Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Office of People's Counsel v. Public Service Commission of District of Columbia

Court of Appeals of Columbia District

July 20, 2017

Office of the People's Counsel, District of Columbia, DC Solar United Neighborhoods, and Public Citizen, Inc., Petitioners,
v.
Public Service Commission of the District of Columbia, Respondent, and Exelon Corporation, et al., Intervenors.

          Argued May 2, 2017

         On Petitions for Review of a Decision of the Public Service Commission of the District of Columbia (FC-1119-16)

          Scott 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.

          James 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.

          David J. Arkush, with whom Scott L. Nelson was on the brief, for petitioners DC Solar United Neighborhoods and Public Citizen, Inc.

          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 Columbia.

          David W. DeBruin, with whom Peter E. Meier, Matthew E. Price, and Zachary C. Schauf were on the brief, for intervenors Exelon Corporation, et al.

          Before Fisher and McLeese, Associate Judges, and Farrell, Senior Judge.

          OPINION

          McLeese, Associate Judge.

         The 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.

         I.

         In June 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.

         In 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.

         Applicants 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.

         II.

         Our 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).

         III.

         A. Notice ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.