{ "id": 11653878, "name": "State of North Carolina ex rel. Utilities Commission, Piedmont Natural Gas Company, Inc. (Applicant-Intervenor), The Public Staff (Intervenor), Attorney General Michael F. Easley (Intervenor) Appellees v. North Carolina Gas Service A Division of NUI Corporation (Applicant-Intervenor) Appellant", "name_abbreviation": "State ex rel. Utilities Commission v. North Carolina Gas Service", "decision_date": "1998-01-06", "docket_number": "No. COA97-336", "first_page": "288", "last_page": "294", "citations": [ { "type": "official", "cite": "128 N.C. App. 288" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "132 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1963, "pin_cites": [ { "page": "254" } ], "opinion_index": 0 }, { "cite": "260 N.C. 43", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572960 ], "year": 1963, "pin_cites": [ { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0043-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 62-80", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1989, "opinion_index": 0 }, { "cite": "206 S.E.2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "285 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564942 ], "year": 1974, "pin_cites": [ { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0377-01" ] }, { "cite": "148 S.E.2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "112", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "267 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559087 ], "year": 1966, "pin_cites": [ { "page": "272", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0257-01" ] }, { "cite": "488 S.E.2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 1997, "pin_cites": [ { "page": "598" }, { "page": "601" }, { "page": "598" }, { "page": "607" }, { "page": "602" }, { "page": "598" }, { "page": "601" }, { "page": "608" } ], "opinion_index": 0 }, { "cite": "346 N.C. 558", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139511 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "568-69" }, { "page": "583" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0558-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 62-94", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1989, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 62-158", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1996, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 62", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 } ], "analysis": { "cardinality": 620, "char_count": 14030, "ocr_confidence": 0.768, "pagerank": { "raw": 2.4936050605652694e-07, "percentile": 0.8087952231964103 }, "sha256": "fa7cac7512e48cfa6cd6055df31fd1031e67e32f5488af9a5146c0e963ec2de3", "simhash": "1:c035db022910fcc4", "word_count": 2209 }, "last_updated": "2023-07-14T19:05:25.972365+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN, John C., and JOHN concur." ], "parties": [ "State of North Carolina ex rel. Utilities Commission, Piedmont Natural Gas Company, Inc. (Applicant-Intervenor), The Public Staff (Intervenor), Attorney General Michael F. Easley (Intervenor) Appellees v. North Carolina Gas Service A Division of NUI Corporation (Applicant-Intervenor) Appellant" ], "opinions": [ { "text": "SMITH, Judge.\nIn 1995, the North Carolina General Assembly enacted N.C. Gen. Stat. \u00a7 62-36A, requiring that all areas of the state be assigned to a natural gas local distribution company (\u201cLDC\u201d) by 1 January 1997. The North Carolina Utilities Commission (\u201cCommission\u201d) entered an order providing that companies could file applications for areas they wished to serve on or before 1 January 1996. After that date, the Commission would assign any remaining unfranchised areas.\nOn 29 December 1995, North Carolina Gas Service, a division of NUI Corporation (\u201cN.C. Gas\u201d), and Piedmont Natural Gas Company, Inc. (\u201cPiedmont\u201d) each filed applications with the Commission requesting certificates of convenience and necessity to provide natural gas service to all or part of Stokes County. N.C. Gas, which was already providing natural gas service in southeastern Stokes County, filed an application requesting authority to provide natural gas service to the remainder of Stokes County. Piedmont, which was providing service in Forsyth County in areas bordered by Stokes County requested authority to provide service to approximately 100 square miles in southwest Stokes County including the City of King. The Commission consolidated these applications for hearing.\nN.C. Gas proposed to construct a new transmission line running 8.5 miles from the Stokes County line near Pilot Mountain along old U.S. 52, which runs to the City of King. This new transmission line would connect to a transmission line which Frontier Utilities of North Carolina, Inc. (\u201cFrontier\u201d), planned to build. In addition, N.C. Gas submitted an alternative proposal which provided for immediate construction of a 15-mile transmission line from Walnut Cove to King. N.C. Gas stated that it would have to be allowed to serve Forsyth County customers in the vicinity of King in order to build the Walnut Cove alternative. Furthermore, N.C. Gas indicated that both of its projects would require the use of expansion funds pursuant to N.C. Gen. Stat. \u00a7 62-158 (Cum. Supp. 1996) to assist in financing construction. As of June 1996, N.C. Gas had approximately $935,000 in refunds escrowed for possible creation of an expansion fund.\nIn contrast, Piedmont proposed to provide service to King through a 9-mile transmission line from Winston-Salem northward through Forsyth County to King, and through a distribution system in the King area, located in both Forsyth and Stokes Counties. Piedmont did not propose to serve areas of Stokes County outside of King until these areas were developed. Piedmont initially proposed to finance its project in part with either expansion funds or through use of a special accounting procedure allowed by the Commission for expansion projects. However, Piedmont eventually decided it would use traditional financing.\nPublic Staff investigated both proposals and noted that either of N.C. Gas\u2019s proposals would be less costly than Piedmont\u2019s. However, Public Staff noted that neither N.C. Gas proposal could provide service to the entire City of King since Piedmont was already authorized to serve that part of King located in Forsyth County. In addition, Public Staff only compared N.C. Gas\u2019s alternate Walnut Cove plan with Piedmont\u2019s plan because of contingencies associated with N.C. Gas\u2019s Pilot Mountain plan. Furthermore, Public Staff stated it favored Piedmont\u2019s plan because it would provide natural gas to the entire City of King, as well as the two industrial facilities in the King area of Forsyth County.\nPublic Staff recommended the Commission grant Piedmont\u2019s application. On 25 October 1996, the Commission issued an order granting Piedmont\u2019s application and denying N.C. Gas\u2019s application. N.C. Gas appeals from this order.\nN.C. Gen. Stat. \u00a7 62-94 (1989) provides the scope of appellate review of a Commission decision. A reviewing court may reverse or modify the Commission decision if substantial rights of an appellant have been prejudiced because the Commission\u2019s findings, inferences, conclusions or decisions are: (1) violative of constitutional provisions; (2) beyond the statutory authority or jurisdiction of the Commission; (3) based upon unlawful proceedings; (4) affected by other errors of law; (5) unsupported by competent, material and substantial evidence in view of the entire record as submitted; or (6) arbitrary or capricious. State Utilities Comm\u2019n v. Piedmont Natural Gas Company, Inc., 346 N.C. 558, 568-69, 488 S.E.2d 591, 598 (1997).\nThe first issue is whether the Commission\u2019s Stokes County order facilitates natural gas expansion in unserved areas of the State. The test applied by a reviewing court involves a determination of whether, after viewing the entire record, the Commission\u2019s findings and conclusions are supported by substantial, competent, and material evidence. Id. A general presumption is that the Commission gave proper consideration to all competent evidence presented. Id. In addition, a Commission determination is considered prima facie just and reasonable. Id. at 573, 488 S.E.2d at 601. The reviewing court cannot \u201cset aside the Commission\u2019s recommendation merely because different conclusions could have been reached from the evidence.\u201d Id. at 569, 488 S.E.2d at 598.\nIn the instant case, the record reveals the Commission carefully evaluated the strengths and weaknesses of the N.C. Gas and Piedmont proposals for expansion of gas in unserved areas. N.C. Gen. Stat. \u00a7 62-36A(bl) (Cum. Supp. 1996) requires the Commission to consider, among other things, the timeliness each applicant could begin service. The record supports the Commission\u2019s conclusion that N.C. Gas\u2019s Pilot Mountain proposal was contingent on Frontier\u2019s project, thus making this proposal subject to delays. Furthermore, Piedmont could provide gas service to several industrial facilities in Forsyth County as well as for the King area. The record provides substantial evidence that the Commission\u2019s order promotes gas expansion in unserved areas. Thus, this assignment of error is overruled.\nThe second issue is whether Piedmont\u2019s decision to use traditional funding instead of expansion funds should be considered a \u201ccrucial factor\u201d in assigning the unfranchised area. N.C. Gen. Stat. \u00a7 62-158 provides that expansion funds may be used to provide natural gas service to unserved areas \u201cwithin the company\u2019s franchised territory.\u201d\n[A]ny proclaimed right [N.C. Gas] has to the creation and use of an expansion fund is limited to those areas in which it already possesses a certificate of public convenience and necessity. That \u201cright\u201d does not extend to unfranchised areas, such as the [City of King] area, which [is] the subject of competing certificate applications.\nPiedmont Natural Gas, 346 N.C. at 583, 488 S.E.2d at 607.\nThe Commission has been given the ability to exercise its discretion and judgment in furtherance of its authority and responsibility of regulating public utilities. Id. at 575, 488 S.E.2d at 602. The Commission weighs and balances many factors in order to protect the interests and welfare of the general public. Id. at 568, 488 S.E.2d at 598. However, \u201c[n]o law prohibits the Commission from giving one factor greater weight than any other.\u201d Id. at 573, 488 S.E.2d at 601. Thus, because the Commission in its discretion is allowed to give varying weight to the factors based on its interpretation of the legislative intent of the gas expansion statutes, the Commission can give the greatest weight to the sources of funding proposed by the two applicants. Id. Furthermore, \u201cit is in the public interest and in accord-anee with the policy goals of this state to pursue gas expansion through traditional financing if such an alternative is reasonably available.\u201d Id. at 585, 488 S.E.2d at 608. Therefore, this assignment of error is overruled.\nThe third issue is whether the Commission had substantial evidence to support its finding that it was not in the public interest for the City of King to have two natural gas suppliers. Our Supreme Court has held that previously certified utilities have a \u201c \u2018right... to have an opportunity as a regulated monopoly to render whatever service convenience and necessity may require, and it is only when it has been demonstrated that it is unable either from financial or other reasons to properly serve the public that a competing carrier will be allowed to invade the field.\u2019 \u201d State, ex rel. Utilities Comm\u2019n v. Carolina Telephone and Telegraph, 267 N.C. 257, 272, 148 S.E.2d 100, 112 (1966) (citation omitted).\nIn the instant case, the Commission heard opinions of the citizens in the King area concerning this issue. Some citizens thought that it would not be in their economic interest to have two suppliers of the same service, and that it would lead to confusion. The Commission has the ability to determine the credibility of the evidence presented. State, ex rel. Utilities Comm\u2019n v. Duke Power Company, 285 N.C. 377, 390, 206 S.E.2d 369, 378 (1974). The Commission may also use its own expert judgment to determine the weight to be given to the evidence. Id. Therefore, the Commission in this case may assign more weight to the evidence against having two suppliers of gas in the same area. Further, there is no suggestion in the record that the public needs or would benefit from having two companies rendering the same service in the King area. Thus, this assignment of error is overruled.\nThe fourth issue is whether the Commission erred in assuming it could not reassign the area of Forsyth County in and near the City of King to N.C. Gas. N.C. Gen. Stat. \u00a7 62-80 (1989) provides that, upon notice, the Commission may \u201crescind, alter, or amend any order or decision made by it\u201d after giving the public utilities an opportunity to be heard. However, the Commission may not arbitrarily or capriciously rescind its order approving a contract between utilities. State, ex. rel. Utilities Comm\u2019n v. Carolina Coach Co., 260 N.C. 43, 50, 132 S.E.2d 249, 254 (1963). The rescission must be made only due to a change of circumstances requiring it for the public interest. Id. In the absence of any additional evidence or a change in conditions, the Commission has no power to reopen a proceeding and modify or set aside an order made by it. Id.\nIn the instant case, the record shows that N.C. Gas was initially seeking a franchise solely in Stokes County. N.C. Gas sought a reassignment of Piedmont\u2019s franchise in Forsyth County only in the event the Commission deemed it appropriate. Further, N.C. Gas has failed to show any change of circumstances justifying a reassignment. The only evidence N.C. Gas relies on to show the need for a modification is the fact that Piedmont was awarded the franchise for Forsyth County decades ago. This fact alone is insufficient to show a change of circumstances requiring a rescission of Piedmont\u2019s franchise for the public interest. See id. Thus, this assignment of error is overruled.\nIn conclusion, substantial evidence supports the Commission\u2019s order. Based on the foregoing reasons, the decision of the Commission to grant Piedmont\u2019s application and to deny N.C. Gas\u2019s application is\nAffirmed.\nJudges MARTIN, John C., and JOHN concur.", "type": "majority", "author": "SMITH, Judge." } ], "attorneys": [ "Burns, Day & Presnell, P.A., by Daniel C. Higgins, for Piedmont Natural Gas Company, Inc., plaintiff appellee.", "Public Staff Executive Director Robert P. Gruber, by Chief Counsel Antoinette R. Wike and Staff Attorney Gina C. Holt, for N. C. Utilities, plaintiff appellee.", "Poyner & Spruill, L.L.P., by John R. Jolly, Jr., and Nancy Bentson Essex; and McCoy, Weaver, Wiggins, Cleveland & Raper, by Jim Wade Goodman, for N. C. Gas Service, defendant appellant." ], "corrections": "", "head_matter": "State of North Carolina ex rel. Utilities Commission, Piedmont Natural Gas Company, Inc. (Applicant-Intervenor), The Public Staff (Intervenor), Attorney General Michael F. Easley (Intervenor) Appellees v. North Carolina Gas Service A Division of NUI Corporation (Applicant-Intervenor) Appellant\nNo. COA97-336\n(Filed 6 January 1998)\n1. Utilities \u00a7 48 (NCI4th)\u2014 natural gas service \u2014 unserved area \u2014 decision between competing applications \u2014 facilitation of natural gas expansion\nThe Utilities Commission\u2019s order granting Piedmont\u2019s application and denying N.C. Gas\u2019s application to provide natural gas service to a portion of Stokes County, including the City of King, facilitates natural gas expansion in unserved areas pursuant to N.C.G.S. \u00a7 62-36A where N.C. Gas\u2019s proposal was subject to delays, and Piedmont could provide gas service to several industrial facilities in Forsyth County as well as for the King area.\n2. Utilities \u00a7\u00a7 27, 48 (NCI4th)\u2014 natural gas service \u2014 competing applications \u2014 traditional funding \u2014 weight by Utilities Commission\nThe Utilities Commission could give the greatest weight to an applicant\u2019s plan to use traditional funding rather than expansion funds in deciding between competing applications to provide natural gas service to an unfranchised area.\n3. Utilities \u00a7 265 (NCI4th)\u2014 natural gas service \u2014 two suppliers not in public interest \u2014 supporting evidence\nA finding by the Utilities Commission that it was not in the public interest for the City of King to have two natural gas suppliers was supported by substantial evidence where the Commission heard opinions of citizens in the King area that it would not be in their economic interest and would cause confusion to have two suppliers of the same service, although the Commission also heard contrary opinions by other citizens. The Commission could properly assign more weight to the evidence against having two gas suppliers in the same area.\n4. Utilities \u00a7 54 (NCI4th)\u2014 natural gas franchise \u2014 award decades ago \u2014 not change of circumstances\nThe fact that a natural gas supplier was awarded a franchise for Forsyth County decades ago is insufficient to show a change of circumstances requiring a rescission of the supplier\u2019s franchise for the public interest.\nAppeal by N.C. Gas from order entered 25 October 1996 by the North Carolina Utilities Commission. Heard in the Court of Appeals 30 October 1997.\nBurns, Day & Presnell, P.A., by Daniel C. Higgins, for Piedmont Natural Gas Company, Inc., plaintiff appellee.\nPublic Staff Executive Director Robert P. Gruber, by Chief Counsel Antoinette R. Wike and Staff Attorney Gina C. Holt, for N. C. Utilities, plaintiff appellee.\nPoyner & Spruill, L.L.P., by John R. Jolly, Jr., and Nancy Bentson Essex; and McCoy, Weaver, Wiggins, Cleveland & Raper, by Jim Wade Goodman, for N. C. Gas Service, defendant appellant." }, "file_name": "0288-01", "first_page_order": 324, "last_page_order": 330 }