Consumers Power Co. v. Public Service Commission

Brickley, J.

(dissenting). The majority misinteiprets the statutory language relevant to this case and mistakenly characterizes retail wheeling as infringing the managerial prerogatives of the appellant utilities. For these reasons, I respectfully dissent.

i

At issue in this case is the Public Service Commission’s interpretation of the statutes in which the Legislature delegated authority to the psc to oversee electric utilities in Michigan. The majority “grant[s] no *169deference to the psc interpretation in this case because the plain meaning of the statutes are controlling.” Ante at 157, n 8, citing Union Carbide Corp v Public Service Comm, 431 Mich 135, 151; 428 NW2d 322 (1988).

While I agree with much of what the majority holds, I cannot agree that the relevant section of the electric transmission act has a “plain meaning.”1 This statute can conceivably bear the meaning imposed on it by the majority, but the psc’s interpretation is more in accord with the meaning of the relevant statutory language and with the context of the statute itself. This case also demonstrates that courts should defer to an agency’s reasonable interpretation of the statutes it is designated to enforce.

A

The majority holds that the electric transmission act, MCL 460.551 et seq.-, MSA 22.151 et seq., does not give the psc the power to order retail wheeling. I would hold that the most reasonable interpretation of § 6 of this act gives the PSC this power. MCL 460.556; MSA 22.156.

Section 6 provides, in relevant part, that

*170[t]he commission shall have power in its discretion to order electric current for distribution to be delivered at a suitable primary voltage, to any city, village or township through which a transmission line or lines may pass; to order service to be rendered by any such electric utility in any case in which it will be reasonable for such service to be ordered ....

The language of this section bears repeating: the PSC has “power in its discretion to order electric current for distribution to be delivered . . . .’’Id. (emphasis supplied). This first clause of § 6 plainly contemplates the psc’s power to order that electric current be delivered,2 as well as strongly implying that the production and delivery of the electric current are two separate activities. Because the Legislature delegated discretionary power to the PSC to order that electric current be delivered over already existing transmission lines, the majority errs in ignoring this grant of authority and preventing the psc’s exercise of it.

The majority also errs in its interpretation of the second clause of § 6. In that clause, the Legislature authorized the PSC to “order service to be rendered by *171any such electric utility in any case in which it will be reasonable for such service to be ordered . . . MCL 460.556; MSA 22.156. The majority reasons that the first two clauses of § 6 do “not confer the power to order a utility to transmit electricity for another provider.” Ante at 165. The statute does not support the majority’s conclusion.

“Service,” as the majority notes elsewhere in its opinion, means “ ‘[t]he furnishing of water, heat, light and power, etc., services by utility.’ ” Id. at 163, quoting Black’s Law Dictionary (6th ed), p 1368. The majority looks no further into this definition, however, and concludes that the word “service” necessarily denotes the joint production and transmission of electric current. The definition of “service” is not so constrained, however, as a closer look at the majority’s definition reveals.

While “service” means the “furnishing of . . . power,” “furnish” is defined in the same dictionary as “[t]o supply, provide, or equip, for accomplishment of a particular purpose.” Id. at 675.3 “Supply” is defined as “the act of furnishing what is wanted,” id. at 1439, and a “supplier” is “[a]ny person engaged in the business of making a consumer product directly or indirectly available to consumers; includes all persons in the chain or production and distribution of a consumer product . . . .” Id.4

*172Unlike the majority, I cannot conclude that the word “service” can only mean the joint act of producing the commodity in question and delivering it to the consumer. Indeed, the common definitions of the relevant terms allow for “service” to include separate production, separate distribution, or both together.5 In light of these common definitions, and the distinction made by the first clause of § 6, between the act of producing electric current and the act of delivering it, there is no reason to read the PSC’s discretionary power to order “service to be rendered” as meaning solely the power to order the combined production and delivery of electricity.

The majority’s statutory analysis ignores the first clause of § 6, and does not take into account the full meaning of the word “service” in the second clause. Because the text of these two clauses fully supports *173the psc’s order in this case, I would uphold the judgment of the Court of Appeals and the order of the PSC.

B

This case also presents an important question of this state’s jurisprudence: whether the agency or the courts should have the authority to determine which of several permissible interpretations should be given to an agency’s jurisdictional statute. Clearly, where the language of the statute in question is plain, statutory construction is not permissible by any authority, and no real question is presented. Ludington Service Corp v Acting Comm’r of Ins, 444 Mich 481, 505; 511 NW2d 661 (1994), amended 444 Mich 1240 (1994); see Chevron USA, Inc v Natural Resources Defense Council, Inc, 467 US 837, 843, n 9; 104 S Ct 2778; 81 L Ed 2d 694 (1984). As discussed in part i(a), however, that is not the situation presented by the instant case.

The majority’s interpretation of § 6 of the electric transmission act is not persuasive, but I do not believe that it is impermissible under the language of the statute. The intent of the Legislature with respect to the instant controversy is not clear from the text of the statutes in question. In light of this lack of clear legislative intent, this case presents us with a good opportunity to examine how a court should determine which of two or more permissible interpretations of a statute is the proper one.

l

This Court has not always been consistent regarding the degree of deference courts should give to an agency’s interpretation of the statutes the Legislature *174delegatéd that agency to enforce. The majority today recites that “this Court ordinarily accords an agency’s longstanding interpretation of a statute due deference . . . .” Ante at 157, n 8, citing Ludington, supra at 505. This rule, in focusing on the “longstanding” nature of the interpretation in question, serves the important purpose of furthering settled expectations. Magreta v Ambassador Steel Co, 380 Mich 513, 521-523; 158 NW2d 473 (1968) (Black, J., concurring); see Wehmeier v W E Wood Co, 377 Mich 176, 191-192; 139 NW2d 733 (1966).

This Court has also noted that

“ ‘[t]he construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration and ought not to be overruled without cogent reasons.’ ” [Magreta, supra at 519, quoting Boyer-Campbell Co v Fry, 271 Mich 282, 296; 260 NW 165 (1935), in turn quoting United States v Moore, 95 US (5 Otto) 760, 763; 24 L Ed 588 (1877).]

This rule has been followed in a number of our cases, without reference to the length of time the administrative interpretation has been in existence. Adrian School Dist v MPSERS, 458 Mich 326, 336; 582 NW2d 767 (1998); Empire Iron Mining Partnership v Orhanen, 455 Mich 410, 416; 565 NW2d 844 (1997); Breuhan v Plymouth-Canton Comm Schools, 425 Mich 278, 282-283; 389 NW2d 85 (1986); see People ex rel Simmons v Anderson, 198 Mich 38, 47; 164 NW 481 (1917).

Some of our cases have stated that our Court, “in common with all modem courts, givefs administrative interpretations] ‘respectful consideration’ as one of the factors to be considered in arriving at the probable legislative intent.” Lorraine Cab v Detroit, 357 *175Mich 379, 384; 98 NW2d 607 (1959), citing Howard Pore, Inc v State Comm’r of Revenue, 322 Mich 49; 33 NW2d 657 (1948).6 This rule was also stated in Boyer-Campbell, supra at 297, and Owosso Bd of Ed v Goodrich, 208 Mich 646, 652; 175 NW 1009 (1920).

In perhaps our most candid statement, we noted that appellate courts “will give the agency’s construction such weight as [they] conclude [] is appropriate on full consideration of the statutory criteria and the record of the case on review.” West Bloomfield Hosp v Certificate of Need Bd, 452 Mich 515, 524; 550 NW2d 223 (1996). I am concerned that our standard of review of the legal interpretations of agencies is inconsistent. I believe that predictability in this area may only be achieved by determining the principles underlying such review.

2

The majority provides the firmest ground for such an underlying principle when it states that, “[i]n construing the statutes empowering the PSC, this Court does not weigh the economic and public policy factors that underlie the action taken by the PSC.” Ante at 156.1 agree with this statement, and I suggest that we can avoid making a policy decision in this case by recognizing the Legislature’s delegation of certain pol*176icy-making authority to the PSC, and deferring to that authority.7

The Legislature’s ability to delegate authority to an agency is bounded only by the constitution, and there is no allegation of unconstitutional delegation of legislative authority in this case. Cf. City of Livonia v Dep’t of Social Services, 423 Mich 466, 501-505; 378 NW2d 402 (1985). Therefore, given that the relevant statutory language is ambiguous, that there is no clear indication of the Legislature’s intent, and that the PSC exercises some of the Legislature’s policy-making authority in this area, this Court should avoid striking down the policy decision inherent in the psc’s permissible interpretation of the electric transmission act.

The United States Supreme Court has held that “the principle of deference to administrative interpretations”

“has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations.” [Chevron, supra at 844, quoting United States v Shimer, 367 US 374, 382; 81 S Ct 1554; 6 L Ed 2d 908 (1961) (citations omitted).]

The Court further stated that if the agency’s choice represents

*177“a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.” [Id. at 845, quoting Shimer, supra at 383.]

The United States Supreme Court has also extended this rule to sanction deference to an agency’s interpretation of its jurisdiction under its enabling legislation, noting that “there is no discernible line between an agency’s exceeding its authority and an agency’s exceeding authorized application of its authority. To exceed authorized application is to exceed authority.” Mississippi Power & Light Co v Moore, 487 US 354, 381; 108 S Ct 2428; 101 L Ed 2d 322 (1988) (Scalia, J., concurring and citing cases).

For these reasons, and because of a lack of reliable guideposts in determining legislative intent in this case, I would adopt a rule that this Court defer to an agency’s permissible, policy-based interpretation of the statutes that it administers.

n

The majority also holds that the PSC order at issue is invalid as an infringement on the management prerogatives of the appellant utilities. Ante at 159. Because the majority’s own analysis concedes that the PSC may infringe the appellant utilities’ management powers if such infringement is contemplated in the psc’s enabling legislation, I disagree that the psc’s orders at issue run afoul of this Court’s decisions in Huron Portland Cement Co v Public Service Comm, 351 Mich 255; 88 NW2d 492 (1958), and Union Car*178bide, supra.8 Ante at 159 (“[AJbsent specific statutory authority, the decision whether to provide the service rests with the utility’s management”).

The majority notes that, in Union Carbide, “we concluded that, although the PSC could preclude a utility from passing along increased charges incurred from its noneconomic operation of facilities, it could not order the utility to cease those operations.” Ante at 158; see Union Carbide, supra at 149-150. Our Union Carbide decision hinged on the fact that there were no specific statutes that gave the PSC the power to forbid the noneconomic operation of facilities. Union Carbide, supra at 150-162.

Furthermore, we specifically noted that the psc’s ratemaking power was sufficient to “exclude[] from Consumers’ base rates the increased fuel costs stemming from noneconomic operation .... Thus, the commission prevented Consumers’ noneconomic operation . . . from adversely affecting both the utility’s base rates as well as the charges passed through to ratepayers . . . .’’Id. at 149. For this reason, the PSC’s ratemaking power achieved its stated purpose without shutting down the noneconomic operations, rendering any further use of that power unlawful as beyond its own terms.

Similarly, in Huron Portland Cement, we noted that “[t]his is not a case where a utility, already servicing a city, arbitrarily refuses to take on a new (or expanded) burden, for Consumers has never supplied *179electricity to either the city of Alpena or the Alpena area generally.” Id. at 260. We went on to examine § 6 of the electric transmission act, and held that its grant of power to the PSC “is not unlimited, but restricted. [The PSC] is given statutory power to order electric current (for distribution) to any community ‘through which a transmission line or lines may pass.’ ” Id. at 266.9

We held against the PSC’s exercise of power in that case because Consumers’ power lines did not pass through the communities in question. Therefore, “those cases involving an undertaking of service to an area, particularly where a statute empowers the commission to order reasonable extensions of the mains and service . . . , are not controlling on the issue before us.” Id. at 261 (citations omitted).

For these reasons, I find no guidance in either Portland Huron Cement or Union Carbide. The question in this case is determined by § 6 of the electric transmission act.

m

Because § 6 of the electric transmission act gives the PSC the authority to order retail wheeling, I respectfully dissent and would affirm the judgment of the Court of Appeals.

Cavanagh and Kelly, JJ., concurred with Brickley, J.

Because § 6 of the electric transmission act gives the psc the power in question, I would not reach the other statutory interpretations discussed by the majority. MCL 460.556; MSA 22.156. However, I do agree with the majority that § 6 of the public service commission act, MCL 460.6; MSA 22.13(6), is only “an outline of the psc’s jurisdiction, not a grant of specific powers.” Ante at 160, citing Huron Portland Cement Co v Public Service Comm, 351 Mich 255, 263; 88 NW2d 492 (1958). I further agree that §§ 1 and 2 of the electric transmission act, MCL 460.551, 460.552; MSA 22.151, 22.152, are not applicable to the instant case “[t]o the extent that the experimental program required utilities to wheel power supplied by an out-of-state provider . . . .” Ante at 164.

“Deliver” is relevantly defined as “[t]o bring or transport to the proper place or recipient; distribute.” The American Heritage Dictionary (3d ed), p 494. Another dictionary defines it as “to cany and turn over (letters, goods, etc.) to the intended recipient or recipients.” Random House Webster’s College Dictionary, p 358.

The statute limits the scope of the psc’s power under this section to “any city, village or township through which a transmission line or lines may pass . . . .” MCL 460.556; MSA 22.156. Thus our decision in Huron Portland Cement Co, n 1 supra, is consistent with this statute. In that case, we overturned a psc order that would have compelled Consumers Power to build new transmission lines. We noted that § 6 did not give the psc this power because “Consumers’ lines do not pass through the city ... in which Huron seeks the service to be rendered.” Id. at 266.

In stark contrast, the order at issue in the instant case would compel the appellant utilities to deliver electric current over their already existing transmission lines.

Black’s further definition of “furnish” is instructive by way of analogy: “As used in the liquor laws, ‘furnish’ means to provide in any way, and includes giving as well as selling. As used in the Controlled Substances Act, means [sic] to provide or supply and connotes a transfer of possession.” Id. In neither of these contexts is it necessary to produce or manufacture the commodity in question in order to “furnish” it to a third party.

Compare this definition of “supplier” with the majority’s quotation of one of the relevant definitions of “service”: “ ‘the supplying or supplier of *172utilities, commodities, or other facilities that meet a public need, as water, electricity, communication, or transportation.’ ” Ante at 163, quoting Random House Webster’s College Dictionary, supra, p 1225. A utility is therefore a “supplier” of electric service whether it produced the electric current, or delivered it, or both.

The majority quotes the following relevant definitions of “service”: “the supplying or supplier of utilities, commodities, or other facilities that meet a public need, as water, electricity, communication, or transportation.” Random House Webster’s Dictionary, p 1225; “A facility providing the public with the use of something, such as water or transportation.” The American Heritage Dictionary (3d ed), p 1649. Ante at 163-164.

The Random House dictionary goes on to define “supply” as “1. to furnish or provide (a person, establishment, etc.) with what is lacking or requisite: supplying the poor with clothing. 2. to furnish or provide (something wanting or requisite): supplied needed water to the region." Random House Webster’s, supra, pp 1295, 1343. The American Heritage dictionary defines “provide” as “1. To furnish; supply: provide food and shelter for a family. 2. To make available; afford: a room that provides ample sunlight through French windows.” American Heritage Dictionary, supra, p 1458. None of these definitions carry the implication that the supplier or provider of the commodities in question had to have produced or manufactured them before providing or supplying them to the recipients.

In one case, we held that “[i]t is the responsibility of the judiciary to interpret legislative intent and this responsibility cannot be delegated. We agree with the Court of Appeals that consideration should be afforded to the mesc interpretation of this section. We cannot abdicate our ultimate responsibility.” General Motors Corp v Erves, 395 Mich 604, 621; 236 NW2d 432 (1975). Four justices of this Court split on this decision, however, with three justices abstaining.

Again, I agree that the Court would be acting properly if the statute at issue were, indeed, unambiguous. Since the statute is ambiguous, however, the Court must rely on something other than its “plain language” in construing what the statute means.

While I disagree with the majority’s characterization of the psc’s orders as forcing decisions “within the province of the utility’s management,” ante at 159,1 do not reach this question. Because the electric utility act permits the psc to enforce the orders in question, whether or not they compel “management” decisions is not relevant.

As discussed in part i(a) the statutory authority is, more precisely, “to order electric current for distribution to fee delivered.” MCL 460.556; MSA 22.156 (emphasis supplied).