will be employed during construction. Big Sandy will employ approximately
three full-time employees to operate the Facility. The Facility will benefit
the local economy and community through the purchase of products and services
that can be provided locally and by enhancing the tax base of Wayne County.
ACT did not protest or otherwise participate in the
PSC consideration of Big Sandy's application, and the PSC granted the certificate
on June 23, 2000, after a protest filed by a third party was resolved by agreement.
The PSC found that “Big Sandy is not a public utility,” reflecting
agreement with Big Sandy's assertion of the “unregulated” status
of the project. However, the PSC also found that its project required a certificate
of convenience and necessity. Based on those findings, the PSC granted a waiver
of the obligation to provide certain information to the PSC, in part since
the project would not involve revenues from West Virginia ratepayers. The
PSC also found that “Big Sandy has the necessary funding for, and will
be solely responsible for the construction and operation, of the station.
. . .” The PSC order did not address the representations in Big Sandy's
application that the project would confer economic benefit on the local area.
Prior to the filing of its application with the PSC,
Big Sandy, through Constellation Power, Inc., a related organization, negotiated
with the Wayne County Commission to obtain financing for the facility through
industrial and commercial development revenue bonds to be issued by the county
commission. According to the bond resolution adopted by the county commission,
those negotiations began on or before February 22, 2000. A formal request was
presented to the county commission on March 20, 2000, which committed to the
project and the bonds on March 27, 2000. The formal bond resolution, dated February
20, 2001, states that the developer represented to the county commission on
February 22, 2000, that it would “attempt to use local workers if possible
during construction of the [p]roject.” The resolution further recites that
in its March 20, 2000, request to the county commission, Constellation proposed
payments to county instrumentalities in lieu of taxes totaling $425,000, later
modified to provide for $425,000 annually to the county commission for a term
of twenty years, and an additional $600,000, payable over three years to the
Wayne County economic development authority.
[N]othing in the Commission's order granting Big Sandy
a certificate to build the wholesale peaking plant required Big Sandy to use
local employees or limited Big Sandy's funding options. The Commission does
not establish parameters for the workforce composition for a project, even
a traditional utility project. Finally, if Big Sandy made misrepresentations
when it appeared before the Wayne County Commission, those concerns must be
addressed elsewhere.
(See footnote 4)
This Court has consistently held as follows:
“'“[A]n order of the public service commission
based upon its finding of facts will not be disturbed unless such finding is
contrary to the evidence, or is without evidence to support it, or is arbitrary,
or results from a misapplication of legal principles.” United Fuel Gas
Company v. The Public Service Commission, 143 W. Va. 33, 99 S.E.2d 1 (1957).'
Syllabus Point 5, in part, Boggs v. Public Service Comm'n, 154 W. Va.
146, 174 S.E.2d 331 (1970).” Syllabus Point 1, Broadmoor/Timberline
Apartments v. Public Service Commission, 180 W. Va. 387, 376 S.E.2d 593
(1988).
Syl. Pt. 1, Sexton v. Public Service Commission, 188 W. Va. 305, 423
S.E.2d 914 (1992).
In reviewing a Public Service
Commission order, we will first determine whether the Commission's order, viewed
in light of the relevant facts and of the Commission's broad regulatory duties,
abused or exceeded its authority. We will examine the manner in which the Commission
has employed the methods of regulation which it has itself selected, and must
decide whether each of the order's essential elements is supported by substantial
evidence. Finally, we will determine whether the order may reasonably be expected
to maintain financial integrity, attract necessary capital, and fairly compensate
investors for the risks they have assumed, and yet provide appropriate protection
to the relevant public interests, both existing and foreseeable. The court's
responsibility is not to supplant the Commission's balance of these interests
with one more nearly to its liking, but instead to assure itself that the Commission
has given reasoned consideration to each of the pertinent factors.
See also syl. pt. 1, Berkeley County Public Service Sewer District
v. West Virginia Public Service Commission, 204 W. Va. 279, 512 S.E.2d 201
(1998). This Court elaborated upon the Monongahela Power standard as
follows in syllabus point one of Central West Virginia Refuse, Inc. v. Public
Service Commission, 190 W. Va. 416, 438 S.E.2d 596 (1993):
The detailed standard for our
review of an order of the Public Service Commission contained in Syllabus Point
2 of Monongahela Power Co. v. Public Service Commission, 166 W. Va.
423, 276 S.E.2d 179 (1981), may be summarized as follows: (1) whether the Commission
exceeded its statutory jurisdiction and powers; (2) whether there is adequate
evidence to support the Commission's findings; and, (3) whether the substantive
result of the Commission's order is proper.
See also West Virginia Highlands Conservancy, Inc. v. Public Service
Commission, 206 W. Va. 633, 527 S.E.2d 495 (1998) (concluding that
a public utility holding company was not subject to the jurisdiction of the
PSC).
In syllabus point six of State ex rel. City of
Wheeling v. Renick, 145 W. Va. 640, 116 S.E.2d 763 (1960), this Court
summarized the PSC's authority as follows:
The public service commission
has the statutory power and authority to control the facilities, charges and
services of all public utilities and to hear and determine the complaints
of persons entitled to the services which such utilities afford; and the only
limitation upon such power and authority is that the requirements shall not
be contrary to law and that they shall be just and fair, just and reasonable,
and just and proper.
See also syl. pt. 2, Broadmoor/Timberline Apartments v. Public Service
Commission, 180 W. Va. 387, 376 S.E.2d 593 (1988). This Court further
explained as follows in syllabus point two of Wilhite: “The Public
Service Commission of West Virginia has no jurisdiction and no power or authority
except as conferred on it by statute and necessary implications therefrom,
and its power is confined to the regulation of public utilities. It has no
inherent power or authority.” 150 W. Va. at 748, 149 S.E.2d at 274.
The
PSC also maintains the ACT attempted to “undo” the grant of the
application and interfere with the finality of PSC orders in an untimely fashion.
If ACT sought only revocation of the permit, the finality argument might be
considered more viable. However, the ACT complaint sought to require compliance
with the representations in the application and the bases upon which the permit
was granted. In refusing consideration of the ACT complaint, the PSC expressed
concern that the complaint process might undermine the finality of its order
granting a certificate of convenience and necessity. We do not perceive the
complaint process as a substitute for a timely appeal and do not, by our ruling
today, imply that a complaint may be used as a substitute for a timely appeal.
Nevertheless, where a timely complaint alleges in good faith that commitments
made in the initial proceedings are not being faithfully performed, the use
of the complaint process to cause a careful examination of that performance
cannot be seen as an attack on the finality of the order of the PSC granting
the certificate of convenience and necessity. Rather, such a complaint addresses
only the performance of the permit holder subsequent to the granting order.
As noted, ACT's complaint focuses on two predominant
realms of concern, Big Sandy's assertion in its application that the project
would be paid for entirely by “internal funding” and the further
assertion that the project would be of economic benefit to the local community.
The PSC order granting the certificate of convenience and necessity expressly
finds that Big Sandy has the required funding for the station and will be
“solely responsible” for the construction and operation of the project.
That PSC order is silent on the economic benefit to the local community, its
impact on the tax base of Wayne County, or its impact on the public revenues
of the county or state.
The gravamen of the ACT complaint appears to be that
with respect to these two matters, internal funding and benefit to the local
community, Big Sandy, by misleading and incomplete statements and disclosures,
failed in the duty to make truthful statements to the PSC
(See footnote 7) with respect to these two central
matters or failed to proceed in conformity with those representations. ACT asserts
that the PSC had the authority to require compliance with those representations
or withdraw the permit. West Virginia Code § 24-1-1 (1986) (Repl. Vol.
2001) provides the legislative purpose of the PSC and explains as follows:
In similar vein, the PSC expressed the position
that it was not disturbed by the substitution of “payments in lieu of
taxes” for the actual income likely to be generated for local use by
normal taxes regularly levied on actual or projected assessments. Big Sandy
asserts that it bears the entire financial risk in this project, intending
to pay off the bonds from its own resources and to ultimately regain legal
title to its plant. Big Sandy hopefully will be successful in shouldering
substantially all of the financial risk of the project. However, the reality
is that the bond issue in this case implicates the credit standing of Wayne
County and, ultimately, the State of West Virginia. If there is a default,
either Wayne County will assume the burden or its credit standing will be
harmed, even if no county assets beyond the plant site may be held to answer
for the debt. Moreover, during the time the real estate upon which the plant is located stands in the name of the County
Commission, the capacity of Wayne County to incur bonded indebtedness is reduced
because the assessed value of property in the county is computed without regard
to the plant property.
(See footnote 8) Finally, this facility, for which bonds
in the amount of $110 million were issued by Wayne County, presumably justifying
an initial assessed value on the tax books of Wayne County of about $66 million,
may well have produced considerably more in taxes to Wayne County over the
twenty years for which PILOT payments have been promised at the base rate
of $425,000, plus a one-time payment of $600,000. Proper regard for the public
interest suggests that the PSC has both the right and the duty to inquire
into the suitability of these arrangements, taking into account the particular
factors that may have motivated the Wayne County Commission in agreeing to
such an arrangement, the factors leading Big Sandy and the Wayne County Commission
to agree upon the project, and any other factors appropriate to the inquiry.
We do not suggest that the arrangements here were either good or not good
for the state, the county, economic development, local employment, or whatever
other factors involve the public interest. Rather we simply conclude that
“the public interest,” to which the PSC is required to give attention,
demands a fully developed concern for all citizens and business entities,
be they ratepayers, taxpayers, or neither.
A comprehensive consideration of the “public interest”
would also justify PSC inquiry regarding the promised benefits to the local
workforce arising out of the kinds of commitments or concessions thought necessary,
and in fact utilized in Wayne County, to attract this particular investment.
The record discloses that the intent to use revenue bonds was publicly known
as early as February 22, 2000. The record also shows that when the PSC failed
to act in relation to the representation that the project would be of economic
benefit to the local community, the County Commission of Wayne County did extract
a commitment from Big Sandy in February 2001, that at least 70% of the workforce
at the plant would be local during the remaining months of construction. This
Court recognizes that a combination of factors came together to result in the
construction and operation of this plant in Wayne County, West Virginia, including
the use of revenue bonds, the availability of a market for this peak time electricity
generation, the agreements for payments in lieu of taxes, and the commitment
to employ largely local workers during construction of the plant. In our view,
the public interest was not served by the PSC simply ignoring any alleged and
provable variance between the commitments made to bring this facility into being
under a proper certificate of public convenience and necessity and the performance
of those commitments after the issuance of the certificate. Based upon the actuality that the Big Sandy plant
began operating in July 2001, we must agree with the PSC that there is no
realistic remedy now available in this case. This Court addresses these issues
with regard to future proceedings and complaints before the PSC. We find that
the PSC had authority to revoke or suspend the permit or to impose monetary
penalties during the construction of the facility, as authorized by the PSC
certificate and based upon Big Sandy's representations. In dismissing ACT's
complaint, the PSC erred in finding an absence of ACT standing and in holding
that Big Sandy was not a public utility subject to PSC authority.
(See footnote 9) Furthermore, the PSC erred
in failing to thoroughly scrutinize ACT's allegations of misrepresentation
regarding internal funding and economic impact. As explained above, the public
interest requires that representations of benefit to a local community which
underlie a certificate application or the intended use of public financing
require the PSC to fully consider such representations and require continued
compliance therewith to assure that the public funding mechanism assures such
compliance. Vague assurances by the certificate applicant that the public
interest will be served, through a particular provision or construction requirements,
must not be considered sufficient to prevent further PSC inquiry regarding
the extent to which the application serves the public interest. Nevertheless, in light of the completion of the project, we do
not disturb the final ruling of the PSC.
Having concluded that Big Sandy qualifies as a public
utility to which PSC authority would apply and that ACT was entitled to file
a complaint, we address the merits of the action. As explained above, ACT would
limit inquiry to the standing issue; however, the PSC order which forms the
basis for this appeal was not restricted to that single issue and the parties
have addressed the substance of the ACT complaint in the briefs filed in this
appeal. The PSC essentially maintained in the dismissal order and argues on
appeal that ACT's complaint failed to state a cause of action. Further, the
PSC asserts that even if the allegations in the complaint are taken as true,
they do not establish a violation of any condition for issuance of the certificate under PSC law. The PSC contends
that nothing directly required by the certification process was alleged to
have been violated. Consequently, the PSC argues that there is no violation
and no remedy available to ACT, since Big Sandy's application promised neither
a particular local employment base nor a precise method of funding the construction
project. This Court must examine the reasoning of the PSC to determine whether
such a restrictive view of its own power is warranted or whether a broader
view is appropriate, addressing whether the ACT complaint alleges conduct
by Big Sandy which, by commission or omission, offends chapter twenty-four
of the West Virginia Code, the bulk of the statutory public utility of this
state.
(a) It is the purpose and
policy of the Legislature in enacting this chapter to confer upon the public
service commission of this state the authority and duty to enforce and regulate
the practices, services and rates of public utilities in order to:
(1)
Ensure fair and prompt regulation of public utilities in the interest of the
using and consuming public;
. . . .
(3)
Encourage the well-planned development of utility resources in a manner consistent
with state needs and in ways consistent with the productive use of the state's
energy resources, such as coal;
. . . .
(b) The Legislature creates
the public service commission to exercise the legislative powers delegated
to it. The public service commission is charged with the responsibility for appraising and balancing the interests of current and future utility service
customers, the general interests of the state's economy and the interests
of the utilities subject to its jurisdiction in its deliberations and decisions.
(c) The Legislature directs
the public service commission to identify, explore and consider the potential
benefits or risks associated with emerging and state-of-the-art concepts in
utility management, rate design and conservation. The commission may conduct
inquiries and hold hearings regarding such concepts in order to provide utilities
subject to its jurisdiction and other interested persons the opportunity to
comment, and shall report to the governor and the Legislature regarding its
findings and policies to each of these areas not later than the first day
of the regular session of the Legislature in the year one thousand nine hundred
eighty-five, and every two years thereafter.
W. Va. Code § 24-1-1 (emphasis supplied). This Court has consistently
adhered to the principle that the primary purpose of the PSC is to “serve
the interests of the public.” Boggs v. Public Service Commission,
154 W. Va. 146, 154, 174 S.E.2d 331, 336 (1970). In syllabus point one of
West Virginia-Citizen Action Group v. Public Service Commission, 175
W. Va. 39, 330 S.E.2d 849 (1985), this Court explained:
The Public Service Commission
was created by the Legislature for the purpose of exercising regulatory authority
over public utilities. Its function is to require such entities to perform
in a manner designed to safeguard the interests of the public and the utilities.
Its primary purpose is to serve the interests of the public. Boggs v. Public
Service Commission, 154 W. Va. 146, 174 S.E.2d 331 (1970).
See also syl. pt. 1, City of South Charleston v. West Virginia Public
Service Commission, 204 W. Va. 566, 514 S.E.2d 622 (1999).
The basis for ACT's complaint regarding the absence
of “internal funding” is the fact that the use by Big Sandy of financing
through publicly issued industrial and commercial development revenue bonds
coupled with a reduction in taxes, achieved by making fixed “payments in
lieu of taxes” [PILOT], is not “internal funding.” In examining
that assertion in the context of oral argument before this Court, it became
apparent that an appropriate definition for the term “internal funding”
is the subject of prodigious debate. Big Sandy asserts that the PILOT program
and revenue bonds are not inharmonious with the statement that internal funding
would be utilized since the use of internal funding, made in conjunction with
a certificate application to the PSC, denoted only that the West Virginia ratepayers
would not bear the cost for construction of the project. The PSC apparently
agreed with this definition. Once the PSC determined that the cost of the project
would not be paid from revenues earned from West Virginia rate payers, its inquiry
appears to have ended. We find that limited inquiry inconsistent with the primary
purpose of the PSC to serve the interests of the public, its obligation to require
utilities “to perform in a manner designed to safeguard the interests of
the public and the utilities” and its clearly expressed statutory duty
to appraise and balance “the interests of current and future utility service
customers, the general interests of the state's economy and the interests
of the utilities subject to its jurisdiction” in its deliberations and
decisions. Syl. pt. 1, West Virginia-Citizen Action Group, 175 W. Va.
at 40, 330 S.E.2d at 849;
Where public funding is in fact a material part of the
financing of public utility construction, the PSC cannot discharge its duty
to the public interest simply by labeling the funding internal. At least a general
review of those plans is required, sufficient to inform the PSC of the terms
and conditions of such public funding, that the public entity involved has consented
or will consent to the plan in light of all material facts, and that such plan
does not offend the public interest from the perspective of the PSC. Where it
is subsequently claimed that the terms and conditions of the public funding
plan intended to serve the public interest have not been substantially complied
with, the PSC has jurisdiction to compel compliance if that is necessary.
In seeking a remedy for the alleged violations, ACT
requested that the PSC (1) revoke the certificate and order construction to
cease; (2) revoke the waiver of the obligation to submit certain information
to the PSC; (3) investigate the circumstances under which Big Sandy applied
for and obtained the certificate; (4) refuse to issue a new certificate until
the PSC determines that Big Sandy has complied with West Virginia Code §
24-2-11 including the burden to demonstrate an improved economy; and (5) order
Big Sandy to hire exclusively local workers and contractors for the construction
and operation of the facility. The PSC responded by finding that there were
no remedies available even if the ACT complaint had merit.
utilized, since “internal funding” simply referred to the fact that the project would not be funded through revenues generated by payments by West Virginia ratepayers. Further, Big Sandy maintained that ACT had not alleged any violation of public utility law.
Three factors to be considered in deciding whether to address technically moot issues are as follows: first, the court will determine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief; second, while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public; and third, issues which may be repeatedly presented to the trial court, yet escape review at the appellate level because of their fleeting and determinate nature, may appropriately be decided.