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Moore Energy Resources, Inc. v. Public Service Commission of the District of Columbia

November 08, 2001


On Petition for Review of Orders of the Public Service Commission of the District of Columbia (PSC No. 945)

Before Reid and Glickman, Associate Judges, and Mack, Senior Judge.

The opinion of the court was delivered by: Mack, Senior Judge

Argued October 26, 2000

Concurring and dissenting opinion by Associate Judge Glickman at p.16.

Petitioner Moore Energy Resources, Inc. (Moore Energy) filed this petition for review from the decision by the Public Service Commission of the District of Columbia ("PSC" or "Commission") approving the Potomac Electric Power Company's ("PEPCO") proposed settlement for the sale of its assets. Moore Energy argues that the Commission: (1) failed to give "great weight and consideration to the interests of residential customers;" and (2) erroneously concluded that the federal Small Business Act, 15 U.S.C. §§ 631, 637 (d) (1994 & 1998 Supp.), was inapplicable to PEPCO's proposed settlement.

Before reaching the merits of Moore Energy's arguments, we consider whether an irregularity in the signature requirement of D.C. App. R. 15 (a) deprives this court of jurisdiction. We conclude that a signature irregularity is not a jurisdictional prerequisite and therefore, may, but need not mandatorily, warrant dismissal. In light of the circumstances presented in this case, we conclude that dismissal is not warranted. On the merits, we reject Moore Energy's first argument concerning the interests of residential customers. As to its second argument, we remand the matter to the Commission so that it may clearly set forth its reasons for concluding that the Small Business Act is inapplicable to the settlement for PEPCO's proposed sale of assets.


On March 16, 1999, the Potomac Electric Power Company ("PEPCO") filed an application with the Commission requesting authorization to sell at open auction the PEPCO plants, facilities, and equipment used in generating electricity, other rate base assets not required for its electric transmission and distribution services, and its contractual rights and obligations existing under its purchase power agreements (collectively PEPCO's assets). The terms of the application included a four-year rate freeze during which rates would not exceed those rates in effect immediately prior to PEPCO's divestiture. Additionally, if the proceeds of the sale resulted in a loss, PEPCO would recover the shortfall from ratepayers through an Asset Recovery Charge ("ARC"). *fn1

On May 21, 1999, the Commission ordered a review of PEPCO's divestiture application as part of its general investigation into electric services, market competition, and regulatory policies in the District of Columbia.

PEPCO amended its application for divestiture in August 1999. It continued to request approval for the sale of its assets in accordance with the terms originally proposed, but added an alternative request for the sale of all of its assets except for its Benning Road and Buzzard Point generating plants; two of PEPCO's generating plants located in the District of Columbia. The Commission ordered interested parties to file testimony concerning PEPCO's amended application and thereafter conducted evidentiary hearings between September 27 and October 1, 1999.

PEPCO and several interested parties advised the Commission that they were discussing a possible settlement, so the Commission suspended the decision-making process to allow for settlement negotiations to continue.

As a result of the settlement negotiations, on November 8, 1999, PEPCO and the majority of interested parties signed and submitted for the Commission's approval a "Non-Unanimous Agreement of Stipulation and Full Settlement" ("Settlement"). *fn2 In the Settlement, the parties purportedly resolved all of the issues relevant to PEPCO's proposal to sell its assets. However, several interested parties did not sign the Settlement, including the Office of the People's Counsel ("OPC"), the District of Columbia Government ("District Government"), and the Consumer Utility Board.

Two days after the Settlement was submitted, on November 10, 1999, Moore Energy and the OPC filed opposition papers with the Commission. Moore Energy contended that the generating stations at Benning Road and Buzzard Point, as well as a third station identified as Potomac River, were essential to the District. It therefore proposed that a firm located in the District, such as itself, should be granted the right of first refusal to purchase the generating stations. On November 17, 1999, the Commission scheduled a hearing for the following month to determine whether the Settlement was in the public interest and to address all of the objections raised by the parties. In the meantime, PEPCO agreed to add two conditions to the Settlement, on market power and reliability, and consequently the District Government signed the Settlement. The Commission convened a hearing and approved the Settlement on December 30, 1999.

In January 2000, Moore Energy, the OPC, and the District Government filed motions with the Commission requesting reconsideration of the order approving the Settlement (Order No. 11576). *fn3 In its motion for reconsideration, Moore Energy argued inter alia that (1) the Commission's finding that the Settlement is in the public interest was unsupported by the record; and (2) the Commission failed to give due consideration to the interests of small disadvantaged minority and protected businesses and the applicability of the Small Business Act to PEPCO's proposed sale. *fn4 Moore Energy again requested that one or more of PEPCO's generating plants be made available for purchase by a small disadvantaged business entity, such as itself, or to a "District of Columbia interest," such as the District Government. Additionally, Moore Energy requested that the Settlement include a provision that would "be inclusive of small disadvantaged District businesses as a condition of [the] sale of the generating plants." The Commission subsequently issued an order (Order No. 11628) on March 9, 2000, which denied all requests for reconsideration and reaffirmed its earlier decision approving the Settlement. With regard to Moore Energy's contentions, the Commission stated that it had sufficiently analyzed the record and found that the Settlement was in the public's interest. The Commission also unequivocally stated that PEPCO was not subject to the Small Business Act and, therefore, "[t]he Commission is not compelled to impose the Small Business Investment Act of 1958 as a condition on the sale of PEPCO's assets."

A petition for review of the Commission's two decisions - approving the Settlement and rejecting the arguments raised in the motions to reconsider - was filed on behalf of Moore Energy with the clerk of this court. The petition was signed by the sole owner and president of Moore Energy, Douglas E. Moore. Douglas Moore is not an attorney and, therefore, on June 1, 2000, this court ordered Moore Energy to identify its counsel. On June 12, 2000, Moore Energy filed a signed notice by counsel in response to the court's order. Shortly thereafter, PEPCO filed a Notice of Intent to Intervene, which was granted by the court. A second order was issued by this court ordering ...

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