(Concurring).
I join the majority opinion, but write only to make explicit what I consider the underlying concern of the majority.
Today, we inform the Commission that the EBA decision does not preclude a retroactive adjustment of rates where they are either too high or too low as a result of an extraordinary and unforeseeable circumstance. The EBA case still prohibits retroactive rate making to address missteps in the rate-setting process or the normally occurring unexpected events that may lower or raise rates of return over time. Like the majority, I am unsure that even the tax changes’ very large impact on the utility’s income warrants invocation of the “extraordinary and unforeseeable” exception to the ban on retroactive rate making. However, the Commission should at least consider the issue.
The profoundly troubling aspect of the matter before us is the inexplicable failure of the Division and the Commission to do their statutorily mandated jobs in the face *777of overwhelming evidence that the utility had made, and unless the Commission took remedial measures solely within its authority would continue to make, profits far beyond those anticipated at the time of the proceeding which set thé current utility rates charged consumers. At almost every turn, the conduct of the Commission and the Division raises serious questions about whether the regulatory authorities — which state law charges with seeing that utility rates provide a fair but not exorbitant rate of return — were shirking the duty imposed upon them by law to check profiteering by the utility. I realize that these are harsh words, but from the record before us, it is difficult to reach any other conclusion.
Today’s decision provides the Commission with a tool to deal with truly extraordinary and unforeseeable circumstances that impact the profits of a utility. Our decision also attempts to ensure that the Commission does the public’s business in the open and that it explains in detail the rationale for its actions. However, nothing we can do can guarantee a vigorous and effective regulation of monopolistic utilities. That responsibility rests with the Commission.