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POTOMAC ELEC. POWER CO. v. DISTRICT OF COLUMBIA GO

December 23, 1986

Potomac Electric Power Co., et al., Plaintiffs,
v.
District of Columbia Government, et al., Defendants



The opinion of the court was delivered by: SPORKIN

 Stanley Sporkin, United States District Judge

 This case concerns the scope of power of the Office of the People's Counsel ("OPC"), the consumer's advocate before the District of Columbia's Public Service Commission ("PSC"). Three utility companies bring this action to contest the process of enactment as well as the substantive content of a District of Columbia statute known as the "Utility Regulatory Assessment and Clarification Act of 1984" ("the Act"). Specifically, they allege that the Act's providing further definition of the powers of the Office of the People's Counsel amounted to an amendment of the District of Columbia charter and thus that the Act could not be enacted without passing through certain statutorily mandated charter amendment procedures. Plaintiffs also argue that the specific changes in the OPC resulting from the Act deprive them of their constitutionally protected right to due process. Because I find that the District of Columbia Council acted within its power in enacting this statute and because the statute in no way deprives plaintiffs of any constitutional rights, the defendant's motion to dismiss this case is granted.

 I. BACKGROUND

 The OPC was first created in 1926 as a publicly funded consumer advocate; although abolished in 1952, it was re-established by Congress in 1975 and "charged with representing the interests of District of Columbia residents who use the services of utilities regulated by the PSC." Office of People's Counsel v. Public Service Commission, 477 A.2d 1079, 1094 (D.C. App. 1984).

 The amount of power vested in the OPC, and particularly the degree of independence the OPC maintains from the PSC, has been an area of contention in the regulatory community for years. See, e.g., Potomac Electric Power Co. v. Pub. Serv. Com'n., 455 A.2d 374 (D.C.App. 1982); Washington Gas Light Co. v. Pub. Serv. Com'n., 455 A.2d 384 (D.C.App. 1982). This battle came to a head more than two years ago when the District of Columbia Court of Appeals held:

 Office of People's Counsel, 477 A.2d at 1080-81. Thus, the Court concluded that "to the extent that the proposed [PSC] rules would permit such assessments, they would be ultra vires of PSC's authority." Id. at 1081.

 The Court's decision created what the Mayor characterized as a "crisis in the area of public utility regulation." Letter from Marion Barry, Jr., Mayor to David A. Clarke, Chairman Council of the District of Columbia (April 19, 1984) (District of Columbia Natural Gas' Memoranda in Opposition to Defendant's Motion to Dismiss, at Appendix A). The Mayor feared that the decision might "eliminate effective consumer representation, lead to inordinate or other inappropriate changes in utility rates and service, and disrupt the regulatory process to the detriment of ratepayers, consumers and the utility companies." Id. Acting to avert such a crisis, the Mayor submitted a draft emergency bill to the Council one week after the Court's decision.

 Ultimately entitled the "Utility Regulatory Assessment Clarification Act of 1984," and commonly referred to as District of Columbia Law 5-153, *fn1" the Act makes it clear that the OPC has independent authority (1) to investigate public utilities outside the scope of PSC proceedings, § 2(b) amending D.C. Code § 43-406; (2) to compel public utilities to produce certain information and documents, § 3(b) amending D.C. Code § 43-518; and (3) to assess public utilities for its own expenses, § 3(e) amending D.C. Code § 43-612. *fn2"

 The Act was essentially an effort to clarify the existing statute and did not dramatically expand the power of the OPC. *fn3" Thus the Mayor anticipated that the Act would "call to a halt the endless and expensive litigation spanning a period of approximately seven (7) years by the public utilities in order to challenge the use of the Commission's § 43-612 authority to require payment of the expenses of litigation on behalf of the Office," id. It did not. Plaintiffs initiated this action challenging both the process of enactment and content of the clarification Act. *fn4" Following an extensive unsuccessful settlement attempt by the Court and parties, *fn5" the case is before the Court on defendant's motion to dismiss.

 While the Court's jurisdiction is founded upon the federal question raised by the plaintiffs' attack on the substance of D.C. Law 5-153, 28 U.S.C. § 1331, the issue of the statutory legality of its enactment is before the Court under pendant jurisdiction. United Mine Workers v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966); Tuck v. Pan ...


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