Office of Public Counsel and Midwest Energy Consumers Group Missouri Public Service Commission v. Evergy Missouri West, Inc. f/k/a KCP&L Greater Missouri Operations Company

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
OFFICE OF PUBLIC COUNSEL )
and MIDWEST ENERGY )
CONSUMERS GROUP; )
MISSOURI PUBLIC SERVICE )
COMMISSION, )
Respondents, )
)
v. ) WD83319
)
EVERGY MISSOURI WEST, INC. ) FILED: July 28, 2020
f/k/a KCP&L GREATER )
MISSOURI OPERATIONS )
COMPANY, )
Appellant. )
Appeal from the Public Service Commission
Before Division Two: Mark D. Pfeiffer, P.J., and
Alok Ahuja and Gary D. Witt, JJ.
Evergy Missouri West, Inc. appeals from a Report and Order issued by the
Public Service Commission (the “PSC” or “Commission”). The PSC’s Report and
Order established an accounting authority order (“AAO”) to capture the cost savings
Evergy experienced due to the retirement of its coal-fired electric power plant in
Sibley. An AAO creates a balance-sheet account to defer extraordinary financial
items for consideration in a utility’s next general rate case, even though the items
may occur outside the “test year” utilized in the future rate case. State ex rel.
Aquila, Inc. v. Pub. Serv. Comm’n, 326 S.W.3d 20, 27 (Mo. App. W.D. 2010).
Evergy raises four Points on appeal. In its first and second Points, it argues
that the Commission erred in ordering an AAO because Evergy’s retirement of the
Sibley plant was not an “extraordinary” event under the relevant accounting
standards. In its third Point, Evergy argues that imposition of an AAO constitutes
an improper collateral attack on the tariffs established in Evergy’s last general rate
case. Finally, Evergy’s fourth Point argues that the Commission acted
inconsistently with the prospective focus of Missouri’s ratemaking statutes, by
ordering an AAO which is intended to remedy Evergy’s past collection of
purportedly excessive revenues.
We affirm.
Factual Background
The Sibley generating plant, which consisted of three coal-fired units, was
constructed on the Missouri River near the town of Sibley in Jackson County. The
three units were constructed between 1960 and 1969, and together had a generating
capacity of 463 megawatts. The Sibley facility was Evergy’s largest capacity power
plant.
In 1991, Evergy 1 completed a major renovation of the Sibley generating
units, to extend their life and allow them to burn low-sulfur western coal. In State
ex rel. Office of the Public Counsel v. Public Service Commission, 858 S.W.2d 806
(Mo. App. W.D. 1993), we affirmed the Commission’s order granting Evergy’s
request to use an AAO to defer costs associated with the 1991 renovations for
consideration in the company’s next rate case. Id. at 810-12.
In 2009, Evergy put new scrubbers on Sibley Unit 3 – the largest of the three
generating units at the plant – to meet environmental requirements.
1 Evergy Missouri West, Inc. was formerly known as KCP&L Greater Missouri
Operations Company. Because the distinction between Evergy and its corporate
predecessors is not relevant to any of the issues presented in this appeal, we refer to Evergy
and its predecessors generically as “Evergy” in this opinion.
2
On June 1, 2017, Evergy retired all of Sibley Unit 1 except the boiler. The
next day, on June 2, 2017, Evergy announced that it would be retiring the entire
Sibley plant by December 31, 2018.
Evergy had a general rate case pending before the Commission in 2018. In
the rate case, the Commission used a historic test year with a true-up date of June
30, 2018. 2 The Sibley plant was still operating on the true-up date. In Evergy’s
2018 rate case, the Office of Public Counsel (“OPC”) expressed its concern that
Sibley Unit 3 was being retired prematurely. OPC noted that, in 2016, Evergy
attributed a useful life of 71 total years, through 2040, to Unit 3; but, “based on
[Evergy]’s announced retirement date, the useful life of the unit . . . is [now] a little
over six months.” OPC recommended to the PSC “that all of the costs associated
with the retirements of . . . [Evergy’s] Sibley units 1, 2, 3 and Sibley common plant
not be included in the . . . utility’s cost of service used for setting rates, as each of
these units will be retired by end of 2018.” OPC argued:
[Evergy] is seeking . . . as part of its case continued depreciation
expense for Sibley Units 1, 2, and 3, even though it has announced
plans to retire the units by the end of 2018. [Evergy] seeks to collect
this depreciation expense in rates for up to four years during which the
units will be retired and not used. . . . Additionally, in its rate case
[Evergy] seeks to build in operating and fuel expense for the units, also
to be collected over the next four years. Make no mistake, this case is
about beneficial regulatory lag for [Evergy] related to building into its
rates expenses for generating units that [Evergy] has announced will
be retired shortly after the end of the true-up period in its case.
2 “In Missouri, rates are set using a historical test year. The Commission
examines the utility’s revenues and expenses for that test year and uses that information to
set rates to be charged in the future.” State ex rel. Pub. Counsel v. Pub. Serv. Comm’n, 274
S.W.3d 569, 585-86 (Mo. App. W.D. 2009). “The PSC’s use of a true-up audit and hearing is
designed to balance the historical data [from the test year] with known and measurable
subsequent and future changes . . . .” In Matter of Kansas City Power & Light Co.’s Request
for Auth. to Implement a Gen. Rate Increase for Elec. Serv. v. Pub. Serv. Comm’n, 509
S.W.3d 757, 767 (Mo. App. W.D. 2016); see also State ex rel. Praxair, Inc. v. Pub. Serv.
Comm’n, 328 S.W.3d 329, 332 n.2 (Mo. App. W.D. 2010).
3
OPC “recommend[ed] that the depreciation rates for Sibley Units 1, 2, 3, and
Sibley common plant be set to zero percent as the units will no longer be used and
useful by the time new rates from this case are effective.” The Office also
recommended that “no [Sibley-related] operations or maintenance expense should
be included in the costs of service used for setting rates in these cases.” It
explained:
Based on the applications, new rates are projected to become
effective December 29, 2018. When paired with the announcement of
the retirements of the Sibley units and Sibley common plant by the
end of 2018, the longest the units could be operating under new rates
is two days. It is very likely that by the time new rates from these
cases are effective the units will have been retired. Ratepayers should
not be asked to pay for operations and maintenance expense on units
that are no longer used and are not providing a benefit.
Evergy opposed OPC’s recommendation that all Sibley-related expenses be
excluded from the calculation of new rates in the 2018 rate case, “on the basis that
the retirement was not certain to occur and [that consideration of the financial
consequences of any retirement] was premature.”
On September 5, 2018, a forced outage occurred at Sibley Unit 3 because of a
turbine vibration. The next day, Evergy sent a routine notification, not associated
with the rate case, to PSC Staff regarding the outage. The Sibley plant never again
produced electricity following this forced outage of Unit 3.
On October 2, 2018, the Vice President for Generation Operations of Evergy’s
parent company stated in an internal email that “[i]t is our intention to cease
burning coal and move to decommissioning activities” at Sibley. On the same day,
the Vice President sent an email to the officers of Evergy’s parent company,
informing them that, “[f]ollowing a comprehensive evaluation of options, we have
determined the safest and most economical solution is to cease burning coal at the
[Sibley] station and to move the remaining coal currently on the ground to [another
Evergy power plant at] Iatan.” The e-mail stated that Evergy would notify the
4
Southwest Power Pool and a representative of Local 412 of the International
Brotherhood of Electrical Workers of the planned shut-down.
The parties entered into a series of stipulations to resolve Evergy’s 2018 rate
case. In particular, the parties entered into a Non-Unanimous Partial Stipulation
and Agreement to resolve issues concerning Evergy’s revenue requirements.
Although the Office of Public Counsel did not join in the Stipulation and Agreement
addressing revenue issues, it did not object to the stipulation, or request a hearing;
the Commission accordingly treated the stipulation as unanimous.
On October 3, 2018 – the day after the internal e-mails indicating that
Evergy’s senior management had concluded that the Sibley plant should be
immediately retired – the parties presented evidence to the Commission supporting
their stipulations. As part of its presentation, Evergy moved to have its pre-filed
testimony admitted in evidence. Despite the high-level internal recommendation
that the Sibley plant be immediately retired, Evergy did not revise its pre-filed
testimony, which characterized the Sibley plant’s closure as an assumption, and
uncertain. The Commission approved the parties’ stipulations on October 31, 2018.
The Stipulation and Agreement resolving revenue issues specifically
addressed the costs and expenses associated with the Sibley plant, and the
possibility that the plant might be retired in the future. The Stipulation provided:
[Evergy] will create a regulatory liability[3] to capture the
amount of depreciation expense included in [Evergy’s] revenue
requirement beginning when each of the following units is retired and
depreciation expense is no longer recorded on GMO’s books:
3 The Manager of the PSC’s Auditing Department, Mark Oligschlaeger,
explained that “[a] regulatory liability represents amounts that a utility would ordinarily
book as an increase to earnings, but are instead preserved on the utility’s balance sheet for
potential return to customers in a subsequent general rate proceeding.” See also 18 C.F.R.
Part 101, Definitions ¶ 31 (Uniform System of Accounts’ definition of “Regulatory Assets
and Liabilities”).
5
Sibley units 1, 2, and 3, including common
plant, and Lake Road unit 4/6.
The depreciation amounts will accumulate in the regulatory
liability account until new customer rates are established in a
subsequent rate case. At that time, the regulatory liability account
will be closed into accumulated depreciation. Additionally, the closing
of this regulatory liability into accumulated depreciation will be
reflected in rates that are established in that rate case.
The Signatories agree that the rates established in this case
include O&M [(i.e., operations and maintenance expense)] associated
with the Sibley units.
This Stipulation does not preclude any Signatory from
proposing an accounting authority order (“AAO”), or any other
ratemaking treatment, for the recovery of any other costs
associated with the . . . [Evergy] retirements listed above. This
Stipulation does not preclude any party from opposing an AAO, or any
other ratemaking treatment, for the recovery of any other costs
associated with the . . . [Evergy] retirements of the units listed above.
(Emphasis added.)
On November 1, 2018, the day after the Commission approved the parties’
stipulations, Evergy had a meeting with PSC Staff and the Office of Public Counsel
concerning the forced outage at Sibley Unit 3. On November 13, 2018, Evergy
officially decided to retire all of the Sibley generating units. On November 20, 2018,
Evergy informed the Office of Public Counsel and the Commission Staff of this
decision.
In Evergy’s general rate case, the Commission approved Evergy’s new tariffs
on November 26, 2018. The new rates became effective on December 6, 2018.
Pursuant to § 393.1655.2, RSMo, the rates approved by the Commission “shall be
held constant” for three years, and therefore new rates cannot become effective until
December 6, 2021. As contemplated by the parties’ Stipulation and Agreement, the
cost of operating the Sibley plant was incorporated into Evergy’s new rates.
6
On December 28, 2018, the Office of Public Counsel and the Midwest Energy
Consumers Group filed a Petition for an Accounting Order. 4 Because Evergy’s rates
included the costs associated with operating the retired Sibley plant, the petition
requested that “the Commission order [Evergy] to record as a regulatory liability in
Account 254 the revenue and the return on the Sibley unit investments collected in
rates for non-fuel operation and maintenance costs, taxes including accumulated
deferred income taxes, and all other costs associated with Sibley units 1, 2, 3, and
common plant.” In their testimony to the Commission, the petitioners suggested
that the cost savings to Evergy from the Sibley plant retirement, which they sought
to defer through an AAO, were between $29.7 and $39 million per year.
An evidentiary hearing was held on August 7 and 8, 2019. At the hearing,
evidence was presented that Evergy’s current depreciation rates for Sibley Unit 3
were based on a 2040 retirement date. The manager of the PSC’s Auditing
Department, Mark Oligschlaeger, testified that he was not aware of a generating
plant being retired twenty years before the expiration of its useful life. Estimates of
the net book value of the assets of the Sibley plant as of June 30, 2018, ranged from
$145.7 million to $300 million. The chief economist for the Office of Public Counsel
testified that the Sibley retirement was the only coal plant retirement in the 14-
State footprint of the Southwest Power Pool that had a projected remaining
operational life of more than twenty years, and more than $100 million in
remaining book value. The Director of Policy for the Office of Public Counsel noted
that Evergy had not retired a major generating facility in the last thirty years.
Furthermore, in the last forty years, Evergy had only retired two facilities – one in
1982, and the other in 1987.
4 After the petition was filed, the Commission determined that the petition was
best considered using complaint-type procedures, so it closed the original file and refiled the
petition as a complaint.
7
In a 2018 filing with the Securities and Exchange Commission, Evergy’s
parent company indicated that its “regulatory assets increased by $243.4 million
primarily due to the reclassification of retired generating plant of $159.9 million
related to [Evergy’s] Sibley No. 3 Unit from property, plant and equipment, net to a
regulatory asset upon the retirement of the unit in 2018.” The Office of Public
Counsel’s Director of Policy testified that the recognition of this regulatory asset
indicated that Evergy intends to seek recovery of these costs from ratepayers in a
future rate case.
At the hearing, Evergy’s witnesses testified that the retirement of coal-fired
generating units is common in the electric utility industry nationwide. For
example, Evergy’s evidence indicated that a total of 89,731 megawatts of coal-fired
generating capacity has been retired since 1969. Of that total, 76,526 megawatts,
or approximately 85 percent, has been retired since 2010. Further, since 1969, “a
total of 815 coal-fired units have retired, with 543 units or two-thirds of the total
having retired during the last 9 years.” Evergy’s evidence indicated that the pace of
retirement of coal-fired power plants was accelerating across the electric utility
industry.
In a Report and Order issued on October 17, 2019, the Commission ordered
that an AAO be established. 5 The Commission noted that “[Evergy]’s ratepayers
are continuing to pay for [Evergy]’s ongoing expenses to operate the Sibley units
even though they are no longer producing power.” The Commission found that the
aggregate financial impact of the Sibley retirement “exceeds five percent of
[Evergy]’s reported net income.” It also found that “[Evergy]’s position in the rate
case was that while it anticipated the Sibley units would be retired by December 31,
2018, that decision had not been finally made and the retirement could be delayed
5 Three commissioners concurred in the Commission’s order, one commissioner
concurred in a separate opinion, and one commissioner dissented.
8
by unforeseen circumstances such as the loss of other generating facilities.” The
Commission found that
[Evergy] did not inform the signatories to the stipulation and
agreement, including Public Counsel, or the Commission, except for a
routine notification to Staff, that Sibley 3 had ceased operation in
September until the units were formally retired in November, which
was after the stipulation and agreement had been approved by the
Commission on October 31, 2019.
(Footnotes omitted). The Commission found that, had the Office of Public Counsel
or Midwest Energy Consumers Group “known that Sibley 3 had ceased producing
power and would be retired, they could have proposed an isolated adjustment
outside the test year and true-up date to remove the operating costs of the retired
units from [Evergy]’s new rates.”
The Commission noted that this was an unusual case because the AAO was
being requested by parties representing ratepayers “to defer to a regulatory liability
the savings the utility will accrue from its decision to close the” Sibley plant, rather
than a utility requesting to capture unanticipated expenses in a regulatory asset for
consideration in a future rate case. Despite the unusual nature of the request, the
Commission determined that the AAO request was governed by the same standards
applied in past cases.
The Commission concluded that the retirement of the Sibley plant was an
extraordinary event which justified the creation of an AAO to capture Evergy’s cost
savings for consideration in a future rate case:
Clearly, it is unusual for [Evergy] to retire a generating unit as
it has not done so in the past thirty years. More importantly, it is
unusual and unique for a utility to retire a generating unit with
twenty years of remaining anticipated service life, and twenty years of
unrecovered depreciation expense. It is also significant that the Sibley
plant was retired just after [Evergy]’s last rate case was resolved and
in fact before those new rates went into effect. Because of the . . . rate
freeze [mandated by § 393.1655.2, RSMo], those rates, through which
[Evergy]’s ratepayers will continue to pay [Evergy]’s cost of operating a
9
power plant that no longer produces power, will remain in effect for at
least three years.
Most importantly, if [Evergy] requests accelerated recovery of
net plant depreciation costs in its next rate case, the Commission
should preserve the option of the future Commission to consider the
offset of those costs by consideration of the past savings amounts that
would be deferred under the AAO. If this AAO is not granted, such an
offset could be challenged as retroactive ratemaking.
[Evergy] chose to close the Sibley Units, and the prudence of
that decision is not at issue in this case. The question of prudence will
be addressed in a future general rate case. . . .
. . . [Evergy’s] current rates were set in [its] last rate case using
an assumption that the Sibley units were in operation and that the
costs of operating those units would be recovered from ratepayers
through those rates. [Evergy’s] net income was thus enhanced when
the costs of operating the Sibley units went away with the closing of
the plant, while rates including those costs remain in effect. This
order requires [Evergy] to defer that enhancement to its earnings, but
it does not impair the company’s opportunity to earn the rate of return
established in its last rate case.
After its application for rehearing was denied by the Commission, Evergy
filed this appeal.
Standard of Review
Our review of the PSC’s Report and 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. Pub. Serv. Comm’n, 509 S.W.3d 757, 763 (Mo. App. W.D. 2016)
(citation omitted) (“KCP&L”).
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 supported by substantial
10
and competent evidence on the whole record, (2) whether the decision
was arbitrary, capricious, or unreasonable, and (3) whether the PSC
abused its discretion.
Union Elec. Co. v. Pub. Serv. Comm’n, 591 S.W.3d 478, 484–85 (Mo. App. W.D.
2019) (citation and internal quotation marks omitted).
If substantial evidence supports either of two conflicting factual
conclusions, we are bound by the findings of the administrative
tribunal. The determination of witness credibility is left to the
Commission, which is free to believe none, part, or all of the testimony.
It is only where a Commission order is clearly contrary to the
overwhelming weight of the evidence that we may set it aside.
Additionally, with regard to issues within the Commission’s expertise,
we will not substitute our judgment for that of the Commission.
KCP&L, 509 S.W.3d at 764 (citation and internal quotation marks omitted).
Analysis
I.
In its first and second Points, Evergy argues that the Commission erred in
ordering an AAO to capture the cost savings associated with the retirement of the
Sibley plant, because the plant’s retirement was not an “extraordinary” event.
The general powers of the Commission are set forth in § 393.140, RSMo.
State ex rel. Office of Pub. Counsel v. Pub. Serv. Comm’n, 858 S.W.2d 806, 808 (Mo.
App. W.D. 1993). Pursuant to § 393.140(4), the Commission has the power “to
prescribe uniform methods of keeping accounts.” KCP&L, 509 S.W.3d at 769.
Under this authority, “[t]he PSC has adopted a rule that requires utilities to use the
[Uniform System of Accounts (‘USOA’) prescribed by the Federal Energy Regulatory
Commission] to maintain their books and records.” Id. (citing 4 CSR 240-20.030,
which has been transferred to 20 CSR 4240-20.030); see also Office of Pub. Counsel,
858 S.W.2d at 808.
The Uniform System of Accounts provides, with few exceptions, that “net
income shall reflect all items of profit and loss during the period.” 18 C.F.R. Part
101, General Instruction 7. “An exception to this general rule is for ‘extraordinary
11
items’ as defined by the USOA.” KCP&L, 509 S.W.3d at 769–70. General
Instruction 7 to the Uniform System of Accounts provides:
Those items related to the effects of events and transactions which
have occurred during the current period and which are of unusual
nature and infrequent occurrence shall be considered extraordinary
items. Accordingly, they will be events and transactions of significant
effect which are abnormal and significantly different from the ordinary
and typical activities of the company, and which would not reasonably
be expected to recur in the foreseeable future. (In determining
significance, items should be considered individually and not in the
aggregate. However, the effects of a series of related transactions
arising from a single specific and identifiable event or plan of action
should be considered in the aggregate.[)] To be considered as
extraordinary under the above guidelines, an item should be more than
approximately 5 percent of income, computed before extraordinary
items.
18 C.F.R. Part 101, General Instruction 7.
An AAO permits “extraordinary items” to be deferred and accounted for in a
future accounting period. See State ex rel. Aquila, Inc. v. Pub. Serv. Comm’n, 326
S.W.3d 20, 27 (Mo. App. W.D. 2010). “The PSC has followed the guidance in 18
C.F.R. Part 101, General Instruction 7, that costs should not be deferred to another
accounting period except for ‘extraordinary items.’” KCP&L, 509 S.W.3d at 770. In
following General Instruction 7, the Commission has decided that the use of AAOs
“should be limited because they violate the matching principle, tend to
unreasonably skew ratemaking results, and dull the incentives a utility has to
operate efficiently and productively under the rate regulation approach employed in
Missouri.” Id. at 769.
We have emphasized that, because establishment of an AAO deviates from
the Commission’s general ratemaking methodology, the Commission has
substantial discretion in determining whether an AAO is appropriate in a
particular case.
The PSC is granted wide discretion in determining the
methodology it chooses to determine [a utility’s return on equity]. The
12
PSC has historically utilized the test year and true-up procedure to
determine appropriate future rates because the historical test year’s
expenses can be used to determine reasonable future rates. . . .
Whether a cost should be afforded different treatment and merits a
deferral directly impacts the PSC’s chosen methodology for setting
rates and is necessarily a discretionary judgment that is within the
expertise of the PSC and not this Court. Which costs a utility is able to
defer would impact the PSC’s chosen method to determine rates and is
a matter properly confined to the PSC’s expertise. As such, we will not
second-guess the PSC’s reasoned decision that only extraordinary
items may qualify for deferral treatment.
Id. at 770 (citations and footnote omitted).
In this case, the Commission lawfully and reasonably applied the standards
found in General Instruction 7 of the Uniform System of Accounts. Evergy does not
dispute that the aggregate financial impact of the retirement of the Sibley plant
exceeds five percent of its reported net income. The Commission’s conclusion that
the retirement of the Sibley plant was extraordinary due to its unusual nature and
infrequent occurrence is amply supported by the record. In the past thirty years,
Evergy has not retired any major generating facilities. Moreover, the Commission
could justifiably find that it is highly unusual to retire a generating plant with
twenty years of remaining anticipated service life and twenty years of unrecovered
depreciation expense totaling hundreds of millions of dollars, since the evidence
before it indicated that no similar plant retirement had occurred in the 14-State
area comprehended by the Southwest Power Pool. The Commission also found that
it was abnormal to retire a generating plant just after a rate case was resolved but
before the new rates – which reflected the costs of operating the retired plant –
became effective. And of course, a plant’s retirement is a unique event which will
not recur in the future.
We also note that Evergy successfully opposed the efforts of the Office of
Public Counsel to have Sibley-related costs excluded from consideration in Evergy’s
2018 rate case; Evergy argued in the rate case that the “decision [to retire the plant]
13
had not been finally made and the retirement could be delayed by unforeseen
circumstances such as the loss of other generating facilities.” Having successfully
argued that the retirement of the Sibley plant was not sufficiently foreseeable to be
considered in the 2018 rate case, Evergy can hardly complain when the Commission
later determined that the cost savings associated with that retirement were
“extraordinary.”
We will not second guess the Commission’s reasoned decision that the
retirement of the Sibley plant was an extraordinary event justifying the use of an
AAO to capture its financial consequences for consideration in a future rate case.
Evergy argues that the AAO was unlawful because the Commission
purportedly held that foreseeable and anticipated events are not “extraordinary”
items in In the Matter of the Application of Kansas City Power & Light Co. &
KCP&L Greater Missouri Operations Co. for the Issuance of an Accounting
Authority Order, EU-2014-0077, 2014 WL 3889960 (Mo. P.S.C. July 30, 2014)
(“KCP&L AAO Order”). Evergy contends that, under this principle, no AAO should
have been ordered in this case, because the retirement of the Sibley plant was
foreseeable and anticipated.
At the outset, we note that “[t]he PSC is not bound by its previous decisions,
so long as its current decision is not otherwise unreasonable or unlawful.” Laclede
Gas Co.’s Verified Application to Re-Establish & Extend the Fin. Auth. Previously
Approved by the Comm’n v. Pub. Serv. Comm’n, 526 S.W.3d 245, 252 (Mo. App. W.D.
2017) (citations omitted); see also, e.g., State ex rel. AG Processing, Inc. v. Pub. Serv.
Comm’n, 120 S.W.3d 732, 736 (Mo. 2003) (“an administrative agency is not bound
by stare decisis”). Further, we see no inconsistency between the Commission’s
decision in this case and the KCP&L AAO Order. In the earlier proceeding the
utility filed an application for an AAO “to track transmissions costs associated with
membership in the Southwest Power Pool and other transmission providers.”
14
KCP&L AAO Order, 2014 WL 3889960, at *1. The Commission rejected the utility’s
request, but not because transmission costs were foreseeable or anticipated.
Instead, the Commission denied the application because “[t]ransmission costs are
part of the ordinary and normal costs of providing electric service and are expected
to continue in the foreseeable future,” were not “an unusual and infrequent
occurrence,” and therefore did not qualify as “extraordinary.” Id. at *5. Nothing in
the KCP&L AAO Order is inconsistent with the result the Commission reached in
this case.
More generally, Evergy argues that its retirement of the Sibley plant cannot
be “extraordinary” because it was planned and anticipated. But AAOs are not
limited to unexpected Acts of God or force majeure events. To the contrary, the
testimony before the Commission explained that the PSC had previously issued
AAOs – at the request of regulated utilities – for the costs of planned activities such
as major construction projects, gas pipeline replacement projects, and actions taken
to comply with renewable energy standards or to address Year 2000/“Y2K”
computer problems. Indeed, the test the Commission applies in determining
whether an AAO is appropriate – the so-called “Sibley standard” – was developed in
a case in which the Commission approved an AAO to capture the costs incurred by
Evergy’s predecessor to rebuild Sibley Units 1 and 2 “to extend the life of both
units,” and the costs of “converting the plant to burn low-sulfur western coal” so
that it could achieve federal Clean Air Act emission standards. Office of Pub.
Counsel, 858 S.W.2d at 808. It has never been the law that AAOs are reserved for
unplanned, un-anticipatable events.
In its briefing, Evergy emphasizes that, in past cases, AAOs have been
employed to protect utilities from the effects of extraordinary expenses or revenue
shortfalls. It seemingly argues that AAOs are a “one-way street” which can only be
employed to protect a utility’s financial interests, not to protect ratepayers from the
15
financial windfall a utility may receive when it experiences extraordinary savings or
revenue increases. We see nothing in General Instruction 7 which limits the use of
deferral accounting to address only extraordinary costs, but not extraordinary cost
savings or revenues. Rather, General Instruction 7 refers generically to
extraordinary financial “items” caused by “events and transactions” which are of an
“unusual nature and infrequent occurrence.” General Instruction 7 does not
distinguish between extraordinary “items” which decrease revenue versus those
which increase it.
Evergy further argues that the retirement of the Sibley plant was not
unusual because of the increasing frequency of coal plant retirements within the
electric-utility industry as a whole. General Instruction 7 specifies, however, that
whether an item is “extraordinary” is evaluated by looking at the event in relation
to “the ordinary and typical activities of the company,” not in comparison to the
activities of the industry as a whole. 18 C.F.R. Part 101, General Instruction 7
(emphasis added). Further, Evergy’s claim that Sibley’s retirement simply reflects
an industry-wide trend is inconsistent with the Commission’s finding that no other
plant in the 14-State Southwest Power Pool service territory had been retired with
a similar remaining estimated useful life and similar net book value. In any event,
many AAOs approved in the past involved the costs of addressing issues facing the
entire industry, not simply an individual utility (such as the costs of complying with
environmental standards or renewable energy mandates, or the costs to address
“Y2K” computer problems). It has never been suggested that an AAO was
inappropriate because particular costs were associated with a matter of industry-
wide concern. The Commission’s Report and Order properly focused on the rarity of
plant retirements by Evergy.
Evergy emphasizes that no other state or federal regulatory commission has
found that a plant retirement is an extraordinary event under General Instruction
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7, and that the Wisconsin Public Service Commission, applying that state’s
regulatory scheme, has specifically rejected an AAO request like the one made here.
The Wisconsin decision, In re Wisconsin Electric Power Co., Order No. 6630-AF-100,
2018 WL 2938141 (Wis. P.S.C. June 6, 2018), applied a different legal standard,
however. In determining whether deferral accounting was appropriate for the cost
savings associated with a plant retirement, the Wisconsin commission considered,
among other factors, “whether the cost is outside of the utility’s control,” and
whether recognizing the amount in the year in which it was incurred “would cause
the utility serious financial harm[,] . . . significantly distort the current year’s
income,” or “would have a significant impact on ratepayers.” Id. at *2. The
Wisconsin standards for deferral accounting go beyond the requirements of General
Instruction 7. In any event, our Public Service Commission is not bound by the
holdings of courts or agencies in other jurisdictions. State ex rel. Union Elec. Co. v.
Pub. Serv. Comm’n, 765 S.W.2d 618, 623 (Mo. App. W.D. 1988).
Next, Evergy argues the Commission’s AAO order was unreasonable and
arbitrary because it contradicts the order from the utility’s 2018 rate case. Evergy
contends that the Stipulation and Agreement that underlay the Commission’s
decision in the 2018 rate case “explicitly recognized [Evergy’s] plans” to retire the
Sibley plant “in the six months following the true-up period that ended June 20,
2018.” Evergy’s characterization of the proceedings in its 2018 rate case is
inaccurate. As the Commission found, during its rate case Evergy opposed the
Office of Public Counsel’s request that the Commission take account of the
upcoming retirement of the Sibley plant, by excluding Sibley-related costs from
consideration in rate-setting. On the contrary, Evergy argued – successfully – that
the planned retirement of the Sibley plant should not be considered in the rate case,
because “the retirement could be delayed by unforeseen circumstances such as the
loss of other generating facilities.” Far from “explicitly recogniz[ing]” the Sibley
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plant’s retirement, the revenue-related Stipulation and Agreement specifically
provided that, if that retirement in fact occurred, “[t]his Stipulation does not
preclude any Signatory from proposing an accounting authority order (“AAO”) . . .
for the recovery of any . . . costs associated with the . . . retirement[ ].” The petition
filed by the Office of Public Counsel and the Midwest Energy Consumers Group,
seeking imposition of an AAO for Sibley-related costs, is fully consistent with, and
was indeed contemplated by, the Stipulation and Agreement which resolved
revenue-related issues in Evergy’s 2018 rate case.
Evergy argues that its retirement of the Sibley plant was not extraordinary
because a 2018 filing by Evergy with the Federal Energy Regulatory Commission,
which was audited by an independent accounting firm, does not characterize the
event as extraordinary. Evergy cites no authority for the proposition that the PSC
was bound by the characterization of the transaction by Evergy or its auditor. On
the contrary, § 393.140(8), RSMo expressly gives the Commission the power “to
examine the accounts” of any regulated utility, and “after hearing, to prescribe by
order the accounts in which particular outlays and receipts shall be entered,
charged or credited.” Our caselaw holds that the determination of whether an AAO
is appropriate is for the Commission to make, in its expert discretion. KCP&L, 509
S.W.3d at 770 (“The PSC . . . remains the authority that determines when an item
may be included in a different accounting period for the purpose of developing
authorized rates.”).
Points I and II are denied.
II.
In its third Point, Evergy argues that the Commission’s order granting the
AAO was an improper collateral attack on its prior order in Evergy’s 2018 rate case.
Section 386.550 provides: “In all collateral actions or proceedings the orders
and decisions of the commission which have become final shall be conclusive.” “This
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statute is indicative of the law’s desire that judgments be final.” State ex rel. Ozark
Border Elec. Coop. v. Pub. Serv. Comm’n, 924 S.W.2d 597, 601 (Mo. App. W.D. 1996)
(citation omitted); see also, e.g., State ex rel. MoGas Pipeline LLC v. Pub. Serv.
Comm’n, 395 S.W.3d 562, 566 (Mo. App. W.D. 2013).
Evergy argues that its 2018 rate case “directly addressed” the issues arising
out of the retirement of the Sibley plant. It contends that, because the AAO directs
that costs associated with the Sibley plant’s retirement be accounted for as a
regulatory liability, even though the potential plant retirement was considered in
setting Evergy’s 2018 rates, the AAO is a collateral attack on the 2018 rate case.
As an initial matter, we note that multiple prior decisions of this Court have
upheld Commission decisions authorizing Accounting Authority Orders which
captured extraordinary costs incurred by a regulated utility for consideration in a
future rate case. See, e.g., In Matter of Application of Union Elec. Co., 458 S.W.3d
430 (Mo. App. W.D. 2015) (mem.); State ex rel. Office of Pub. Counsel v. Mo. Pub.
Serv. Comm’n, 301 S.W.3d 556, 569-70 (Mo. App. W.D. 2009); State ex rel. Mo. Office
of Pub. Counsel v. Pub. Serv. Comm’n, 293 S.W.3d 63, 77-78 (Mo. App. S.D. 2009);
State ex rel. Mo. Gas Energy v. Pub. Serv. Comm’n, 210 S.W.3d 330, 335-36 (Mo.
App. W.D. 2006); State ex rel. Office of Pub. Counsel v. Pub. Serv. Comm’n, 858
S.W.2d 806, 810-12 (Mo. App. W.D. 1993). In each of those cases, the
“extraordinary” costs were incurred at a time when the utility was charging rates
approved in an earlier rate case. In each of our prior cases, it could have been
argued that the rates established in the earlier rate case were intended to fully
compensate the utility for the costs of its operations while the rates were in effect,
and that use of an AAO to defer certain costs for later consideration had the effect of
altering the rate structure approved in the earlier rate case. Yet, to our knowledge,
no prior decision has suggested that an AAO constitutes an improper collateral
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attack on the results of an earlier rate case. The silence of our earlier decisions on
this point is deafening.
To the contrary, this Court has recognized that AAOs do not alter existing
rates, or constitute impermissible retroactive ratemaking. In State ex rel. Missouri
Gas Energy v. Public Service Commission, 210 S.W.3d 330 (Mo. App. W.D. 2006), we
rejected the argument that provisions of the Commission’s Emergency Cold
Weather Rule (“ECWR”), which authorized utilities to use an AAO to defer certain
costs to a later rate case, had the effect of modifying the utilities’ current approved
rates. We explained:
Although recovery under the AAO is conditioned on filing a subsequent
rate case, this is not a case of retroactive ratemaking. This court has
held that it is permissible “to defer the final decision on current
extraordinary costs until a rate case is in order.” The costs of the
ECWR are merely a deferment of extraordinary costs. This procedure
does not include nor need it include any determination of the
reasonableness of the current rates. The Utilities are still charging the
current tariffed rates, but under the ECWR are required to defer
collection of part of the amount owed until a later time. The ECWR
allows placement of any costs of compliance with the ECWR in an
AAO. . . . The AAO allows current losses due to the rule to be
separately accounted, thus preserving the uncollected, deferred fees
until the next rate case. At that time the losses in combination with
any other factors may be considered in determining a new rate. This is
not retroactive ratemaking, because the past rates are not being
changed so that more money can be collected from services that have
already been provided; instead, the past costs are being considered to
set rates to be charged in the future.
Id. at 335-36 (citations omitted); see also Mo. Gas Energy v. Pub. Serv. Comm’n, 978
S.W.2d 434, 438 (Mo. App. W.D. 1998) (emphasizing that “AAOs are not the same
as ratemaking decisions, and that AAOs create no expectation that deferral terms
within them will be incorporated or followed in rate application proceedings. The
whole idea of AAOs is to defer a final decision on current extraordinary costs until a
rate case is in order”; citation omitted).
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More generally, the Missouri Supreme Court has expressly held that
“limit[ing] the authority granted [to a utility] by [an earlier Commission order] does
not . . . constitute a collateral attack, in violation of Section 386.550, RSMo . . ., on
such order.” State ex rel. Pub. Water Supply Dist. No. 2 v. Burton, 379 S.W.2d 593,
600 (Mo. 1964). In Burton, the Supreme Court held that the PSC’s grant of a
certificate of convenience and necessity to a utility, to operate a water distribution
system in a particular location, did not prevent a local county from further limiting
the geographic area within which the utility could operate. The Court explained
that “[s]uch limitation in no way questions the validity of the original order.
Interpretation of an order necessarily acknowledges its validity and does not
constitute a collateral attack.” Id. (citation omitted); accord, Stopaquila.org v.
Aquila, Inc., 180 S.W.3d 24, 39-40 (Mo. App. W.D. 2005) (Commission’s issuance of
certificate of convenience and necessity for construction of electric power plant did
not exempt utility from compliance with county zoning ordinances). To the extent
the AAO in some respect limits the financial consequences of the Commission’s
decision in Evergy’s 2018 rate case, that limitation does not constitute an
impermissible “collateral attack.”
It is also highly significant that, in the 2018 rate case itself, the parties
specified that their Stipulation and Agreement would “not preclude any Signatory
from proposing an accounting authority order (‘AAO’) . . . for the recovery of . . .
costs associated with” the retirement of the Sibley plant. The Stipulation and
Agreement served as part of the basis for the Commission’s resolution of the 2018
rate case. Given that the parties agreed that resolution of the 2018 rate case would
not preclude any party from later seeking an AAO for Sibley-related costs, we will
not read the Commission’s decision in the rate case to preclude OPC and the
Midwest Energy Consumers Group from seeking that precise relief. Cf. Kesterson v.
State Farm Fire & Cas. Co., 242 S.W.3d 712, 717 (Mo. 2008) (although preclusion
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principles generally prohibit the later assertion of a claim arising out of the same
act or transaction involved in an earlier proceeding, an “exception exists when the
court in the first action has expressly reserved the plaintiff’s right to maintain the
second action”; citing and following RESTATEMENT (2D) OF JUDGMENTS § 26(1)(b)
(2007)).
Point III is denied.
III.
In its fourth and final Point, Evergy argues that the Commission erred in
establishing an AAO because its decision was explicitly based on the finding that
the rates it approved in Evergy’s 2018 rate case reflected the costs of operating the
Sibley plant, and that it was no longer appropriate for ratepayers to pay for these
non-existent expenses. Evergy argues that, while a utility’s approved rates are
based on financial information from past periods, those rates are predictive and
intended to be forward-looking; a utility’s rates will never exactly match the utility’s
actual financial experience during the period the rates are in effect. Evergy argues
that the Commission’s effort to “fix” the rates set in Evergy’s 2018 general rate case
to take account of a later event is fundamentally contrary to Missouri’s prospective
ratemaking principles.
It is well-established that the Public Service Commission may not engage in
“retroactive ratemaking.” “Retroactive ratemaking is defined as ‘the setting of rates
which permit a utility to recover past losses or which require it to refund past
excess profits collected under a rate that did not perfectly match expenses plus rate-
of-return with the rate actually established.’” State ex rel. Noranda Aluminum, Inc.
v. Pub. Serv. Comm’n, 356 S.W.3d 293, 316–17 (Mo. App. S.D. 2011) (quoting State
ex rel. AG Processing, Inc. v. Pub. Serv. Comm’n, 311 S.W.3d 361, 365 (Mo. App.
W.D. 2010) (internal quotation omitted)); see also, State ex rel. Util. Consumers
Council of Mo., Inc. v. Pub. Serv. Comm’n, 585 S.W.2d 41, 58-59 (Mo. 1979).
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As explained in § II, above, however, this Court has explicitly held that
establishment of an AAO does not constitute prohibited retroactive ratemaking. As
we explained in State ex rel. Missouri Gas Energy v. Public Service Commission, 210
S.W.3d 330 (Mo. App. W.D. 2006), imposition of an AAO does not itself set or modify
any utility rate; and even if deferred financial items are considered in a future rate
case to set forward-looking rates, “past rates are not being changed so that more
money can be collected from services that have already been provided; instead, the
past costs are being considered to set rates to be charged in the future.” Id. at 335-
36; see also, e.g., State ex rel. AG Processing v. Pub. Serv. Comm’n, 340 S.W.3d 146,
153 (Mo. App. W.D. 2011) (“In prior cases, this Court has rejected claims that
measures to recoup previously incurred costs constitute retroactive ratemaking,
when the recoupment measures operate prospectively, and do not alter the cost of
utility services previously provided to consumers.” Citations omitted.).
In the Report and Order imposing the Accounting Authority Order, the
Commission referred to the fact that the rates set in Evergy’s 2018 rate case
reflected costs associated with the operation of the now-retired Sibley plant. This
discussion was appropriate, both to explain that the Sibley retirement had not
already been considered in setting Evergy’s 2018 rates, but also to explain why the
Commission considered the financial consequences of the Sibley plant’s retirement
to be an “extraordinary” event. The fact that utility rates (which will remain in
effect for three years) became effective almost simultaneously with a significant
event which those rates did not account for, justifies treating the later event as
“extraordinary.” The Commission’s Report and Order does not purport to modify
the rates set in the 2018 rate case, either retroactively or even on a going-forward
basis. Instead, the Report and Order merely requires that Sibley-related savings be
held in a suspense account pending Evergy’s next rate case, so that those savings
can be considered at that time. This did not constitute prohibited retroactive
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ratemaking, and was not somehow inconsistent with Missouri’s forward-looking
rate-setting system.
Point IV is denied.
Conclusion
The Commission’s Report and Order is affirmed.
Alok Ahuja, Judge
All concur.
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