Summary
In Mountain States Legal Foundation v. Public Utilities Commission, (1979) 197 Colo. 56, 590 P.2d 495, the Colorado Supreme Court held targeted lifeline rates were discriminatory and unjustly preferential.
Summary of this case from Citizens Action Coalition v. P.S.COpinion
No. 28151
Decided January 29, 1979. Rehearing denied February 26, 1979.
Separate actions were commenced in the trial court challenging Public Utilities Commission (PUC) decisions which established a reduced gas rate for low-income elderly and low-income disabled persons. Trial court entered judgment which set aside these decisions. The PUC and an intervenor appealed.
Affirmed
1. SOCIAL SECURITY AND PUBLIC WELFARE — PUC — Rate Structure — Elderly and Disabled — Assistance — Prohibited. While efforts to provide economic relief to the elderly and disabled are laudatory, the PUC, as a statutorily created regulatory agency, lacks authority to implement a rate structure which is designed to provide financial assistance as a social policy to a narrow group of utility customers, especially where that low rate is financed by its remaining customers.
2. PUBLIC UTILITIES COMMISSION — Regulate — Public Utilities — Preferential Rates — Restricted by Statute. Although Article XXV of the Colorado Constitution gives the PUC authority to regulate public utilities, nevertheless, the PUC's authority to order preferential utility rates to effect social policy, has, in fact, been restricted by the legislature's enactment of section 40-3-106(1), C.R.S. 1973 and section 40-3-102.
3. Lower Rate — Low-Income Elderly — Low-Income Disabled — Violation — Prohibition — Preferential Rates. Public Utilities Commission order that utility companies provide a lower rate to low-income elderly and low-income disabled persons, regardless of the cost or type of service provided, violated the statutory prohibition against preferential rates.
4. GAS — Discount Rate Plan — Needy — "Unjustly Discriminatory" — Statute — — Violation. Establishing a discount gas rate plan which differentiates between economically needy individuals who receive the same services is "unjustly discriminatory" within the meaning of the statute which requires the Public Utilities Commission to prevent unjust discriminatory rates.
5. Broad Rate Making Powers — Social Policy — Preferential Rate Making — — Restricted by Statute. Although the PUC has been granted broad rate making powers by Article XXV of the Colorado Constitution, the PUC's power to effect social policy through preferential rate making is restricted by statute no matter how deserving the group benefiting from the preferential rate may be.
Appeal from the District Court of the City and County of Denver, Honorable Robert T. Kingsley, Judge.
Kea Bardeen, James G. Watt, for plaintiff-appellee, Mountain States Legal Foundation.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy, Tucker K. Trautman, Assistant, for defendants-appellants, Public Utilities Commission of the State of Colorado, Edwin R. Lundborg, Edythe S. Miller and Sanders G. Arnold, Commissioners.
Irvin M. Kent, for intervenor-appellant, Mountain Plains Congress of Senior Organizations.
Walker D. Miller, Robert T. James, John J. Conway, for amicus curiae, The Colorado Rural Electric Association.
John Fleming Kelly, James L. White, Jeffrey C. Pond, B. Lynn Winmill, Holland and Hart, for petitioner-appellee, Colorado Association of Commerce Industry.
John R. Barry, for Iowa Electric Light Power Company.
T. N. Wright, A. R. Madigan, for Peoples Natural Gas, Division of Northern Natural Gas Company.
Jones, Meiklejohn, Kehl Lyons, Arthur R. Hauver, for Kansas-Nebraska Natural Gas.
Lefferdink, Lefferdink and Stoval, John J. Lefferdink, for Eastern Colorado Utility Company.
Plaintiffs-appellees, Mountain States Legal Foundation and Colorado Association of Commerce and Industry, commenced separate actions in the trial court challenging Public Utilities Commission (PUC) decisions which established a reduced gas rate for low-income elderly and low-income disabled persons. The trial court entered a judgment which set aside these decisions. It held that the adoption of this special reduced rate exceeded the PUC's authority under Article XXV of the Colorado Constitution and violated section 40-3-106(1), C.R.S. 1973. The appellant PUC and intervenor-appellant Mountain Plains Congress of Senior Organizations urge reversal. We affirm the trial court's judgment.
On November 8, 1977, the PUC, in two decisions, ordered gas utilities under its regulatory authority to implement a discount gas rate plan for low-income elderly and low-income disabled persons. The resulting revenue loss for the discounted services would be recovered by higher rates on all other customers.
The low-income customers who would be eligible for the discounted gas rate are "identified" through a procedure utilized by the Department of Revenue to administer the Colorado property and rent credit program. In order to qualify for the discounted rate, a customer must have been a full year resident of Colorado; the customer must be 65 years of age or older or be the surviving spouse, 58 years old or older, of a deceased spouse who met the age requirement, or the customer must be receiving full disability benefits from a bona fide public or private insurance plan; and if the discounted gas rate plan were to go into effect during the 1978-1979 heating season, a customer would have to have an income of $7,300 or less if single, and $8,300 or less if married. These income standards are different from those which were in effect during the 1977-1978 heating season because of a legislative change in the standards for the Colorado property tax and rent credit.
[1] We give full recognition to the fact that many of our state's elderly live on fixed incomes which are severely strained by today's inflationary economy, as are low-income disabled persons who are often shut out of the employment market. While efforts to provide economic relief to such needy persons are laudatory, the PUC has limited authority to implement a rate structure which is designed to provide financial assistance as a social policy to a narrow group of utility customers, especially where that low rate is financed by its remaining customers.
[2] In Mountain States Telephone and Telegraph Co. v. Public Utilities Commission, 576 P.2d 544 (Colo. 1978), we held that Article XXV of the Colorado Constitution gives the PUC full legislative authority to regulate public utilities. We noted in that case, however, that the legislative authority in public utility matters delegated by Article XXV to the PUC could be restricted by statute. Id. at 547. It is clear in the case before us that the PUC's authority to order preferential utility rates to effect social policy has, in fact, been restricted by the legislature's enactment of section 40-3-106(1), C.R.S. 1973 and section 40-3-102, C.R.S. 1973.
Article XXV was added to the Colorado Constitution in 1954. It reads: "In addition to the powers now vested in the General Assembly of the State of Colorado, all power to regulate the facilities, service and rates and charges therefor, including facilities and service and rates and charges therefor within home rule cities and home rule towns, of every corporation, individual, or association of individuals, wheresoever situated or operating within the State of Colorado, whether within or without a home rule city or home rule town, as a public utility, as presently or as may hereafter be defined as a public utility by the laws of the State of Colorado, is hereby vested in such agency of the State of Colorado as the General Assembly shall by law designate. "Until such time as the General Assembly may otherwise designate, said authority shall be vested in the Public Utilities Commission of the State of Colorado; provided however, nothing herein shall affect the power of municipalities to exercise reasonable police and licensing powers, nor their power to grant franchises; and provided, further, that nothing herein shall be construed to apply to municipally owned utilities."
Section 40-3-106(1), C.R.S. 1973, states: "Advantages prohibited — graduated schedules. (1) No public utility, as to rates, charges, service, or facilities, or in any other respect, shall make or grant any preference or advantage to any corporation or person or subject any corporation or person to any prejudice or disadvantage. No public utility shall establish or maintain any unreasonable difference as to rates, charges, service, facilities, or in any respect, either between localities or as between any class of service. The commission has the power to determine any question of fact arising under this section."
Section 40-3-102 states: "The power and authority is hereby vested in the Public Utilities Commission of the State of Colorado and it is hereby made its duty to adopt all necessary rates, charges, and regulations to govern and regulate all rates, charges, and tariffs of every public utility of this state to correct abuses; to prevent unjust discriminations and extortions in the rates, charges, and tariffs of such public utilities of this state; to generally supervise and regulate every public utility in this state; and to do all things, whether specifically designated in articles 1 through 7 of this title or in addition thereto, which are necessary or convenient in the exercise of such power . . . ." (Emphasis added.)
[3,4] Section 40-3-106(1), C.R.S. 1973, prohibits public utilities from granting preferential rates to any person, and section 40-3-102, C.R.S. 1973, requires the PUC to prevent unjust discriminatory rates. When the PUC ordered the utility companies to provide a lower rate to selected customers unrelated to the cost or type of the service provided, it violated section 40-3-106(1)'s prohibition against preferential rates. In this instance, the discount rate benefits an unquestionably deserving group, the low-income elderly and the low-income disabled. This, unfortunately, does not make the rate less preferential. To find otherwise would empower the PUC, an appointed, non-elected body, to create a special rate for any group it determined to be deserving. The legislature clearly provided against such discretionary power when it prohibited public utilities from granting "any preference." In addition, section 40-3-102, C.R.S. 1973, directs the PUC to prevent unjust discriminatory rates. Establishing a discount gas rate plan which differentiates between economically needy individuals who receive the same service is unjustly discriminatory.
[5] To conclude, although the PUC has been granted broad rate making powers by Article XXV of the Colorado Constitution, the PUC's power to effect social policy through preferential rate making is restricted by statute no matter how deserving the group benefiting from the preferential rate may be.
We affirm the judgment of the trial court.
MR. JUSTICE PRINGLE and MR. JUSTICE CARRIGAN dissent.