In the Matter of the Application of Union Electric Company D/B/A Ameren Missouri for Permission and Approval and a Certificate of Public Convenience and Necessity Authorizing it to Construct a Wind Generation Facility Office of the Public Counsel v. Missouri Public Service Commission ( 2019 )

In the
Missouri Court of Appeals
Western District

IN THE MATTER OF THE 
APPLICATION OF UNION ELECTRIC  WD82492
COMPANY D/B/A AMEREN MISSOURI
FOR PERMISSION AND APPROVAL  OPINION FILED:
AND A CERTIFICATE OF PUBLIC 
CONVENIENCE AND NECESSITY  October 22, 2019
AUTHORIZING IT TO CONSTRUCT A 
WIND GENERATION FACILITY; 
OFFICE OF THE PUBLIC COUNSEL, 

Appellant, 

v. 

MISSOURI PUBLIC SERVICE 
COMMISSION, 

Respondent. 
APPEAL FROM THE PUBLIC SERVICE COMMISSION
Before Division Three:
Gary D. Witt, P.J., Edward R. Ardini, and Thomas N. Chapman, JJ.
The Missouri Office of the Public Counsel (OPC) appeals the Report and Order of the
Missouri Public Service Commission (PSC) allowing Union Electric Company1 (Ameren) to
recapture fifteen percent of its interim depreciation expenses associated with the building of the
1
In Missouri, Union Electric Company does business as Ameren Missouri. We will refer to it as “Ameren” for this
opinion.
High Prairie Wind Farm (Wind Farm) by an interim rate adjustment (a surcharge) before
Ameren’s next rate case -- as may be provided by the Renewable Energy Standard Cost
Recovery Mechanism (RESRAM). 2
OPC does not challenge approval of construction of the Wind Farm. OPC agrees that
Ameren’s election to utilize the Plant in Service Accounting (PISA) procedure permitted by
§393.1400.2(1)3 entitled (and, in fact, required) Ameren to defer a fixed eighty-five percent of
the interim Wind Farm depreciation expenses and returns as a regulatory asset to be considered
in calculating its rate base in Ameren’s next rate case. The OPC does not contest that Ameren is
entitled to pass on to its customers up to 100% of its other prudently incurred costs and benefits
of the Wind Farm that are not subject to PISA deferral through an interim rate adjustment as
provided by RESRAM.
In its appeal, OPC only challenges the PSC’s decision to allow Ameren to recover by
RESRAM’s interim rate adjustment the fifteen percent of interim depreciation expenses related
to the Wind Farm that is not accounted for in the PISA procedure. OPC maintains that, once
elected, § 393.1400’s PISA accounting procedure is the exclusive means for Ameren to recover
the interim depreciation expenses and return associated with the Wind Farm construction. We
affirm the PSC’s Report and Order.
2
“Interim” as used in this context refers to the period after the construction of the Wind Farm but prior to the next
time Ameren appears before the Commission to have its rates established. As defined by Business Dictionary,
depreciation expense is “The portion of a tangible capital asset that is deemed to have been consumed or expired,
and has thus become an expense.” Available at http://www.businessdictionary.com/definition/depreciation-
expense.html (last accessed August 30, 2019).
3
All statutory references are to RSMo 2018 as updated through the most current supplement.
2
Statement of Facts
Ameren is an electrical corporation as defined in § 386.010, subject to regulation by the
PSC. Ameren applied for a Certificate of Convenience and Necessity to build the High Prairie
Wind Farm in 2018. While the location, design and parameters of this facility were the subject
of substantial comment and argument, the stakeholders ultimately entered into a stipulation and
agreement (later approved in a formal order of the PSC) that left only the one issue (now on
appeal) to be resolved by the PSC.4 In order to put this issue into its proper context, a brief
survey of Missouri’s regulatory scheme for utilities is required.
Missouri’s Regulation of Utility Corporations
Missouri established the PSC and requires a “just and reasonable” rate structure
mandated under § 393.130.1, in recognition that utility providers, while often private companies,
provide an essential public good and enjoy a quasi-monopoly on that good. Reasonable rates
should balance utility investor and consumer interests, compensating the utility company for its
operating and maintenance expenses, servicing its debt, and allowing a reasonable rate of return
(profit) for its investors. State ex rel. Office of Public Counsel v. Public Service Commission,
367 S.W.3d 91, 108 (Mo. App. S.D. 2012); Fed Power Comm’n v. Hope Natural Gas Co., 320
U.S. 591, 603 (1944). Utility rates are established periodically by proceedings before the PSC
known colloquially within the industry as “rate cases.” Rates are based on the amount of
revenue necessary to build, maintain, and operate the utility plants and associated infrastructure
(referred to as “rate base”), plus a reasonable rate of return for utility company investors. Hope
4
While the Sierra Club, a party to the case, did not sign the stipulation, it authorized the signatories to indicate it did
not oppose the stipulation and it entered no opposition after it was filed. Pursuant to CSR 240-2.115, if no such
objection is made for seven days after such a filing, the Commission can, and did, treat the stipulation and
agreement as unanimous.
3
Natural Gas Co., 320 U.S. at 603. Unless otherwise provided for by law, an electrical
corporation is not permitted to adjust the rate it charges customers until its next rate case. Even
if an electrical corporation found it necessary to build a new power plant years before its next
rate case, unless expressly permitted to by statute, it would not ordinarily be allowed to recoup
its expense or earn profit on that capital investment in the interim. This phenomenon is referred
to as “regulatory lag.”
At issue in this appeal is the interplay of two means which may allow Ameren to
incorporate interim Wind Farm expenses and return into its rate structure: (1) PISA, which, if
elected, requires them to defer eighty-five percent of interim depreciation expenses and returns
(on qualifying plants) into a regulatory asset that is later taken into account at Ameren’s next
general rate case; and (2) RESRAM, which permits an interim adjustment to the previously
approved rate to reflect Ameren’s prudently incurred costs, as well as any benefits.
Missouri’s Renewable Energy Standard
In 2007, Missouri enacted § 393.10305 establishing Missouri’s Renewable Energy
Standard (RES) which required the PSC to “prescribe by rule a portfolio requirement for all
electric utilities to generate or purchase electricity generated from renewable energy resources.”
§ 393.1030.1. The statute established what share of an electric utility’s sales must be comprised
5
In relevant part, § 393.1030.1 states:
The commission shall, in consultation with the department, prescribe by rule a portfolio
requirement for all electric utilities to generate or purchase electricity generated from renewable
energy resources. Such portfolio requirement shall provide that electricity from renewable energy
resources shall constitute the following portions of each electric utility's sales:
(1) No less than two percent for calendar years 2011 through 2013;
(2) No less than five percent for calendar years 2014 through 2017;
(3) No less than ten percent for calendar years 2018 through 2020; and
(4) No less than fifteen percent in each calendar year beginning in 2021.
4
of renewable energy (requiring increased minimum percentages over time) and also set penalties
for failure to meet those requirements. §§ 393.1030.1(1)-(4), 2(2). Subsection 393.1030.2(4)
directed the PSC to create a “[p]rovision for recovery outside the context of a regular rate case of
prudently incurred costs and the pass-through of benefits to customers of any savings achieved
by an electrical corporation in meeting the requirements of this section.” In response to this
dictate, the PSC promulgated Commission Rule 4 CSR 240-20.100, which provides for the
establishment of a Renewable Energy Standard Rate Adjustment Mechanism (RESRAM), which
is defined by 4 CSR 240-20.100(1)(P) as “a mechanism that allows periodic rate adjustments to
recover prudently incurred RES compliance costs and pass-through to customers the benefits of
any savings achieved in meeting the requirements of the Renewable Energy Standard.”
RESRAM not only serves as a mechanism to impose rate adjustments (prior to the next
rate case) for up to 100% of the prudently incurred interim costs (depreciation) associated with
capital investments in renewable source plants; but may also allow interim surcharges for other
prudently incurred costs associated with renewable energy compliance.6 While requiring an
electrical corporation to go through the process of requesting an interim rate adjustment and
establishing that all costs were prudently incurred, the RESRAM mechanism permits utility
companies to lessen the impact of regulatory lag by permitting interim rate increases (surcharges)
outside the context of (and in advance of) the next regular rate case.
6
In its Appellant’s Brief, OPC indicates (and Respondents do not dispute) that some of the other renewable source
compliance costs (that may be accounted for via interim RESRAM surcharges to customers) include any premium
on the cost to purchase renewable source electricity generated by other utility companies (for resale to customers);
any additional costs to enable transmission from a renewable energy source to the grid, and the costs incurred in
selecting a site for a renewable plant.
5
The Plant in Service Accounting Statute
In 2018, the Missouri legislature adopted § 393.1400. This statute permitted electrical
corporations to elect to defer eighty-five percent of interim depreciation expenses and returns for
qualifying electric plants7 (“plant-in-service”) to a regulatory asset that (in addition to the
balance of that asset) would be included as part of its rate base in the next general rate case.
§ 393.1400.2(1). If an electrical corporation elects to employ the “plant-in-service” accounting
(PISA) permitted by § 393.1400 to make these deferrals, it is required to defer a set amount of
depreciation expense in the following manner:
Notwithstanding any other provision of this chapter to the contrary, electrical
corporations shall defer to a regulatory asset eighty-five percent of all
depreciation expense and return associated with all qualifying electric plant
recorded to plant-in-service on the utility's books commencing on or after August
28, 2018, if the electrical corporation has made the election provided for by
subsection 5 of this section by that date, or on the date such election is made if the
election is made after August 28, 2018. In each general rate proceeding
concluded after August 28, 2018, the balance of the regulatory asset as of the rate
base cutoff date shall be included in the electrical corporation's rate base without
any offset, reduction, or adjustment based upon consideration of any other factor,
other than as provided for in subdivision (2) of this subsection, with the regulatory
asset balance arising from deferrals associated with qualifying electric plant
placed in service after the rate base cutoff date to be included in rate base in the
next general rate proceeding.
Id.
Once elected, “plant-in-service” accounting (PISA) requires an electrical corporation to
defer eighty-five percent of the interim depreciation expense and return on investment (“return”)
associated with a new qualifying electric plant until its next rate case. Those deferred costs and
7
Section 393.1400.1 (3) defines “qualifying electric plant” that is eligible for “plant-in-service accounting” (PISA)
as follows:
“Qualifying electric plant”, all rate base additions, except rate base additions for new coal-fired
generating units, new nuclear generating units, new natural gas units, or rate base additions that
increase revenues by allowing service to new customer premises[.]
6
returns are included as a regulatory asset in calculating the electric company’s rate base when
setting rates in the subsequent rate case. This enables the electrical corporation to account for
eighty-five percent of the regulatory lag on qualified interim infrastructure investment, without
requiring a request for a rate adjustment (surcharge) outside the context of (and in advance of)
the next regular rate case.
Interplay of RES and PISA with High Prairie Wind Farm
Because the High Prairie Wind Farm was part of Ameren’s effort to comply with
Missouri’s Renewable Energy Standards (RES), as part of its initial request for a Certificate of
Convenience and Necessity (CCN), Ameren included a proposed RESRAM to pass on the costs
as permitted by the RES statute and PSC rule. However, while the CCN for the High Prairie
Wind Farm was under consideration by the PSC, the PISA statute was enacted by the Missouri
legislature. After enactment of the PISA statute, Ameren filed a notice with the PSC stating that
it intended to have its interim depreciation expense and expected return be deferred by the PISA
accounting procedure, which would then have eighty-five percent of those costs accounted for in
the next rate case. Ameren amended its requested RESRAM, so that the portion of the prudently
incurred costs it sought to recover via RESRAM, which was related to depreciation expense and
return, was limited to the balance (fifteen percent) not deferred via PISA. The OPC objected,
maintaining that the two statutory schemes were mutually exclusive and that, once Ameren opted
to proceed under the PISA statute, it could not seek to recover interim depreciation costs through
any other mechanism. The OPC proffered an alternative RESRAM that did not include any
depreciation expenses or return. As described in the order “[t]he one remaining unresolved issue
concerns the requested RESRAM.”
7
An evidentiary hearing to address this one remaining issue was conducted on October 31,
2018. In its Report and Order entered on December 12, 2018, the PSC determined that there was
no conflict between the RES statute and the PISA statute and granted Ameren’s proposed
RESRAM, which allowed Ameren to include the balance (fifteen percent) of its interim
depreciation expense on the Wind Farm when calculating its interim rate adjustment (a surcharge
to its customers). This appeal followed.
Standard of Review
Judicial review of a PSC order is two-fold. In Matter of Kansas City Power & Light
Co.’s Request for Auth. To Implement a Gen. Rate Increase for Elec. Serv. V. Missouri Pub.
Serv. Comm’n, 509 S.W.3d 757, 763–64 (Mo. App. W.D. 2016).
First, we must determine whether the PSC’s order was lawful. “An order’s
lawfulness depends on whether the [PSC’s] order and decision was statutorily
authorized. When determining whether the order is lawful, we exercise
independent judgment and must correct erroneous interpretations of the law.
Because the [PSC] is purely a creature of statute, its powers are limited to those
conferred by statute either expressly, or by clear implication as necessary to carry
out the powers specifically granted.
Second, we must determine whether the [PSC’s] order was reasonable. In
determining whether the Commission’s order is reasonable, we consider (1)
whether it was support[ed] by substantial and competent evidence on the whole
record, (2) whether the decision was arbitrary, capricious, or unreasonable, and
(3) whether the [PSC] abused its discretion.”
Id. (quoting State ex rel. Pub. Counsel v. Pub. Serv. Comm'n, 397 S.W.3d 441, 446 (Mo. App.
W.D. 2013)) (internal citations omitted).
Analysis
The question before us is whether Ameren could elect to defer eighty-five percent of the
interim depreciation expenses of the High Prairie Wind Farm as provided for by the PISA statute,
while also including the remaining fifteen percent of depreciation expenses to be recovered in its
8
RESRAM. The OPC contends that the PISA statute requires Ameren to use either PISA or a
RESRAM to account for the interim depreciation costs, but that it cannot do both. OPC and
Ameren contend that the RESRAM statute and regulation allow Ameren to include up to one
hundred percent of the interim depreciation expense in calculating its interim rate adjustment,
and that nothing in the PISA statute explicitly, or by implication, denies Ameren (regardless of its
PISA election) the opportunity to claim fifteen percent of the interim Wind Farm depreciation
expense in its RESRAM.8
Our “primary rule of statutory interpretation is to give effect to legislative intent as
reflected in the plain language of the statute at issue.” State v. Johnson, 524 S.W.3d 505, 510
(Mo. banc 2017) (quoting Parktown Imps., Inc. v. Audi of Am., Inc., 278 S.W.3d 670, 672 (Mo.
banc 2009)). “In order to discern the intent of the General Assembly, the Court looks to statutory
definitions or, if none are provided, the text’s ‘plain and ordinary meaning,’ which may be
derived from a dictionary.” Gash v. Lafayette Cty., 245 S.W.3d 229, 232 (Mo. banc 2008); see
also § 1.090 (“Words and phrases shall be taken in their plain or ordinary and usual sense, but
technical words and phrases having a peculiar and appropriate meaning in law shall be
understood according to their technical import.”).
“When the words [of a statute] are clear, there is nothing to construe beyond applying the
plain meaning of the law.” Johnson, 524 S.W.3d at 511 (quoting Bateman v. Rinehart, 391
S.W.3d 441, 446 (Mo. banc 2013)). “We construe statutes only where they are ambiguous.”
8
The RESRAM approved by the PSC only allows fifteen percent of Ameren’s interim depreciation expenses to be
considered in its rate adjustments prior to the next rate case. Eighty-five percent of those interim depreciation
expenses would be deferred by the PISA accounting procedure, and accounted for in the next rate case. So long as
proper accounting procedures are followed, there should be no duplicate accounting (“double dipping”) of said
depreciation expenses when setting rates for Ameren’s customers.
9
State ex rel. Missouri Highway & Transp. Comm’n v. Alexian Bros. of St. Louis, 848 S.W.2d 472,
474 (Mo. banc 1993); see also State ex rel. Lavender Farms, LLC v. Ashcroft, 558 S.W.3d 88, 91
(Mo. App. W.D. 2018).
“Where two statutory provisions covering the same subject matter are unambiguous
standing separately but are in conflict when examined together, a reviewing court must attempt
to harmonize them and give them both effect.” S. Metro. Fire Prot. Dist. v. City of Lee’s Summit,
278 S.W.3d 659, 666 (Mo. banc 2009).
In the instant case, the OPC argues that the following section of the PISA statute makes it
the exclusive mechanism under which an electric corporation can recover depreciation expenses
associated with a new electrical facility:
Notwithstanding any other provision of this chapter to the contrary, electrical
corporations shall defer to a regulatory asset eighty-five percent of all
depreciation expense and return associated with all qualifying electric plant [sic]
recorded to plant-in-service on the utility's books … In each general rate
proceeding concluded after August 28, 2018, the balance of the regulatory asset as
of the rate base cutoff date shall be included in the electrical corporation’s rate
base without any offset, reduction, or adjustment based upon consideration of any
other factor…. with the regulatory asset balance arising from deferrals associated
with qualifying electric plant placed in service after the rate base cutoff date to be
included in rate base in the next general rate proceeding.
§ 393.1400.2(1).
Since the parties agree that Ameren is an electrical corporation as defined by the PISA
statute and that the High Prairie Wind Farm is a qualifying electric plant, we need not engage in
analysis of those terms. All parties also agree that a plain reading of the remaining portion of
the PISA statute indicates that, once Ameren elected the PISA accounting procedure, it was
required to “defer to a regulatory asset eighty-five percent of all depreciation expense and return
10
associated with” the High Prairie Wind Farm for inclusion in its rate base in its next rate case.9
Id. The statute then dictates that when Ameren has its next rate case, the balance of the qualified
regulatory asset (in this instance the remaining portion of the Wind Farm regulatory asset not
previously subject to depreciation) as of the “rate base cutoff date”10 will also be included in
Ameren’s rate base “without any offset, reduction, or adjustment.”
The parties agree that enabling Ameren to elect PISA allows it to include eighty-five
percent of interim depreciation expenses in its rate base at its next rate case and to then pass on
that portion of its interim depreciation costs to its customers. All experts who provided
testimony indicated that, because the PISA regulatory asset permits Ameren to eventually add a
portion of interim deprecation costs to rate base, the PISA mechanism limits its exposure to
regulatory lag. However, the parties disagree whether the legislature intended that, once elected,
PISA would be the exclusive means to eventually pass on interim depreciation costs to its
customers (OPC’s position); or whether RESRAM could also be used to adjust rates (in the
interim) to account for the fifteen percent of depreciation costs not deferred through PISA.
We first note that there is nothing in the PISA statute that explicitly indicates an intention
to curtail or limit the RESRAM mechanism. Nor is there anything in the PISA statute that
indicates it is the only means to adjust rates for depreciation on PISA-qualified assets. Nothing
in the PISA statute indicates that eighty-five percent is the cap on accounting for interim
9
While “regulatory asset” is not a defined term within the statute this Court has defined one as an “accounting
deferral mechanism that re-characterizes an income statement item (‘revenues, expenses, gains, or losses’) in a
current period as a balance sheet item (‘regulatory assets’ or ‘regulatory liabilities’) that would be addressed in a
future rate proceeding.” In Matter of Kansas City Power & Light Co.'s Request for Auth. to Implement a Gen. Rate
Increase for Elec. Serv. v. Missouri Pub. Serv. Comm'n, 509 S.W.3d 757, 769 n.3 (Mo. App. W.D. 2016).
10
“Rate base cutoff date” is statutorily defined as “the date rate base additions are accounted for in a general rate
proceeding.” § 393.1400.1(4).
11
depreciation on qualified assets in electric utility rate structures. OPC concedes that nothing in
the statute directly addresses the fifteen percent of interim depreciation not deferred via the PISA
election.11
OPC nevertheless takes the position that allowing a rate adjustment for eighty-five
percent by one means (PISA) necessarily disallows the remainder being worked into the rate
structure by another means (RESRAM). In support of its argument, the OPC notes that the PISA
statute requires those electing to proceed under the statute to “defer to a regulatory asset eighty-
five percent of all depreciation expense and return associated” with a qualifying electric plant.
Id. (emphasis added). The OPC asserts that by setting the amount of interim depreciation
expense that must be deferred into the regulatory asset at eighty-five percent of all depreciation
expenses, the PISA statute plainly meant to foreclose recovery of the remaining fifteen percent
by any other means. We find the argument entirely unavailing. Even if the rate adjustment
mechanisms (PISA and RESRAM) addressed identical operating expenses and returns (which
they do not), in the absence of any other language to the contrary, nothing suggests that the other
fifteen percent of the “all” (not provided for by PISA deferral) cannot be accounted for in the
rate structure by some other means (RESRAM).12 In short, requiring that eighty-five percent of
11
In its Brief, OPC indicates “Section 393.1400 does not otherwise reference the fifteen percent remainder, nor does
any other provision of PISA’s enacting legislation.”
12
OPC also asserts that the legislature signaled its intent to have PISA be the exclusive means to account for
qualifying plant regulatory lag, when it provided as follows in § 393.1400.2(1):
(1)…[T]he balance of the regulatory asset as of the rate base cutoff date shall be included in the
electrical corporation’s rate base without any offset, reduction, or adjustment based upon
consideration of any other factor, other than as provided for in subdivision (2) of this subsection,
with the regulatory asset balance arising from deferrals associated with qualifying electric plant
placed in service after the rate base cutoff date to be included in rate base in the next general rate
proceeding.
Subdivision 2 of the same subsection provides as follows:
12
“all” depreciation be eventually incorporated in the rate structure in the next rate case (when
PISA is elected), does not foreclose the more immediate means to incorporate the other fifteen
percent in the rate structure in the meantime (between rate cases) by RESRAM surcharges.13
(2) The regulatory asset balances arising under this section shall be adjusted to reflect any
prudence disallowances ordered by the commission. The provisions of this section shall not be
construed to affect existing law respecting the burdens of production and persuasion in general
rate proceedings for rate base additions.
The plain language of subdivision (1) of this subsection of the PISA statute limits offsets and reductions that can be
applied to the “balance of the regulatory asset” that remains on the rate base cutoff date. This provision of
subdivision (1) protects the balance of the regulatory asset from reductions or adjustments (other than those that may
be disallowed as being imprudent at the next rate case as provided under subdivision (2)). It does not address, at all,
the fifteen percent that is not addressed in the PISA statute. The exception to the exception under subdivision 2
(which permits reduction from the balance of the regulatory asset for disallowed imprudent costs) suggests that the
language in subdivision (1) cited by the OPC does not address the other fifteen percent (of the interim depreciation)
not addressed in the PISA statute. It makes no sense to potentially disallow for imprudence (by exception to the
exception set out in subdivision (2)) the fifteen percent the OPC suggests is already disallowed by implication in
subdivision (1). The plain meaning of the subdivisions, when read together, is that the eighty-five percent is being
protected from offsets, adjustments, or reductions, except for disallowances (at the next rate case) for imprudent
expenditures. This makes sense regarding the 85% deferral allowed by PISA, as it has not undergone (prior to the
rate case) any scrutiny regarding the prudence of the capital expenditure before being incorporated into the rate
structure; whereas RESRAM requires interim approval for prudently incurred costs before the surcharge may be
imposed.
13
The OPC also maintains that, because the legislature could have inserted language (in the PISA statute) explicitly
permitting the recovery of the fifteen percent in a RESRAM, but did not do so, the legislature’s silence signals an
intent to disallow this recovery. In essence, OPC argues that RESRAM’s rate adjustment is amended (or partially
repealed) by implication, by PISA’s mandate that (when elected) eighty-five percent of depreciation expense must
be deferred to a regulatory asset. However, neither repeal, nor amendment, by implication is favored. Turner v.
School District of Clayton, 318 S.W.3d 660, 667 (Mo. banc 2010); LeSage Dirt Cheap Cigarettes and Beer, Inc.,
102 S.W.3d 1, 5 (Mo. banc 2003). “If, by any fair interpretation both statutes may stand, there is no repeal by
implication, and both statutes must be given their effect.” Turner, 318 S.W.3d at 667 (quoting Silcox v. Silcox, 6
S.W.3d 899, 903 (Mo. banc 1999)). As we have stated, the PISA and RESRAM statutes are clear and may stand
together without any explicit, or implicit, conflict. The statute enabling the RESRAM interim rate adjustment was
not repealed or amended by implication (as suggested by OPC) by the enactment of the statute allowing electric
companies to elect PISA accounting.
The OPC also argues that because subdivision 393.1400.2(1) begins with “Notwithstanding any other of this
chapter,” this suggests that the PISA statute conflicts with RESRAM, and thus charges us to harmonize their
meaning. OPC simply has it backward. The “notwithstanding clause” provides that, if any statutes conflict with
PISA, the provisions of PISA prevail. The “notwithstanding” provision doesn’t imply or recognize a conflict, it
simply indicates that, if any exist, the PISA provisions prevail. We find no such conflict, and thus no need to
harmonize their provisions. But to the extent any conflict or ambiguity, may, by implication or otherwise be
purported to exist, the statutes can be harmonized in the manner which was recognized by the PSC in its Report and
Order and recognized in this opinion – that the PISA election’s requirement of deferral of 85% of the interim
depreciation expense of the Wind Farm as a regulatory asset in the next rate case does not conflict with, and in fact,
complements RESRAM’s mechanism to allow approval of surcharges for the other fifteen percent in the interim.
13
The plain and ordinary meaning of the RES statute and RESRAM regulation allow up to
one-hundred percent (which would include the fifteen percent allowed Ameren) of the interim
Wind Farm depreciation expense to be accounted for by interim surcharges to Ameren’s
customers (between rate cases). The plain and ordinary meaning of the PISA statute requires
that, once elected, eighty-five percent of such interim depreciation expense be deferred to a
regulatory asset accounted for in the next rate case. Since the words of the statutes are clear,
unambiguous, and do not conflict, we need not engage in any further statutory construction.
Johnson, 524 S.W.3d at 511. The Report and Order of the PSC was statutorily authorized.
K.C.P. & L. v. Missouri Pub. Serv. Comm’n, 509 S.W.3d at 763–64. The PSC did not act
arbitrarily, or abuse its discretion, in entering its Report and Order. Id.
The OPC’s sole point on appeal is denied.
Conclusion
The Report and Order of the PSC is affirmed.
/s/Thomas N. Chapman
Thomas N. Chapman, Judge
All concur.
14