Attorney General v. Public Service Commission No 2 , 171 Mich. App. 700 ( 1988 )

171 Mich. App. 700 (1988) 431 N.W.2d 49

ATTORNEY GENERAL
v.
PUBLIC SERVICE COMMISSION NO 2

Docket No. 93643.

Michigan Court of Appeals.

Decided June 10, 1988.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Hugh B. Anderson and Donald E. Erickson, Assistant Attorneys General, for plaintiff.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Don L. Keskey and Henry J. Boynton, Assistant Attorneys General, for the Public Service Commission.

Loomis, Ewert, Ederer, Parsley, Davis & Gotting (by George W. Loomis, Michael G. Oliva, and Ronald W. Bloomberg), and David A. Mikelonis and Frank A. Knox, for Consumers Power Company.

Before: SAWYER, P.J., and KELLY and J.J. RASHID,^[*] JJ.

PER CURIAM.

In its basic underlying facts and legal issues, the present case is indistinguishable from Attorney General v Public Service Comm No 1, 171 Mich. App. 696; ___ NW2d ___ (1988), which is also released herewith. To the extent the issues in the two cases are identical, what was said in this Court's opinion in that case applies here and need not be repeated.

The only difference in the two cases is that here the Attorney General argues that the 1983 minimum bill payment involved, in excess of $20 million, was not reasonably and prudently incurred, as required by § 6h(12) and (14) of the Public Service Commission act.

The minimum bill payment generated in 1983 arises from the terms of a 1970 long-term supply contract between Consumers Power Company and Trunkline Gas Company, a pipeline supplier. In entering into such a long-term agreement, Consumers was required to project its anticipated gas needs more than a decade in advance.

Thirteen years later, during actual operations in 1983, Consumers had available an alternate source of supply, at lower cost, but one which it could not have foreseen with any certainty in 1970. It was more beneficial to Consumers and its customers for Consumers to use the alternate source of supply and make payments under its minimum contract clause with Trunkline than to take all its gas needs from Trunkline at a higher price. We thus agree with Consumers that its 1970 projections have not been shown to have been unreasonable or imprudent, thereby justifying the annual contract quantity and minimum contract quantity under its contract with Trunkline, and that Consumers' decision in 1983 to purchase from alternate sources of supply — at sufficiently lower cost such that, despite the need to trigger the minimum contract quantity provision under its contract with Trunkline, Consumers and hence its customers purchased the full quantity of gas needed at a total lower cost than would otherwise have been the situation — was also reasonable and prudent. Thus, the decisions at each end of the transaction were reasonable and prudent; moreover, since the prices charged by Trunkline were approved by the Federal Energy Regulatory Commission, supremacy clause considerations preclude a state commission, such as the PSC, from independently evaluating the reasonableness of the contract price between Consumers and Trunkline.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.