In re Application of Dayton Power & Light Co. (Slip Opinion) , 154 Ohio St. 3d 237 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re Application of Dayton Power & Light Co., Slip Opinion No. 2018-Ohio-4009.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2018-OHIO-4009IN RE APPLICATION OF DAYTON POWER AND LIGHT COMPANY TO
ESTABLISH A STANDARD SERVICE OFFER IN THE FORM OF AN ELECTRIC
SECURITY PLAN, ETC.; OFFICE OF OHIO CONSUMERS’ COUNSEL ET AL.,
APPELLANTS; DAYTON POWER & LIGHT COMPANY, INTERVENING APPELLEE;
PUBLIC UTILITIES COMMISSION, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re Application of Dayton Power & Light Co., Slip Opinion
No. 2018-Ohio-4009.]
Public utilities—Public Utilities Commission’s approval of new electric-security
plan that replaces the electric-security plan at issue in this appeal renders
the appeal moot—Appeal dismissed.
(No. 2017-0241—Submitted December 6, 2017—Decided October 4, 2018.)
APPEAL from the Public Utilities Commission, Nos. 12-426-EL-SSO, 12-427-EL-
ATA, 12-428-EL-AAM, 12-429-EL-WVR, and 12-672-EL-RDR.
____________________
SUPREME COURT OF OHIO
O’CONNOR, C.J.
{¶ 1} In this appeal, appellants, the Office of Ohio Consumers’ Counsel
(“OCC”), the Kroger Company (“Kroger”), and the Ohio Manufacturers’
Association Energy Group (“OMAEG”), challenge appellee’s, the Public Utility
Commission’s, decision to allow intervening appellee, Dayton Power and Light
Company (“DP&L”), to withdraw and terminate its second electric-security plan
(“ESP II”). On October 27, 2017, the court sua sponte ordered the parties to file
supplemental briefs addressing whether this appeal should be dismissed as moot.
151 Ohio St.3d 1404, 2017-Ohio-8338, 84 N.E.3d 1045. The question was
prompted by the commission’s approval of DP&L’s third electric-security plan
(“ESP III”), which replaced ESP II. Pub. Util. Comm. Nos. 16-0395-EL-SSO, 16-
396-EL-ATA, and 16-397-EL-AAM, ¶ 1, 131, 141 (Oct. 20, 2017). Because we
determine that the approval of ESP III renders this case moot, we dismiss the
appeal.
FACTS AND PROCEDURAL HISTORY
{¶ 2} In 2013, the commission issued an order that modified and approved
DP&L’s application for ESP II. Pub. Util. Comm. No. 12-426-EL-SSO, 12-427-
EL-ATA, 12-428-EL-AAM, 12-429-EL-WVR, and 12-672-EL-RDR, 2013 Ohio
PUC LEXIS 193 (Sept. 4, 2013). Although DP&L challenged some of the
commission’s modifications on rehearing, it ultimately accepted the modified ESP
II and began collecting rates under the plan. In the approved ESP II, DP&L
included a transition charge known as the Service Stability Rider or SSR.
{¶ 3} On June 20, 2016, this court reversed the commission’s decision
approving ESP II. In re Application of Dayton Power & Light Co., 147 Ohio St.3d
166, 2016-Ohio-3490, 62 N.E.3d 179 (“In re DP&L”). In a one-sentence decision,
the court reversed on the authority of In re Application of Columbus S. Power Co.,
147 Ohio St.3d 439, 2016-Ohio-1608, 67 N.E.3d 734, which had found a nearly
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identical stability charge unlawful under R.C. 4928.38 because it allowed an
electric utility to receive transition revenues after the period allowed by statute.
{¶ 4} On July 27, 2016, DP&L moved the commission to allow it to
withdraw its application to approve ESP II. R.C. 4928.143(C)(2)(a) allows an
electric-distribution utility to withdraw and terminate an electric-security-plan
application in the event the commission modifies and approves the application.
DP&L argued that the commission should grant the motion to withdraw the ESP II
application—which was filed on December 12, 2012—because the commission had
modified and approved the application in September 2013. DP&L also asserted
that withdrawal of the ESP II application was warranted because this court’s
decision reversing the commission’s approval of ESP II constituted a rejection of
the entire electric-security plan.
{¶ 5} On August 26, 2016, the commission granted DP&L’s motion to
withdraw and terminate ESP II, albeit for different reasons than those advanced by
DP&L. First, the commission concluded that this court had rejected only the SSR.
As a result, the commission modified ESP II to eliminate the SSR charge. Second,
the commission concluded that removing the SSR in response to this court’s
decision constituted a modification to a proposed electric-security plan, under R.C.
4928.143(C)(1) and thereby triggered DP&L’s right to withdraw and terminate its
electric-security-plan application under R.C. 4928.143(C)(2)(a). Pub. Util. Comm.
No. 12-426-EL-SSO, 12-427-EL-ATA, 12-428-EL-AAM, 12-429-EL-WVR, and
12-672-EL-RDR, ¶ 12-15 (Aug. 26, 2016); Seventh rehearing entry, ¶ 14-15, 23-
25 (Dec. 14, 2016).
{¶ 6} In a separate case, the commission determined that DP&L could
replace the withdrawn ESP II with the company’s first electric-security plan (“ESP
I”). The commission ordered that ESP I would remain in effect until the
commission approved a new electric-security plan. Pub. Util. Comm. No. 08-1094-
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EL-SSO, 08-1095-EL-ATA, 08-1096-EL-AAM, and 08-1097-EL-UNC, ¶ 20
(Aug. 26, 2016).
{¶ 7} On October 20, 2017, the commission issued an order approving ESP
III. ESP III replaced ESP I (and in effect ESP II) effective November 1, 2017, and
is to remain in place for six years, through October 31, 2023. Pub. Util. Comm.
No. 16-0395-EL-SSO, 16-396-EL-ATA, and 16-397-EL-AAM, ¶ 1, 131, 141 (Oct.
20, 2017).
ANALYSIS
{¶ 8} The ESP II rate plan and its SSR charge are no longer in effect because
they have been replaced by ESP III. Because ESP II is no longer in effect, we
cannot order effective relief and the appeal is moot.
{¶ 9} This appeal is on all fours with Ohio Consumers’ Counsel v. Pub. Util.
Comm., 121 Ohio St.3d 362, 2009-Ohio-604, 904 N.E.2d 853. In Ohio Consumers’
Counsel, we held that the expiration of a utility’s rate plan was grounds for
dismissing the challenge to the rates charged under that plan. Id. at ¶ 19-22. Under
review in that case were certain terms and charges of Duke Energy Ohio Inc.’s rate-
stabilization plan. OCC argued that certain charges under the rate-stabilization plan
were unlawful and unsupported by the record. Id. at ¶ 19-20. While the case was
pending before us on appeal, however, the rate-stabilization plan expired and was
replaced with a new rate plan. Id. at ¶ 2. Because the rate structure under appeal
was no longer in effect, we determined that we could not remand the case to the
commission to implement lower prospective rates under the rate-stabilization plan.
We further held that we could not order a refund of excessive rates already collected
by Duke Energy, because OCC did not preserve the refund issue for appeal and
because any refund order would be contrary to our precedent against retroactive
ratemaking. As a result, we dismissed the rate-stabilization-plan portion of the
appeal as moot. Id. at ¶ 2, 21-22. See also Cincinnati Gas & Elec. Co. v. Pub. Util.
Comm., 103 Ohio St.3d 398, 2004-Ohio-5466, 816 N.E.2d 238, ¶ 14-27 (dismissing
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appeal as moot due to lack of any available remedy); Lucas Cty. Commrs. v. Pub.
Util. Comm., 80 Ohio St.3d 344, 348-349, 686 N.E.2d 501 (1997) (finding that
there was no revenue remaining in the discontinued program against which the
commission could order a credit or refund of the alleged overpayments and holding
that absent such revenue, ordering a credit or a refund would essentially be ordering
the utility to set a different future rate, and such orders are prohibited retroactive
ratemaking).
{¶ 10} The dissent disagrees with our conclusion that this appeal is moot,
because, according to the dissenting opinion, in In re DP&L, 147 Ohio St.3d 166,
2016-Ohio-3490, 62 N.E.3d 179, we “reversed the commission’s approval of ESP
II and granted a remedy * * *, which the commission ignored.” Dissenting opinion
at ¶ 49. But ESP II is no longer in effect. And contrary to the dissenting opinion’s
assertion that there was an implicit holding in In re DP&L, the court did not specify
a remedy in its order reversing the commission’s approval of ESP II; we issued a
one-sentence decision stating only that the decision approving ESP II was reversed
on the authority of Columbus S. Power, 147 Ohio St.3d 439, 2016-Ohio-1608, 67
N.E.3d 734.1 We gave no instructions to the commission for proceedings on
remand, let alone an order for the commission to do what the dissenting opinion
describes: “to determine the amount of transition revenue improperly collected by
1. The remedy that was ordered in Columbus S. Power is not binding precedent, because only three
justices concurred as to the proposed remedy in that appeal. See Hedrick v. Motorists Mut. Ins. Co.,
22 Ohio St.3d 42, 44, 488 N.E.2d 840 (1986) (holding that language in prior plurality opinion was
not controlling, because it lacked four votes), overruled on other grounds, Martin v. Midwestern
Group Ins. Co., 70 Ohio St.3d 478, 639 N.E.2d 438 (1994). Attempting to turn the plurality opinion
in Columbus S. Power into controlling law, the dissent states, “Justice Pfeifer, joined by Justice
O’Neill, expressed the view that the court did not go far enough in ordering this remedy.” Dissenting
opinion at ¶ 35, fn. 1, citing In re Columbus S. Power at ¶ 81 (Pfeifer, J., concurring in part and
dissenting in part). But I do not read Justice Pfeifer’s opinion in the same way. In Columbus S.
Power, Justice Pfeifer stated that he would instruct the commission on remand to allow Ohio Power
to charge only the market price for capacity service, id. at ¶ 83, but nothing in his opinion suggests
that he agreed with the remedy sanctioned by the plurality.
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DP&L, estimated to be $285 million, and to eliminate the overcompensation by
offsetting the balance of DP&L’s revenue by the amount of the improperly
collected revenue.” Dissenting opinion at ¶ 50. Nonetheless, the dissenting
opinion insists that the commission “plainly ignored our judgment” and “failed to
comport with our reversal mandate” on remand. Dissenting opinion at ¶ 37.
{¶ 11} “The function and jurisdiction of this court in an appeal from an
order of the commission is limited.” Cleveland Elec. Illum. Co. v. Pub. Util.
Comm., 46 Ohio St.2d 105, 108, 346 N.E.2d 778 (1976). Specifically, “[o]ur task
is not to set rates; it is only to [ensure] that the rates are not unlawful or
unreasonable, and that the rate-making process itself is lawfully carried out.” Id.Here, the only rates now in effect are in ESP III, which is not before us.
{¶ 12} The opinion concurring in judgment only agrees that dismissal is
appropriate but disagrees with the majority’s characterization of this appeal as
being “on all fours with” Ohio Consumers’ Counsel. According to the concurrence,
the difference between this case and Ohio Consumers’ Counsel is that, here, our
remand order in In re DP&L was incomplete because it did not include specific
instructions for the commission. Opinion concurring in judgment only at ¶ 18.
Contrary to the concurring opinion’s suggestion, however, the lack of remand
instructions in In re DP&L does not distinguish this appeal from Ohio Consumers’
Counsel, because the remand instructions in Ohio Consumers’ Counsel played no
role in our decision to dismiss that appeal as moot. And regardless of whether the
remand orders in either case included instructions, the material fact is that new rates
were put into effect. In Ohio Consumers’ Counsel, we dismissed the appeal
because the rate plan being appealed from had expired and had been replaced by a
new rate plan. 121 Ohio St.3d 362, 2009-Ohio-604, 904 N.E.2d 853, at ¶ 21-22.
That exact situation is present in this appeal.
{¶ 13} Finally, the concurring opinion implicitly places unwarranted blame
on the court by referring to our entry in In re DP&L as “vague” and “imprecise.”
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January Term, 2018
Opinion concurring in judgment only at ¶ 20, 22. (Notably, only one justice
dissented from that judgment. In re DP&L, 147 Ohio St.3d 166, 2016-Ohio-3490,
62 N.E.3d 179 (Lanzinger, J., dissenting)). In the end, the event that renders this
appeal moot is not the court’s resolution of In re DP&L. The appeal is moot
because of events that occurred since that time; namely, the approval of ESP III, in
a separate case, which caused the rates at issue in In re DP&L to expire and new
rates to be put in effect. Because ESP III is now in effect and is not being
challenged by this appeal, we find this appeal to be moot.
CONCLUSION
{¶ 14} Because there is no remedy that this court can legally order, this
appeal constitutes only a request for an advisory ruling. Cincinnati Gas & Elec.
Co., 103 Ohio St.3d 398, 2004-Ohio-5466, 816 N.E.2d 238, ¶ 17 (“In the absence
of the possibility of an effective remedy, this appeal constitutes only a request for
an advisory ruling from the court”). But “it is well-settled that this court does not
indulge itself in advisory opinions.” Armco, Inc. v. Pub. Util. Comm., 69 Ohio
St.2d 401, 406, 433 N.E.2d 923 (1982). As the controversy is no longer live, we
dismiss this appeal as moot.
Appeal dismissed.
FISCHER, and DEWINE, JJ., concur.
KENNEDY, J., concurs in judgment only, with an opinion.
O’DONNELL, J., dissents, with an opinion joined by FRENCH and LASTER
MAYS, JJ.
ANITA LASTER MAYS, J., of the Eighth District Court of Appeals, sitting for
O’NEILL, J.
_________________
KENNEDY, J., concurring in judgment only.
{¶ 15} I concur in judgment only. I agree that this case is moot. But it has
gotten to this point for its own reasons. Therefore, I disagree with the majority’s
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assertion in ¶ 9 that this case is “on all fours with” Ohio Consumers’ Counsel v.
Pub. Util. Comm., 121 Ohio St.3d 362, 2009-Ohio-604, 904 N.E.2d 853 (“Ohio
Consumers’ Counsel II”); the two cases are not “squarely on point with regard to
both facts and law,” Garner, Garner’s Dictionary of Legal Usage 633 (3d Ed.2011)
(defining “on all fours”). To describe this case as on all fours with Ohio
Consumers’ Counsel II creates the inaccurate impression that this court has dealt
with a case nearly identical to this one in the past; it has not. I also write to respond
to the concerns raised by the dissenting opinion.
{¶ 16} It is true that this case and Ohio Consumers’ Counsel II reached the
same end, with this court powerless to address the disputed rate plan because the
rate plan at issue is no longer in effect. In Ohio Consumers’ Counsel II, the court
dismissed the portion of the appeal related to the rate-stabilization plan because the
disputed rates had expired. Id. at ¶ 21-22. While dismissal for mootness was
appropriate in Ohio Consumers’ Counsel II and is appropriate in this case, the cases
are different.
{¶ 17} Ohio Consumers’ Counsel II concerned an appeal to this court that
followed our remand of the matter to the Public Utilities Commission in Ohio
Consumers’ Counsel v. Pub. Util. Comm., 111 Ohio St.3d 300, 2006-Ohio-5789,
856 N.E.2d 213 (“Ohio Consumers’ Counsel I”). In Ohio Consumers’ Counsel I,
the commission had approved a stipulation entered into among the relevant parties
to establish a standard market-based service offer; we ordered the commission to
compel the utility to produce, in discovery, any side agreements that the utility had
made with the parties so that the commission could, among other things, “evaluate
the seriousness of the bargaining that had led to the stipulation.” Ohio Consumers’
Counsel II at ¶ 1, 3-4. After discovery was complete, the commission issued a
second order, which the Ohio Consumers’ Counsel appealed to this court. Ohio
Consumers’ Counsel II at ¶ 9-11. We dismissed the portion of the appeal related
to the rate-stabilization plan because before we could complete our review, the
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challenged rates had expired and new rates were in effect that were based on a rate
structure established by new legislation. Id. at ¶ 21. Therefore, the court could not
remand the case in order to implement lower prospective rates. Id.
{¶ 18} In Ohio Consumers’ Counsel I, this court issued an order clearly
describing the action the commission was to take on remand, and there was no
dispute that the commission properly followed through in regard to the remand; in
In re Application of Dayton Power & Light Co., 147 Ohio St.3d 166, 2016-Ohio-
3490, 62 N.E.3d 179 (“DP&L I”), in contrast, our remand order did not compel any
action but rather was incomplete, because we did not include any specific
instructions for the commission to eliminate overcompensation obtained through
an unlawful transition charge. Ultimately, the commission, after modifying Dayton
Power and Light Company’s (“DP&L’s”) second electric-security plan (“ESP II”)
to eliminate the service-stability-rider charge, granted intervening appellee
DP&L’s motion to withdraw ESP II. Pub. Util. Comm. No. 12-426-EL-SSO, 12-
427-EL-ATA, 12-428-EL-AAM, 12-429-EL-WVR, and 12-672-EL-RDR, ¶ 12-15
(Aug. 26, 2016); Seventh rehearing entry, ¶ 14-15, 23-25 (Dec. 14, 2016). But
DP&L’s third electric-security plan is now in place, mooting our consideration of
issues surrounding ESP II, so we are left without the ability to determine the
important issue of whether the commission’s modification of ESP II in reaction to
an order of this court properly created an opportunity for the utility to withdraw its
utility plan under R.C. 4928.143(C)(2)(a).
{¶ 19} Whereas in Ohio Consumers’ Counsel II, mootness kept this court
from considering only esoteric issues regarding certain aspects of a particular rate
plan, in this case we are kept from deciding the broader and far-reaching issue of
whether utility companies can avoid any negative effects of our orders by
withdrawing their rate plans after we issue our orders. In sum, the way this case
got to the point of mootness and the implications of the issues that are left undecided
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are so dissimilar from Ohio Consumers’ Counsel II that I cannot agree with the
majority opinion’s description of it being “on all fours.”
{¶ 20} Turning to the concerns raised by the dissenting opinion, I agree that
the result in this case is not ideal. However, the less-than-ideal outcome is the
upshot of this court’s vague entry in DP&L I, which merely stated that the
commission’s decision was “reversed on the authority of In re Application of
Columbus S. Power Co., 147 Ohio St.3d 439, 2016-Ohio-1608, 67 N.E.3d 734.”
{¶ 21} Although the dissenting opinion contends that declaring this case
moot undermines the authority of this court and may erode public confidence in our
decisions, the commission acted after this court’s vague entry failed to specifically
delineate that the rider at issue in DP&L I was unlawful and failed to specify a
remedy. The commission could not read into our single-sentence entry the explicit
remand instructions applicable in In re Application of Columbus S. Power Co.
“[T]his court’s reversal and remand of an order of the commission does not change
or replace the [rate] schedule as a matter of law, but is a mandate to the commission
to issue a new order which replaces the reversed order,” and therefore the “rate
schedule filed with the commission remains in effect until the commission executes
this court’s mandate by an appropriate order.” Cleveland Elec. Illum. Co. v. Pub.
Util. Comm., 46 Ohio St.2d 105, 117, 346 N.E.2d 778 (1976). Absent explicit
instructions to the commission, our mandate did not require the commission to take
any specific course of action.
{¶ 22} The dissenting opinion’s statement that “the commission knew of
our remand in Columbus S. Power and in this case, ignored our remand order to
determine the amount of transition revenue improperly collected by DP&L,
estimated to be $285 million, and to eliminate the overcompensation by offsetting
the balance of DP&L’s revenue by the amount of the improperly collected
revenue,” dissenting opinion at ¶ 50, mischaracterizes what the commission did.
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Our imprecise entry, which merely reversed the commission’s decision on the
authority of Columbus S. Power, left the commission to act when this court did not.
{¶ 23} Even if the court had issued an explicit order to the commission, the
amount that could have been offset against future revenue would have been limited.
The dissent asserts that the “transition revenue improperly collected by DP&L,
estimated to be $285 million,” would have been offset. Dissenting opinion at ¶ 50.
However, because the appellants, the Office of Ohio Consumers’ Counsel, the
Kroger Company, and the Ohio Manufacturers’ Association Energy Group, did not
post a bond pursuant to R.C. 4903.16, the collection of the rider was not stayed.
When the commission approves a rate, it is presumed lawful and will be collected
unless a party appeals from the order approving the rate and posts an appropriate
bond. See Columbus v. Pub. Util. Comm., 170 Ohio St. 105, 163 N.E.2d 167(1959), paragraphs one, two, three, and four of the syllabus. Neither the
commission nor this court has the authority to order the refund of a charge that is
lawfully collected but is later determined to have been unlawful.
{¶ 24} The rider at issue in DP&L I authorized DP&L to collect $110
million a year for three years as part of an electric-security plan approved by the
commission for “a term beginning January 1, 2014, and terminating December 31,
2016.” In re Application of Dayton Power & Light Co., Pub. Util. Comm. Nos. 12-
426-EL-SSO, 12-427-EL-ATA, 12-428-EL-AAM, 12-429-EL-WVR, and 12-672-
EL-RDR, 2013 Ohio PUC LEXIS 193, *58 (Sept. 4, 2013), as modified by a
September 6, 2013 nunc pro tunc entry. During most of that term, the electric-
security plan was under review at the commission or at this court. After the
rehearing process was exhausted, review was first sought from this court on August
29, 2014. On June 20, 2016, we issued our entry reversing the decision and
remanding the case. DP&L I, 147 Ohio St.3d 166, 2016-Ohio-3490, 62 N.E.3d
179. The day after the release of our decision, the parties challenging the rider
sought an order from the commission suspending the collection of the allegedly
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unlawful charge. The commission finally ordered the termination of the charge on
August 26, 2016. In re Application of Dayton Power & Light Co., Pub. Util.
Comm. Nos. 08-1094-EL-SSO, 08-1095-EL-ATA, 08-1096-EL-AAM, and 08-
1097-EL-UNC (Aug. 26, 2016). Therefore, customers paid the charge for 32 of the
36 months that it was authorized and paid approximately $294 million.
{¶ 25} The long slog of protracted litigation—not aided by this court’s
unclear entry in DP&L I—has led to today’s judgment of mootness. The clock has
run out—now the electric-security plan at issue is no longer in force and new rates
are in place, which means that this court cannot order any meaningful relief for
DP&L’s customers without violating the prohibition against ordering refunds. See
Keco Industries, Inc. v. Cincinnati & Suburban Bell Tel. Co., 166 Ohio St. 254,
257, 141 N.E.2d 465 (1957).
{¶ 26} As we recently recognized in In re Application of Columbus S.
Power Co., Keco’s no-refund rule can be unfair and allow windfalls in cases, like
the one before us, in which utilities collect and retain hundreds of millions of dollars
from customers for charges that are later determined to have been unlawful. 138
Ohio St.3d 448, 2014-Ohio-462, 8 N.E.3d 863, ¶ 56. The protection provided by
the legislature against the collection of these rates that are alleged to be unlawful is
a stay secured by a bond in an amount sufficient to protect the utility against
damage, id., a bond most litigants cannot afford. Nonetheless, we have consistently
held that the prohibition on refunds and the bond requirement are matters of statute
and that the determination whether they are wise public policies therefore rests with
the General Assembly, not this court. In re Application of Columbus S. Power Co.,
128 Ohio St.3d 512, 2011-Ohio-1788, 947 N.E.2d 655, ¶ 20. This does not mean
that unfairness and windfalls are inevitable. R.C. 4905.32 states:
No public utility shall refund or remit directly or indirectly,
any rate, rental, toll, or charge so specified or, any part thereof, or
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January Term, 2018
extend to any person, firm, or corporation, any rule, regulation,
privilege, or facility except such as are specified in such schedule
and regularly and uniformly extended to all persons, firms, and
corporations under like circumstances for like, or substantially
similar, service.
The commission therefore has authority to mitigate the unfairness of the no-refund
rule and the barriers imposed by the bond requirement, because a refund is possible
if there is refund language in the commission’s order establishing the rate charged
by the utility, R.C. 4905.32. “[T]he legislature gave the commission the
discretionary authority to [order a refund]. All the commission had to do was
require a refund clause to be part of the tariff pursuant to R.C. 4905.32.” In re Rev.
of Alternative Energy Rider Contained in Tariffs of Ohio Edison Co., 153 Ohio
St.3d 289, 2018-Ohio-229, 106 N.E.3d 1, ¶ 66 (Kennedy, J., concurring). But here,
there was no refund clause in the tariff, so no refund is permissible.
{¶ 27} For the above reasons, I am compelled to concur in judgment only.
_________________
O’DONNELL, J., dissenting.
{¶ 28} Respectfully, I dissent.
{¶ 29} This matter is not moot. The Public Utilities Commission ignored
an earlier order of this court and permitted Dayton Power and Light Company to
withdraw its application for its second electric security plan after we reversed the
commission’s order modifying and approving that plan and remanded the case to
the commission “on the authority of In re Application of Columbus S. Power Co.,
147 Ohio St.3d 439, 2016-Ohio-1608, 67 N.E.3d 734” (“Columbus S. Power”), in
which we ordered elimination of overcompensation due to improperly collected
revenue. See In re Application of Dayton Power & Light Co., 147 Ohio St.3d 166,
2016-Ohio-3490, 62 N.E.3d 179 (“In re DP&L”).
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Facts and Procedural History
{¶ 30} R.C. 4928.141(A) provides that “an electric distribution utility shall
provide consumers * * * a standard service offer of all competitive retail electric
services necessary to maintain essential electric service to consumers” and permits
the utility to provide the offer in one of two ways—a market rate offer pursuant to
R.C. 4928.142 or an electric security plan pursuant to R.C. 4928.143.
{¶ 31} DP&L elected to provide its standard service offer through an
electric security plan, and on June 24, 2009, the commission approved the
application for its first electric security plan or ESP I. In re Application of Dayton
Power & Light Co., Pub. Util. Comm. Nos. 08-1094-EL-SSO, 08-1095-EL-ATA,
08-1096-EL-AAM, and 08-1097-EL-UNC, 2009 WL 1917793 (June 24, 2009).
{¶ 32} On September 4, 2013, the commission modified and approved
DP&L’s application for its second electric security plan or ESP II, effective January
1, 2014. In re Application of Dayton Power & Light Co., Pub. Util. Comm. Nos.
12-426-EL-SSO, 12-427-EL-ATA, 12-428-EL-AAM, 12-429-EL-WVR, and 12-
672-EL-RDR, 2013 Ohio PUC LEXIS 193 (Sept. 4, 2013) (the “ESP II Order”).
In the ESP II Order, the commission approved a service stability rider or SSR,
explaining that DP&L had proposed the SSR “for the purpose of stabilizing and
providing certainty regarding retail electric service by maintaining DP&L’s
financial integrity,” which DP&L claimed was threatened by increased customer
switching, declining wholesale prices, and declining capacity prices. Id. at *36-37.
In its order, the commission stated:
Although generation, transmission, and distribution rates have been
unbundled, DP&L is not a structurally separated utility; thus, the
financial losses in the generation, transmission, or distribution
business of DP&L are financial losses for the entire utility.
Therefore, if one of the businesses suffers financial losses, it may
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impact the entire utility, adversely affecting its ability to provide
stable, reliable, or safe retail electric service. The Commission finds
that the SSR will provide stable revenue to DP&L for the purpose
of maintaining its financial integrity.
Id. at *50.
{¶ 33} In the ESP II Order, the commission further stated that it was
rejecting the claim of the Office of the Ohio Consumers’ Counsel (“OCC”), the
Kroger Company, and others that the SSR constituted an unreasonable and
unlawful transition charge “designed to provide DP&L with generation-related
revenue that it would otherwise lose as a result of customers shopping to obtain
better retail generation supply prices” and “den[ied] customers the benefits of
shopping in the competitive retail electric services market,” id. at *44-45, noting its
determination was consistent with its approval of a retail stability rider or RSR in
In re Application of Columbus S. Power Co., Pub. Util. Comm. Nos. 11-346-EL-
SSO, 11-348-EL-SSO, 11-349-EL-AAM, and 11-350-EL-AAM, 2012 WL
3542177 (Aug. 8, 2012). Id. at *51. Subsequently, DP&L began collecting the
charges approved by the commission in ESP II.
{¶ 34} While appeals from the ESP II Order were pending in this court, we
held in Columbus S. Power, 147 Ohio St.3d 439, 2016-Ohio-1608, 67 N.E.3d 743,
that the commission erred when it found the RSR did not recover transition revenue
or its equivalent. Id. at ¶ 38. In that case, we explained that transition costs are
generally generation costs a utility incurred before retail competition began “that
are no longer recoverable from customers who have switched to another generation
provider.” Id. at ¶ 15. The RSR was intended to “guarantee recovery of lost
revenue resulting from certain discounted capacity prices * * * and from expected
increases in customer shopping during the ESP,” id. at ¶ 23, and it was “designed
to generate enough revenue for the company to achieve a certain rate of return on
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its generation assets,” id. at ¶ 23. Thus, we concluded the RSR recovered the
equivalent of transition revenue. Id. at ¶ 25.
{¶ 35} In Columbus S. Power we further explained that the commission had
previously authorized the utility company to recover its actual capacity costs, but
because it also allowed the utility to recover “$508 million in additional revenue
through the RSR during the ESP period, the amount of which appears to be tied in
large part to [the utility’s] recovery of [competitive retail electric service capacity
revenues],” the utility was “being overcompensated for providing capacity service
through the nondeferral part of the RSR.” Id. at ¶ 34. We noted the utility was
“currently collecting * * * deferred capacity costs with carrying charges through
the RSR,” and we ordered the commission “to adjust the balance of [the utility’s]
deferred capacity costs to eliminate the overcompensation of capacity revenue
recovered through the nondeferral part of the RSR during the ESP,” and we
remanded the matter to the commission to determine how much of the revenue
recovered through the nondeferral part of the RSR was allocable to competitive
retail electric service capacity revenues and to “offset the balance of deferred
capacity costs by the amount determined.” Id. at ¶ 39-40.2
{¶ 36} Columbus S. Power is significant in the instant case because on June
20, 2016, we reversed the commission’s order approving ESP II “on the authority
of * * * Columbus S. Power.” See In re DP&L.
{¶ 37} On remand, even though it had collected revenue pursuant to the ESP
II Order which we reversed, DP&L moved to withdraw its application for ESP II
pursuant to R.C. 4928.143(C)(2)(a). The commission found that ESP II “should be
modified to remove the SSR based upon the opinion” of this court in In re DP&L;
it then modified the ESP II Order to eliminate the SSR, and it explained that in
2. In his opinion concurring in part and dissenting in part, Justice Pfeifer, joined by Justice O’Neill,
expressed the view that the court did not go far enough in ordering this remedy. Columbus S. Power
at ¶ 81 (Pfeifer, J., concurring in part and dissenting in part).
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January Term, 2018
doing so, it had effectively modified the application for ESP II and therefore,
pursuant to R.C. 4928.143(C)(2)(a), had “no choice but to grant DP&L’s motion”
to withdraw, terminate ESP II, and dismiss the case. Pub. Util. Comm. Nos. 12-
426-EL-SSO, 12-427-EL-ATA, 12-428-EL-AAM, 12-429-EL-WVR, and 12-672-
EL-RDR (Aug. 26, 2016), ¶ 12-15. In so doing, the commission plainly ignored
our judgment reversing its decision “on the authority of” Columbus S. Power and
did not adjust the balance of DP&L’s revenue to eliminate the overcompensation
of revenue recovered through the SSR or offset the balance of the overpayment
through future rate authorizations. This was error and failed to comport with our
reversal mandate.
{¶ 38} On the same day that the commission granted DP&L’s motion to
withdraw the ESP II application, it also issued a separate order granting DP&L’s
motion to implement the provisions, terms, and conditions of ESP I, purportedly in
accordance with R.C. 4928.143(C)(2)(b), until it authorized a subsequent standard
service offer. Pub. Util. Comm. No. 08-1094-EL-SSO, 08-1095-EL-ATA, 08-
1096-EL-AAM, and 08-1097-EL-UNC (Aug. 26, 2016). The order implementing
ESP I is the subject of a separate appeal now pending before us in Supreme Court
case No. 2017-0204.
{¶ 39} Thereafter, OCC, Kroger, the Ohio Manufacturers’ Association
Energy Group (“OMAEG”), and others challenged the order granting the motion
to withdraw the application for ESP II by filing applications for rehearing. In an
entry denying those applications, the commission rejected a claim that In re DP&L
implicitly directed the commission to “initiate a proceeding to account for the
effects of the SSR and adjust rates accordingly.” Pub. Util. Comm. No. 12-426-
EL-SSO, 12-427-EL-ATA, 12-428-EL-AAM, 12-429-EL-WVR, and 12-672-EL-
RDR, 2016 Ohio PUC LEXIS 1139 (Dec. 14, 2016), ¶ 31 and 33. This too was
error because when the commission removed the SSR based on our opinion, it
failed to account for the overcompensation the utility had received and thereby
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manipulated implementation of ESP II to purport to eliminate the necessity to adjust
prospective rates. But our intent in reversing was to have the commission offset
the overcompensation. It failed to do so.
{¶ 40} The commission determined this claim was moot because DP&L had
“withdr[awn] and terminated the SSR along with the rest of ESP II,” so, unlike in
Columbus S. Power, “[t]here are no prospective rates to adjust * * *.” Id. at ¶ 34.
The commission also determined such an adjustment would violate precedent from
this court prohibiting retroactive ratemaking, citing Keco Industries Inc. v.
Cincinnati & Suburban Bell Tel. Co., 166 Ohio St. 254, 141 N.E.2d 465 (1957).
Id. at ¶ 33.
{¶ 41} Those commission determinations, however, ignore our order
reversing “on the authority of” Columbus S. Power and fail to address the
overcompensation issue. The orders granting the motion to withdraw and denying
the applications for rehearing are the subject of this appeal.
{¶ 42} On October 20, 2017, the commission approved DP&L’s third
electric security plan or ESP III, effective November 1, 2017. Pub. Util. Comm.
No. 16-0395-EL-SSO, 16-396-EL-ATA, and 16-397-EL-AAM (Oct. 20, 2017).
Law and Analysis
{¶ 43} “R.C. 4903.13 provides that a [Public Utilities Commission] order
shall be reversed, vacated, or modified by this court only when, upon consideration
of the record, the court finds the order to be unlawful or unreasonable.” In re
Complaints of Lycourt-Donovan v. Columbia Gas of Ohio, Inc., 152 Ohio St.3d 73,
2017-Ohio-7566, 93 N.E.3d 902, ¶ 23. “[T]his court has ‘complete and
independent power of review as to all questions of law’ in appeals from the
[commission].” Id. at ¶ 24, quoting Ohio Edison Co. v. Pub. Util. Comm., 78 Ohio
St.3d 466, 469, 678 N.E.2d 922 (1997).
{¶ 44} R.C. 4928.143(C)(1) governs the commission’s decision to approve,
modify and approve, or reject an application for a proposed ESP and states:
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January Term, 2018
The commission shall issue an order under this division for an initial
application under this section not later than one hundred fifty days
after the application’s filing date and, for any subsequent application
* * * , not later than two hundred seventy-five days after the
application’s filing date. * * * [T]he commission by order shall
approve or modify and approve an application * * * if it finds that
the electric security plan so approved * * * is more favorable in the
aggregate as compared to the expected results [of a market rate
offer]. * * * Otherwise, the commission by order shall disapprove
the application.
{¶ 45} R.C. 4928.143(C)(2)(a) provides:
If the commission modifies and approves an application [for
approval of an electric security plan] under division (C)(1) of this
section, the electric distribution utility may withdraw the
application, thereby terminating it, and may file a new standard
service offer * * * .
(Emphasis added.)
{¶ 46} Here, the commission concluded that its decision to remove the SSR
from ESP II following our reversal in In re DP&L on the authority of Columbus S.
Power effectively modified and approved the application for ESP II and therefore
triggered DP&L’s statutory right to withdraw that application pursuant to R.C.
4928.143(C)(2)(a). The commission is wrong.
{¶ 47} When the commission removed the SSR from ESP II, it was not
exercising its discretion to modify and approve an ESP application pursuant to R.C.
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4928.143(C)(1); rather, it was acting pursuant to a mandate from this court, and the
commission stated that it modified the ESP II order to eliminate the SSR “based
upon the opinion” of this court. Notably, R.C. 4928.143(C)(2)(a) does not permit
a utility to withdraw an application for an ESP that has already taken effect in
response to an adverse ruling by this court, and that is the reason for my departure
from the majority, which declares the issue moot. It is not.
{¶ 48} Here, the commission removed the SSR from ESP II on remand but
ignored our mandate to adjust the balance of DP&L’s revenue to eliminate the
overcompensation through future rate authorizations and exceeded its statutory
authority when it permitted DP&L to withdraw its ESP II application. Thus, its
order granting that motion to withdraw is unlawful.
{¶ 49} I reject the majority’s position that the approval of ESP III renders
this case moot “[b]ecause there is no remedy that this court can legally order.”
Majority opinion at ¶ 14. And I reject its position that in In re DP&L, this court
specified no remedy for the improper collection of revenue, which has been
estimated by OCC, Kroger, and OMAEG to be $285 million. This court reversed
the commission’s approval of ESP II and granted a remedy in In re DP&L, which
the commission ignored. By reversing the decision of the commission modifying
and approving the application for ESP II and explaining that our reversal was “on
the authority of * * * Columbus S. Power,” In re DP&L, 147 Ohio St.3d 166, 2016-
Ohio-3490, 62 N.E.3d 179, we implicitly held that the SSR, like the RSR that was
at issue in Columbus S. Power, provided DP&L with generation related revenue
that it would otherwise lose as a result of customer shopping and thus improperly
allowed DP&L to collect transition revenue or its equivalent. See Columbus S.
Power, 147 Ohio St.3d 439, 2016-Ohio-1608, 67 N.E.3d 734, at ¶ 15, 25.
{¶ 50} In Columbus S. Power, we noted the utility was compensated for
providing capacity service through the nondeferral part of the RSR and was
collecting deferred capacity costs with carrying charges through the RSR, and we
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January Term, 2018
ordered the commission to adjust the balance of the deferred capacity costs to
eliminate the overcompensation and remanded the cause for the commission to
determine how much of that revenue was allocable to competitive retail capacity
revenues and to offset the balance by the amount determined. Id. at ¶ 39-40. Here,
the commission knew of our remand in Columbus S. Power and in this case, ignored
our remand order to determine the amount of transition revenue improperly
collected by DP&L, estimated to be $285 million, and to eliminate the
overcompensation by offsetting the balance of DP&L’s revenue by the amount of
the improperly collected revenue.
{¶ 51} The decision of the commission to modify ESP II by deleting the
SSR, pursuant to our reversal on the authority of Columbus S. Power, only partially
satisfied our order, because the commission did not calculate the amount of
DP&L’s overcompensation through the SSR and did not either adjust the balance
of DP&L’s revenue to eliminate the overcompensation or offset the balance of the
overpayment through future rate authorizations, as in Columbus S. Power. An
administrative agency has no power or authority to deviate from a mandate issued
by a reviewing court. In re Wella A.G., 858 F.2d 725, 728 (Fed.Cir.1988). Hence,
the commission’s decision to modify ESP II and permit the utility to withdraw it
fails to comply with this court’s order on remand and is neither lawful nor
reasonable.
{¶ 52} And here, the majority begins to take steps on a path that has the
potential to make Ohio Supreme Court review of decisions like this one rendered
by the commission completely meaningless. By issuing its dismissal based on
mootness, the majority permits the utility to keep the estimated $285 million it
improperly collected and establishes a road map for future similar occurrences.
{¶ 53} We already witness in this matter that our court is called upon to
conduct a partial review of a multiyear ESP that began in 2009, with ESP II being
approved effective January 2014. Despite our remand due to an overcompensated
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utility and our reversal on the authority of Columbus S. Power, in which we ordered
an adjustment, the commission here permitted the utility to simply withdraw ESP
II and substitute ESP I with no adjustment to account for the alleged $285 million
collected in overcompensation. And a majority of this court determines that the
matter is moot because ESP II no longer exists.
{¶ 54} The court here sets a poor precedent. It not only fails to enforce one
of its lawful orders, but it also telegraphs to other utilities that if this court reverses
a matter in connection with an application approved by the commission involving
collection of unlawful charges, on remand, they can simply follow the procedure
here, apply to withdraw the application, and thereby render review by this court
wholly meaningless. This is exactly the import of today’s decision when it
dismisses the matter as moot “[b]ecause there is no remedy that this court can
legally order.” Majority opinion at ¶ 14.
{¶ 55} Courts have inherent authority to enforce their judgments. And a
matter that potentially involves a $285 million overcompensation that this court had
previously ordered to be accounted for and/or offset through future rate
authorizations can be remedied by an order of this court directing the commission
to accomplish that objective. This is a significant case. The majority’s decision to
cede its lawful constitutional authority to review the commission’s orders reduces
the jurisdiction of this court and establishes precedent that may well erode public
confidence in our decisions.
Conclusion
{¶ 56} The order of the commission granting DP&L’s motion to withdraw
ignores a mandate from this court and violates R.C. 4928.143(C)(2)(a) because the
statute does not permit a utility to withdraw an application for an ESP that has been
reversed and is subject to a mandate from this court. Accordingly, I would conclude
that the order of the commission is unlawful and unreasonable. Thus, I would
reverse it and once again remand the matter to the commission and order the
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January Term, 2018
commission to calculate the amount DP&L was overcompensated through the SSR
and either adjust the balance of DP&L’s revenue to eliminate the overcompensation
or offset the balance of the overpayment through future rate authorizations to
comply with our mandate in In re DP&L reversing the ESP II Order on the authority
of Columbus S. Power.
FRENCH and LASTER MAYS, JJ., concur in the foregoing opinion.
_________________
Bruce Weston, Ohio Consumers’ Counsel, Maureen R. Willis, Senior
Regulatory Counsel, and Terry Etter, Assistant Consumers’ Counsel, for appellant
Office of the Ohio Consumers’ Counsel.
Carpenter, Lipps & Leland, L.L.P., and Angela Paul Whitfield, for appellant
Kroger Company.
Robert Brundrett, for appellant Ohio Manufacturers’ Association Energy
Group.
Michael DeWine, Attorney General, and William L. Wright, Thomas W.
McNamee, and Werner L. Margard III, Assistant Attorneys General, for appellee.
Faruki, Ireland, Cox, Rhinehart & Dusing, P.L.L., D. Jeffrey Ireland, Jeffrey
S. Sharkey, and Christopher C. Hollon, for intervening appellee.
_________________
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