SC Number:
CA Number:
Case Title:
Frank Gearhart v. Public Utility Commisison of Oregon
09:00 AM
Lewis and Clark College of Law
Daniel W. Meek, on behalf of Utility Reform Project
James N. Westwood, on behalf of Portland General Electric Company
Denise G. Fjordbeck, on behalf of Public Utility Commission of Oregon
will share oral argument time with S061517
Statement of Issues:
Frank Gearhart v. Public Utility Commission of Oregon (S061517) (S061518) (A140317) (appeal from Public Utility Commission of Oregon; opinion reported at 255 Or App 58, 299 P3d 533 (2013)).

Petitioners Frank Gearhart, Patricia Morgan, and Kafoury Brothers, Inc. (class action plaintiffs), in Case No. S061517, and petitioner Utility Reform Project (URP), in Case No. S061518, have been granted review of a divided Court of Appeals decision that affirmed an order on remand (Order No. 08-487) that the Public Utility Commission of Oregon (PUC) issued in response to continuing litigation concerning the rates that it had established for Portland General Electric (PGE) in the aftermath of PGE's closure of the Trojan nuclear power generating plant.

On review, the issues (as largely framed by the petitioners) are:

(S061517, class action plaintiffs):

(1) Did the PUC follow the instructions of the Supreme Court in Dreyer v. PGE, 341 Or 262, 142 P3d 1010 (2006) to exercise its primary jurisdiction, or did the PUC err as a matter of law by allegedly deeming that the rates established and reviewed in Citizens' Utility Board v. PUC, 154 Or App 702, 962 P2d 744 (1998), rev dismissed, 335 Or 91 (2002) (Trojan I) were lawful all along?

(2) Were the rates approved in PUC Order 95-322 (Trojan I): (a) unlawful to the extent they included charges in excess of substantively lawful charges, or (b) "only unlawful if they are unjust and unreasonable, unjustly discriminatory, or confiscatory, " as the Court of Appeals determined in this case?

(3) What is the authority of the PUC upon remand of a rate order resulting from a judicial conclusion that the PUC and the utility had violated ORS 757.355?

(4) To what extent, if any, can the PUC, absent specific statutory authority, order: (a) refunds to ratepayers who paid rates later found to be unlawful by the courts? (b) surcharges in favor of utilities when ratepayers have paid rates later found to have been unlawfully low?

(5) Can the PUC, upon remand, allow the utility to justify its rates charged during the closed past period, which were found unlawful by the courts, by: (a) considering new issues or recognizing new costs (for that past period) that were not proposed in the original ratemaking proceeding? (b) considering new evidence on issues that had been addressed and determined to finality in the original ratemaking proceeding, without appeal by any party? (c) changing its rulings on issues that had been addressed and determined to finality in the original ratemaking proceeding, even without the introduction of new evidence on such issues?

(6) Does any PUC determination made in 2008 that rates, allegedly including unlawful charges for profit on the abandoned Trojan plant under PUC Order 95-322, were not "unjust or unreasonable" (and therefore not "unlawful"), deny to ratepayers their constitutional, common law, and statutory rights to seek damages in court against PGE for keeping the money from the unlawful charges?

(7) Is the PUC’s effort to exercise its primary jurisdiction ordered in the Dreyer case now concluded, so that the class action plaintiffs may pursue legal remedies in Marion County Circuit Court Case Nos. 03C10639 and 03C10640?

(S061518, URP):

(1) Did PUC Order 08-487 violate ORS 757.355 by authorizing rates that contain post-closure "interest" on the Trojan plant?

(2) Did PUC Order 08-487 err regarding the amount of unlawful post-closure Trojan return on investment charged to ratepayers under PUC Order 95-322?

(3) Did PUC Order 08-487 violate ORS 757.355 by authorizing rates for the rate period reviewed in Utility Reform Project v. PUC, 215 Or App 360, 170 P3d 1074 (2007) (Trojan II), that allegedly included a return on Trojan?

(4) Did PUC Order 08-487 lack substantial evidence, substantial reasoning, and rational bases for its conclusions?

The foregoing summary of a Supreme Court case that is scheduled for oral argument has been prepared for the benefit of the public. Parties and practitioners should rely on neither the factual summary set out above, nor the statement of issues to be decided, as delineating the questions that the Supreme Court ultimately may consider on review. See generally Oregon Rule of Appellate Procedure 9.20.
Justice(s) NOT Participating:
Merit Briefs

Last Revised: 10/21/2013