State Ex Rel. MoGas Pipeline LLC v. Missouri Public Service Commission

KARL DeMARCE, Special Judge,

dissenting.

Because the principal opinion denies the Public Service Commission the full range of action contemplated by section 386.210.11 in selecting its methods for communicating its concerns, as to matters within its lawful sphere of activity, to the Federal Energy Regulatory Commission, I respectfully dissent.2

*502The principal opinion correctly finds this to be a case of first impression, presenting a question of statutory interpretation. Further, the principal opinion rightly concludes that sections 386.210.7, 386.120.4, and 386.071, on their own, do not provide authority to support the PSC’s intervention in FERC proceedings. However, I cannot join in the conclusion that section 386.210.1 is too narrow in its scope to grant the authority claimed by the PSC to intervene in proceedings before the FERC.

Section 386.610 requires that statutes pertaining to the PSC “shall be liberally construed with a view to the public welfare, efficient facilities and substantial justice between patrons and public utilities.” The PSC’s powers “are limited to those conferred by ... statutes, either expressly, or by clear implication as necessary to carry out the powers specifically granted.” State ex rel. Utility Consumers’ Council of Missouri, Inc. v. Pub. Serv. Comm’n, 685 S.W.2d 41, 49 (Mo. banc 1979). However, the “interpretation and construction of a statute by an agency charged with its administration is entitled to great weight.” State ex rel. Sprint Missouri, Inc. v. Pub. Serv. Comm’n, 165 S.W.3d 160, 164 (Mo. banc 2005).

Sections 386.210 through 386.380 address the powers and duties of the PSC. Section 386.210.1 provides that the PSC “may confer in person, by correspondence, by attending conventions, or in any other way, with ... any public utility or similar commission of this and other states and the United States of America, or any official, agency or instrumentality thereof, on any matter relating to the performance of its duties.’” (emphasis added). Section 386.210.2 states that “[s]uch communication may address any issue that at the time of such communication is not the subject of a case that has been filed with the [PSC].” The subject of MoGas’ tariff is not the subject of any case before the PSC. As such, the PSC clearly is empowered to communicate with the FERC in any way about any matter related to the performance of its duties.

In reaching the conclusion that section 386.210.1 does not grant the PSC authority to intervene in proceedings before the FERC, the principal opinion notes that “the verb ‘confer’ means to contribute, to compare, or ‘to hold conversation or conference ... typically on important, difficult, or complex matters.” Op. at 498. This analysis follows:

“Moreover, section 386.210 itself indicates that it uses the term ‘confer’ in the sense of ‘communicate,’ for section 386.210 refers collectively to the various ways of conferring with the public or other commissions permitted in section 386.210.1 as ‘communications.’ ‘Communication’ is ‘the act of imparting or transmitting1 and the ‘interchange of thoughts or opinions.’ Webster’s Third New International Dictionary 460 (1993); see also Black’s Law Dictionary 316 (9th ed.2009) (defining ‘communication’ as an ‘expression or exchange of information by speech, writing, gestures, or conduct’).”

Id. at 498. Further, in footnote 7, the principal opinion recognizes, “Sections 386.210.3and 386.210.4 also use the term ‘communication’ to describe the interaction permitted by section 386.210.1.”

Having set forth the very broad definition of “communication” found in Webster’s and Black’s, the principal opinion then proceeds effectively to narrow that definition by concluding that intervention as a party in litigation is not a form of “communication,” stating: “Intervening parties do more than communicate, converse, discuss, consult, or engage in an interchange of opinions about pending proceedings. *503Rather, intervenors exercise control over litigation by engaging in oral arguments, presenting evidence, and cross-examining ■witnesses.” Op. at 499. The opinion concludes that these activities do not constitute “conferring” with a court, but rather “seeking affirmative relief ... [and] obtaining a stake in the controversy.” Id.

The principal opinion thereby confuses the purpose of communication with the forms that communication may take. Obviously, the purpose of intervention is to persuade, or at least to influence, the decision-maker, in the hope of making a difference as to the outcome of the case. This does not make intervention any less a form of communication, since persuasion is often a primary goal of any attempt to communicate. The various activities associated with intervention — filing pleadings and motions, presenting evidence, examining witnesses, engaging in oral argument, submitting briefs — are all designed and calculated to impart information, data, and opinions to the adjudicator. This goes to the very heart of the Webster’s and Black’s definitions of “communication” relied upon by the principal opinion.

Moreover, intervention is the precise form of “communication” that the intended recipient, the FERC, expects and invites from a state utility regulator such as the PSC, with regard to a formal contested proceeding. See 18 C.F.R. § 385.102(b) and (c) (defining “party” and “participant” in such a proceeding); 18 C.F.R. § 385.214(a)(2) (contemplating intervention by state commissions in such proceedings). This approach is altogether consistent with the FERC’s concern to limit inappropriate “off the record” communications, much as our courts forbid inappropriate ex parte communications. 18 C.F.R. § 385.2201; cf. Rule 2-2.9. The mere fact that the FERC has chosen to permit other defined forms of communication from or with state commissions, such as “protests,” 18 C.F.R. § 385.211, and “conferences,” 18 C.F.R. § 385.1303, does not suggest that intervention, with all the specific activities embraced therein, may not also be a valid form of “communication.”

The verb “confer,” and the related noun “conference,” often connote a very formal setting, in which detailed notes or minutes may be kept, or a verbatim record made. In the context of formal adjudication, it may not be the most common usage to suggest that parties to a proceeding are “conferring” with the decision-maker. Yet one readily may point to exceptions. When attorneys approach the court during trial to discuss an issue of law, procedure, or evidence, it commonly is referred to as a “bench conference.” When attorneys meet with the court to finalize the instructions to be given to a jury, it commonly is referred to as an “instruction conference.” These examples serve only to demonstrate further that having the opportunity to “confer” — to communicate — with the adjudicator is intrinsically part and parcel of any participation in litigation. Not only is intervention in an administrative or adjudicatory proceeding a form of “communication,” but it is also the most clearly recognized and most acceptable form of holding “conversation or conference” on the “important, difficult, or complex matters” that may come before the FERC. Intervention falls squarely within the definition of “confer” first cited in the principal opinion.

Thus, while section 386.210.1 does not explicitly grant the PSC the authority to assume the position of a party to a hearing before a federal regulatory commission such as the FERC, when construed with a view to the public welfare, the authority of the PSC to participate in such a manner clearly is implied. Certainly, the PSC’s participation in the action would appear to be the most expedient way for the PSC to *504communicate its concerns in the matter to the FERC.

To draw the conclusion set forth in the principal opinion is to place an unwarranted gloss on section 386.210.1, rendering it in effect to provide that the PSC “may confer [with the FERC] in person, by correspondence, by attending conventions, or in any other way, except in the one way most likely to prove efficacious in sharing the PSC’s data, information, expertise, and opinions in the context of a formal administrative proceeding before the FERC” The statute does not so limit the authority of the PSC.

Section 386.510 requires the reviewing court to determine whether the PSC’s order is lawful and, if so, whether the order is reasonable. State ex rel. Praxair, Inc. v. Missouri Pub. Serv. Comm’n, 344 S.W.3d 178, 184 (Mo. banc 2011). Having concluded the PSC’s order was lawful, I likewise would find the order was reasonable. “Missouri courts have long recognized that when the decision involves the exercise of regulatory discretion, the PSC is delegated a large amount of discretion, and many of its decisions necessarily rest largely in the exercise of a sound judgment.” State ex rel. Sprint Missouri, Inc., 165 S.W.3d at 164 (internal citation omitted).

Here, the PSC’s order upholding its authority to intervene in the FERC proceedings concerning MoGas was reasonable in that the PSC was presenting evidence to enable the FERC to make a more informed decision regarding rates and related matters. Therefore, I would affirm the order of the PSC and permit the PSC to continue to intervene in matters before the FERC relating to MoGas and others.

. All statutory references are to RSMo 2000 unless otherwise noted.

. This Court transferred this case after an opinion by the Missouri Court of Appeals, authored by the Honorable Joseph M. Ellis. Mo. Const, article V, section 10. Portions of the court of appeals opinion are incorporated without further attribution.