STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION

Transcription

1 STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the matter, on the Commission s own motion, to open a docket to implement the provisions of Section 6w of 2016 PA 341 for CONSUMERS ENERGY COMPANY S service territory / Case No. U RESPONSE IN OPPOSITION TO CONSUMERS ENERGY COMPANY S OBJECTION TO THE PETITION TO INTERVENE OF THE RESIDENTIAL CUSTOMER GROUP The Residential Customer Group (RCG), hereby files its response in opposition to Consumers Energy Company s (CECO) April 24, 2017 objection to the Petition to Intervene of RCG. 1. RCG MEETS THE LEGAL STANDARD FOR INTERVENTION IN THIS PROCEEDING Contrary to CECO s assertion (pp 1-2), RCG meets the two pronged test to intervene in this case as stated in its intervention petition. As noted therein, RCG will suffer an injury in fact depending on the matters to be decided in this case, and its interests on behalf of its residential customers falls within the zone of interest intended to be protected or regulated by the applicable statutes or constitutional guarantees involved. A. RCG has Demonstrated that it Meets the Requirement of an Injury in Fact RCG meets this requirement as a representative of residential ratepayers of CECo, which customers are one of at least three major classes of customers of CECO, including residential, commercial, industrial, and other. RCG s member customers are just as directly affected by CECO s proposals in this case as are any other customers of CECO, and CECO has not asserted 1

2 or explained otherwise. CECO asserts (p 2) that RCG has failed to demonstrate that it or its members would suffer an injury in fact as a result of this proceeding. However, RCG s residential customers will be impacted in the same manner as other potential representatives of other rate classes, such as ABATE (for the industrial class). RCG has standing to represent its residential customer members which cannot be represented by representatives of commercial, industrial, or even representatives from state employees such as the MPSC staff or the Attorney General (without involving themselves in conflicts of interest and violations of state ethics statute and precedent). Moreover, CECO s assertion that RCG appears to be an incorporated voluntary association, is also irrelevant and erroneous. RCG is not required to be a formal incorporated group. As an example, ABATE is not a formal incorporated group, but seeks intervention in this case and has been regularly been granted intervention in many scores of past CECO cases, without objection of CECO. Moreover, however, RCG indeed is an incorporated non-profit organization as demonstrated by RCG s Articles of Incorporation filed with the State of Michigan (Appendix A hereto) which CECO could have easily accessed with extremely minimal effort. Moreover, RCG is not required to identify to CECO or to this proceeding any of its specific members in accordance with the precedent of the US Supreme Court in National Association for the Advancement of Colored People v State of Alabama, 357 US 449; 78 S Ct 1163; 2 L Ed 2d 1488 (1958), and NAACP v Alabama, 377 US 288 (1964). There is also no requirement that RCG maintain a separate organizational office specifically in CECO s territory. In contrast, ABATE similarly has no separate organizational office, but cites in its documents the address of its attorneys. 2

3 CECO s suggestion that RCG would not have representational standing is without merit pursuant to the same cases cited by CECO (p 3). In this regard, RCG s member residential customers have standing on their own to participate in this case, and they may combine their resources to be represented by RCG in this proceeding. CECO s suggestion that RCG s Petition to Intervene does not provide sufficient information to disclose its current membership who are customers of CECO is without merit. RCG s Petition has asserted that RCG has customers of CECO who are being represented by RCG in this case. There is no requirement that RCG reveal the list of membership of CECO customers in CECO s territory [see National Association for the Advancement of Colored People v State of Alabama, 357 US 449; 78 S Ct 1163; 2 L Ed 2d 1488 (1958), and NAACP v Alabama, 377 US 288 (1964)]. CECO s reference (p 4) to the fact that it has 1.8 million electric customers is wholly irrelevant to the intervention issues to be decided. CECO s suggestion that RCG s petition fails to provide information about the organization s purposes to meet representational standing or that its claims and relief will not require the participation of individual members, is also wholly unexplained and without merit. RCG s intervention petition fully describes the purposes and interests of the residential customers comprising RCG. CECO s assertion (p 4) that an unincorporated voluntary association has no legal existence has no relevance to RCG s right to intervene in this case. As noted, RCG does have a legal existence as a non-profit organization (See Appendix A). Secondly, another intervenor on behalf of industrial customers (namely ABATE) does not have any such legal existence (in contrast to RCG). Third, CECO s assertions are not related to the specific ratemaking statutes 3

4 requiring contested cases, with advance notice and hearing, in proceedings such as this. 1 The ratemaking and regulatory policy decisions to be reviewed in this case are the relevant criteria for determining these issues, contrary to the non-psc cases, court rules, or statutes cited by CECO. CECO s challenge to the RCG s nomenclature as the residential customer group (pp 4-5) is also wholly irrelevant to determining RCG s right to intervene in this case CECO s citation (p 5) of other cases wherein a member of an organization is a customer of CECO does not support denial of RCG s intervention. RCG represents numerous CECO customers, and their interests are direct and not oblique or artificial, and CECO has failed to explain how any of the cases cited by CECO have any analogy or similarity to RCG s intervention and standing in this case. B. RCG Falls Within the Zone of Interest Intended to be Protected by this Statutory Proceeding RCG fully meets the second prong of the test for standing to intervene because RCG and its residential customers fall within the zone of interest intended to be protected by the statutes governing rate case proceedings. Clearly, the MPSC is required to follow the mandates of the Michigan Administrative Procedures Act, cited supra, and its own ratemaking statutes, and its Rules of Procedure (cited supra) in issuing its notice of hearing and providing for these contested case proceedings. RCG representing residential customers clearly falls within the zone of 1 Michigan Administrative Procedures Act, including Chapter 4 (MCL , et seq), and the specific notice and hearing statutes applicable to the Commission, as cited by the Commission in its Notice of Hearing, and extensive judicial precedent applicable to MPSC contested case hearings, and the Commission s Rules of Practice and Procedure before the Commission. 4

5 interest protected by these statutes and rules as a basis to conclude that they have standing to participate in this case. CECO s pure speculation (p 6) regarding past RCG issues concerning AMI meters is unreasonably speculative and anticipatory that RCG would pursue such issues in this case. Moreover, RCG in past CECO cases has pursued other or additional issues besides AMI, such as local tax issues which CECO intended to include in its rate cases on a retroactive basis. CECO s suggestion (p 6) that RCG s issues or position can be adequately represented by the MPSC Staff and the Attorney General are wholly without merit. The state employees of the Attorney General and the MPSC Staff, pursuant to statutory authority and state ethics statutes and standards, cannot represent as state employees the interests of private parties participating in state matters. There is no indication whatsoever that the state employees of the Attorney General or the MPSC Staff have been authorized to violate state statutes regarding these matters to represent the independent, private, non-profit group, namely, the RCG. Moreover neither the Attorney General nor the Staff have asserted this, nor provided an explanation as to how they could represent RCG or its customers in this case. II. RCG s PETITION TO INTERVENE MEETS THE REQUIREMENTS OF THE COMMISSION S RULES OF PRACTICE AND PROCEDURE Contrary to CECO s assertions (p 6-7), RCG s Petition to Intervene in this case meets the requirements of the Commission s Rules of Practice and Procedure, including Rule 410(2), R (2). RCG s Petition to Intervene is equally or more complete than the Petitions filed by any other entity seeking intervention in this case. RCG asserts that the cited Commission rule cannot 5

6 be applied on a discriminatory basis, and in a manner not implemented in any prior decisions or rulings (of which CECO cites none). With respect to CECO s other objections (p 7), there is no requirement for RCG to identify its members (pursuant to NAACP v Alabama, supra). There is no requirement to provide more specifics of facts, issues, or law that it intends to raise in this case other than the matters already asserted in RCG s intervention petition, as such matters must be subject to further review by expert witnesses and legal counsel. RCG has adequately asserted that it seeks as relief just and reasonable rates and rulings, and decisions in this matter. More specific relief must necessarily be developed at further stages of this case. There is no basis for CECO s speculative assertions that RCG would seek to relitigate well settled issues regarding AMI. CECO s assertions are wholly premature, speculative, and anticipatory to the extreme. III. RCG S PARTICIPATION IN THIS PROCEEDING WOULD NOT UNDULY PREJUDICE CONSUMERS ENERGY, THE OTHER PARTIES, AND THE COMMISSION There also exists no merit to CECO s suggestion (pp 7-10 that RCG s participation in this case should be foreclosed on the basis that RCG s participation would unduly prejudice CECO, other parties, or the Commission. CECO s suggestion that the MPSC Staff or the Attorney General can stand in the shoes of RCG to represent its residential customers is wholly inappropriate and erroneous for the reasons already stated. The CECO suggestion that RCG in this case will pursue certain issues, such as AMI issues, is wholly erroneous, speculative, and anticipatory, as also stated earlier. 6

7 CECO s reference to certain proceedings in CECO s rate case U-17735, out of context, also has no relevance to this particular proceeding. IV. CECO S MOTION IN OPPOSITION TO RCG S MOTION FOR INTERVENTION SHOULD BE REJECTED FOR ALL OF THE SAME REASONS THAT ALL OF CECO S SAME MOTIONS IN PREVIOUS MPSC CASES HAVE BEEN REJECTED BY ALL PRESIDING ADMINISTRATIVE LAW JUDGES RCG also asserts that CECO s unsupported, speculative, and purely anticipatory motion to oppose RCG s intervention in this case should be rejected for all of the same reasons that all previous administrative law judges have rejected CECO s previous objections to RCG s motions to intervene, including cases U-l7735, U-17790, U-18250, among others. In further support of all grounds for denying CECO s motion in opposition to RCG s intervention in this case, RCG attaches as Appendix B the briefing and authority that RCG filed in opposition to the same CECO motion in case U RCG also notes that CECO s objection to RCG s intervention in CECO s recently filed case U was also rejected by the Administrative Law Judge. RCG could cite several other cases in which the Administrative Law Judges have consistently rejected CEWCO s objections to RCG s intervention in other cases, or have objected to interventions by other clients represented by this firm in other cases. V. CONCLUSION AND RELIEF Based upon RCG s Intervention Petition filed in this case on March 1, 2017, and this response in opposition to CECO s Objection to the Petition to Intervene of the Residential Customer Group, and the attached other responses including case authority and concepts cited therein, RCG respectfully requests the Administrative Law Judge to deny CECO s objection to 7

8 RCG s intervention in this case, and to grant RCG s intervention in this case as a full party in this proceeding for all purposes. RCG requests such further and consistent relief that is lawful, reasonable, and equitable. Respectfully submitted, Dated: April 25, 2017 Don L. Keskey (P23003) Brian W. Coyer (P40809) Public Law Resource Center PLLC University Office Place 333 Albert Avenue, Suite 425 East Lansing, MI Telephone: (517) s: donkeskey@publiclawresourcecenter.com bwcoyer@publiclawresourcecenter.com 8

9 STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the matter, on the Commission s own motion, to open a docket to implement the provisions of Section 6w of 2016 PA 341 for CONSUMERS ENERGY COMPANY S service territory / Case No. U APPENDIX A TO RESPONSE IN OPPOSITION TO CONSUMERS ENERGY COMPANY S OBJECTION TO THE PETITION TO INTERVENE OF THE RESIDENTIAL CUSTOMER GROUP

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13 STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the matter, on the Commission s own motion, to open a docket to implement the provisions of Section 6w of 2016 PA 341 for CONSUMERS ENERGY COMPANY S service territory / Case No. U APPENDIX B TO RESPONSE IN OPPOSITION TO CONSUMERS ENERGY COMPANY S OBJECTION TO THE PETITION TO INTERVENE OF THE RESIDENTIAL CUSTOMER GROUP

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77 STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the matter, on the Commission s own motion, to open a docket to implement the provisions of Section 6w of 2016 PA 341 for CONSUMERS ENERGY COMPANY S service territory / Case No. U CORRECTED PROOF OF SERVICE On April 25, 2017, an electronic copy of the Response in Opposition to Consumers Energy Company s Objection to the Petition to Intervene of the Residential Customer Group was served on the following: Name/Party Administrative Law Judge Hon. Mark D. Eyster Consumers Energy Company Kelly Hall Bret A. Totoraitis Gary Gensch, Jr. ABATE Sean P. Gallagher Michael J. Pattwell Stephen Campbell Sierra Club Christopher M. Bzdok Tracy Jane Andrews MPSC Staff Lauren Donofrio Meredith Beidler Bryan Brandenburg Energy Michigan and Calpine Energy Solutions, LLC Timothy J. Lundgren Laura A. Chappelle Toni L. Newell Address eysterm@michigan.gov mpscfilings@cmsenergy.com kelly.hall@cmsenergy.com bret.totoraitis@cmsenergy.com gary.genschjr@cmsenergy.com sgallagher@clarkhill.com mpattwell@clarkhill.com scampbell@clarkhill.com chris@envlaw.com jtandrews@envlaw.com donofriol@michigan.gov beidlerm@michigan.gov brandenburgb@michigan.gov tjlundgren@varnumlaw.com lachappelle@varnumlaw.com tlnewell@varnuml;aw.com

78 Wal-Mart Stores East, LP and Sam s East, Inc. Melissa M. Horne Wolverine Power Marketing Cooperative, Inc. Richard Aaron Courtney Kissel Spartan Renewable Energy, Inc. Richard Aaron Jason Hanselman Constellation NewEnergy Inc Jennifer U. Heston Attorney General Bill Schuette Celeste R. Gill Michigan State Utility Workers Council, Utility Workers Union of America, AFL-CIO John A. Canzano Patrick J. Rorai Michigan Municipal Electric Association Peter H. Ellsworth Nolan J. Moody Jim B. Weeks mhorne@hcc-law.com raaron@dykema.com ckissel@dykema.com raaron@dykema.com jhanselman@dykema.com jheston@fraserlawfirm.com gillc1@michigan.gov jcanzano@michworkerlaw.com prorai@michworkerlaw.com pellsworth@dickinsonwright.com nmoody@dickinsonwright.com jweeks@mpower.org The statements above are true to the best of my knowledge, information and belief. PUBLIC LAW RESOURCE CENTER PLLC Dated: April 25, 2017 Carol A. Dane Public Law Resource Center PLLC University Office Place 333 Albert Avenue, Suite 425 East Lansing, MI Telephone: (517) adminasst@publiclawresourcecenter.com