In re Application of Ohio Power Co. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re Application of Ohio Power Co., Slip Opinion No. 2020-Ohio-143.]
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. 2020-Ohio-143
IN RE APPLICATION OF OHIO POWER COMPANY FOR AUTHORITY TO
ESTABLISH A STANDARD SERVICE OFFER PURSUANT TO R.C. 4928.143 IN THE
FORM OF AN ELECTRIC SECURITY PLAN; OFFICE OF OHIO CONSUMERS’
COUNSEL, APPELLANT; PUBLIC UTILITIES COMMISSION, APPELLEE; OHIO
POWER COMPANY, INTERVENING APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re Application of Ohio Power Co.,
Slip Opinion No. 2020-Ohio-143.]
Public utilities—Electric-security plan—Public Utilities Commission had subject-
matter jurisdiction to approve power-purchase-agreement rider—Public
Utilities Commission’s approval of smart-city rider upheld because R.C.
4928.143(B)(2)(H) permits an electric-security plan to include certain
provisions that might otherwise violate a different statute in R.C. Title 49—
Public Utilities Commission’s approval of renewable-generation rider on a
placeholder basis upheld because no harm or prejudice to ratepayers has
been shown—Order affirmed.
(No. 2018-1396—Submitted October 22, 2019—Decided January 22, 2020.)
SUPREME COURT OF OHIO
APPEAL from the Public Utilities Commission, Nos. 16-1852-EL-SSO
and 16-1853-EL-AAM.
__________________
KENNEDY, J.
{¶ 1} This is an appeal as of right from the order of appellee, the Public
Utilities Commission of Ohio (“PUCO”), approving and modifying a previously
approved electric-security plan of intervening appellee, Ohio Power Company.
Appellant, the Office of the Ohio Consumers’ Counsel (“OCC”) challenges three
riders authorized by that order. Those riders are referred to as the Power Purchase
Agreement Rider, the Smart City Rider, and the Renewable Generation Rider.
{¶ 2} However, this court lacks jurisdiction to review the OCC’s challenge
to the Power Purchase Agreement Rider because the OCC did not include the
challenge in an application for rehearing. Further, because the OCC has failed to
show that the PUCO lacked statutory authority to approve the Smart City Rider
pursuant to R.C. 4928.143(B)(2)(h) and because the OCC has not established that
approving the Renewable Generation Rider on a placeholder basis will harm or
prejudice ratepayers, the OCC has failed to satisfy its burden to demonstrate that
the PUCO acted unreasonably or unlawfully in this case.
{¶ 3} For these reasons, we affirm the order of the PUCO.
Facts and Procedural History
{¶ 4} Electric-distribution utilities such as Ohio Power must provide
consumers within their certified territories a “standard service offer of all
competitive retail electric services necessary to maintain essential electric service
* * *, including a firm supply of electric generation service.” R.C. 4928.141(A).
The offer may take the form of a market-rate offer under R.C. 4928.142 or an
electric-security plan under R.C. 4928.143.
{¶ 5} In May 2016, Ohio Power applied for the PUCO’s approval to, among
other things, extend its third electric-security plan through May 31, 2024. An
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attorney examiner issued an order directing Ohio Power to refile its application
under a new case number, and Ohio Power filed its amended application in
November 2016. Ohio Power later filed a stipulation seeking resolution of the
issues in the case, which the OCC opposed. After conducting a hearing, the PUCO
modified and approved the stipulation, authorizing Ohio Power to extend its
electric-security plan through May 31, 2024, and allowing Ohio Power to continue
implementing, or begin implementing, the three riders that are at issue in this
appeal. In its opinion and order, the PUCO designated Ohio Power’s amended
application as Ohio Power’s proposed fourth electric-security plan.
{¶ 6} First, the PUCO authorized Ohio Power to continue the Power
Purchase Agreement Rider through the extended term of the electric-security plan.
The Power Purchase Agreement Rider permits Ohio Power to recover costs
associated with its contractual entitlement to the power generated by the Ohio
Valley Electric Corporation (“OVEC”). As we previously explained in In re
Application of Ohio Power Co., 155 Ohio St. 3d 320, 2018-Ohio-4697, 121 N.E.3d
315, ¶ 3, the PUCO intended the Power Purchase Agreement Rider “to provide a
financial hedge against fluctuating prices in the wholesale-power market in order
to stabilize retail customer rates,” providing a credit to ratepayers when the costs of
power purchased from OVEC are cheaper than the wholesale-power market price
and imposing a surcharge on ratepayers when Ohio Power’s purchase of OVEC’s
power is more expensive than the wholesale price.
{¶ 7} Second, the PUCO authorized Ohio Power to implement the Smart
City Rider, capped at a total of $21.1 million over four years, to recover the costs
associated with two technology-demonstration projects: a rebate program to
encourage the construction of electric-vehicle charging stations and a program for
the development of microgrids, which are small-scale power grids that can operate
independently or in conjunction with the overall electric grid and which may
include small-scale-generation and battery-storage systems.
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{¶ 8} Third, the PUCO authorized Ohio Power to implement the Renewable
Generation Rider on a placeholder basis (i.e., with a zero rate), permitting Ohio
Power to recover costs from future renewable-generation projects to be approved
by the PUCO at a later time.
{¶ 9} After the PUCO issued its order, the OCC applied for a rehearing,
asserting eight assignments of error challenging Ohio Power’s electric-security
plan, the Smart City Rider, the Renewable Generation Rider (and other riders
approved as placeholders), a procedural ruling regarding a rider that is not at issue
in this case, and various other aspects of the propriety of the PUCO’s decision to
approve the stipulation. The PUCO denied the OCC’s application for rehearing,
and the OCC appealed to this court, asserting three propositions of law.
Law and Analysis
Standard of Review
{¶ 10} R.C. 4903.13 empowers this court to reverse, vacate, or modify a
final order of the PUCO if it is unlawful or unreasonable. This court “will not
reverse or modify a PUCO decision as to questions of fact when the record contains
sufficient probative evidence to show that” the decision “was not manifestly against
the weight of the evidence and was not so clearly unsupported by the record as to
show misapprehension, mistake, or willful disregard of duty.” In re Application of
Ohio Edison Co., 157 Ohio St. 3d 73, 2019-Ohio-2401, 131 N.E.3d 906, ¶ 8.
However, this court has “complete and independent power of review as to questions
of law.” MCI Telecommunications Corp. v. Pub. Util. Comm., 38 Ohio St. 3d 266,
268, 527 N.E.2d 777 (1988).
The Power Purchase Agreement Rider
{¶ 11} The OCC challenges the Power Purchase Agreement Rider by
arguing that the PUCO lacked jurisdiction to approve it because the Federal Power
Act, 16 U.S.C. 791a et seq., vests in the Federal Energy Regulatory Commission
(“FERC”) exclusive jurisdiction over wholesale sales of electricity in the interstate
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market. According to the OCC, the Power Purchase Agreement Rider intrudes on
FERC’s exclusive jurisdiction by allowing Ohio Power to charge ratepayers more
for the OVEC power sold in the interstate market than the wholesale rate
established in the federally regulated, competitive wholesale market. The OCC
relies on the United States Supreme Court’s decision in Hughes v. Talen Energy
Marketing, L.L.C., which held that a state’s utility-regulating commission had
“invade[d] FERC’s regulatory turf” by guaranteeing a rate to a wholesale-power-
market participant that differed from the rate that FERC had deemed just and
reasonable under the Federal Power Act. ___ U.S. ___, 136 S. Ct. 1288, 1297, 194
L. Ed. 2d 414 (2016). However, the OCC failed to preserve this argument in its
application for a rehearing.
{¶ 12} Our jurisdiction to review decisions of the PUCO emanates from
Article IV, Section 2(B)(2)(d) of the Ohio Constitution, which grants us “[s]uch
revisory jurisdiction of the proceedings of administrative officers or agencies as
may be conferred by law.” This provision permits the General Assembly to
establish and limit the court’s power of appellate review over decisions from
administrative agencies such as the PUCO. See generally Polaris Amphitheater
Concerts, Inc. v. Delaware Cty. Bd. of Revision, 118 Ohio St. 3d 330, 2008-Ohio-
2454, 889 N.E.2d 103, ¶ 13 (discussing this court’s appellate jurisdiction to review
decisions of the Board of Tax Appeals).
{¶ 13} R.C. 4903.13 confers appellate jurisdiction on this court to review
the final orders of the PUCO, providing that any party to a proceeding may file a
notice of appeal with the PUCO “setting forth the order appealed from and the
errors complained of.” Another statute—R.C. 4903.10—permits a party to file an
application for the PUCO to rehear any matter determined in the proceeding after
the PUCO has issued its initial order. That statute provides that the “application
shall be in writing and shall set forth specifically the ground or grounds on which
the applicant considers the order to be unreasonable or unlawful. No party shall in
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any court urge or rely on any ground for reversal, vacation, or modification not so
set forth in the application.” (Emphasis added.) R.C. 4903.10(B).
{¶ 14} “We have ‘long held that setting forth specific grounds for rehearing
is a jurisdictional prerequisite for our review’ ” of an order of the PUCO. In re
Complaint of Harris Design Servs. v. Columbia Gas of Ohio, Inc., 154 Ohio St. 3d
140, 2018-Ohio-2395, 112 N.E.3d 858, ¶ 20, quoting In re Complaint of Cameron
Creek Apts. v. Columbia Gas of Ohio, Inc., 136 Ohio St. 3d 333, 2013-Ohio-3705,
995 N.E.2d 1160, ¶ 23. We have therefore explained that a party’s failure to present
a claim to the PUCO on rehearing “jurisdictionally bars” this court’s consideration
of that claim on appeal. In re Application of Columbus S. Power Co., 138 Ohio
St.3d 448, 2014-Ohio-462, 8 N.E.3d 863, ¶ 55.
{¶ 15} The OCC does not question this caselaw; rather, the OCC maintains
that those concerns do not apply in this case because the OCC has challenged the
PUCO’s subject-matter jurisdiction to approve the rider, urging that Congress has
vested FERC with exclusive jurisdiction over wholesale rates.
{¶ 16} In In re Complaint of Pilkington N. Am., Inc., we indicated that a
party appealing from a PUCO order can attack the subject-matter jurisdiction of the
PUCO notwithstanding the failure to raise that argument in an application for
rehearing. 145 Ohio St. 3d 125, 2015-Ohio-4797, 47 N.E.3d 786, ¶ 21-22. We
distinguished between the lack of subject-matter jurisdiction and an error in the
exercise of that jurisdiction:
When an administrative agency renders a decision without subject-
matter jurisdiction, the order is void and subject to challenge at any
time. * * * In contrast, a wrong decision made by an agency with
subject-matter jurisdiction is not void, but merely voidable. That is,
errors in the exercise of jurisdiction can be waived and must be
challenged on appeal.
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January Term, 2020
Id. at ¶ 22.
{¶ 17} R.C. 4905.04 vests the PUCO generally “with the power and
jurisdiction to supervise and regulate public utilities,” and R.C. 4928.143(A)
specifically authorizes the PUCO to review an electric-distribution utility’s
application for an electric-security plan. And we have stated that the PUCO’s
“jurisdiction over rates and rate-related matters is unquestionable and exclusive.”
In re Complaint of Pilkington N. Am. at ¶ 23.
{¶ 18} The OCC relies on Internatl. Longshoremen’s Assn., AFL-CIO v.
Davis, 476 U.S. 380, 388, 106 S. Ct. 1904, 90 L. Ed. 2d 389 (1986), for the
proposition that Congress has the power to establish an exclusive federal forum to
adjudicate questions of federal law, thereby preempting a state tribunal’s
concurrent jurisdiction over that subject matter. In Internatl. Longshoremen’s
Assn., the United States Supreme Court held that in cases in which state law is
completely preempted by the National Labor Relations Act, 29 U.S.C. 151 et seq.,
“the state courts lack the very power to adjudicate the claims that trigger pre-
emption” and cannot decline to address a claim of preemption based on
noncompliance with state procedural rules regarding waiver. Id. at 398-399. Based
upon this authority, the OCC maintains that it “did not waive, and could not have
waived, its preemption argument because it challenges the PUCO’s jurisdiction—
the PUCO’s very authority to adjudicate [Ohio Power’s] wholesale rates.”
{¶ 19} However, there is a difference “between pre-emption of a state’s
substantive law and pre-emption of a state court’s power to adjudicate.” Reithmiller
v. Blue Cross & Blue Shield of Michigan, 824 F.2d 510, 512 (6th Cir.1987). The
United States Supreme Court has explained that unless Congress has provided a
clear statement that a statutory limitation deprives a tribunal of subject-matter
jurisdiction, the courts should treat that limitation as nonjurisdictional. Gonzalez v.
Thaler, 565 U.S. 134, 141-142, 132 S. Ct. 641, 181 L. Ed. 2d 619 (2012). And
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SUPREME COURT OF OHIO
federal courts have held that the Federal Power Act does not deprive state tribunals
of the power to adjudicate claims that the act preempts state law. Northeastern
Rural Elec. Membership Corp. v. Wabash Valley Power Assn., Inc., 707 F.3d 883,
893, 895-896 (7th Cir.2013); Metro. Edison Co. v. Pennsylvania Pub. Util. Comm.,
767 F.3d 335, 360, 364 (3d Cir.2014). Rather, “ ‘when a state proceeding presents
a federal issue, even a pre-emption issue, the proper course is to seek resolution of
that issue by the state court.’ ” Id. at 364, quoting Chick Kam Choo v. Exxon Corp.,
486 U.S. 140, 149-150, 108 S. Ct. 1684, 100 L. Ed. 2d 127 (1988).
{¶ 20} As the United States Court of Appeals for the Third Circuit
explained in Metro. Edison Co., although the Federal Power Act “grants FERC
exclusive jurisdiction over certain matters,” id. at 360, including the authority to
regulate wholesale sales of electricity in the interstate market, id. at 341, Congress
has not “divested state utility agencies or state courts of jurisdiction to hear cases
requiring an adjudication” regarding the scope of FERC’s regulatory authority, id.
at 360. The court stated, “The [Federal Power Act] plainly leaves a role for states
in electricity regulation.” Id. Therefore, unlike the federal statutes that were at
issue in Internatl. Longshoremen’s Assn., the Federal Power Act does not
completely preempt state law. See Metro Edison Co. at 363-364.
{¶ 21} We also recognize that Congress granted federal courts “exclusive
jurisdiction” over violations of the Federal Power Act and actions brought to
enforce it. 16 U.S.C. 825p. That language, however, does not provide federal
courts with “broad jurisdiction over” actions brought under state law “that simply
mention a duty established by the federal law.” Pressl v. Appalachian Power Co.,
842 F.3d 299, 306 (4th Cir.2016). The federal courts’ exclusive jurisdiction
established by statutes such as 16 U.S.C. 825p attaches either “when federal law
creates the cause of action asserted” or when a state-law proceeding “ ‘necessarily
[involves] a stated federal issue, actually disputed and substantial, which a federal
forum may entertain without disturbing any congressionally approved balance’ of
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federal and state power.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Manning,
___ U.S. ___, 136 S. Ct. 1562, 1570, 194 L. Ed. 2d 671 (2016) (construing the
Securities Exchange Act, 15 U.S.C. 78a et seq.), quoting Grable & Sons Metal
Prods., Inc. v. Darue Eng. & Mfg., 545 U.S. 308, 314, 125 S. Ct. 2363, 162 L. Ed. 2d
257 (2005); see also id. at 1568 and at fn. 3 (explaining that the jurisdictional
provisions of the Securities Exchange Act and the Federal Power Act share “[m]uch
the same wording”).
{¶ 22} Federal jurisdiction does not attach solely because a proceeding in a
state tribunal may involve a defense grounded in federal law, such as preemption.
Pressl at 302, 306. Rather, claims premised on state law must be brought in federal
court “only if their ‘very success depends on giving effect to a federal
requirement.’ ” Id. at 306, quoting Merrill Lynch at 1570.
{¶ 23} Here, Ohio Power’s application for an extension of the Power
Purchase Agreement Rider does not depend on federal law—it does not allege a
violation of the Federal Power Act and has not been brought to enforce a duty or
liability created by that act. And although the OCC asserts federal preemption as a
defense to the rider, the Federal Power Act does not divest the PUCO of subject-
matter jurisdiction. (And, tellingly, the OCC’s argument that the PUCO lacked
jurisdiction to approve the Power Purchase Agreement Rider is contradicted by the
OCC’s insistence that federal law does not preempt this court’s power and
jurisdiction to review that rider.)
{¶ 24} The PUCO had subject-matter jurisdiction to approve the Power
Purchase Agreement Rider, and pursuant to R.C. 4903.10, the OCC’s failure to
raise a federal-preemption challenge in an application for rehearing deprives this
court of jurisdiction to consider this issue in the first instance. We therefore dismiss
the OCC’s first proposition of law.
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SUPREME COURT OF OHIO
The Smart City Rider
{¶ 25} The PUCO approved the new Smart City Rider to allow the recovery
of costs associated with technology-demonstration projects to encourage the
construction of electric-vehicle charging stations and the development of
microgrids. The PUCO found that R.C. 4928.143(B)(2)(h) authorizes the rider,
because the statute permits an electric-security plan to include incentive-
ratemaking provisions and distribution-infrastructure and modernization-incentive
provisions.
{¶ 26} R.C. 4928.143(B)(2)(h) provides that an electric-security plan may
include “[p]rovisions regarding the utility’s distribution service, including, without
limitation and notwithstanding any provision of Title XLIX of the Revised Code to
the contrary, provisions regarding * * * incentive ratemaking, and provisions
regarding distribution infrastructure and modernization incentives for the electric
distribution utility.”
{¶ 27} The OCC contends that the Smart City Rider does not relate to
distribution service under R.C. 4928.143(B)(2)(h). According to the OCC, this
statute does not authorize a rider designed to foster a market for electric vehicles,
to obtain data regarding the siting and charges for electric-charging stations, or to
collect information for the future deployment of microgrids. The OCC maintains
that “1.4 million customers should not be asked to subsidize such activity when the
vast majority of them will not even be participating [in] or benefitting from these
non-distribution service investments.”
{¶ 28} However, although the OCC argues that the Smart City Rider is not
authorized by R.C. 4928.143(B)(2)(h), the OCC “bears the burden of demonstrating
that” the PUCO’s decision “is against the manifest weight of the evidence or is
clearly unsupported by the record.” In re Application of Ohio Power Co., 155 Ohio
St.3d 326, 2018-Ohio-4698, 121 N.E.3d 320, ¶ 9. Whether a rider is a provision
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regarding power distribution is a factual question, and the OCC fails to show,
through citation to record evidence, that either the electric-charging-station
program or the microgrid program is not, in fact, related to Ohio Power’s
distribution service, infrastructure, or modernization.
{¶ 29} We “ ‘are not obligated to search the record or formulate legal
arguments on behalf of the parties.’ ” Risner v. Ohio Dept. of Natural Resources,
Ohio Div. of Wildlife, 144 Ohio St. 3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 28,
quoting State v. Quarterman, 140 Ohio St. 3d 464, 2014-Ohio-4034, 19 N.E.3d 900,
¶ 19. And without any reference to record evidence showing how these
demonstration projects function and that they have no relation to distribution
service, infrastructure, or modernization, we cannot say that the PUCO acted
unreasonably or unlawfully in approving the rider. See In re Application of Duke
Energy Ohio, Inc., 131 Ohio St. 3d 487, 2012-Ohio-1509, 967 N.E.2d 201, ¶ 18
(rejecting an appellant’s argument because the appellant had failed “to support
essential factual assertions with citations to the record”).
{¶ 30} The OCC, quoting R.C. 4928.141(A), maintains that the rider is not
“ ‘necessary to maintain essential electric service’ ” for customers, as that statute
requires. However, the OCC cites no case authority holding that R.C. 4928.141(A)
limits the provisions in an electric-security plan to those that are necessary to
maintain essential electric service, and “[u]nsupported legal conclusions do not
demonstrate error,” In re Comm. Rev. of Capacity Charges of Ohio Power Co., 147
Ohio St. 3d 59, 2016-Ohio-1607, 60 N.E.3d 1221, ¶ 28. Further, R.C.
4928.143(B)(2)(h) permits an electric-security plan to include certain provisions
regarding a utility’s distribution service even if other statutes within R.C. Title 49
would otherwise prohibit them. See In re Application of Ohio Power Co., 155 Ohio
St.3d 326, 2018-Ohio-4698, 121 N.E.3d 320, at ¶ 19.
{¶ 31} The OCC also argues that the demonstration projects constitute an
impermissible customer-funded subsidy that violates R.C. 4928.02, which
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prescribes Ohio’s electric-energy policies. As explained above, if the projects are
permitted by R.C. 4928.143(B)(2)(h), they may be included even if they might
otherwise violate another provision in R.C. Title 49. Moreover, we held in In re
Application of Ohio Power Co. that R.C. 4928.02 neither “impose[s] strict
conditions” on the PUCO nor “require[s] anything.” 155 Ohio St. 3d 326, 2018-
Ohio-4698, 121 N.E.3d 320, at ¶ 49. Rather, the policy provisions are guidelines
for the PUCO to weigh when it considers a utility proposal. Id. As in that case,
here the PUCO “weighed these policy considerations in reviewing the stipulation”
and “[t]hat alone is grounds to reject [the OCC’s] argument.” Id.
{¶ 32} The OCC’s second proposition of law is not well taken.
Renewable Generation Rider
{¶ 33} The PUCO authorized Ohio Power to implement the Renewable
Generation Rider on a placeholder basis. The OCC challenges this rider, urging
that Ohio Power did not make a showing of “need” to justify it in the proceeding
below. The PUCO and Ohio Power contend that including the rider is not reversible
error, because no one is prejudiced by a rider that does not collect revenue. The
OCC responds that “consumers are harmed and prejudiced by expending the time
and resources necessary to litigate pending proceedings before the PUCO regarding
a rider * * * that was unlawfully instituted in the first place.”
{¶ 34} “It is well settled that this court will not reverse an order” of the
PUCO “unless the party seeking reversal shows that it has been harmed or
prejudiced by the order.” In re Application of Ohio Power Co., 155 Ohio St. 3d
320, 2018-Ohio-4697, 121 N.E.3d 315, at ¶ 9. And we have previously held that a
different placeholder rider included in Ohio Power’s electric-security plan that
similarly recovered no revenue from consumers did not harm or prejudice
ratepayers. Id. at ¶ 13. The costs and alleged inefficiencies associated with the
OCC’s strategy to litigate an issue prematurely are not harm or prejudice caused by
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or resulting from the order on appeal itself, and the OCC cites no authority to the
contrary.
{¶ 35} The OCC’s third proposition of law is not well taken.
Conclusion
{¶ 36} We lack jurisdiction to review the merits of the OCC’s challenge to
the Power Purchase Agreement Rider, because the challenge was not presented in
an application for rehearing. Further, the OCC has failed to cite evidence in the
record supporting its view that the Smart City Rider does not relate to distribution
service, infrastructure, or modernization. Finally, consumers have not been harmed
or prejudiced by the PUCO’s decision to implement the Renewable Generation
Rider on a placeholder basis.
{¶ 37} Because the OCC has not satisfied its burden to demonstrate
reversible error on the record, we affirm the order of the PUCO.
Order affirmed.
FRENCH, FISCHER, DEWINE, DONNELLY, and STEWART, JJ., concur.
O’CONNOR, C.J., concurs in judgment only.
__________________
Bruce J. Weston, Consumers’ Counsel, and Maureen R. Willis, William J.
Michael, and Terry L. Etter, Assistant Consumers’ Counsel, for appellant.
Dave Yost, Attorney General, and John H. Jones, Werner L. Margard III,
and Robert A. Eubanks, Assistant Attorneys General, for appellee.
Steven T. Nourse and Christen M. Blend; and Porter, Wright, Morris &
Arthur, L.L.P., Kathleen M. Trafford, L. Bradfield Hughes, and Eric B. Gallon, for
intervening appellee.
________________________
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