In re Application of DETROIT EDISON COMPANY re Licensing Rules.
MICHIGAN PUBLIC SERVICE COMMISSION, TILDEN MINING COMPANY, LC, and EMPIRE IRON MINING PARTNERSHIP, Appellees, ASSOCIATION OF BUSINESSES ADVOCATING TARIFF EQUITY, Appellant, and DETROIT EDISON COMPANY, INDIANA MICHIGAN POWER COMPANY, MICHIGAN ELECTRIC & GAS ASSOCIATION, and CONSUMERS ENERGY COMPANY, Petitioners-Appellees.
Bridget M. McCormack, Chief Justice David F. Viviano, Chief
Justice Pro Tem Stephen J. Markman Brian K. Zahra Richard H.
Bernstein Elizabeth T. Clement Megan K. Cavanagh, Justices.
order of the Court, the application for leave to appeal the
February 8, 2018 judgment of the Court of Appeals is
considered, and it is DENIED, because we are not persuaded
that the questions presented should be reviewed by this
Markman, J. (dissenting).
respectfully dissent. This case concerns whether the Court of
Appeals correctly ruled that the Public Service Commission
(PSC) possesses the regulatory power to issue an order
prohibiting industrial and commercial consumers of
electricity in Michigan from participating in federally
established "wholesale electric markets" for
demand-response resources during times of peak electricity
demand. As simply put as possible, "wholesale demand
response," as it is called, "pays consumers for
commitments to curtail their use of power, so as to curb
wholesale rates and prevent grid breakdowns."
Federal Energy Regulatory Comm v Electric Power Supply
Ass'n, 577 US__, __; 136 S.Ct. 760, 769-770 (2016).
While I hold no particular view at this time as to whether
the Court of Appeals erred by its thoughtful decision, the
issue is one that, in my judgment, merits the fullest review
of this Court and I would grant leave to address the
[PSC] is a creature of the Legislature and, as such,
possesses only those powers conferred upon it by
statute." Union Carbide Corp v Pub Serv Comm,
431 Mich. 135, 148 (1988). In ruling that the PSC possessed
the power to issue its order in this case, the Court of
Appeals cited two statutory provisions, MCL 460.6(1) and MCL
460.54, but applied only MCL 460.6(1). MCL 460.6(1) reads in
The public service commission is vested with complete power
and jurisdiction to regulate all public utilities in the
state except a municipally owned utility, the owner of a
renewable resource power production facility as provided in
[MCL 460.6d], and except as otherwise restricted by law. The
public service commission is vested with the power and
jurisdiction to regulate all rates, fares, fees, charges,
services, rules, conditions of service, and all other
matters pertaining to the formation, operation, or direction
of public utilities. The public service commission is further
granted the power and jurisdiction to hear and pass upon all
matters pertaining to, necessary, or incident to the
regulation of public utilities . . . . [Emphasis added.]
460.54 reads in relevant part:
In addition to the rights, powers and duties vested in and
imposed on said commission by the preceding section, its
jurisdiction shall be deemed to extend to and include the
control and regulation, including the fixing of rates and
charges, of all public utilities within this state,
producing, transmitting, delivering or furnishing steam for
heating or power, or gas for heating or lighting purposes for
the public use.
uncertain whether MCL 460.6(1) or MCL 460.54 confers specific
power upon the PSC. See Consumers Power Co v Pub Serv
Comm, 460 Mich. 148, 160 (1999) ("This Court has
consistently held . . . that the broad language of [MCL
460.6] serves as an outline of the PSC's jurisdiction,
not a grant of specific powers."); Building Owners
& Managers Ass'n of Metro Detroit v Pub Serv
Comm, 424 Mich. 494, 502 (1986) (describing MCL 460.54
as a "statutory provision governing the PSC's
jurisdiction"). But assuming that MCL 460.6(1) and MCL
460.54 do confer specific power, because the PSC order
affects electricity rates during times of peak demand in
Michigan, it could arguably be deemed within its power to
"regulate" and "fix" electricity
"rates" under both MCL 460.6(1) and MCL 460.54.
Similarly, because the PSC order places a
"condition" upon a customer's receipt of
electricity__ such receipt is contingent on the
customer's nonparticipation in the federal markets__ it
may also be deemed within PSC's power to "regulate .
. . conditions of service" under MCL 460.6(1).
I question whether such relatively broad statutory grants of
power__ assuming they are, in fact, grants of power__ invest
the PSC with the power over what is, in effect, a private
managerial decision on the part of industrial and commercial
entities to reduce electricity consumption in exchange for
compensation from the federal markets. Such an interpretation
may additionally suggest that the PSC possesses power over
virtually any conduct on the part of a utility customer that
is even incidentally related to, or that tangentially
"affects," the electricity itself or electricity
rates. For instance, the utilization of solar panels by a
customer might well also have a downward effect on
electricity rates because less electricity would obviously be
demanded of the power grid under such circumstances. Yet, a
prohibition against customers utilizing solar panels would
seem to exceed the PSC's considerably more limited grant
of statutory power over "rates" and
"conditions of service." I am concerned that the
Legislature did not intend to authorize the PSC to regulate
conduct that is so arguably attenuated from the delivery ...