Grindstone Butte Mutual Canal Co. v. Idaho Public Utilities Commission

SHEPARD, Justice,

dissenting.

I have no quarrel with the majority’s treatment of the notice aspect of this matter. I write to express my concern at the failure of the court to recognize new problems in public utility regulation. In my judgment, the complex new problems presented require more than the application of ancient shibboleths.

In years past this Court has reviewed orders of the Public Utilities Commission and, almost without exception, those matters have been involved with disputes between a utility and the Commission. Those cases almost inevitably involved requests for increase in utility rates based upon assertions that to do otherwise would deny the utility a fair rate of return. In those rare cases in which consumers were involved, the questions involved also related to the setting of rates allowing the utility a fair rate of return. The answers to those questions were, of course, founded on constitutional concepts concerning the deprivation of a utility’s property right without due process and without just compensation much as in the manner of eminent domain. Although such cases involved highly complex and technical matters, such as plant valuation, itemization for above and below line rate base determination, ability to market securities and investor interest therein, and the like, the ultimate question remained the price a utility should be allowed to charge, at one end of the spectrum to be allowed only a fair return and at the other end of the spectrum to avoid an unconstitutional confiscation.

In those types of cases, this Court avoided many of the difficult questions presented through the device of presuming the expertise of the Commission resulting from long experience in the field. That reliance may have been misplaced, but in any event some expertise was evidently more desirable than the complete lack thereof on the part of this Court. At least the Commission had the benefit of staff to supply at least some modicum of expertise.

Seldom did this Court face the problem of consumers, the Commission and the public utility agreeing that increases in rates were necessary to assure ■ a fair return to the *185utility. This Court now faces a new groundswell of cases which in essence do not pose the old problems and the old questions. Rather, while most or all of the involved parties agree that the utility deserves and requires additional finances, the question now becomes, as between the consumers of the utility, who will bear the burden of such increased costs and in what proportion. In my judgment, the answers to those questions become astronomical in importance and reach deeply into the economic, philosophic, political and sociological wellbeing and existence of this state and its future. This Court continues to make statements that the authority of the Public Utilities Commission extends to concepts of consumption, optimum use, resource allocation, considerations of advancing political, economic and environmental costs imposed on society, consumer rationing objectives, discouragement of the wasteful use of energy and relationships between costs incurred and benefits received. The Court then proceeds to indicate again, as is stated in the older class of cases, that the questions and answers are highly technical in nature and deference must be paid to the expertise of the Commission.

I doubt the continuing validity of the ascribing of such wisdom and omniscience to the members of the Idaho Public Utilities Commission. I doubt that our legislative branch of government so intended such power and authority when in 1913 it initially delegated certain portions of its legislative authority to the Public Utilities Commission. In stating the above, I in no way intend to impugn the intelligence, ability or dedication of the members of the Commission nor do I intend to suggest that the members of this Court are better able to or should attempt to resolve those problems.

It is simply a fact of life, however unpalatable, that today is not yesterday nor 1913 nor the good old days when energy sources were abundant and appeared inexhaustible and correlatively our people and their needs were relatively sparse. Today for a whole spectrum of reasons, valid or invalid, our supply of energy appears to be not only finite, but incapable of supplying all demands. Thus, the Commission has become involved and concerned with the methodology of production of energy and the impact thereof upon our political, sociological, economic and ecological environment. “Ecosystem” has become one of our most fashionable buzz words.

While presently existing sources of energy appear to have reached optimum production capacity, demand continues to spiral upward. That rising demand results from many and complex factors, not the least is our population increase and the changing economic face of this state. From its early days this state has been agriculturally oriented and until recently it was gravity flow irrigation which made the arid desert lands of the great Snake River plain bloom and greenup with rich crops of many types. Today gravity is no bar to irrigation and the underground aquifer waters of the state are being tapped in ever increasing quantity. The process of lifting that water to the surface and distributing it by pressure has called for enormous new demands upon the supply of energy.

Our mining industry in the north has traditionally consumed large amounts of energy for the operation of its smelters. That demand is heightened by the development of the southeastern Idaho phosphates field with its additional high demand for sources of energy.

The above represent merely what are perhaps the more obvious new competing demands for energy in this state. Such competing demands bring in a myriad of new problems which require difficult decisions. What industry is to be favored or disfavored by the granting or denying of energy through methodologies such as peak load utilization in pricing, interruptible supply or perhaps a rate structure so high as to make uneconomic the continuation of an industry either in whole or in part?

Traditionally a consumer of energy has been charged a rate in some proportion, at least, to the costs of delivering energy to that consumer. Hence, a consumer who required a large amount of energy deliv*186ered at one spot particularly if utilized at non-peak times or on an uninterruptible basis might obtain what in common parlance might be said to be a “wholesale” rate. On the other hand, a householder who uses a relatively small amount of energy which can be distributed only over long and complicated lines and structures might suffer a much higher rate per kilowatt hour.

Although our statutes speak in great and high sounding words, I.C. § 61-301, “all charges * * * shall be just and reasonable,” I suggest that the interpretation of such language lies mainly in the eye of the beholder. Our legislature has also in I.C. §, 61-315 prohibited a public utility from granting any preference or advantage or subjecting any consumer to any prejudice or disadvantage. Rather clearly, in my mind at least, the only basis for charging one consumer more or less than another is if the costs to the utility of furnishing the service or energy is smaller or greater. Otherwise, I think it follows as logically as night follows day there is otherwise preference or discrimination. Here the majority tells us that cost of service “is but one criterion among many” but then only lapses into vague generalities to indicate the other criteria. Nevertheless, I deem it beyond question that certain classes of consumers are charged rates which exceed the cost of service to them. Correlatively, other classes of consumers are charged a rate which is less than their cost of service. Such procedure may only be “just” or “reasonable” if it is determined that in the residential class there is more “importance” to be attached to the numbers of persons served and the importance of residential lighting, heating and cooling, as contrasted with the production of crops or industrial products.

We have seen the mushrooming of a sociological phenomenon. The elderly, the poor and the otherwise disadvantaged are subsidized. Are we to see the same phenomenon in the field of public utility rate-making? While there have existed perhaps preferences and discrimination as between classes, is the Commission now to be authorized to authorize discrimination within a class on the basis that one household consumer is financially less able to pay than another? If such is not a function of the Commission, may another agency of government order the Commission to in turn order a utility to so differentiate in rates?

In conclusion, I reiterate that a new era has arrived or at least approaches. I find no legislative recognition of these new problems or any grant of authority to the Commission to adequately cope with and resolve those problems. See, however, Executive Order 76-4 of Governor Cecil D. Andrus dated July 30, 1976, creating an Office of Energy and establishing authority therein relating to energy demands, consumption, conservation, planning and coordination therefor with all other agencies. Further, I find no recognition by this Court of the existence of the new era and the problems its brings.