STATE OF MISSOURI
PUBLIC SERVICE COMMISSION
At a session of the Public Service
Commission held at its office in Jefferson
City on the 16th day of April, 2014.
Noranda Aluminum, Inc., et al., )
)
Complainants, )
)
v. ) File
No. EC-2014-0223
)
Union Electric Company, d/b/a )
Ameren Missouri )
)
Respondent. )
ORDER REGARDING AMEREN
MISSOURI’S MOTION TO DISMISS
Issue Date: April 16, 2014 Effective Date: April 16, 2014
On
February 12, 2014, Noranda Aluminum, Inc. and 37 other individual customers
filed a complaint against Union Electric Company, d/b/a Ameren Missouri,
alleging that the company is earning money at an excessive rate. The complaint asks the Commission to review
Ameren Missouri’s rates and to revise those rates to just and reasonable
levels. In response to that complaint,
the Commission directed Ameren Missouri to file its answer by March 17. Ameren Missouri filed its answer on March 17,
and on the same date filed a motion asking the Commission to dismiss this
complaint. The Complainants, Staff, and
Public Counsel responded in opposition to Ameren Missouri’s motion to dismiss
on March 26 and 27. Ameren Missouri
replied on April 15.
Ameren
Missouri asserts three reasons why the complaint should be dismissed. First, it argues that the complaint fails to
state a claim upon which relief can be granted because it fails to allege that
Ameren Missouri’s current and future rates are unjust or unreasonable. In support of that contention, Ameren
Missouri argues that the allegations contained in the complaint and the
supporting testimony do not sufficiently support the relief requested. A review of the complaint reveals that
paragraph 11 of that complaint asserts that the rates Ameren Missouri currently
charges its customers are “now unjust and unreasonable because, with normalized
and annualized expenses and revenues, Ameren Missouri is currently overearning
at a rate of $44.6 million per year over its authorized rate of return on
equity of 9.8 percent.” Clearly, the
complaint does allege that Ameren Missouri’s current rates are unjust and
unreasonable.
In
its reply, Ameren Missouri clarifies its argument to assert that the
Complainants have failed to allege sufficient facts to establish that Ameren
Missouri’s rates will be excessive in the future. That clarification does not change anything
because what Ameren Missouri is really arguing is that the facts alleged by the
Complainants do not support the rate reduction requested in the complaint. But at this stage of the proceeding, the
Commission has no basis to judge the accuracy of the facts alleged by the
complainants. On the contrary, when
considering a motion to dismiss for failure to state a claim, the Commission
can only consider the legal sufficiency of the complaint. The facts alleged must be accepted as true
and the complainant must be given the benefit of all reasonable inferences from
those facts.[1] The
complainants have alleged sufficient facts to provide a legal basis for their
complaint. Whether those facts are true
and whether they support a Commission decision to reduce Ameren Missouri’s
rates cannot be determined at this stage of the proceeding and do not need to
be determined to deny Ameren Missouri’s motion to dismiss.
Ameren
Missouri next argues that the complaint is an unlawful collateral attack on the
Commission’s report and order in Ameren Missouri’s most recent rate case,
ER-2012-0166. Ameren Missouri supports
that argument by asserting that the facts alleged in the complaint fail to
support any change in circumstances since the 2012 rate case was decided. Again, Ameren Missouri is really challenging
the truth and relevance of the facts alleged in the complaint. But, as previously indicated, this motion to
dismiss is not the proper method to challenge those facts. Assuming that the facts alleged in the
complaint are true and giving the complainants the benefit of all reasonable
inferences from those facts, the complainants have pleaded a significant change
of circumstances since the report and order in ER-2012-0166 was decided. Therefore, the complaint is not an unlawful
collateral attack on that report and order.
Finally,
Ameren Missouri argues that the Commission should exercise its discretion to
dismiss the complaint for good cause shown.
The good cause Ameren Missouri asserts is that the facts alleged by the
complaint do not support a rate reduction.
Essentially, Ameren Missouri is asking the Commission to summarily weigh
the facts alleged in the complaint and to find them insufficient. The Commission cannot do that when
considering a motion to dismiss for failure to state a claim.
Ameren
Missouri’s Motion to Dismiss Complaint is not well founded and will be denied.
THE COMMISSION
ORDERS THAT:
1. Ameren Missouri’s Motion to Dismiss Complaint is denied.
2. Ameren
Missouri’s request for oral argument is denied.
3. This order shall become effective upon issuance.
BY THE COMMISSION
Morris
L. Woodruff
Secretary
R. Kenney, Chm., Stoll, W. Kenney,
Hall, and Rupp, CC., concur.
Woodruff, Chief Regulatory
Law Judge