in Re Application of Dte Electric Company for 2015 Reconciliation ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
In re APPLICATION OF DTE ELECTRIC
COMPANY FOR 2015 RECONCILIATION.
DTE ELECTRIC COMPANY, UNPUBLISHED
December 6, 2018
Petitioner-Appellant,
v No. 339557
MPSC
MICHIGAN PUBLIC SERVICE COMMISSION, LC No. 00-017680-R
Appellee.
Before: RIORDAN, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ.
PER CURIAM.
Petitioner, DTE Electric Company (DTE), appeals as of right an order entered by the
Michigan Public Service Commission (PSC) that, in relevant part, disallowed DTE’s request to
include a refund in its 2015 power supply cost recovery (PSCR) reconciliation balance under
MCL 460.6j.1 The refund was issued by DTE in 2015, as a consequence of overbilling a major
customer for electrical power between 2008 and 2014. The PSC concluded that because the
refund was for power consumed outside of the 12-month reconciliation period for 2015, it could
not be included in the reconciliation. The PSC therefore denied DTE’s request. We reverse in
part and remand.
I. INTRODUCTION
One of the ways in which an electric utility can recover its power supply costs from its
customers is by including a “PSCR clause” in its rate schedule. See In re App of Consumers
Energy Co for Reconciliation of 2009 Costs, 307 Mich. App. 32, 35 n 1; 859 NW2d 216 (2014),
1
While this matter was pending in the PSC, the Legislature amended MCL 460.6j pursuant to
2016 PA 341. The PSC did not specify which version of the statute it used; however, neither we
nor the parties have discovered any substantive alterations of relevance to the instant appeal.
Therefore, all references to MCL 460.6j in this opinion will be to the prior version of the statute,
which was in effect during the 2015 reconciliation period at issue.
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aff’d on alternative grounds 499 Mich. 885 (2016). “PSCR” stands for “power supply cost
recovery.” See MCL 460.6j(1). This Court has explained the PSCR process as follows:
A PSCR clause is “a clause in the electric rates or rate schedule of a utility which
permits the monthly adjustment of rates for power supply to allow the utility to
recover the booked costs, including transportation costs, reclamation costs, and
disposal and reprocessing costs, of fuel burned by the utility for electric
generation and the booked costs of purchased and net interchanged power
transactions by the utility incurred under reasonable and prudent policies and
practices.” MCL 460.6j(1)(a). Each year, a utility with a PSCR clause in its rate
schedule must file a PSCR plan for the upcoming year and a five-year forecast of
power supply requirements. MCL 460.6j(3) and (4). The PSC approves,
disapproves, or modifies the proposed PSCR plan. MCL 460.6j(6). After the end
of the year, the PSC conducts a reconciliation case in which it makes adjustments
to take into account the utility's true cost of supplying power. MCL 460.6j(12)
and (13). [In re App of Indiana Michigan Power Co, 275 Mich. App. 369, 370-
371; 738 NW2d 289 (2007).]
“Electric utilities can recover two types of power supply costs through a PSCR clause: (1)
‘booked costs, including transportation costs, reclamation costs, and disposal and reprocessing
costs, of fuel burned by the utility for electric generation;’ or (2) ‘booked costs of purchased and
net interchanged power transactions.’ ” Attorney General v Pub Service Comm, 483 Mich. 998,
998; 764 NW2d 278 (2009), quoting MCL 460.6j(1)(a).
In very general terms, the PSC compares an electric utility’s revenues to its costs,
“reconciles” the two, and permits the electric utility to adjust its rates accordingly. See Attorney
General v Pub Service Comm, 237 Mich. App. 27, 30; 602 NW2d 207 (1999). If the utility
collected more revenue than its costs, it must refund or credit the excess to its customers. MCL
460.6j(14) and (16). If it collected less revenue than its costs, it may recover the difference from
its customers. MCL 460.6j(15) and (16).2
II. FACTUAL BACKGROUND
2
In part, MCL 460.6j(16) states, “Costs incurred by the utility for refunds and interest on refunds
shall not be charged to customers.” In context, this appears to refer to refunds issued as a
consequence of the reconciliation process and therefore does not pertain to the refund at issue
here. Furthermore, DTE argued at oral argument, and the PSC did not dispute, that the term
“costs . . . for refunds” is understood to mean ancillary costs such as postage, processing, or
programming, rather than the refund itself. Either understanding is supported by the lack of
discussion of this sentence below. Consequently, we conclude that this sentence is irrelevant to
the instant appeal. The Severstal refund is an entirely different kind of refund than a
reconciliation refund, which “enjoys a broader meaning” because it can also encompass an
adjustment of future rates in addition to a direct repayment of money. In re Detroit Edison Co
Application, 297 Mich. App. 377, 385-387; 823 NW2d 433, 437 (2012), result aff’d but criticized
on other grounds 495 Mich. 884 (2013).
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Between 2008 and 2014, DTE overbilled one of its large customers for electricity, due to
an undiscovered technical error. The customer, Severstal Dearborn, LLC (Severstal), which is
not a party to the instant matter, discovered the error in 2014, whereupon it filed a complaint
against DTE with the PSC. In 2015, the PSC ordered DTE to repay approximately $19.65
million to Severstal, plus 7% interest. Notably, it is undisputed, and in fact expressly admitted
by both parties at oral argument, that because of Severstal’s overpayment, DTE’s other
customers enjoyed artificially lowered energy rates in 2008 through 2014. Consequently, DTE
did not profit from the overbilling.
The instant proceeding is a separate reconciliation proceeding. In relevant part, DTE
sought to have approximately $13.45 million of the Severstal refund considered a “negative
revenue” in 2015 for the purpose of reconciliation. DTE contends that this amount reflects only
“the PSCR portion” of the Severstal refund, and it therefore excludes the substantial interest
DTE was required to pay.3 If that amount is “reconciled,” DTE would be permitted to raise its
energy rates to counteract that loss. In effect, DTE would theoretically recoup the windfall from
the same customers who previously enjoyed it. The PSC rejected DTE’s request. The PSC held
that the Severstal refund could not be reconciled in 2015 because it represented “lost PSCR
revenue from the cost of power supply consumed between the years 2008 and 2014,” and
therefore outside “[t]he 12-month period covered by DTE Electric’s PSCR plan [which] began
on January 1, 2015 and ended December 31, 2015.”
III. STANDARD OF REVIEW
As this Court recently explained in In re Reliability Plans of Electric Utilities for 2017-
2021, ___ Mich App ___, ___; ___ NW2d ___ (2018) (Docket No. 340600), slip op at 8, lv
pending:
To be valid, a final order of the MPSC must be authorized by law, and
also must be supported by competent, material, and substantial evidence on the
whole record. Const 1963, art 6, § 28; Attorney General v Pub Serv Comm, 165
Mich. App. 230, 235; 418 NW2d 260 (1988). Agencies have authority to interpret
the statutes that they administer and enforce, Clonlara, Inc v State Board of Ed,
442 Mich. 230, 240; 501 NW2d 88 (1993), and we respectfully consider an
agency’s interpretation of a statute that it is empowered to execute, and will not
overrule that construction absent cogent reasons. In re Complaint of Rovas
Against SBC Mich, 482 Mich. 90, 103; 754 NW2d 259 (2008). But the
construction the [PSC] gives to a statute is not binding on the courts. Id.
Ultimately, the statutory language itself is controlling, id. at 108, and this Court
will neither abandon nor delegate its responsibility to determine legislative intent.
3
At oral argument, DTE was asked what incentive it had “to get it right” if it was allowed to
reconcile the PSCR portion of the Severstal refund. DTE observed that at most it would be
“getting our principle back,” without the benefit of “interest going back to 2008.” It appears
that, in contrast, the 7% interest imposed upon the refund requires DTE to compensate Severstal
for Severstal’s lost benefit of that interest.
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Consumers Energy Co[ v Pub Service Comm], 268 Mich App [171,] 174-175[;
707 NW2d 633 (2005)]. Moreover, we review de novo issues of statutory
interpretation, Uniloy Milacron USA Inc v Dep’t of Treasury, 296 Mich. App. 93,
96; 815 NW2d 811 (2012), including the MPSC’s determinations regarding the
scope of its own authority. Consumers Power Co v Pub Serv Commission, 460
Mich. 148, 157; 596 NW2d 126 (1999); In re Application of Consumers Energy
Co to Increase Rates, 316 Mich. App. 231, 237; 891 NW2d 871 (2016). In sum,
when considering the construction given to a statute by an agency, our ultimate
concern is the proper construction of the plain language of the statute regardless
of the agency’s interpretation, Rovas, 482 Mich. at 108, and our primary
obligation is to discern and give effect to the Legislature’s intent. City of
Coldwater v Consumers Energy Co, 500 Mich. 158, 167; 895 NW2d 154 (2017).
Additionally, we review de novo questions of constitutional law and questions concerning
subject-matter jurisdiction. In re Consumers Energy Co, 322 Mich. App. 480, 491; 913 NW2d
406 (2017); In re Petition of Wayne Co Treasurer for Foreclosure, 286 Mich. App. 108, 110; 777
NW2d 507 (2009). The relevant facts are not meaningfully disputed, and the PSC’s final
decision set forth no factual findings that DTE challenges on appeal.
In particular, we note that several relevant facts are undisputed or presumed. First, the
Severstal refund was money with which DTE parted in 2015. Second, the Severstal refund
reflects a return of money collected outside of 2015, for power that was consumed outside of
2015. Furthermore, DTE did not truly profit from the overcollection; rather, the overcollection
benefitted DTE’s customers, and those customers would also bear the burden if the refund were
to be “reconciled.” Finally, the PSC did not actually render a final decision about whether the
overcollection was due to DTE acting unreasonably and imprudently. Although the PSC
“rejected” the ALJ’s finding that DTE incurred the overbilling by acting imprudently and
unreasonably, the PSC did so because it deemed “that line of inquiry” unnecessary. Therefore,
we presume, but explicitly do not decide, that DTE acted reasonably and prudently at all relevant
times.
IV. THE RECONCILIATION PERIOD
We first conclude that reconciliations cover a 12-month period. Subsection (12) indicates
that the reconciliation process must occur “[n]ot less than once a year” and that the PSC must
“commence” it “not later than 3 months after the end of the 12-month period covered by a
utility’s power supply cost recovery plan[.]” (Emphasis added.) When discussing what is to be
reconciled, subsection (12) further provides:
At the power supply cost reconciliation the commission shall reconcile the
revenues recorded pursuant to the power supply cost recovery factors and the
allowance for cost of power supply included in the base rates established in the
latest commission order for the utility with the amounts actually expensed and
included in the cost of power supply by the utility. The commission shall
consider any issue regarding the reasonableness and prudence of expenses for
which customers were charged if the issue was not considered adequately at a
previously conducted power supply and cost review. [MCL 460.6j(12).]
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This language must be read in context. Madugula v Taub, 496 Mich. 685, 696; 853 NW2d 75
(2014). In particular, subsections (3), (6), and (10) clearly indicate that PSCR plans always
cover a discrete, specific “12-month period.” Referring to “the 12-month period” would make
no sense unless it means the particular 12-month period covered by a particular PSCR plan. This
is consistent with commencing a reconciliation yearly, and at a time specifically tied to “the 12-
month period.” It is also consistent with the express provision of a mechanism for considering
certain prior expenses “not considered adequately at a previously conducted power supply and
cost review.”
It follows that the subsections under which the PSC may order a recovery from (or a
refund to) a utility’s customers must pertain to the same period. The specific authorization for
any recovery from DTE’s customers is found in subsection (15), which states in relevant part:
In its order in a power supply cost reconciliation, the commission shall authorize a
utility to recover from customers any net amount by which the amount determined
to have been recovered over the period covered was less than the amount
determined to have been actually expensed by the utility for power supply, and to
have been incurred through reasonable and prudent actions not precluded by the
commission order in the power supply and cost review. [MCL 460.6j(15).]
Because these subsections address orders “in a power supply cost reconciliation,” it would again
make no sense unless “the period covered” is the same period considered at the reconciliation.
Therefore, “the period covered” must be the specific 12-month period covered by the PSCR plan
at issue. In this case, that period would be January 1, 2015 through December 31, 2015.
V. DEFINING THE SEVERSTAL REFUND
The central issue in this appeal is how to define the Severstal refund. Again, the
Severstal refund consists of money that left DTE’s coffers in 2015. The money satisfies a return
of monies that were overcollected between 2008 and 2014. DTE did not benefit from that
overcollection, and because the refund includes interest that DTE cannot ever recover, DTE
would remain “in the negative” even with the reconciliation of the $13.45 million it seeks.
Between 2008 and 2014, DTE’s customers benefitted from the overpayment, and reconciliation
would mean those customers must return their windfall. The one characterization upon which
both parties expressly agree is that the Severstal refund is not an “expense.”
DTE argues that the Severstal refund is a “negative revenue” because it is a “revenue
recorded,” albeit a negative one. The PSC argues that the refund is “not a cost of power supply
but lost revenue from the cost of power consumed” (emphasis in original). Therefore, both
parties seemingly also agree that the Severstal refund was some kind of revenue. However, DTE
has not provided us with a definition of “negative revenue,” and the PSC protests that it does not
know how a “negative revenue” would be defined. Finding no helpful definitions4 in either
4
DTE stated that “expenses” are defined under the Michigan Public Service Commission Act,
but we have not found any such express statutory definition, nor has either party cited to one.
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party’s briefs or in the Act, we turn to a dictionary. See In re Certified Question from the United
States Court of Appeals for the Ninth Circuit (Deacon v Pandora Media, Inc), 499 Mich. 477,
484-485; 885 NW2d 628 (2016).
An “expense” may be defined as synonymous with expenditure or cost, or “something
expended to secure a benefit or bring about a result.” Merriam-Webster’s Collegiate Dictionary
(11th ed), p 440. However, accounting terminology suggests that “expense” and “expenditure”
have distinct meanings. Although both may entail an exchange of value for value, an
expenditure particularly refers to the outlay of money itself, whereas an expense particularly
refers to using up an asset or exchanging that asset for revenue. See Siegel & Shim, Dictionary
of Accounting Terms, 3d ed (Hauppage, New York: Barron’s, 2000), pp 169-170.5 A “cost” may
be defined as a penalty incurred, as “the amount or equivalent paid or charged for something,” or
as an “outlay or expenditure.” Merriam-Webster’s, p 282. In accounting terminology, “[t]he
concepts of cost and expense are often used interchangeably,” but a cost would generally be a
“sacrifice, measured by the price paid, to acquire, produce, or maintain goods or services.”
Dictionary of Accounting Terms, p 104. Finally, “revenue” may be treated as gross income or
total income from a particular source. Merriam-Webster’s, p 1066. In accounting terminology,
it means an “increase in the assets of an organization or the decrease in liabilities during an
accounting period, primarily from the organization’s operating activities.” Dictionary of
Accounting Terms, p 380.
We conclude that at least for accounting purposes, the concepts of “expense,”
“expenditure,” and “cost” all nominally imply a degree of exchange for value. Clearly, the
Severstal refund was not exchanged for any value. We are therefore inclined to agree with the
parties that it was neither an “expense” nor a “cost.” In contrast, “revenue” appears to pertain
more simply to money or assets transferred to an entity. Rather than leave the Severstal refund
in an undefined limbo, we conclude that “lost revenue,” as the PSC puts it, most sensibly6 fits the
definition of “revenue,” with the modifier “negative” merely indicating the direction of that
revenue. See, e.g., “negative income tax,” Merriam-Webster’s, p 829. In other words,
“revenue” pertains to an inflow of money, and “negative revenue” therefore pertains to an
outflow of money. We therefore accept and adopt DTE’s contention that the Severstal refund is
a “negative revenue” that indisputably occurred during 2015.
VI. CONSIDERATION OF THE SEVERSTAL REFUND
5
See also, discussions online at https://www.accountingtools.com/articles/2017/5/6/expense and
https://www.accountingcoach.com/blog/difference-expense-expenditure.
6
Our Supreme Court has rejected “the so-called ‘absurd result’ rule of statutory construction.”
Piccalo v Nix, 466 Mich. 861; 643 NW2d 233 (2002), citing People v McIntire, 461 Mich. 147,
155-156, n 2; 599 NW2d 102 (1999). However, the discussion in McIntire concerned a
departure from the literal language of a statute on the grounds that the literal result would be
unwise. McIntire, 461 Mich. at 155-159. If construction of a statute is necessary, any such
construction should nevertheless avoid an absurd result to the extent consistent with its plain
language. See Rafferty v Markovitz, 461 Mich. 265, 270; 602 NW2d 367 (1999).
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Having concluded that the Severstal refund is a “negative revenue,” DTE next argues that
the PSC is required to include it in the 2015 reconciliation. However, the reconciliation process
does not include any revenue, but rather “revenues recorded pursuant to the power supply cost
recovery factors.” MCL 460.6j(12) (emphasis added). Therefore, whether the Severstal refund
is a “revenue” does not end the inquiry.
The Act defines “power supply cost recovery factor” as:
that element of the rates to be charged for electric service to reflect power supply
costs incurred by an electric utility and made pursuant to a power supply cost
recovery clause incorporated in the rates or rate schedule of an electric utility.
[(MCL 460.6j(1)(b)).]
A PSCR clause permits the recovery of “(1) ‘booked costs, including transportation costs,
reclamation costs, and disposal and reprocessing costs, of fuel burned by the utility for electric
generation;’ or (2) ‘booked costs of purchased and net interchanged power transactions.’ ”
Attorney General, 483 Mich. at 998, quoting MCL 460.6j(1)(a). Notably, a PSCR clause is
distinct from a PSCR plan. A PSCR clause appears to be a durable part of a utility’s rates, rather
than specific to a particular year. “Pursuant to” means “in carrying out” or “in conformity with.”
Merriam-Webster’s, p 1011. Alternately, it means “in compliance with; in accordance with;
under.” Black’s Law Dictionary (8th ed), p 1272. We conclude that “revenues recorded pursuant
to the power supply cost recovery factors” means revenues that pertain to the costs recoverable
under a PSCR clause.
As noted, DTE contends that the $13.45 million it seeks to reconcile is the “PSCR
portion” of its payment to Severstal. According to the proposal for decision by the ALJ, the
PSC’s staff did not dispute that characterization. In its final decision, the PSC reiterated that its
staff had not disputed that the $13.45 million is a “PSCR expense,” and nowhere in the final
decision do we find any indication that the PSC or its staff took any subsequent exception to that
characterization. We adopt what appears to be an undisputed fact: that the $13.45 million
portion of the Severstal refund is a “revenue recorded pursuant to the power supply cost recovery
factors,” notwithstanding the fact that it is negative. Because the revenue itself occurred in 2015,
it must be reconciled as part of the 2015 reconciliation.
We briefly observe that our conclusion appears to be consistent with past PSC practices,
as reflected by the two PSC cases discussed below. In In re the application of DTE Electric
Company for reconciliation of its power supply cost recovery plan for the 12-month period
ending December 31, 2013, MPSC Case No. U-17097-U, DTE received a payment of
$28,607,330 from Consumers Energy in 2013 compensating for a 2008 billing error by a third
party, and the PSC included that payment in DTE’s 2013 reconciliation. In In re the application
of Consumers Energy Company for the reconciliation of power supply cost recovery costs and
revenues for the Calendar Year 2012, MPSC Case No. U-16890-R, the same payment was
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included in Consumers Energy’s 2012 reconciliation, even though it made the payment in 20137
and the billing errors occurred between 2008 and 2011. We do not mean to suggest that the PSC
is bound by stare decisis and we recognize the PSC’s explanation that those cases are factually
distinguishable from the instant matter. Nevertheless, even considering the factual differences,
those cases clearly reflect an understanding that a refund addressing costs that occurred in other
plan-years may be reconciled in the year the refund itself occurs.8
Therefore, we conclude that the PSC erred by refusing to reconcile the PSCR portion of
the Severstal refund, which is not disputed to be the $13.45 million at issue here.
VII. CONSIDERATION OF “EXPENSES” FROM PRIOR YEARS
The final sentence of MCL 460.6j(12) provides that “[t]he commission shall consider any
issue regarding the reasonableness and prudence of expenses for which customers were charged
if the issue was not considered adequately at a previously conducted power supply and cost
review.” “Shall” is mandatory, and “any” is all-inclusive. See McGrath v Clark, 89 Mich. App.
194, 197; 280 NW2d 480 (1979), superseded by rule on other grounds as stated in Young v
Robin, 146 Mich. App. 552, 556 n 2; 382 NW2d 182 (1985). This sentence does not itself
explicitly reference reconciliation. However, the parties agree that it serves as a limited
exception to the general prohibition against reconciling expenses for power supplied outside of
the PSCR period under consideration. Despite the extensive briefing dedicated to this sentence,
the parties at oral argument otherwise concluded that it was not, in fact, the proper basis for
resolving this appeal. We therefore decline to address it.
Nevertheless, the proceedings before the ALJ involved considerable dispute about
whether the overbilling occurred due to DTE acting in an unreasonable and imprudent manner.
The PSC ultimately “rejected” the ALJ’s finding regarding that issue, because it concluded that
the basis for its final decision rendered it “unnecessary for the Commission to consider or discuss
that line of inquiry.” We expressly reject both parties’ arguments pertaining to whether DTE did
act in an unreasonable and imprudent manner. Because the PSC did not decide that factual issue,
we will not review or consider it.
The PSC has requested that, in light of our conclusion that it erred by failing to reconcile
the PSCR portion of the Severstal refund, we remand for an express decision as to whether DTE
acted unreasonably and imprudently. Because we decline to consider the last sentence of MCL
460.6j(12), we decline to impose such a specific requirement upon the PSC. However, we direct
that on remand, the PSC shall permit the parties to submit further briefing on the issue, including
7
Consumers Energy used a bookkeeping methodology that required the payment to be booked in
2012.
8
The PSC argues that it has the discretion to allow such a reconciliation if the equities are
proper, but has been unable to articulate any source for that discretion, any guidelines for how to
exercise that discretion, or how to identify when the equities are proper.
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whether it would be proper for the PSC to make such a decision at this time. We express no
opinion on the matter.
VIII. UNCONSTITUTIONAL TAKING
DTE finally argues that the PSC’s disallowance of the Severstal refund from the 2015
reconciliation effectuates an unconstitutional taking of its property. In light of our resolution of
the other issues in this appeal, we need not address this argument. However, for the benefit of
the bench and bar, we briefly clarify that in Champion’s Auto Ferry, Inc v Pub Service Comm,
231 Mich. App. 699, 717; 588 NW2d 153 (1998), we did not hold that the Court of Claims was
the only avenue for relief available to a party that believes it has suffered an unconstitutional
taking from the actions of an administrative agency. Rather, we held that it was unnecessary for
us to address the appellant’s takings argument at that time because commencing suit in the Court
of Claims would remain an option for the appellant in the future. Indeed, “when a constitutional
issue is intermingled with issues properly before an administrative agency,” the proper procedure
is generally not a separate action, but to pursue the constitutional claim on direct appeal from the
administrative agency. See Womack-Scott v Dep’t of Corrections, 246 Mich. App. 70, 79-81; 630
NW2d 650 (2001). We hold only that DTE’s takings claim, if any, is not yet ripe for our review,
and pursuant to Champion’s Auto Ferry, DTE will not be precluded from pursuing it in the
future should it have the need.
IX. CONCLUSION
The PSC’s order is reversed to the extent it found that the $13.45 million PSCR portion
of the Severstal refund cannot be included in DTE’s 2015 reconciliation under MCL 460.6j. We
do not disturb any other portion of the PSC’s order. We decline to address DTE’s constitutional
takings issue. We express no opinion whether DTE incurred the expenses underlying the
Severstal refund by acting in an unreasonable and imprudent manner, nor do we express any
opinion whether that issue is a proper consideration at this time. However, on remand the PSC
shall permit the parties to submit further briefs regarding whether it is required to make that
determination pursuant to the final sentence of MCL 460.6j(12), what its factual findings should
be, and how any such findings may be relevant to the ultimate reconciliation.
Reversed in part and remanded as set forth above. We do not retain jurisdiction. We
direct that the parties shall bear their own costs. MCR 7.219(A).
/s/ Michael J. Riordan
/s/ Amy Ronayne Krause
/s/ Brock A. Swartzle
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