No. 84-290
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
THE MONTANA POWER COMPANY,
a Montana corp. ,
Plaintiff and Petitioner,
TEE PUBLIC SERVICE COMMISSION
OF THE STATE OF MONTANA, et al.,
Defendants and Respondents.
ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
For Plaintiff/Petitioner:
Daniel 0 Flanagan, John J. Burke, John L. Peterson,
.
Dennis R. Lopach, Pamela K. derrell for Montana Power
Company, Rutte, Montana;- John L. Peterson argued
For Defendants/Respondents:
Eileen Shore argued, Public Service Commission, Helena,
Montana
For Intervenors:
Hon. Mike Greely argued, Attorney General, Helena,
Montana
James C. Paine argued, John C. Allen, Montana
Consumer Counsel, Helena, Montana
Kurt Krueger, Butte Community Union, Mt. Assoc. of
Senior Citizens, Butte, Montana & Robert C. Rowe,
Missoula, Montana
Patrick L. Smith argued, Northern Plains Resource
Council, Billings, Montana
Daniel Kemmis & Jeanne Kemmis, Human Resources Council,
Dist. XI, I.lissoula, Plontana
John Doubek argued, Richard Pyfer, Plontana Irrigators,
Helena, Montana
Donald W. Quander, Ideal Basic Industries, ASARCO,
Billings, Montana
C. William Leaphart, Champion International & CONOCO,
Helena, Montana & Linwood Morrell, New York, New York
Capt. Edwin T. Peterson, U.S. Air Force, Great Falls,
Montana
Robert L. Deschamps, 111, Missoula County Attorney,
Missoula, Montana
James Robischon, Atlantic Richfield, Stauffer Chemical
Co., EXXON, Butte, Montana
Charles W. Keuther, Great Falls Gas Co., Great Falls,
Montana
Grant E. Tanner; Lindsay, Hart, Neil & Weitler, D.S.I.,
Portland, Oregon
Submitted: November 26, 1984
Decided: December 12, 1984
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Montana Power Company (MPC) requested that this Court
assume original jurisdiction of a petition for declaratory
judgment, mandate or other appropriate relief. This Court
assumed jurisdiction to decide whether the certificate issued
by the Board of Natural Resources and Conservation (BNRC) is
conclusive and binding on the Public Service Commission
(PSC). On this narrow legal question, we hold that the
certificate is not conclusive and binding on the PSC.
The issues as stated more broadly for analysis are:
1. Did passage of the Montana Facility Siting Act of
1973 (Siting Act), section 75-20-101, et seq., MCA, impliedly
repeal or otherwise limit the PSC1s express statutory
rate-making authority under section 69-3-109, MCA to deter-
mine in a rate case whether public utility property is "actu-
ally used and useful for the convenience of the public"?
2. Does the doctrine of collateral estoppel preclude
the PSC from considering whether Colstrip Unit 3 is "actually
used and useful" under section 69-3-109, MCA?
3. Does the doctrine of promissory estoppel require
the PSC to incl-ude in the rate base MPCfs share of costs for
Colstrip Unit 3?
As enacted in 1973 and amended in 1975, the Siting Act
provided that a power facility may not be constructed or
operated within Montana without a certificate of environmen-
tal compatibility and public need. The Siting Act requires a
comprehensive study, hearings, and evaluation of any proposed
facility before a certificate may he issued.
In 1973, MPC and several other utilities filed with the
Department of Natural Resources and Conservation (DNRC) an
application for a certificate of environmental compatibility
and public need for Colstrip Units 3 and 4. We are concerned
here only with Colstrip Unit 3. After extensive hearings,
debate and study, the RNRC granted the certificate to NPC on
July 22, 1 9 7 6 .
That certificate was ba.sed upon the RNRCts findings of
fact of which the following are pertinent:
- By the time Colstrip 3 is completed there
will be a need for the energy produced.
- The facilities will serve the public
interest, convenience a.nd necessity.
- The loads and resources forecast by the utili-
ties indicate an energy deficit in future
years.
- The utility forecasts support a conclusion
that Colstrip 3 will be needed.
.- MPC studies show that Colstrip 3 is the lowest
cost alternative for the consumer and the best
choice available for future power needs.
- Availability of the additional energy will be
beneficial to the population of Montana and
the Pacific Northwest.
The certificate was also based upon extensive and detailed
findings concerning the environmental and social impacts of
Colstrip Units 3 and 4.
In its conclusions of law, the RNRC concluded that there
was a need for the energy that would be produced by Colstrip
Units 3 and 4 and that these facilities would serve the
public interest, convenience and necessity. The BNRC ordered
that a certificate of environmental compatibility and public
need issue to the applicant utilities for Colstrip Units 3
and 4 and associated facilities.
The decision of the BNRC was appealed twice to this
Court. Northern Plains Resource Council v. Board of Natural
Resources and Conserva.tion ( 1 9 7 9 ) , 181 Mont. 500, 5 9 4 ~ . 2 d
297; Northern Plains Resource Council 17. Board of Natural
Resources and Conservation ( 1 9 7 9 1 , 183 Mont 540, 601 P.2d 2 7 .
These opinions did not address the BNRCts determination that
the energy produced by Colstrip Units 3 and 4 was needed, and
did not consider changes in electricity rates to consumers
which might result from the construction of Colstrip Units 3
and 4.
After completion of Colstrip 3 in 1983, MPC filed with
the PSC an application to increase electric service rates to
reflect the inclusion of Colstrip 3 and associated facilities
in its rate base. The PSC conducted hearings which included
extensive evidence regarding whether Colstrip 3 was "actually
used and useful" to ratepayers. MPC moved the PSC to strike
a11 portions of the testimony concerning the "used and
useful" issue, contending that the PSC was precluded by the
BNRC1s certifica.te from considering that matter. The PSC
took MPC1s motion under advisement. MPC then filed its
original application with this Court. The PSC later denied
the MPC motion and concluded that Colstrip 3 was not actually
used and useful and therefore could not be included in MpC1s
rate base.
Did passage of the Siting Act impliedly repeal or other-
wise limit the PSC1s express statutory rate-making authority
under section 69-3-109, MCA to determine whether public
utility property is "actually used and useful for the conve-
nience of the public" ?
The purposes of the Siting Act are stated. in section
7'5-20-102, MCA:
"(1) It is the constitutionally declared policy of
this state to maintain and improve a clean and
healthful environment for present and future gener-
ations, to protect the environmental life support
system from degradation and prevent unreasonable
depletion and degradation of natural resources, and
to provide for administration and enforcement to
attain these objectives.
" (2) The legislature finds that the construction
of additional power or energy conversion facilities
may be necessary to meet the increasing need for
electricity, energy, and other products and that
these facilities have an effect on the environment,
an impact on population concentration, and an
effect on the welfare of the citizens of this
state. Therefore, it is necessary to ensure that
the location, construction, and operation of power
and energy conversion facilities will produce
minimal adverse effects on the environment and upon
the citizens of this state by providing that a
power or energy conversion facility may not be
constructed or operated within this state without a
certificate of environmental compatibility and
public need acquired pursuant to this chapter."
The purposes of the Siting Act may be characterized as envi-
ronmental in a broad sense.
Section 75-20-211, MCA required MPC to file with the
DNRC and the Department of Health a.n application for a cer-
tificate containing a description of the facility to be
built, a summary of environmental impacts, a statement of the
need for the facility, a description of alternate locations
and. their comparative merits, and other releva-ntinformation.
The Department of Health and the DNRC were then required to
study the proposed facility. The determination of the De-
partment of Health or Board of Health is acceptable in lieu
of an environmenta, impact statement under the Montana Envi-
ronmental Policy Act. Section 75-20-216, MCA. Other sec-
tions specify the hearing procedure which wils followed in
this case.
Section 75-20-301(2), MCA provides that the BNRC may not
grant a certifica.te unless it shall find and determine:
- The basis of the need for the facility.
- The nature of the probable environmental
impact.
- That the facility represents the minimum
adverse environmental impact.
- Ea-ch of the environmental criteria described
in section 75-20-503, MCA, which include an
extensive list of factors related to energy
needs a.nd impacts upon land use, water re-
sources, air qua.lity, solid waste, and noise.
- That the location conforms to state and local
Laws a.nd regulations.
- That the facility will serve the public inter-
est, convenience and necessity.
.., .. ". . I
4
CORRECTION.In preparing this opinion for pub-
Hon. F r e d J . Weber lication, we noted in our verification of titles and
J u s t i c e , Supreme C o u r t citations the matters listed below. Corrections have
Room 414 J u s t i c e B u i l d i n g been made on our copy o the opinion.
f
215 N o r t h S a n d e r s
H e l e n a , Montana 59620
J a n u a r y 23, 1 9 8 5
Montana Power Co. v . P u b l i c S e r v i c e Com'n, No. 84-290, Dec. 12,
1984
Page 6, l i n e 7 - - S e c t i o n 70-20-503(1) should read Section
75-20-503 ( 1 ) .
-
WEST PUBLISHING COMPANY
Box 43526
St. Paul, MN 55164
In considering the question of public interest, conve-
nience and necessity, the Board is required to evaluate the
benefits to the applicant and the state, the effects of
resulting economic activity, the effects of the facility on
public health, welfare and safety, and any other relevant
factors.
Section'g20-503 (1) , MCA further requires that the BNRC
a.nd DNRC consider the following list of "environmental
factors":
- Energy needs.
- Growth in demand and projections of need.
- Availability and desirability of alternate
sources of energy.
- Promotional activities of the utility which
may have given rise to the need for the pro-
posed facility.
- Socially beneficial uses of the output.
- Conservation activities which could reduce the
need for more energy.
- Research activities and new technology avail-
able to minimize environmental impact.
In connection with land use impacts, the statute requires a
consideration of the local impact of population attracted by
construction and operation of the facility, as well as the
impact of energy availability on the growth patterns and
population dispersal of the state. The environmental factors
include many additional considerations.
Montana law pertaining to the regulation of public
utilities is set forth in Title 69, Chapter 3, MCA. Section
69-3-102, MCA provides that the P S C is invested. with full
power of supervision, regulation and control of public utili-
ties, subject to the provisions of Chapter 3. Section
69-3-109, MCA provides:
"The commission may, in its discretion, investigate
and ascertain the value of the property of every
public utility actually - - useful for the
used and
convenience of the public. The commission is not
bound to accept or use any particular value in
determining rates; provided, that if any value is
used, such value may not exceed the original cost
of the property. In making such investigation the
commission may avail itself of all information
contained in the assessment roles of various coun-
ties, the public records of the various branches of
the state government, or any other information
obtainable, and the commission may at any time of
its own initiative make a revaluation of such
property." (emphasis added)
While MPC agrees that under the foregoing section, the
PSC is required to determine whether property of the utility
is "actually used and useful," it contends that the PSC is
required to treat Colstrip 3 as a.ctually used and useful
because it has been certified by the BNRC. This proceeding
requires a determination of what limitation on the powers of
the PSC, if any, results from facility certification unc?er
the Siting Act.
Other provisions in Title 69, Chapter 3 set forth the
procedure which the PSC follows with regard to public utility
rate-making. Section 69-3-201, MCA provides that a public
utility is required to furnish reasonably adequate service
and facilities, and that the charges made by the public
utility for such service shall be reasonable and just.
Utilities are required to file with the PSC a schedule of
rates, tolls and charges, and no changes may be made unless
approved by the PSC. Sections 69-3-301 and -302, MCA. The
PSC is required to hold a hearing on a rate increase request
before it may approve the increase. Section 69-3-303, MCA.
The PSC is empowered to investigate on its own motion any
rates, tolls, charges, rules, practices and services and
after a full hearing to make such changes as may be just and
reasonable. Section 69-3-324, MCA.
MPC contends that the Siting Act in effect prohibits the
PSC from inquiring into the need for Colstrip 3. MPC argues
that passing the Siting Act, the State took upon itself
the "exclusive right" to make crucial decisions regarding
resource management. It points out that the Siting Act
reflects increasing nationwide public awareness of the envi-
ronmental and social impacts resulting from construction of
major energy facilities, and that the Siting Act also re-
flects a legislative recognition that additional generation
facilities may be needed. It argues that one of the purposes
of the Siting Act was to expedite construction of new facili-
ties to meet growing energy demands. Because a new energy
facility may not be constructed or operated in Montana with-
out a certificate of environmental compatj-bility and public
need, MPC argues that the BNRC was given the sole
responsibility of balancing all factors in deciding which
course is best for Montana. MPC emphasizes that a
certificate may be issued only after environmental, social
and economic concerns and energy needs are weighed and
balanced against each other. It points out that safeguards
are provided in the Siting Act, such as the requirement that
the Department of Health and Environmental Sciences perform
extensive studies.
MPC emphasizes that before the BNRC may issue the
certificate, it must find there is a need for the facility
and that it will serve the public interest, convenience and
necessity. It then argues that the determination required of
the BNRC with respect to public need is precisely the same as
that required of the PSC when it seeks to determine whether
property is "actually used and useful" under section
69-3-109, MCA. MPC points out that the certification
proceeding before the BNRC is unparalleled in the history of
Montana for complexity, length, cost, the efforts expended by
the parties, and the heavy burden of proof placed upon the
applicant utilities. MPC contends that the PSC chairman has
stated that the BNRC's need determination involves precisely
the same issues which the PSC considers in its "used and
useful" determination. It argues that the inquiry required
by the PSC is therefore a needless duplication. It contends
that the PSC has refused to give effect to the BNRCis certif-
icate, which determined that Colstrip 3 is needed, and that
the PSC is without jurisdiction to investigate whether
Colstrip 3 is actually used and useful. MPC contends that
the certification proceedings included an advance determina-
tion of the used and useful status of the facility. MPC
argues that this determination is necessary to justify inves-
tor capital commitment, preclude construction of unneeded
facilities and allow consideration of all factors in one
proceeding. MPC contends that the legislative history of the
Siting Act demonstrates that the BNRC determination was meant
to be the exclusive determination of need.
Last, MPC argues that passage of the Siting Act created
a reasonable doubt as to whether the PSC has power to inquire
into the need for Colstrip 3 and that this doubt should be
resolved against existence of the power. MPC argues that its
position does not require a finding of implied repeal or
amendment of section 69-3-109, MCA. MPC contends that the
certificate of environmental compatibility and public need
merely creates a conclusive evidentiary presumption that the
facility is actually used and useful. On the other hand, it
contends that adoption of the PSC's position would render the
extensive certification proceedings a meaningless charade.
The PSC argues that the Siting Act is designed to avoid
unnecessary environmental impacts. By contrast, when a
facility begins to operate, the PSC must determine whether
the output is "actually" required by the ratepayers. The
PSC's primary argument is that this Court should not find
that the utility statute has been repealed by implication
absent a very strong showing that the legislature intended
such a result and that repeal or amendment is a logical
necessity. The PSC argues that it is statutorily required to
exa.mine the operations of utilities to determine whether
expenses were prudently incurred and should be reflected in
the rates. It emphasizes that nowhere in the Siting Act is
rate-making treatment for the proposed facilities mentioned.
The PSC contends that a logical reading of the Siting Act
demonstrates that it is an environmental planning statute.
It argues that section 69-3-109, MCA grants the Commission
the right to determine whether property is presently useful
for rate purposes, as distinguished from the BNRC's reliance
on forecasts of future energy needs. It arques that accep-
tance of MPC's argument would require that Colstrip 3 be
included in the rate base for the life of the facility even
if everyone agreed that the power was not required by Montana
customers.
The PSC also makes extensive arguments as to the extent
of its powers. We decline in this case to rule on the scope
or extent of the powers of the PSC under Title 69, Chapter 3.
We will consider only the narrow question of the Siting Act's
impact, if any, on the powers of the PSC.
Other parties have also presented extensive briefs and
oral argument. These arguments emphasize the legal theory
that no repeal or amendment by implication should be found in
this case. They also include extensive arguments regarding
the powers of the PSC under the utility regulation statutes.
They argue that the BNRC is required to make findings as to
specific factors, including the basis for the facility's need
and whether it will serve the public interest, convenience
and necessity, but that none of these factors is concerned
with issues such as property valuation, rate base, or appro-
priate rates of return to the utility or its investors. They
contend that for Siting Act purposes, the cost of the facili-
ty is germane only to the amount of the filing fee paid by
MPC when it filed its origin.al application. For purposes of
this opinion, we find it unnecessary to consider the balance
of the extensive argum-entsraised.
All parties agree that under section 69-3-109, KCA, the
PSC is to investigate and ascertain the value of utility
property actually used and useful for the convenience of the
public. Our fundamental question is whether the passage of
the Siting Act and the issuance of a certificate to MPC und.er
that Act in some manner limits, amends or repeals the power
granted to the PSC under section 69-3-109, MCA. Recognizing
the strong stand taken by this Court against implied repeal,
MPC argues that the effect of certification under the Siting
Act is to create a conclusive evidentiary presumption that a
certified facility is actually used and. useful. Regardless
of its characterization, MPC's contention requires a
reduction of the power of the PSC under section 69-3-109, MCA
by some form of amendment or repeal. If the PSC is precluded
from determining whether Colstrip 3 is actually used and
useful, then its power has in some manner been reduced or
repealed with regard to a certified facility.
In City of Helena v. Montana Department of Public Ser-
vice Regulation (Mont. 1981), 634 P.2d 192, 38 St.Rep. 1560,
a similar argument was considered by this Court. The munici-
palities argued. that under the Municipal Revenue Bond Act,
municipalities had been granted rate-making authority with
regard to municipally-owned water utilities and that this
grant of authority exempted such rates from the rate-setting
jurisdiction of the PSC. The municipalities argued that the
power of the PSC was irreconcilable with the municipal powers
granted to municipalities. 634 P.2d at 196, 38 St.Rep. at
1564. The Bond Act provided that if its provisions were
inconsistent with other general, special or local laws, the
Bond Act would control. This provision is similar to section
75-20-103, MCA of the Siting Act.
This Court noted that the Bond Act did not expressly
repeal the apparently conflicting PSC powers. Similarly, we
note that the Siting Act does not expressly repeal or other-
wise address the PSC powers granted in the utility regulation
statutes, particularly section 69-3-1.09, MCA. In City -
of
Helena, this Court held that the two Acts could be harmonized
by allowing municipalities to make an initial determination
of rates, while upholding the PSC's power to make a final
review of such rates. 634 P.2d a.t 196, 38 St.Rep. at 1564.
With regard to repeal by implication, this Court stated:
"It must be noted at the outset that the Municipal
Revenue Bond Act of 1939 does not expressly repeal
the Public Utilities and Carriers Act, Title 69.
To give credence to the contentions of the City of
Billings would necessitate a finding of repeal by
implication. Such repeal by implication is not
favored in Montana. London Guaranty & Accident -Co.
v. Industrial Acc. Board (1928), 82 Mont. 304, 266
-
P. 1103. .
~ h i r c o u r t has stated that .
. an
implied repeal results only from an enactment, the
terms and necessary operation of which cannot be
haxmonized with the terms and necessary effect of
an earlier Act. ' " 634 P.2d at 196, 38 St.Rep. at
1564.
This case is directly comparable to City - Helena.
of In
City of Helena, because the Bond Act made no reference to the
PSC or any of its functions, the municipalities were required
to argue there had been an implied repeal, which this Court
refused to find. Here, in a similar manner, the Siting Act
makes no reference to the PSC, to electric utility rates or
rate-setting powers, or to any of the laws codified under
Title 69.
In City - Helena, we held that the Bond Act and the
of
Utility Act were reconcilable, holding that the cities could
first set rates and the PSC then could review the rates. In
a similar manner, we conclude that the Siting Act and the
utility regulation statutes are reconcilable. The primary
aim of the Siting Act is to ensure that the environmental,
natural resource and social impacts of a facility are not
incurred without an appropriate preliminary showing by the
applicant utilities and approval by the BNRC. As indicated
by the stated purposes of the Siting Act, the need determi-
nation is related primarily to environmental protection
rather than rate base treatment for a facility. Unfortunate-
ly, there is no helpful legislative history. Because the
Siting Act fails to refer to any later rate-making proce-
dures, it appears that the legislature did not reach a deci-
sion on that point.
The determination of whether or not a facility is actu-
ally used and useful may well be unrelated to the environmen-
tal and natural resource concerns underlying the Siting Act.
While the public need determination under the Siting Act does
include consideration of factors which can be associated with
the used and useful concept of the utility regulation stat-
utes, the Siting Act is not limited to determining whether a
facility is actually used and useful. The BNRC1s findings of
fact concerning public need in this case related to antici-
pated energy needs based upon utility projections. These
findings did not attempt to address questions of cost of the
facility, the proportion of energy production to be devoted
to Montana consumers, or MPC1s share of the power to be
generated by Colstrip 3.
When read together, the Siting Act and the utility
regulation statutes are not inconsistent on the issue before
us. Together the Acts describe a two-step process: (1) the
utility obtains a certificate from the BNRC under the Siting
Act before construction may be commenced; (2) having con-
structed the plant, the utility requests rate base treatment
for the new facility and the PSC then determines whether the
facility is actually used and useful. We conclude that there
is no inconsistency in the powers granted to the PSC under
the utility regulation statutes and the powers granted to the
BNRC under the Siting Act. As a result, we conclude that
adoption of the Siting Act did not impliedly repeal section
69-3-109, MCA.
We do not suggest that the separate determinations over
a term of years constitute the best or most efficient
approach to major facility approval and cost recovery. It is
unfortunate that after the expenditure of hundreds of
millions of dollars, MPC has no indication of whether or not
its facility may be charged to its ratepayers even though the
BNKC found it to be needed. In the early 1970's it was
difficult to forecast the changing energy requirements of the
1980's. However, the balancing of these considerations is
for the legislature.
We hold that passage of the Siting Act did not impliedly
repeal or otherwise limit the PSC's express statutory
rate-making authority under section 69-3-109, MCA.
I1
Does the doctrine of collateral estoppel preclude the
PSC from considering whether Colstrip 3 is "actually used and
useful" under section 69-3-109, MCA?
MPC contends that the doctrine of collateral estoppel,
also termed issue preclusion, prohibits a PSC inquiry into
the need for Colstrip 3. In substance, MPC contends that the
issue of need was determined by the BNRC in its issuance of
the certificate of environmental compatibility and public
need, and affirmed by this Court on appeal.
In Stapleton v. First Security Bank (Mont. 1983), 675
P.2d 33, 88-89, 40 St.Rep. 2015, 2020-21, this Court affirmed
previous holdings that four criteria must be met before
collateral estoppel applies. The most significant criterion
is that the issues must be the same and must relate to the
same subject matter. Further, identity of issues requires
that the "precise question" has been litigated in the prior
action. 675 P.2d at 89, 40 St.Rep. at 2021.
We conclude that the need issue determined by the BNRC
at the time of the issuance of the certificate and the "used
and useful" issue before the PSC under its rate determination
a.re not identical. We do not have the records before us so
as to compare in detail all of the issues determined by both
agencies. The record now before us does not demonstrate that
the determination by the BNRC under the Siting Act is the
same as the determination required of the PSC under section
69-3-109, MCA.
We conclude that the doctrine of collateral estoppel is
not applicable.
Does the doctrine of promissory estoppel require the PSC
to include in the rate base MPCqs share of costs for Colstrip
Unit 3 ?
The basic principle of promissory estoppel is set forth
in Restatement of Contracts 2d, section 90 (1981):
"A promise which the promisor should reasonably
expect to induce action or forbearance on the part
of the promisee or third person and which does
induce such action or forbearance is binding if
injustice can be avoided only by enforcement of the
promise. "
In Keil v. Glacier Park, Inc. (Mont. 1980), 614 P.Zd
502, 37 St.Rep. 1151, this Court specified four elements of
promissory estoppel, the first of which is a promise clear
and unambiguous in its terms. 614 P.2d at 506, 37 St.Rep. at
1155-56. MPC argues that as a result of the issuance of the
certificate by the BNRC and the promise by MPC to comply with
the extensive provisions of the certificate, the State and
MPC entered into an implied contractual relationship.
The Siting Act does not suggest that issuance of a
certificate establishes a contractual relationship between
the State of Montana and the applicant utility. MPC argues
that the Siting Act contemplates that certified facilities
such as Colstrip 3 will be included in the rate base. We do
not find any provision in the Siting Act which can be con-
strued to contain that clear and unambiguous promise by the
State of Montana or the BNRC. Further, we find no such prom-
ise in the language of the certificate itself.
We conclude that the issuance of the certificate did not
create a contractual relationship between the State and MPC.
The rule is well stated in 5 Mezines, Stein and Gruff, Admin-
istrative Law, section 41.01 (1978):
"A license is a grant by a governmental authority
or agency of the right to engage in conduct that
would be improper without such a grant. The con-
ferment of a license does not create a contractua-l
relationship between the issuing agency and licens-
ee; it is merely a privilege that may be withdrawn
upon some future occurrence." (footnotes omitted)
We conclude that MPC has failed to show a clear and
unambiguous promise by the BNRC or the State of Montana
either under the provisions of the Siting Act or of the
certificate issued to MPC. Without a clear and unambiguous
promise, the doctrine of promissory estoppel does not apply.
The doctrine of promissory estoppel does not require the PSC
to include in the rate base MPC's share of costs for Col.strip
In summary, we conclude that passaye of the Montana
Facility Siting Act did not reduce the powers granted to the
PSC in section 69-3-109, MCA, and that the doctrines of
collateral and promissory estoppel are inapplicable.
We hold that the certificate of environmental compati-
bility and public need issued by the BNRC is not conclusive
and binding on the Public Service Commission. The relief
requested by MPC is denied.
We concur:
?*ch$&
Chief Justice
< -,!&a&
;
Justices
District Judge, sitting in place
of Mr. Justice John C. Sheehy
i4r. Justice Daniel J. Shea joins in the majority opinion,
and, time p e r m i ~ t i n g ,will file a separate concurring
opinion.