IN RE APPLICATION OF DETROIT EDISON CO TO INCREASE RATES (Concurring Opinion)
Annotate this Case
Download PDF
STATE OF MICHIGAN COURT OF APPEALS In re Application of DETROIT EDISON COMPANY to Increase Rates. ASSOCIATION OF BUSINESSES ADVOCATING TARIFF EQUITY, FOR PUBLICATION April 10, 2012 Appellant, v MICHIGAN PUBLIC SERVICE COMMISSION and ENERGY MICHIGAN, INC., No. 296374 Public Service Commission LC No. 00-015768 Appellees, and DETROIT EDISON COMPANY, Petitioner-Appellee. In re Application of DETROIT EDISON COMPANY to Increase Rates. ATTORNEY GENERAL, Appellant, V MICHIGAN PUBLIC SERVICE COMMISSION and MICHIGAN CABLE TELECOMMUNICATIONS ASSOCIATION, Appellees. Before: SHAPIRO, P.J., and SAAD and BECKERING, JJ. -1- No. 296379 Public Service Commission LC No. 00-015768 SHAPIRO, J. (concurring in part and dissenting in part). I concur with the majority that the Commission s decision to allow rate decoupling should be reversed, because the issue is plainly controlled by the Legislature s recent adoption of MCL 460.1089(6) and MCL 460.1097(4). These sections set forth the scope of the Commission s authority specifically as to rate decoupling and clearly limit that authority, regardless of what its scope was prior to their passage. Thus, they determine the outcome of this issue and the extent of the Commission s general authority as it existed prior to the adoption of these controlling provisions is not relevant to our decision. I dissent from the majority s reversal of the PSC s approval of the advanced metering infrastructure program. Because this is an experimental program and because the Commisson s action was not arbitrary or capricious we are bound to affirm. The majority states that it declines to adopt the arbitrary and capricious standard of review as to PSC authorization of experimental programs. However, that is in fact the standard. Residential Ratepayer Consortium v Public Service Commission, 239 Mich App 1, 5; 607 NW2d 391 (1999). The majority does not conclude, and I do not believe we can conclude, that the PSC s approval of the pilot program was arbitrary and capricious in light of the testimony of Detroit Edison s manager of systems operations and that of the manager of the energy efficiency section of the electric reliability division of the PSC. As noted in Residential Ratepayer, experimental rates by their very nature . . . must await results on a test basis. Id. at 5. I believe the majority is putting the cart before the horse by requiring that the Commission conduct a full hearing on the results of the experimental program before the program has been conducted. Moreover, it is not disputed that this issue was raised in an earlier case involving these parties, decided in the PSC s favor and not pursued by appellants to a decision by this Court.1 While the doctrines of res judicata and collateral estoppel do not apply in the pure sense in ratemaking cases, issues fully decided in earlier PSC proceedings need not be completely relitigated in later proceedings unless the party wishing to do so establishes by new evidence or a showing of changed circumstances that the earlier result is unreasonable. In re Application of Consumers Energy, 291 Mich App 106, 122; 804 NW2d 574 (2010) (quoting Pennwalt Corp v Pub Serv Comm, 166 Mich App 1, 9; 420 NW2d 156 (1988)). As appellants point to no new evidence or changed circumstances I would defer to the earlier ruling. I concur with the majority in all other respects. /s/Douglas B. Shapiro 1 See Case No. U-15768, 1/11/10 opinion and order, p55, citing Case No. U-15244, opinion and order, appeal dismissed by stipulation in In re Application of Detroit Edison Co to Increase Rates (Docket No. 291226), 2/22/10). -2-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
