Appalachian Power co. v. State Corp. Comm'n

Present: Kinser, C.J., Lemons, Millette, McClanahan and Powell,
JJ., and Russell and Lacy, S.JJ.

APPALACHIAN POWER COMPANY

v. Record No. 120394 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
STATE CORPORATION COMMISSION, November 1, 2012
ET AL.

FROM THE STATE CORPORATION COMMISSION

In this appeal, we consider whether the State Corporation

Commission properly construed and applied Code § 56-

585.1(A)(5)(e) to deny rate adjustment clause recovery for

certain costs incurred by Appalachian Power Company (“APCO” or

“the Company”).

Background

Prior to 1999, the State Corporation Commission (“the

Commission”) determined the rates electric utility companies

charged consumers pursuant to Chapter 10, Article 2 of Title 56,

Code §§ 56-234 through -245.1:1. Under that regulatory regime,

the rates could be changed following a review initiated by the

Commission or upon an application filed by an electric utility.

The Commission had broad discretion in selecting the methodology

for determining rates including the rate of return on equity

guided by the principle that the rates were to be just and

reasonable, allowing the utility a reasonable return and

imposing just rates on the consumer. Code § 56-235.2.
 In 1999, the General Assembly enacted the Virginia Electric

Utility Restructuring Act, former Code §§ 56-576 et seq., which

was designed to deregulate parts of the electric utility

industry and introduce competition among the providers of

electric generation. 1999 Acts ch. 411; Potomac Edison Co. v.

State Corp. Comm’n, 276 Va. 577, 580, 667 S.E.2d 772, 773

(2008). The legislation established a transition period, during

which the base rates of electric utilities were held constant or

“capped.” 1 However, utilities were allowed to file annual rate

applications to recover incremental costs incurred for system

reliability and for compliance with governmental environmental

laws or regulations. Code § 56-582(B)(vi); 2004 Acts ch. 827.

In 2007, the General Assembly ended its program of

deregulation and enacted Code § 56-585.1 which prescribed a new

regulation regime. 2007 Acts chs. 888, 933. The new

legislation reaffirmed the Commission’s authority to regulate

electric utility rates but prescribed certain procedures and

methodologies which the Commission must follow in establishing

such rates.

1
The initial transition period extended from January 1,
2001 to July 1, 2007, but was extended to December 31, 2008,
“unless sooner terminated by the Commission pursuant to the
provisions of subsection C; however, rates after the expiration
or termination of capped rates shall equal capped rates until
such rates are changed pursuant to other provisions of this
title.” Code § 56-582(F); 2007 Acts chs. 888, 933.
2
 Under the 2007 regulatory regime each utility was required

to undergo an initial review by the Commission in 2009. In this

proceeding, the Commission conducted a review of each company’s

2008 performance, set a rate of return and determined the rates

to be charged going forward “until such rates are adjusted.”

Code § 56-585.1(A). The methodology for adjusting rates in this

initial proceeding was set out in the statute. Id.

The legislation requires that, after the initial review

proceeding, the performance of electric utility companies is

reviewed every two years. In the biennial review, the

Commission considers the company’s rates, terms, and conditions

for the provision of generation, distribution and transmission

services for the preceding two years. Id. While the biennial

review has some characteristics of the Chapter 10 base rate

proceeding, the statute imposes significant limitations on the

Commission’s discretion in adjusting rates. Id.

If the utility earned more than 50 basis points below the

authorized fair combined rate of return, the Commission “shall

order increases to the utility’s rates necessary to provide the

opportunity to fully recover the costs of providing the

utility’s services and to earn not less than such fair combined

rate of return . . . .” Code § 56-585.1(A)(8)(i). If the

utility earned more than 50 basis points above the fair combined

rate of return established by the Commission, 60 percent of the

3
amount of the earnings above the fair rate of return must be

credited to customers’ bills and the electric utility may retain

the remaining 40 percent of the excess earnings. Code § 56-

585.1(A)(8)(ii). The Commission may not order a rate reduction

unless it finds that the electric utility earned more than 50

basis points above the fair rate of return in two consecutive

biennial reviews. Code § 56-585.1(A)(8)(iii).

The 2007 legislation also creates a new proceeding allowing

a utility to petition the Commission for approval of a rate

adjustment clause for the “timely and current” recovery from

customers for costs incurred in certain identified programs.

Code §§ 56-585.1(A)(4) through (6). As relevant here, the

Commission is directed to make rate adjustments allowing a

company to recover projected and actual costs of projects which

the Commission finds necessary to comply with state or federal

environmental laws or regulations. Code § 56-585.1(A)(5)(e).

Once granted, a rate adjustment clause is combined with the

company’s costs, revenues and investments in a biennial review

proceeding if there are adjustments to the rates until the

amounts of the adjustment clause are fully recovered. Code

§ 56-585.1(A)(3).

Proceedings

Pursuant to the regulatory review regime outlined above,

APCO filed its petition for its initial review in 2009. In that

4
proceeding APCO sought a rate increase of approximately $167

million based on the Company's performance in the 2008 test

year. The Commission’s order implementing APCO’s adjusted rates

included recovery for some, but not all the amounts sought by

APCO for compliance with various state and federal environmental

laws and regulations. These rates became effective in August of

2010. In re Appalachian Power Co., Case No. PUE-2009-00030,

(July 15, 2010). 2

In March of 2011, APCO filed a petition pursuant to Code

§ 56-585.1(A)(5)(e), seeking a rate adjustment clause to recover

$77 million, which it asserted represented the 2009 and 2010

actual costs incurred by the Company, but not recovered through

base rates, to comply with state and federal environmental

requirements. 3 The recovery APCO sought was incurred either

directly by APCO for environmental projects required for

compliance or through the capacity equalization charges it paid

to its affiliates which included costs incurred by the

2
A copy of this order may be found using the Commission’s
docket search website,
http://docket.scc.state.va.us/CyberDocs/Libraries/Default_Librar
y/Common/frameviewdsp.asp?doc=103033&lib=CASEWEBP%5FLIB&mimetype
=application%2Fpdf&rendition=native (last visited September 28,
2012).
3
APCO contemporaneously made its biennial filing pursuant
to Code § 56-585.1(A)(3). That proceeding is not at issue in
this appeal.
5
affiliates for compliance with state or federal environmental

laws or regulations. 4

The Commission published an order calling for notice and

hearing, scheduled public hearings associated with the petition,

established a procedural schedule for the case, and assigned a

hearing examiner to conduct all further proceedings on behalf of

the Commission. A number of parties filed notices of

participation including the Old Dominion Committee for Fair

Utility Rates and the Office of the Attorney General Division of

Consumer Counsel, appellees in this appeal. Public hearings and

evidentiary hearings were conducted by the Commission and the

hearing examiner.

In his report and recommendations to the Commission, the

hearing examiner concluded that Code § 56-585.1(A)(5)(e)

entitled APCO to recover the environmental compliance costs it

sought but, based on the testimony and evidence received, the

hearing examiner recommended that the appropriate amount of

4
Capacity equalization charges are charges APCO pays to
acquire supplemental generation capacity to meet its native load
demand. The supplemental generation is acquired from facilities
owned by APCO’s affiliates which, like APCO, are subsidiaries of
American Electric Power Company, Inc. The amount of the
capacity equalization charges is determined through an
Interconnection Agreement between APCO and its affiliates
approved by the Federal Energy Regulatory Commission. The
Interconnection Agreement sets out a formula to show the
affiliates’ costs of owning, operating and maintaining the
generation facilities that supply the capacity purchased by
APCO.
6
revenue recovery should be $63.3 million rather than the

approximately $77 million sought by APCO. 5

The Commission rejected the hearing examiner’s construction

and application of Code § 56-585.1(A)(5)(e) and held that the

section did not authorize recovery of those costs which the

Company had already been given the opportunity to recover

through its base rates.

The Commission also concluded that, even if APCO was

entitled to recover actual compliance costs associated with

categories of projects included in, but not recovered by the

base rates, it could not recover the $27.3 million alleged as

embedded in the capacity equalization charges because APCO

failed to establish the actual amount of the environmental costs

embedded in those charges.

The Commission entered an order allowing APCO to recover

$30 million for actual environmental compliance costs over a

one-year period and denying recovery of the remaining

approximately $6 million APCO claimed it incurred directly but

did not recover through base rates to comply with environmental

regulations and laws and approximately $27.3 million alleged to

be environmental compliance costs embedded in the capacity

adjustment charges paid to its affiliates. APCO filed an appeal

5
APCO did not challenge the amount of recovery recommended
by the hearing examiner before the Commission and does not do so
in this appeal.
7
with this Court pursuant to Rule 5:21(a) naming the Commission

and intervenors, Old Dominion Committee for Fair Utility Rates

and the Office of the Attorney General Division of Consumer

Counsel, as appellees.

Discussion

1. Application of Code § 56-585.1(A)(5)(e)

APCO raises three assignments of error containing a number

of subpoints. The overarching challenge which APCO advances is

that the ratemaking methodology adopted by the Commission to

implement Code § 56-585.1(A)(5)(e) ignored the plain and

unambiguous language of the statute.

The Constitution of Virginia vests administrative, judicial

and legislative powers in the Commission in the exercise of the

control and regulation of public utility companies. Potomac

Edison, 276 Va. at 586, 667 S.E.2d at 777. In considering the

appropriate standard of review to be applied when reviewing a

Commission decision, we begin by giving a decision in which the

Commission has exercised its expertise a presumption of

correctness. Id. Our standard of review, however, will depend

on the nature of the decision under review. Id. The decision

under review here is the Commission’s construction and

application of Code § 56-585.1(A)(5)(e). This statutory

construction issue is a question of law reviewed by this Court

8
de novo. Christian v. State Corp. Comm’n, 282 Va. 392, 396-97,

718 S.E.2d 767, 769 (2011).

The Commission and other appellees, however, assert that we

have limited the de novo standard of review in certain cases

citing opinions in which we have recited that “the practical

construction given by the Commission to a statute it is charged

with enforcing is entitled to great weight by the courts and in

doubtful cases will be regarded as decisive.” Piedmont Envtl.

Council v. Virginia Elec. & Power Co., 278 Va. 553, 563, 684

S.E.2d 805, 810 (2009) (citations and internal quotation marks

omitted); Appalachian Voices v. State Corp. Comm’n, 277 Va. 509,

516, 675 S.E.2d 458, 461 (2009); Commonwealth v. Appalachian

Elec. Power Co., 193 Va. 37, 45, 68 S.E.2d 122, 127 (1951).

Acknowledging that an agency cannot advance an interpretation

that contradicts the statute, Davenport v. Little-Bowser, 269

Va. 546, 554-55, 611 S.E.2d 366, 370-71 (2005)(citing Superior

Steel Corp. v. Commonwealth, 147 Va. 202, 206, 136 S.E. 666, 667

(1927)), the Commission suggests that our prior cases require

that we treat the Commission’s decision as “decisive.” 6 We

disagree with the suggestion that in this case the Commission’s

statutory interpretation must be considered as “decisive.”

6
The arguments raised by the other appellees in this appeal
are substantially similar to those raised by the Commission.
9
 The Commission’s statutory construction was first

characterized as “decisive” in Appalachian Elec. Power Co., 193

Va. at 45, 68 S.E.2d at 127. In that case, the Commission

construed a tax statute and held that electric utilities doing

business in this state could deduct certain monies derived from

operations in other states before computing their liability for

the tax at issue. The Commission had applied this construction

of the statute for approximately a decade. After concluding

that the statute was ambiguous, the Court not only described the

Commission’s interpretation as being decisive, it explained the

reason for ascribing this level of deference to the Commission’s

decision in that case. Id. Citing a number of previous cases,

the Court explained that the “[l]egislature is presumed to be

cognizant of such construction and when long continued, in the

absence of legislation evincing a dissent, the courts will adopt

that interpretation.” 7 Id. at 45-46, 68 S.E.2d at 127. In that

7
Miller v. Commonwealth, 180 Va. 36, 41-42, 21 S.E.2d 721,
723 (1942)(public official’s statutory construction accepted by
bench and bar for long period of time is canon of construction,
unless paramount reason is found for change in construction);
Commonwealth v. Stringfellow, 173 Va. 284, 289, 4 S.E.2d 357,
359 (1939)(great weight afforded tax department’s long-standing
and uniform statutory construction); Hunton v. Commonwealth, 166
Va. 229, 242, 183 S.E. 873, 878 (1936)(court defers to tax
official’s practical construction of tax laws when, for over 30
years, neither legislature nor tax commission recommended change
in law due to constitutional conflict); Smith v. Bryan, 100 Va.
199, 204, 40 S.E. 652, 654 (1902)(court regards public
official’s construction of statute of doubtful import as correct
10
case, as in others using this principle, the General Assembly

had not altered the agency’s interpretation although it had the

opportunity to do so during the intervening years. Id.

The Commission’s construction of the statute in this case

is not a long-standing one and is not a construction which the

General Assembly has had the opportunity to consider. Thus, the

presumption of legislative acquiescence does not apply. Compare

Beck v. Shelton, 267 Va. 482, 492, 593 S.E.2d 195, 200

(2004)(when General Assembly was aware of interpretation of

statute embodied in an Opinion of the Attorney General for five

years and “fail[ed] to make corrective amendments” to statute

during that time, such “failure . . . evinces legislative

acquiescence in the Attorney General’s view”)(quoting Browning-

Ferris, Inc. v. Commonwealth, 225 Va. 157, 161-62, 300 S.E.2d

603, 605-06 (1983)).

In any case involving statutory construction we begin with

the language of the statute. Code § 56-585.1(A)(5)(e) provides

in pertinent part:

5. A utility may at any time, after the
expiration or termination of capped rates, but
not more than once in any 12-month period,
petition the Commission for approval of one or
more rate adjustment clauses for the timely and
current recovery from customers of the
following costs:

when that construction remains unchanged by legislature or
judicial decision over time).
11
 . . . .

e. Projected and actual costs of projects
that the Commission finds to be necessary to
comply with state or federal environmental
laws or regulations applicable to generation
facilities used to serve the utility’s native
load obligations. The Commission shall
approve such a petition if it finds that such
costs are necessary to comply with such
environmental laws or regulations . . . .

The Commission contends that because Code § 56-

585.1(A)(5)(e) “is silent on the intersection of base rate

recovery and adjustment clause recovery,” subsection (C) of Code

§ 56-585.1 requires the Commission to adopt a “ratemaking

methodology” to implement the adjustment rate clause section

which will produce just and reasonable rates as directed in

Chapter 10 of Title 56 of the Code. 8 Noting that nothing in the

statute gives a utility the right to recover all of its actual

environmental compliance costs, the Commission reasons that by

including such costs in its base rates, a company has the

opportunity to recover such costs, which can be supplemented by

costs for projects not already included in the base rates. This

8
Code § 56-585.1(C) provides:
Except as otherwise provided in this section, the
Commission shall exercise authority over the rates,
terms and conditions of investor-owned incumbent
electric utilities for the provision of generation,
transmission and distribution services to retail
customers in the Commonwealth pursuant to the
provisions of Chapter 10 (§ 56-232 et seq.),
including specifically § 56-235.2.
12
result, the Commission concludes, is “fully supported by the

plain language of the Act.”

The Commission also contends that the ratemaking

methodology it chose is consistent with Code § 56-585.1 when

read as a whole. Subdivision (7) of Code § 56-585.1(A) requires

the Commission to consider a petition for a rate adjustment

clause for environmental compliance costs “on a stand-alone

basis without regard to the other costs, revenues, investments,

or earnings of the utility.” Thus, the Commission continues,

the base rate and rate adjustment clause proceedings are

separate proceedings and incorporation of base rate items when

setting adjustment clause rates “would exceed the Commission’s

authority in adjustment clause proceedings.” According to the

Commission, other “costs, revenues, investments, or earnings”

are appropriately disregarded by limiting the adjustment clause

rates only to environmental costs not already included in base

rates.

The primary objective in statutory construction is to

determine and give effect to the intent of the legislature as

expressed in the language of the statute. Halifax Corp. v.

First Union Nat’l Bank, 262 Va. 91, 99-100, 546 S.E.2d 696, 702

(2001). When a statute is unambiguous, we must apply the plain

meaning of that language. Id. If the statute is subject to

more than one interpretation, we must apply the interpretation

13
that carries out the legislative intent. Brown v. Lukhard, 229

Va. 316, 321, 330 S.E.2d 84, 87 (1985). Rules of statutory

construction prohibit adding language to or deleting language

from a statute. BBF, Inc. v. Alstom Power, Inc., 274 Va. 326,

331, 645 S.E.2d 467, 469 (2007).

The statute quoted above clearly states the intent of the

legislature. It states that the Commission “shall” approve a

utility’s petition for a rate adjustment clause filed pursuant

to Code § 56-585.1(A)(5)(e) if the three conditions set out in

the statute are met: (1) only one petition for a rate adjustment

clause seeking recovery under the section is filed in any 12-

month period; (2) the costs are actual or projected costs; and

(3) the Commission finds that the costs were necessary to comply

with state or federal environmental laws or regulations.

Further, the statute states that the purpose of the rate

adjustment clauses is to allow for the “timely” and “current”

recovery of qualified costs. Code § 56-585.1(A)(5). The rate

adjustment clause proceeding stands in direct contrast to the

more lengthy base rate proceeding, which under Code § 56-585.1

only occurs every two years. 9

There is no dispute that the costs APCO seeks to recover

were incurred in qualified environmental projects and that these

9
A utility company may still apply for temporary rate
increases at any time. Code §§ 56-585.1(B) and -245.
14
costs have not been recovered and cannot be recovered in the

future through the mechanism of the base rates. Yet, the

ratemaking methodology adopted by the Commission prevents the

recovery of the very costs which the statute identifies as being

recoverable through a rate adjustment clause. Providing a

utility with the opportunity to recover environmental compliance

costs is inconsistent with the statutory mandate providing for

the timely and current actual recovery of such costs which, in

this case, means such costs will never be recovered.

The Commission’s methodology not only contradicts the

intent of the legislature reflected in the statute, it

effectively adds a fourth condition to the statute: the costs

sought were not costs that could have been recovered in the

Company’s base rates. Adding words to a statute in this manner

violates a well-established tenet of statutory construction.

BBF, Inc., 274 Va. at 331, 645 S.E.2d at 469 (courts, in

construing a statute, must apply its plain meaning, and “we are

not free to add [to] language, nor to ignore language, contained

in statutes.”)(quoting SIGNAL Corp. v. Keane Fed. Sys., 265 Va.

38, 46, 574 S.E.2d 253, 257 (2003)).

The Commission’s reliance on the authority contained in

subsection (C) of Code § 56-585.1 as support for its ratemaking

methodology is misplaced. That subsection specifically makes

the Commission’s exercise of its Chapter 10 ratemaking authority

15
subject to the other provisions of Code § 56-585.1. Therefore,

any ratemaking methodology which the Commission adopts to

implement Code § 56-585.1(A)(5)(e) may not contradict that

section. As pointed out above, the ratemaking methodology

adopted by the Commission conflicts with the intent and the

plain language of Code § 56-585.1(A)(5)(e).

Finally, the directive that the Commission consider a

petition for a rate adjustment clause under Code § 56-

585.1(A)(5)(e) on a stand-alone basis does not require the type

of separation the Commission suggests. Indeed, even under the

Commission’s methodology, reference to a utility’s base rates

would be required to determine whether the projects which

incurred the actual or projected costs sought to be recovered

were included in the computation of the base rates.

Furthermore, reference to base rate revenues would be necessary

to ensure that the amount requested as an actual unrecovered

cost had in fact not already been recovered.

Rather, the “stand-alone” language in subdivision (7) of

subsection (A) of the statute means that the utility’s costs,

revenues, investments or earnings should not be considered when

determining the amount of the rate adjustment clause. Nothing

in the language of this subdivision suggests or requires that

actual costs incurred in environmental compliance projects may

16
not include costs associated with such projects if the projects

were included in formulating base rates.

For these reasons, we hold that Code § 56-585.1(A)(5)(e)

allows recovery of unrecovered costs incurred by a utility for

environmental compliance projects necessary to serve the

utility’s native load obligations even if the projects which

incurred those costs were included in the utility’s base rates.

2. Recovery of Compliance Costs Embedded
in Capacity Equalization Charges

The Commission also denied recovery of the environmental

compliance costs embedded in the capacity equalization charges

that APCO sought because the evidence did not “accurately

reflect actual ‘costs of projects’ used to serve the Company’s

native load customers.” APCO has assigned error to this

alternate holding and we now address that issue.

APCO argues that it produced sufficient evidence to support

recovery for the environmental compliance costs embedded in the

capacity equalization charges. APCO points to uncontradicted

evidence that a portion of the capacity payments included costs

that its affiliates incurred for projects required to comply

with environmental laws and regulations and evidence of the

amount of capacity equalization charges APCO paid to its

affiliates during the time periods in question. APCO also

relies on the testimony and exhibits of its witnesses and

17
Commission Staff which included computations or estimates of the

portion of the capacity equalization charges attributable to

environmental compliance costs incurred by its affiliates. APCO

asserts that the use of different formulae by its witnesses and

Commission Staff to arrive at the amount of environmental

compliance costs embedded in the capacity equalization charges

did not absolve the Commission from weighing the evidence and

determining a proper recovery amount. Finally, APCO asserts

that the evidence and calculations it presented were “identical

in form, detail and scope” to evidence accepted by the

Commission in prior cases under Code § 56-582 during the former

deregulation transition period.

The Commission, in its alternate holding denying these

costs, noted that although Code § 56-585.1(A)(5)(e) allows

recovery for actual and projected costs, in this proceeding APCO

sought recovery of costs it identified as actual, not projected

costs. The Commission’s ruling was based on its determination

that nothing in the testimony or calculations regarding the

capacity equalization charges paid by APCO or the

Interconnection Agreement contains any identification or

specific quantification of the amount of environmental costs

embedded in those charges. In applying the statutory language

referring to “actual costs,” the Commission held that estimates

of environmental compliance costs produced in this case “did not

18
sufficiently demonstrate [the] actual costs” as required by the

statute. The Commission also noted that using “one of the

varying calculations in the record could result in a double

recovery of costs through the Company’s base rates and

adjustment rate clauses.”

The Commission’s decision under review here is that the

evidence was insufficient to prove “actual costs.” This finding

of fact will not be reversed unless it is “contrary to the

evidence or without evidence to support it.” Mutual Sav. & Loan

Ass'n v. Commonwealth, 212 Va. 557, 559, 186 S.E.2d 13, 14

(1972).

In its alternate holding, the Commission applied the plain

language of the statute, which in this case limits rate

adjustment clauses to “actual costs,” and held that the

estimates of environmental compliance costs embedded in the

capacity equalization charges did not meet the statutory

requirement. Acceptance of estimates in proceedings brought

under other statutes which did not require evidence of “actual

costs” does not require or suggest that estimates should be

sufficient in this proceeding. Furthermore, APCO’s argument

that the Commission failed to weigh the evidence and instead

ignored it is without merit. The record is clear that the

Commission considered the evidence and found that it did not

satisfy the statutory requirement of “actual costs.”

19
 Based on this record, we cannot say the Commission’s

decision is contrary to the evidence or without evidentiary

support.

Conclusion

In summary, in this appeal APCO sought recovery of $33.3

million in environmental compliance costs that the Commission

denied. For the reasons stated, we hold that APCO is entitled

to a rate adjustment clause for recovery of actual costs it

directly incurred for environmental compliance in 2009 and 2010,

but did not recover through its base rates. We will reverse

that portion of the Commission’s decision denying recovery of

environmental compliance costs on the basis that those costs are

connected with projects included in APCO’s base rates which the

Company had the opportunity to recover.

We will affirm that portion of the Commission’s decision

denying APCO recovery of environmental compliance costs alleged

to be embedded in the capacity equalization charges APCO paid to

its affiliates in 2009 and 2010. Accordingly, we will remand

the case to the Commission for further proceedings consistent

with this opinion.

Reversed in part,
affirmed in part
and remanded.

20