PROGRESS OF REGULATION

Trends and Topics

Disposition of Utility Real Property — 'Rate-making Treatment of Gains

W HEN a regulated public utility disposes of real prop-erty and a gain is realized, there is a possibility of tworale-making events: above-the-line treatment or bclo\v-the-line treatment. Above-thc-linc treatment increases util-ity income and ultimately benefits ratepayers in the formof reduced rates or smaller rate increases. In contrast,bclow-the-linr treatment characterizes revenue as non-utility income and benefits the utility's shareholders bynuking available surpluses with which lo pay, or increase,dividends.

This article will examine the rationale of several re-cent decisions at the state regulatory level which havedealt with this issue. At the federal level, the reader isdirected to orders issued by the former Federal PowerCommission: Order No. 420 (197)) 45 FPC 100: OrderNo. 420-A (1971) 4f> FPC 340.

Majority and Hfinorilv I fairs

Among the various slate commissions, there is a clearmajority and minority in the treatment of gains. Themajority of jurisdictions has applied above-the-line treat-ment to gains from the sale of properly included orpreviously included as part of a utility's rale base. Sec"Gain on Disposition of Utility Land Is Oilier UtilityIncome." by Gilbert L. Hamberg, 108 PUBLIC UTILITIKSFORTNIGHTLY 41, August Ki. 1981; see also Re TampaF.lectric Go. (Fla PSC 1982) -19 PUR llh 517. The minor-ity has afforded below-the-line treatment.

Although the line between the majority and minoritypositions is drawn clearly, the factors affecting the deci-sion to apply above- or bclow-thc-line treatment are noteasily distinguishable. In many instances these factorsare overlapping and intertwined.

Some of these factors are: (1) the relevance that shouldbe attached to the fact that land is no! a depreciableasset. (2) who owns utility land devoted to public service,and ('.}) who bears the risk of loss or shoulders the bur-den of carrying the property. All of these factors deter-mine whether ratepayers or shareholders are lo benefit.

Other factors reflect current economic and politicalproblems. For instance, many natural gas and electricutilities today arc faced with the prospecl of diminishedfuture load growth which may obviate the need to holdonto some panels of land. Also, the decision lo disposeof real properly may not always be the utility's to make,since its property is subject to the sovereign powers ofcondemnation. As will be seen, the ability of a utility totime the' disposition of this asset may affect the type oftreatment a gain is afforded because of the [visibilitythai the utility would have engaged in land speculational the ratepayers' expense.

llcloii'-tttc-line Treatment

The inosl recent gainv treatment case, it is believed,was decided on February 26. l9K!l, by ihe commonwealthcourt ol Pennsylvania. I'vnnavhvnia (ius f: \\aici Co. rPennsytiiinia Pub (ftititv Ciinimmian (Pa Comniw 1983) 52PUR llh -. lr>0 A2d 1120. This decision, which held thatgain (rom the sale ol land was to be credited to a share-holder surplus account, is noteworthy for several reasons.

First, the rouri determined thai the gain should notbenefit ratepayers because shareholders had contributedthe' capital from which the land was purchased and borethe risk of any decline' in value1 lit al —. -lf>t> A2d 1137.Second, this decision was in accord with an earlier decision,discussed below, which was decided in I9S1; ihus iheminority treatment of gains has some small measure olentrenchment in the stale1 ol Pennsylvania.

The court emphasized two distinct factors lor consider-ation in choosing rate-making treatment: assel owner-ship and risk-reward. (However, main decisions apply-ing a stricter risk-reward analysis have1 ollen made thedetermination of asset "ownership" a preliminary matteras part of a determination of who incurs investmentrisk.)

Before leaving this case, other points of the tomi'sdecision merit comment. The office ol consuniei advocatehad asserted Pennsylvania's uniform svslem ol accounts

50PUBLIC UTILITIES FORTNIGHTLY-JULY 7, 1983

should not control, and thai il was unfair to allocate thegain to .shareholders because of risk since lund only ap-pnriales in value. The court rejetli'd these arguments.

A f ina l argument of the consumer advocate., also rc-jeclcd by tin- court , was thai above-the-line treatmentwas necessarv in order to prevent "manipu la t ion" of landsto the ratepayers' de t r iment . /</ — , 4.'>f> A2d 11,'iS.

On April I). H'81. in an earlier case, the Pennsylvaniacommonwealth court had held that gain received hornthe sale ol nondepreciable watershed property, no longerdeemed to be used and use fu l , should accrue to theshareholders' bene f i t . The court acknowledged t h a t theland had been i n < hided in rale base ca l cu l a t i ons tha ihad provided a re turn to shareholders. Since th i s wasthe courts f u s t encounter w i t h t h i s issue, i ts decisionreviewed a wide spectrum of arguments. Philadelphia Sub-urban Hater C». r /'cnnsvhiinia I'uli. lilihlv CtimttMsion (PaCommw I W I ) -i:l Pl!R4ih l.'i.'l. 427 A2d 12-14.

The commission had not disputed the shareholders'ownership of the gain. I t had classified the gain as ex-traordinary u t i l i t y income and had ordered the u t i l i t y1C pass its benefit onto the ratepayers. Id. at 134.

Confiscation and Asset Ownership. Philadelphia Subur-ban Water Company had argued the1 commission's orderconfiscated the utility's property without due process orjust compensation. In agreeing with the u t i l i ty ' s position,the court stressed the properly involved was a nondepre-ciable asset and no longer included in the rate base.

Bolstering the court's rationale was the method bywhich the land had been acquired — by a "normal realestale transaction," not by the power of eminent domain.Further, there was no indication thai the land had beenpurchased below market value. The court stressed thatratepayers, by paying ut i l i ty bills, did not acquire anyinterest, legal or equitable, in properly or funds dedi-cated to public use. Id. at 135, 13(i.

Depreciation. The keystone of the stale court's decisionwas that the watershed land was a nondepreciable asset.This caused the court lo conclude that "the utility gainsno advantage as it does from depreciable assets for thenoncash expense of depreciation." But because land wasnot consumed in the course of providing u t i l i t y services,the court determined that the "ratepayer, though bear-ing the cost of taxes, pays only for the use of land, butgains no equitable or legal right therein." Id. at 136.

By paying depreciation charges,'ratepayers might as-sert an x-quilable claim to ownership of u t i l i ty properly.However, because land is not depreciable, the court heldthat ratepayers were not equitable- owners, and not hav-ing paid the cost of purchasing nondepreciable property,they were1 not to realize the profits or losses on its salem other disposition. 43 Pl!K4th al J3(i, J37. See also/fuur Hater Corp. v Idaho Pub. Utilities Commission (J978)- Idaho -, 578 P2d 1089; City of Lexington v LexingtonH'utcr Co. (Ky App 1970) 458 S\V2d 778, 779.

Ki*k and Reuvrd. The commonwealth court rejectedthe lommission's statement that because land generallyappreciates there was no risk of loss on its sale. Thecourt considered this lo be a myopic view of the reali-ties of the market system. 43 PUK4lh at J3(>, Footnote 0.

Presumably, the commission made this statement lo avoidany claim by the u t i l i t y that the gain should be- treatedas a reward lo shareholders for having assumed an m-vcslmenl risk, and to swing the issue of gains treatmentsolely upon the consideration of a benefit-burden analysis.thereby hoping to claim the gain for ratepayers sincethey "paid for the land" through rales which paid fortaxes, and other expenses associated with land. However,this was negated by the conn's slance that ratepayersonly pay for the use of the assets; i.e., pay for servicesreceived.

Accounting Rules The office of consumer advocate hadasked the1 court to ignore the stale's uniform system ofaccounts. The commission had wanted the court lo ru lethat "appreciation in the sale or transfer of land shouldinure to the benefit of the ratepayer and tha t accountingprocedures do not. dictate rate-making policy." Id at 137.The commonwealth court examined its uniform systemof accounts (retired lands) and concluded tha t a net gain(or loss) from the sale of land should be treated below-thc-line as a credit or debil to a shareholder's surplusaccount. Id.

The commonwealth court distinguished its decision-from a federal court's dccision'that had reached an op-posite result. See Democratic Central Committee r Washing-ton Metropolitan Area Transit Commission (DC Cir 1973)485 F2d 786, cert den (J974) 4]5 US 935. The first differ-ence noted by the stale court was the method of acquisi-tion. In Democratic Central Committee, a transit u t i l i tyhud acquired a transit system pursuant lo an act of Con-gress al a cost of $10 million less than original cost. Inthai case ralepuycrs had paid for the acquisition of cupi-lal assets, a function usually performed by shareholders.

Furthermore the Districi of Columbia Public ServiceCommission at that time lacked a specific rule dealingwith this type of gain. TLis absence of a "rational regula-tion" dictating the appropriate action for a commissionlo take forced the circuit court "to adopt a rational ruleof accounting to accommodate equitable principles." Phil-adelphia Suburban Water Co. at 138.

Above-the-linc Treatment

Sandwiched between the lime of the two Pennsylvaniacommonwealth court decisions is a decision by the Mas-sachusetts Department of Public Uti l i t ies which affordedabovc-the-line treatment. Me Huston Gas Co. (Mass Dl'U1982) 49 PUK4lh 1. The department's decision rested uponits application of a benefit-burden analysis. The1 staleattorney general had argued thai prior year inclusion inrate base had burdened the ratepayers because they hadbeen required to pay a return on the1 land as well asassociated properly taxes. Id. at 26. See also Re DetroitLdtson Co. (Mich PSC 1977) 20 PUK4th 1.

The uti l i ty 's position was tha t because land was a non-depreciable asset, the company had recovered none of ihecost of its investment from its customers. Further, s inceratepayers allegedly incurred none of the risks of owner-ship, the u t i l i t y claimed tha i the ratepayers weie notentitled lo any benefit. 4U PUK 1th at 2f> . The Massachu-setts department rejected the u t i l i ty ' s position completely.

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DI'IUI i niliiiii. Most s igni f icant was the depai Iment s stale-n i i -n l l ha t l l ie i ionclepiec iablc s tatus of land was irrelevant.Instead l l i e department determined that because the landhad been treated as an above-the-line item and includedin rale base', above-the-linc t reatment of the gain waswarranted.

In contrast, the Pennsylvania commonwealth court de-cisions would appear to say the fact that an item is inrate base indicates only that it is used to render serviceto rail-payers, and unless thai item is a depreciable- asset,rate-payers pay only for its use. Thus, both jiositionsacknowledge that ratepayers jiay, in the form of a re-turn on investment and taxes, etc., when land is presentin rate base. However, their divergent treatments wouldappear to stem from how lhat payment is characterized:the Massachusetts department calls it a burden; the com-monwealth court calls it a user charge or, more appro-priately, it could be referred to as economic rent.

Compensation. In addition to holding that ratepayersbore the burden and, thus, should reap the reward ondisposition, the department considered shareholders tohave been adequately "compensated" by having receiveda return on the lands while they were in rate base. Thedepartment commented that the possibility of a windfa l lto the shareholders was an "uncharacteristic risk-rewardsituation for a regulated u t i l i ty to be in with respect toits plant in service." Id. at 26.

Of interest to note is the department's position that au t i l i t y earning a reasonable rate of return would receivea windfal l under below-the-line treatment. Under thistheory, if a u t i l i t y in a pa r t i cu la r year, or over a periodof years, failed to earn an adequate return and also soldproperty at a profit, it could lay claim to the gain.

Regulatory Status

Thus far, the majority and minor i ty positions of thedecisions examined have acknowledged several s imi l a rfactors. Among these are tha t ratepayers pay a returnon lands included in rale base and also pay the associ-ated taxes. However, these positions are contradictory.The reason for this may be the undue amount of empha-sis tha t some parties have placed on the term rale base.

"Rate base" as a concept for determining the price ola service exists only lor regulated entities. But for th isquasi-monopply status, the price of u t i l i t y services could

Ix- determined without reference to rale base. Synonymouswith rate base is the concept of "used and useful " Timconcept protects ratepayers from paying excessive or in-f la ted rates. Thus, when land is no longer used anduseful cither the regulatory body or the u t i l i t y w i l l re-move it from rate base. This would tend to a f f i r m theminority's position, as exemplified by the Pennsylvaniadecision tha t land is used only to render service.

If there was no rate base or regulatory body, would autil i ty 's customers lay claim to corporate j)rofits fromthe sale of assets used to render services to those samecustomers? The answer would appear to lie in anotherconcept: that the function of a regulatory body is toimpose marketplace conditions on u t i l i t i es so thai rale-payers pay only just and reasonable rates.

After the regulatory process has fixed a uti l i ty 's rales,ratepayers should be in the same position as if they hadgone into the marketplace and purchased those sameservices. Thus, but for the presence of regulalion andthe rate base concept, it would be highly unlikely thatcustomers would lay claim to ut i l i ty assets. This vicw-jK>int is supported by the Pennsylvania decisions, whichadhere to the concept thai ratepayers pay only for ser-vice and should not expect nor receive any benefit fromthe sale of assets.

Conclusion

The majority and minori ty ]>ositions for the treatmentof gains from the disposition of u t i l i ty real property areirreconcilable. This schism, although couched in termsof ownership, risks, burdens, accounting principles, anddepreciation, centers on the resolution of one issue: Whatdoes a ratepayer pay for?

Is it just for services received — i.e., use of Ihe land— or, is it lor an interest, equitable or otherwise, lhaten t i t l e s one to benefi t by a gain f rom the land's removalhorn rale base and subsequent disposition? The resolu-t ion ol these questions is d i f f i c u l t Ix-cause the regulatoryprocess by necessity involves a balancing of the voicedinterests <>l ratepayers and investors. Il remains for theslate commissions and courts to address this issue ofpayment when rendering .future decisions on f;ains fromdisposition of u t i l i t y real properly.

— PAUL V. Not AN

Review of Current CasesWPPSS Bond Contracts Voided;

Statutory Authority LackingThe Washington supreme court has held thai agree-

ments between 19 state public u t i l i ty districts, nine localmunicipalities, and the Washington Public Power Sup-ply System for the payment of revenue bonds in connec-tion with the construction of two nuclear power plantsarc void and unforceable.

The Washington Public Power Supply System had en-

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tered into agreements with 88 "participants." — nine Wash-ington cities, 1<> Washington public u t i l i t y districts, oneWashington irrigation dis t r ic t , seven Oregon cities, fourOregon peoples u t i l i t y districts, f ive Idaho cities, and -111rural electric cooperatives — whereby each participanthad agreed to pay monthly its proportionate1 share ofthe cost of revenue bonds issued to bui ld two nuclearplants, WNP uni ts 4 and 5. In return each received theright to purchase a share of "project capability." However,the plants were canceled when both were approximately

PUBLIC UTILITIES FORTNIGHTLY-JULY 7. 1983