State ex rel. Utilities Commission v. Edmisten

PARKER, Judge.

By order of this Court dated 12 June 1975 the appeal in this case was consolidated, for the purpose of briefs and oral arguments, with the pending appeal from the Commission’s final order entered in CP&L’s general rate case, Commission Docket #E-2, Sub 229. Certain parties who are appellants in that case, to wit: The North Carolina Textile Manufacturers Association, Inc., Ball Corporation, and Executive Agencies of United States of America, in their briefs and oral arguments presented in the consolidated hearing of the appeals in the two cases which resulted from our order of 12 June 1975, have presented arguments and contentions attacking the Commission’s orders of 5 February 1974 and 19 December 1974 entered in this case. These parties, however, did not file timely notice of appeal as required by G.S. 62-90 (a) from the Commission’s orders filed in this case. Accordingly, CP&L’s motion to dismiss the purported appeals of these parties in this case is allowed, and our consideration of the appeal in this case will be limited to the questions raised by the appeal of the Attorney General.

On this appeal the Attorney General contends that the Commission, by issuance of its orders of 5 February 1974 and 19 December 1974 in Docket No. E-2, Sub 234, acted in excess of its statutory authority, upon and through unlawful proceedings, in violation of the due process requirements of the State and Federal Constitutions, and that it acted arbitrarily and capriciously. These contentions have already been considered and rejected by this Court. In Utilities Comm. v. Edmisten, Attorney General, 26 N.C. App. 662, 217 S.E. 2d 201 (1975), this Court was called upon to consider the validity of the Commission’s orders which approved the fossil fuel adjustment clause of Duke Power Company. A majority of the panel of this Court hearing the appeal in that case affirmed the Commission’s orders. The decision in that case held that a fossil fuel cost adjustment clause, such as the one in the case now before us, which permits the electric utility to adjust its monthly bills for service by means of a formula which takes into consideration fluctuations in the cost of fossil fuels with reference to a base cost, which does not increase the utility’s rate of return but which is so designed that it automatically passes on to the customers both any increase or decrease in the cost of fossil fuels which the utility is forced to incur after following reasonably prudent procurement practices, and which also automatically passes on to customers any savings from improvements in generation efficiency, is a valid part of a rate or rate schedule within the meaning of G.S. Chapter 62. In that case this Court held that the Commission, in allowing such a clause to be placed into effect on an interim basis and in giving it final approval, acted within its statutory powers and in accordance with statutory procedures. On authority of that decision, we hold that the Commission, by issuance of its orders which are challenged on this appeal, also acted within its statutory powers and in accordance with statutory procedures.

Examination of the record in this case also reveals that the Commission’s essential findings of fact were supported by competent evidence, and we hold that in entering the orders appealed from the Commission did not act arbitrarily or capriciously.

Accordingly, the orders appealed from are

Affirmed.

Judge Clark concurs.