{ "id": 9249648, "name": "STATE OF NORTH CAROLINA EX REL. UTILITIES COMMISSION; PUBLIC STAFF-NORTH CAROLINA UTILITIES COMMISSION and CAROLINA UTILITY CUSTOMERS ASSOCIATION, INC. Appellees v. NUI CORPORATION d/b/a NUI NORTH CAROLINA GAS, Appellant", "name_abbreviation": "State ex rel. Utilities Commission v. NUI Corp.", "decision_date": "2002-12-03", "docket_number": "No. COA01-1051", "first_page": "258", "last_page": "269", "citations": [ { "type": "official", "cite": "154 N.C. App. 258" } ], "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": "189 S.E.2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "728" } ], "opinion_index": 0 }, { "cite": "281 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575227 ], "year": 1972, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0318-01" ] }, { "cite": "488 S.E.2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "601" } ], "opinion_index": 0 }, { "cite": "346 N.C. 558", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139511 ], "year": 1997, "pin_cites": [ { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0558-01" ] }, { "cite": "130 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "895" } ], "opinion_index": 0 }, { "cite": "259 N.C. 449", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560999 ], "year": 1963, "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0449-01" ] }, { "cite": "73 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "874" } ], "opinion_index": 0 }, { "cite": "236 N.C. 692", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627473 ], "year": 1953, "pin_cites": [ { "page": "697" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0692-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 62-158", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2001, "pin_cites": [ { "page": "(a)" }, { "page": "(d)" }, { "page": "664" }, { "page": "(a)", "parenthetical": "stating that \"the Commission may, after a hearing, order a natural gas local distribution company to create a special natural gas expansion fund\"" } ], "opinion_index": 0 }, { "cite": "446 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1994, "pin_cites": [ { "page": "340" }, { "page": "337" }, { "page": "338" }, { "parenthetical": "alteration in original" }, { "page": "338", "parenthetical": "emphasis added" }, { "page": "338" }, { "page": "338" } ], "opinion_index": 0 }, { "cite": "336 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535852 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "671" }, { "page": "666" }, { "page": "666" }, { "page": "666" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0657-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 62-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2001, "pin_cites": [ { "page": "(a)(9)" } ], "opinion_index": 0 }, { "cite": "525 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "349 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571509, 571685 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0377-02", "/nc/349/0377-01" ] }, { "cite": "503 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "699-700" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 636", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11469526 ], "year": 1998, "pin_cites": [ { "page": "639" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0636-01" ] }, { "cite": "273 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "235", "parenthetical": "footnote omitted" } ], "opinion_index": 0 }, { "cite": "302 N.C. 14", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563691 ], "year": 1981, "pin_cites": [ { "page": "20", "parenthetical": "footnote omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0014-01" ] }, { "cite": "132 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "255" } ], "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 62-94", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2001, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 829, "char_count": 28703, "ocr_confidence": 0.73, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.21590042508269788 }, "sha256": "edb1e33a336fd69c7af027d94293236b0c34278bdc75527cd4452879aa1974bd", "simhash": "1:a52fcf266c46e8c2", "word_count": 4385 }, "last_updated": "2023-07-14T14:30:59.212861+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CAMPBELL and LEWIS concur." ], "parties": [ "STATE OF NORTH CAROLINA EX REL. UTILITIES COMMISSION; PUBLIC STAFF-NORTH CAROLINA UTILITIES COMMISSION and CAROLINA UTILITY CUSTOMERS ASSOCIATION, INC. Appellees v. NUI CORPORATION d/b/a NUI NORTH CAROLINA GAS, Appellant" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nNUI North Carolina Gas (\u201cpetitioner\u201d) appeals from a final order of the North Carolina Utilities Commission (\u201cthe Commission\u201d) denying petitioner\u2019s request for the establishment of a natural gas expansion fund pursuant to section 62-158 of the North Carolina General Statutes. For the reasons set forth herein, we affirm the order of the Commission.\nPetitioner is an operating division of NUI Corporation, a corporation based in New Jersey. Petitioner is a North Carolina public utility, authorized to transport, distribute and furnish natural gas service to customers throughout its franchised territory of Rockingham County and portions of Stokes County, North Carolina. On 14 June 2000, petitioner filed a petition with the Commission, seeking approval for the establishment of a natural gas expansion fund and for the deposit into such fund of certain supplier refunds being held by petitioner.\nThe public staff at the Utilities Commission, in their role as representatives of the consuming public at large, opposed petitioner\u2019s request, asserting that the establishment of an expansion fund would not be in the best interests of the public. Carolina Utility Customers Association, Inc. was permitted to intervene and subsequently filed a petition opposing establishment of the expansion fund on similar grounds.\nOn 21 November 2000, the matter came on for hearing before a panel of the Commission, at which the following evidence was presented: Petitioner supplies natural gas service to major population centers within its franchised areas, including the towns of Reidsville, Eden, Madison and Mayodan. The areas between these major population centers are generally undeveloped and sparsely populated, with the exception of the town of Stoneville, which has an approximate population of 1,100 persons. The town of Stoneville receives no natural gas service. There are moreover two industrial development zones within petitioner\u2019s franchised territory that have no access to natural gas service. Petitioner asserted at the hearing that extension of natural gas service into these areas would reduce the cost of energy to the public and provide opportunities for economic growth. According to economic studies performed by petitioner, expansion of natural gas service into the town of Stoneville and the industrial development zones would result in substantial economic loss to petitioner and was therefore infeasible, unless the costs of construction were mitigated in some manner. Petitioner therefore requested that a natural gas expansion fund be established in order to construct facilities in the unserved areas, and that petitioner be allowed to deposit nearly two million dollars in supplier refunds into the fund.\nPublic staff presented evidence tending to show that there was significant natural gas infrastructure within petitioner\u2019s territory. Public staff noted that the town of Stoneville was the only incorporated municipality within Rockingham County that did not have natural gas service, and that the price for natural gas was high. According to the public staff, reducing natural gas costs by returning monies to ratepayers within petitioner\u2019s territory represented a more constructive use of the supplier refunds held by petitioner. Public staff therefore recommended denial of the petition for an expansion fund.\nOn 28 February 2001, the Commission issued a recommended order denying petitioner\u2019s application for the expansion fund and requiring petitioner to refund to its customers the supplier refunds held by petitioner in escrow. Petitioner filed exceptions to the recommended order, and the Commission heard oral arguments on the matter. On 12 April 2001, the Commission overruled petitioner\u2019s exceptions and issued its final order affirming the recommended order. From this order, petitioner appeals.\nThe primary issue on appeal is whether the Commission erred in denying petitioner\u2019s application for establishment of an expansion fund. For the reasons stated herein, we affirm the order of the Commission.\nSection 62-94 of the North Carolina General Statutes sets forth the applicable standard of review by appellate courts of decisions by the Utilities Commission. Under section 62-94, the reviewing court may\nreverse or modify the decision if the substantial rights of the appellants have been prejudiced because the Commission\u2019s findings, inferences, conclusions or decisions are:\n(1) In violation of constitutional provisions, or\n(2) In excess of statutory authority or jurisdiction of the Commission, or\n(3) Made upon unlawful proceedings, or\n(4) Affected by other errors of law, or\n(5) Unsupported by competent, material and substantial evidence in view of the entire record as submitted, or\n(6) Arbitrary or capricious.\nN.C. Gen. Stat. \u00a7 62-94(b) (2001). Because a determination of the Commission is prima facie reasonable, see Utilities Comm. v. Coach Co. and Utilities Comm. v. Greyhound Corp., 260 N.C. 43, 50, 132 S.E.2d 249, 255 (1963), \u201cjudicial reversal of an order of the Utilities Commission is a serious matter for the reviewing court which can be properly addressed only by strict application of the six criteria [of this section] which circumscribe judicial review.\u201d Utilities Comm. v. Oil Co., 302 N.C. 14, 20, 273 S.E.2d 232, 235 (1981) (footnote omitted). The appellate court must review the whole record to determine whether there is support for the Commission\u2019s decision, but \u201cwhere there are two reasonably conflicting views of the evidence, the appellate court may not substitute its judgment for that of the Commission.\u201d State ex rel. Util. Comm\u2019n v. Carolina Indus. Group, 130 N.C. App. 636, 639, 503 S.E.2d 697, 699-700, disc. review denied, 349 N.C. 377, 525 S.E.2d 465 (1998). Having established the proper standard of review, we turn to petitioner\u2019s arguments on appeal.\nPetitioner first argues that the Commission erred in concluding that the establishment of an expansion fund in the instant case was inconsistent with the public interest. Petitioner asserts that this conclusion contravenes the stated public policy of North Carolina and was thus contrary to law, arbitrary and capricious, and unsupported by the evidence.\nSection 62-2 of the North Carolina General Statutes declares that it is the policy of this State\nTo facilitate the construction of facilities in and the extension of natural gas service to unserved areas in order to promote the public welfare throughout the State and to that end to authorize the creation of expansion funds for natural gas local distribution companies or gas districts to be administered under the supervision of the North Carolina Utilities Commission.\nN.C. Gen. Stat. \u00a7 62-2(a)(9) (2001). \u201c[T]he establishment of an expansion fund is in the public interest.\u201d State ex rel. Utilities Comm. v. Carolina Utility Cust. Assn., 336 N.C. 657, 671, 446 S.E.2d 332, 340 (1994). To implement this public policy, section 62-158 provides that\nIn order to facilitate the construction of facilities in and the extension of natural gas service to unserved areas, the Commission may, after a hearing, order a natural gas local distribution company to create a special natural gas expansion fund to be used by that company to construct natural gas facilities in areas within the company\u2019s franchised territory that otherwise would not be feasible for the company to construct. The fund shall be supervised and administered by the Commission. Any applicable taxes shall be paid out of the fund.\nN.C. Gen. Stat. \u00a7 62-158(a) (2001). The statute also authorizes the Commission to adopt rules for the establishment of expansion funds. See N.C. Gen. Stat. \u00a7 62-158(d) (2001). Rule R6-82 of the Rules and Regulations of the North Carolina Utilities Commission, concerning the establishment of expansion funds, dictates that\nIn determining the establishment of a fund and the sources and magnitude of the initial funding, the Commission will consider the [natural gas local distribution company\u2019s] showing that expanding to serve unserved areas is economically infeasible and such other factors as the Commission deems reasonable and consistent with the intent of G.S. 62-158 and G.S. 62-2(9). Before ordering the establishment of a fund, the Commission must find that it is in the public interest to do so. Upon the establishment of a fund, the Commission shall provide for appropriate notice of its decision.\nN.C. Utilities Commission, North Carolina Public Utilities Laws and Regulations, Rule R6-82(d) (Lexis 1999 ed.) (hereinafter \u201cCommission Rule\u201d).\nIn State ex rel. Utilities Comm. v. Carolina Utility Cust. Assn., Carolina Utility Customers Association, Inc. (\u201cCUCA\u201d), who is an intervenor in the instant case, sought reversal of a decision by the Commission authorizing establishment of an expansion fund. The decision by the Commission stated that, where a natural gas utility establishes that unserved areas exist within its territory that are otherwise infeasible to serve, the Commission has \u201climited discretion\u201d to determine whether or not an expansion fund should be created for that particular gas utility. See id. at 664, 446 S.E.2d at 337. CUCA argued that, in approving the establishment of the expansion fund, the Commission \u201cmisapprehended the scope of its discretion under N.C.G.S. \u00a7 62-158.\u201d Id. According to CUCA, which had advocated the return of supplier refunds to customers as opposed to deposit of such funds into the expansion fund, the Commission had wide, rather than limited, discretion to approve or deny petitions.\nNoting that the General Assembly had recognized the establishment of expansion funds to be in the public interest, our Supreme Court held that the Commission \u201cdid not act under a misapprehension of applicable law and that it granted the petition and established the expansion fund pursuant to a proper interpretation of its authority and discretion to do so.\u201d Id. at 666, 446 S.E.2d at 338. Examining Commission Rule R6-82(d), the Court stated that\nThe plain language of this rule indicates that the Commission had a proper view of its discretion in making a determination of whether to authorize the creation of an expansion fund: It was to evaluate pertinent factors in a manner consistent with the legislative intent; if, after doing so, the Commission concluded that the creation of an expansion fund would not be in the public interest, it would presumably decline to order the creation of such a fund. Because the General Assembly has clearly stated that it is the policy of the state \u201c[t]o facilitate the construction of facilities in and the extension of natural gas service to unserved areas in order to promote the public welfare,\u201d N.C.G.S. \u00a7 62-2(9), the Commission is not free to exercise its discretion with regard to whether, in a general sense, this policy is wise or unwise.\nId. (alteration in original). The Commission could, however, exercise limited discretion in determining whether or not the establishment of a particular expansion fund was in the public interest.\nIn the instant case, the Commission expressly recognized in its order that, pursuant to State ex rel. Utilities Comm. v. Carolina Utility Cust. Assn., it had limited discretion to \u201cevaluate pertinent factors in a manner consistent with the legislative intent\u201d in determining whether the establishment of an expansion fund would be in the public interest. The Commission articulated these pertinent factors as including\nthe size of the geographic area without service, the size of the area relative to the amount of natural gas infrastructure already existing within the county involved, the location of population centers within the county and their proximity to natural gas infrastructure, the presence or lack of economic development in the county, practical engineering and right-of-way aspects of installing natural gas facilities in some cases, and whether traditional economic tests and policies and other sources of funding should take precedence over use of expansion funds.\nApplying these factors to the evidence before it, the Commission concluded that establishment of an expansion fund was not in the public interest. Specifically, the Commission found that the areas to be served by the potential expansion were relatively small and were located within a county that had \u201csignificant natural gas infrastructure available to promote economic development.\u201d Further, economic development within petitioner\u2019s territory was rated three on a scale of five by the North Carolina Department of Commerce. The Commission also noted that alternate avenues existed to mitigate the costs of extending service to unserved areas. The Commission moreover found that, because natural gas prices were high, \u201c[a] refund of the $2 million held in escrow by [petitioner] will help to mitigate high customer bills during the current winter, and the return of supplier refunds in the future will help to make natural gas more attractive as a fuel of choice.\u201d\nPetitioner argues that, under the plain language of the statutes, Commission Rules, and case law, the establishment of a natural gas expansion fund for service to unserved areas is necessarily of greater public interest than a refund to existing customers, and that the Commission erred in concluding otherwise. We disagree.\nBy asserting that the Commission erred in concluding that the establishment of this particular expansion fund was not in the best interests of the public despite case law and statutory authority declaring the establishment of such funds to be in the general public interest, petitioner essentially argues that the Commission was without discretion to deny its petition once it had established that there existed within its territory unserved areas that were otherwise infeasible to serve. While it is clear that the Commission has no authority \u201cwith regard to whether, in a general sense, [the] policy [advocating expansion funds] is wise or unwise,\u201d State ex rel. Utilities Comm., 336 N.C. at 666, 446 S.E.2d at 338 (emphasis added), it also clearly has the authority to exercise limited discretion in determining whether the establishment of a particular expansion fund is in the best interests of the public. See N.C. Gen. Stat. \u00a7 62-158(a) (stating that \u201cthe Commission may, after a hearing, order a natural gas local distribution company to create a special natural gas expansion fund\u201d) (emphasis added); State ex rel. Utilities Comm., 336 N.C. at 666, 446 S.E.2d at 338 (stating that the proper role of the Commission in evaluating petitions for an expansion fund is to \u201cevaluate pertinent factors in a manner consistent with the legislative intent\u201d and to decline the creation of such funds if it concludes \u201cthat the creation of an expansion fund would not be in the public interest\u201d); Commission Rule R6-82(d) (directing the Commission to evaluate a petition using such \u201cfactors as the Commission deems reasonable and consistent with the intent of G.S. 62-158 and G.S. 62-2(9),\u201d in order to determine whether the establishment of a fund \u201cis in the public interest\u201d).\nA determination by the Commission is prima facie just and reasonable. See Utilities Commission v. Ray, 236 N.C. 692, 697, 73 S.E.2d 870, 874 (1953). The burden is on the appellant to demonstrate an error of law in the proceedings. See Utilities Commission v. Champion Papers, Inc., 259 N.C. 449, 456, 130 S.E.2d 890, 895 (1963). \u201cTo be arbitrary and capricious, the Commission\u2019s order would have to show a lack of fair and careful consideration of the evidence or fail to display a reasoned judgment.\u201d State ex rel. Utilities Comm. v. Piedmont Nat. Gas Co., 346 N.C. 558, 573, 488 S.E.2d 591, 601 (1997). Here, the Commission carefully articulated pertinent factors and appropriately applied them to the evidence before it. We conclude that the Commission properly exercised its limited discretion in determining that, under the facts of this case, the creation of an expansion fund was not in the best interests of the public. As petitioner has failed to carry its burden of demonstrating that the Commission\u2019s judgment was unreasonable or affected by errors of law, we overrule petitioner\u2019s first argument.\nBy its second argument, petitioner contends that the Commission\u2019s announcement and application of previously unarticulated \u201cpublic interest factors\u201d to petitioner\u2019s case amounted to an unfair burden and surprise. As recited supra, the Commission articulated numerous factors in determining whether' to deny or approve the establishment of the expansion fund, including (1) the size of the geographic area without service; (2) the size of the area relative to the amount of natural gas infrastructure already existing within the county involved; (3) the location of population centers within the county and their proximity to natural gas infrastructure; (4) the presence or lack of economic development in the county; (5) practical engineering and right-of-way aspects of installing natural gas facilities; and (6) whether traditional economic tests and policies and other sources of funding should take precedence over use of expansion funds.\nPetitioner does not deny that these factors are pertinent to the Commission\u2019s decision, but contends that their application created a new and heightened standard for the establishment of an expansion fund for which petitioner was unprepared. Petitioner asserts that the Commission thereby acted in an arbitrary and capricious manner. We do not agree.\nBefore the Commission may order the establishment of an expansion fund, it must find that it is in the public interest to do so, applying \u201cpertinent factors in a manner consistent with the legislative intent.\u201d State ex rel. Utilities Comm., 336 N.C. at 666, 446 S.E.2d at 338. The factors relied upon by the Commission in the instant case do not represent \u201can unstated and additional evidentiary burden\u201d as asserted by petitioner, but instead are a sensible and pertinent articulation of the existing public interest standard, consistent with the legislative intent of establishing expansion funds when it is in the best interests of the public. We conclude that the Commission\u2019s action was neither arbitrary nor capricious, and we overrule this assignment of error.\nPetitioner further contends that it was treated \u201cin a distinctly different and prejudicial manner\u201d compared to other cases before the Commission. Specifically, petitioner argues that another natural gas supplier, Piedmont Natural Gas Company, Inc. (\u201cPiedmont\u201d), was permitted to establish a natural gas expansion fund under \u201csubstantively identical circumstances\u201d as those conditions in petitioner\u2019s case. In the Piedmont decision, the Commission allowed Piedmont to establish an expansion fund on a contingent basis, despite the fact that some level of service already existed in Piedmont\u2019s franchised territory. Petitioner offers this comparison as the basis for its contention that the Commission\u2019s decision was arbitrary and capricious. Again, we must disagree with petitioner.\nDespite petitioner\u2019s assertions to the contrary, our review of the Piedmont decision reveals that the circumstances were not identical to the facts of the present case. Most notably, the Commission found that \u201cnew franchise territory may be certified to Piedmont... in the near future.\u201d Further, Piedmont was allowed to establish an expansion fund on a contingent basis only, in order to allow further review of individual projects. In its decision concerning present petitioner, the Commission specifically noted that the Commission had \u201cin fact only used Piedmont\u2019s expansion fund to help build facilities in counties that were franchised to Piedmont after April 1996 and had no natural gas service at all.\u201d There was no evidence presented in the instant case that petitioner would be acquiring new territory at any point in the future. Because the two cases were not identical, petitioner has failed to show that the Commission\u2019s treatment of its case was arbitrary or capricious. We therefore overrule this assignment of error.\nPetitioner next argues that several of the Commission\u2019s findings and conclusions were either irrelevant or unsupported by substantial evidence. First, petitioner objects to the Commission\u2019s finding that \u201cTransco, the major interstate natural gas pipeline serving North Carolina, transverses the middle of Rockingham County.\u201d Petitioner contends that this finding was irrelevant to the Commission\u2019s conclusion that establishment of an expansion fund was not in the best interests of the public. We disagree. At the hearing before the Commission, James G. Hoard, a member of the public staff, testified that Rockingham County enjoyed substantial gas infrastructure, of which the Transco pipeline is a part. The fact that substantial gas infrastructure exists within Rockingham County was a relevant and proper factor in the decision to deny the establishment of an expansion fund.\nPetitioner also asserts that the Commission\u2019s comparison of Rockingham County to other counties with inferior natural gas infrastructure was irrelevant to a determination of whether to deny or grant the petition by petitioner. In its order, the Commission concluded that, \u201cCompared to other [natural gas local distribution companies] and other counties, there is significant natural gas infrastructure available [in Rockingham County] to promote economic development.\u201d Petitioner asserts that, as the establishment of an expansion fund by petitioner would have no impact on expansion of natural gas facilities outside petitioner\u2019s franchised territory, the Commission\u2019s comparison was irrelevant. Even if the Commission\u2019s comparison of Rockingham County\u2019s infrastructure to that of other counties was irrelevant, there was nevertheless competent and material evidence before the Commission tending to show that Rockingham County enjoys significant gas infrastructure. For example, the evidence showed that Stoneville is the only incorporated municipality within petitioner\u2019s territory that does not have natural gas service. Further, Mr. Hoard testified that there was \u201cplenty of gas infrastructure\u201d in Rockingham County. We have already concluded above that the existence of a natural gas infrastructure within Rockingham County was a relevant and proper factor in the decision to deny the establishment of an expansion fund. Because the evidence supported the Commission\u2019s conclusion that significant natural gas infrastructure was available in petitioner\u2019s territory to promote economic development, the Commission did not err in its conclusion.\nBy its final assignment of error, petitioner maintains that the Commission erred in concluding, under the facts of the present case, that \u201creducing customers\u2019 gas costs is more consistent with the public interest than applying supplier refunds toward further natural gas infrastructure in Rockingham County.\u201d Petitioner argues that the opportunity to fund natural gas expansion outweighs a one-time benefit to customers, and that the Commission erred in concluding otherwise. It is well established, however, that this Court may not properly set aside the Commission\u2019s decision merely because different conclusions could have been reached from the evidence. See Utilities Comm. v. Telephone Co., 281 N.C. 318, 354, 189 S.E.2d 705, 728 (1972). The Commission\u2019s decision was properly supported by competent evidence of record, which in turn supported its conclusions. We therefore overrule petitioner\u2019s final assignment of error.\nThe decision of the Utilities Commission is hereby\nAffirmed.\nJudges CAMPBELL and LEWIS concur.\n. Whether or not the two industrial development zones within petitioner\u2019s franchised territory qualify as \u201cunserved areas\u201d within the meaning of section 62-158 of the General Statutes is debatable. See Commission Rule R6-81(b)(5) (defining \u201cunserved areas\u201d as \u201c[cjounties, cities or towns of which a high percentage is unserved\u201d). As the town of Stoneville clearly qualified as an unserved area, however, we do not address this issue.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Nelson Mullins Riley & Scarborough L.L.P., by James H. Jeffries, IV, for petitioner appellant.", "Robert R Gruber, Executive Director, Public Staff, by Chief Counsel Antoinette R. Wike, for intervenor appellee Public Staff", "West Law Offices, P.C., by James P. West, for intervenor appellee Carolina Utility Customers Association, Inc." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA EX REL. UTILITIES COMMISSION; PUBLIC STAFF-NORTH CAROLINA UTILITIES COMMISSION and CAROLINA UTILITY CUSTOMERS ASSOCIATION, INC. Appellees v. NUI CORPORATION d/b/a NUI NORTH CAROLINA GAS, Appellant\nNo. COA01-1051\n(Filed 3 December 2002)\n1. Utilities\u2014 denial of application for natural gas expansion fund \u2014 consistency with public interest\nThe Utilities Commission did not err by denying petitioner natural gas supplier\u2019s application for the establishment of a natural gas expansion fund under N.C.G.S. \u00a7 62-158 for service to unserved areas based on it being inconsistent with the public interest, because: (1) the Commission properly exercised its limited discretion in determining that under the facts of this case the creation of an expansion fund was not in the best interests of the public; and (2) petitioner has failed to carry its burden of demonstrating that the Commission\u2019s judgment was unreasonable or affected by errors of law.\n2. Utilities\u2014 denial of application for natural gas expansion fund \u2014 public interest factors\nThe Utilities Commission\u2019s announcement and application of allegedly previously unarticulated public interest factors to petitioner natural gas supplier\u2019s case seeking an application for the establishment of a natural gas expansion fund for service to unserved areas did not amount to an unfair burden and surprise, because: (1) the factors relied upon by the Commission do not represent an unstated and additional evidentiary burden, but instead are a sensible and pertinent articulation of the existing public interest standard; and (2) the Commission\u2019s action was neither arbitrary nor capricious.\n3. Utilities\u2014 denial of application for natural gas expansion fund \u2014 alleged different treatment of natural gas suppliers\nThe Utilities Commission did not treat petitioner natural gas supplier in a distinctly different and prejudicial manner compared to other cases before the Commission even though petitioner contends that another natural gas supplier was permitted to establish a natural gas expansion fund under substantively identical circumstances as those conditions in petitioner\u2019s case, because the circumstances in the two cases were not identical.\n4. Utilities\u2014 denial of application for natural gas expansion fund \u2014 findings\u2014pipeline transverses county\nThe Utilities Commission did not err by finding that a major interstate natural gas pipeline serving North Carolina transverses the middle of the pertinent county to support the Commission\u2019s conclusion that establishment of an expansion fund was not in the best interests of the public, because it was relevant and a proper factor in the decision to deny the establishment of an expansion fund.\n5. Utilities\u2014 denial of application for natural gas expansion fund \u2014 comparison to other counties\nThe Utilities Commission did not err by comparing the pertinent county to other counties with inferior natural gas infrastructure in its determination of whether to deny or grant petitioner\u2019s application for the establishment of a natural gas expansion fund, because: (1) even if the Commission\u2019s comparison was irrelevant, there was nevertheless competent and material evidence before the Commission tending to show the pertinent county enjoys significant gas infrastructure; and (2) the evidence supported the Commission\u2019s conclusion that significant natural gas infrastructure was available in petitioner\u2019s territory to promote economic development.\n6. Utilities\u2014 denial of application for natural gas expansion fund \u2014 reducing gas costs more consistent with public interest\nThe Utilities Commission did not err by concluding that, under the facts of the present case, reducing customer gas costs is more consistent with the public interest than applying supplier refunds toward further natural gas infrastructure in the pertinent county, because: (1) the Court of Appeals may not set aside the Commission\u2019s decision merely based on the fact that different conclusions could have been reached from the evidence; and (2) the Commission\u2019s decision was properly supported by competent evidence in the record which in turn supported its conclusions.\nAppeal by petitioner from order entered 12 April 2001 by the North Carolina Utilities Commission. Heard in the Court of Appeals 16 May 2002.\nNelson Mullins Riley & Scarborough L.L.P., by James H. Jeffries, IV, for petitioner appellant.\nRobert R Gruber, Executive Director, Public Staff, by Chief Counsel Antoinette R. Wike, for intervenor appellee Public Staff\nWest Law Offices, P.C., by James P. West, for intervenor appellee Carolina Utility Customers Association, Inc." }, "file_name": "0258-01", "first_page_order": 286, "last_page_order": 297 }