Office of the People's Counsel, District of Columbia, DC Solar United Neighborhoods, and Public Citizen, Inc., Petitioners,
Public Service Commission of the District of Columbia, Respondent, and Exelon Corporation, et al., Intervenors.
May 2, 2017
Petitions for Review of a Decision of the Public Service
Commission of the District of Columbia (FC-1119-16)
H. Strauss, with whom Sandra Mattavous-Frye, Karen R.
Sistrunk, Laurence C. Daniels, Peter J. Hopkins, Anjali G.
Patel, Jason T. Gray, and Eli D. Eilbott were on the brief,
for petitioner Office of the People's Counsel.
C. McKay, Jr., Senior Assistant Attorney General, with whom
Karl A. Racine, Attorney General for the District of
Columbia, Todd S. Kim, Solicitor General, and Loren L.
AliKhan, Deputy Solicitor General, were on the brief, for
petitioner District of Columbia.
J. Arkush, with whom Scott L. Nelson was on the brief, for
petitioners DC Solar United Neighborhoods and Public Citizen,
Richard S. Herskovitz, with whom Christopher G. Lipscombe,
Craig W. Berry, and Naza N. Shelley were on the brief, for
respondent Public Service Commission of the District of
W. DeBruin, with whom Peter E. Meier, Matthew E. Price, and
Zachary C. Schauf were on the brief, for intervenors Exelon
Corporation, et al.
Fisher and McLeese, Associate Judges, and Farrell, Senior
McLeese, Associate Judge.
Public Service Commission of the District of Columbia
approved a merger application involving intervenor Exelon
Corporation's purchase of Pepco Holdings, Inc. and its
subsidiary, the Potomac Electric Power Company (Pepco).
Petitioners, the Office of the People's Counsel (OPC),
the District of Columbia Government, and DC Solar United
Neighborhoods jointly with Public Citizen, Inc. (collectively
DC SUN), seek review of the Commission's decision.
Petitioners argue that the Commission made procedural errors,
exceeded its statutory authority, approved merger terms that
are contrary to law or unreasonable, did not clearly explain
its reasoning, and failed to make an independent finding that
the merger was in the public interest. We affirm.
2014, Exelon, Pepco, and various related entities asked the
Commission to approve a merger involving Exelon's
purchase of Pepco Holdings, Inc. pursuant to D.C. Code
§§ 34-504 (2012 Repl.) (prohibiting consolidation
of public utilities unless Commission finds consolidation to
be in public interest) and 34-1001 (2012 Repl.) (prohibiting
purchase of stock of one public utility corporation by
another public utility corporation absent approval by
Commission). The Commission held four community hearings and
eleven days of evidentiary hearings, and received extensive
written testimony and comments regarding the application. In
August 2015, the Commission concluded that the merger as
proposed was not in the public interest.
October 2015, applicants moved to reopen the record for the
Commission to consider a Nonunanimous Settlement Agreement
(NSA) executed by applicants, OPC, the District, and several
other parties (together, the settling parties). The
Commission agreed to consider the NSA and reopened the record
for the limited purpose of determining whether the NSA was in
the public interest. The Commission held five days of
hearings and received written statements regarding the NSA.
In February 2016, the Commission concluded that the NSA was
not in the public interest. Commissioner Fort concurred, but
proposed a revised NSA (RNSA) that she believed would be in
the public interest. Although Commissioner Phillips would
have approved the NSA as in the public interest, he indicated
that he would also approve the RNSA if the parties found it
acceptable. The settling parties were instructed to file a
notice with the Commission indicating whether they wished to
accept the RNSA or instead to request further relief.
filed a request for other relief, asking that the Commission
approve the merger in accordance with: (1) the terms outlined
in the NSA; (2) the terms of the RNSA; or (3) the terms of a
third "middle ground" proposal. Petitioners opposed
applicants' request. In March 2016, the Commission
approved the merger under the terms of the RNSA with one
additional revision. The Commission denied petitioners'
applications for reconsideration.
review of the Commission's orders is limited. D.C. Code
§ 34-606 (2012 Repl.). We will sustain the
Commission's legal conclusions if they are
"reasonable and based upon factors within the
Commission's expertise." District of Columbia v.
District of Columbia Pub. Serv. Comm'n, 905 A.2d
249, 256 n.22 (D.C. 2006) (internal quotation marks omitted).
We accord great deference to the Commission's
interpretation of the Public Utilities Act, Office of
People's Counsel v. Pub. Serv. Comm'n, 477 A.2d
1093, 1098 (D.C. 1984), and we defer to the Commission's
interpretation of its own regulations unless that
interpretation is plainly erroneous, Office of
People's Counsel v. Pub. Serv. Comm'n, 955 A.2d
169, 173 (D.C. 2008). The Commission's findings of fact
are conclusive "unless it shall appear that such
findings . . . are unreasonable, arbitrary, or
capricious." D.C. Code § 34-606. "To permit
meaningful judicial review, we require the [Commission] to
explain its actions fully and clearly. If the [Commission]
has done so, a petitioner challenging its decision . . . then
must carry the heavy burden of demonstrating clearly and
convincingly a fatal flaw in the action taken."
District of Columbia v. District of Columbia Pub. Serv.
Comm'n, 905 A.2d at 256 n.22 (citation and internal
quotation marks omitted). In sum, our review of the substance
of the Commission's decisions is "the narrowest
judicial review in the field of administrative law."
Wash. Gas Energy Servs. v. District of Columbia Pub.
Serv. Comm'n, 924 A.2d 296, 303 (D.C. 2007)
(internal quotation marks omitted).