Arcadia, Ohio v. Ohio Power Company/Concurrence Stevens

Justice STEVENS, with whom Justice MARSHALL joins, concurring.

While I join the Court's opinion because I am persuaded that its interpretation of the statute is correct, I add this additional explanation of my vote because neither the parties, the interested agencies, nor the Court of Appeals considered the construction of § 318 that the Court adopts today.

Even if § 318 were read broadly to give the SEC priority over FERC whenever the requirements of the two agencies conflict, I would come to the same conclusion. The SEC's orders at issue in this case do not conflict with FERC's requirement that Ohio Power recover only the market price of coal from its customers. The SEC's orders approving the creation and capitalization of SOCCO do not require it to pass all coal production costs on to Ohio Power and its affiliates. At most, these orders establish a ceiling requiring that the price SOCCO charges its affiliates for coal remains at or below its costs. The market price for coal during the time relevant to this proceeding has been less than SOCCO's costs. Consequently, Ohio Power is able to comply with the requirements of both agencies.

There is no risk of conflict between the requirements of the SEC and FERC in this case. The SEC's orders limit the price which Ohio Power pays its supplier-SOCCO. The FERC's order, on the other hand, limits what portion of its fuel costs Ohio Power may pass along to its customers. The two agencies' requirements limit Ohio Power's financial relationships with different parties-its supplier and its customers. The two requirements also concern different aspects of fuel costs-the amount Ohio Power must pay for its fuel and how much of those fuel costs it can recover directly from its customers.

Finally, it is significant that the Court of Appeals' reading of § 318 would create a gap in the regulatory scheme that Congress could not have intended. Congress enacted PUHCA to prevent financial abuses among public utility holding companies and their affiliates. Gulf States Utilities Co. v. FPC, 411 U.S. 747, 758, 93 S.Ct. 1870, 1877, 36 L.Ed.2d 635 (1973); see also § 1(b) of PUHCA, 15 U.S.C. § 79a(b). It entrusted the SEC, the agency with the expertise in financial transactions and corporate finance, with the task of administering the Act. The SEC carries out its duties essentially by monitoring inter-affiliate financial transactions and eliminating potential conflicts of interest. See generally Public Utility Holding Company Act: Hearings on H.R. 5220, H.R. 5465, and H.R. 6134 before the Subcommittee on Energy Conservation and Power of the House Committee on Energy and Commerce, 97th Cong., 2d Sess., 553, 579-583 (1982). Congress enacted the FPA to regulate the wholesale interstate sale and distribution of electricity. Gulf States Utilities Co. v. FPC, supra, at 758, 93 S.Ct., at 1877. It entrusted the administration of the FPA to the FPC and later FERC as the agency with the proper technical expertise required to regulate energy transmission. One of the FPA's principal goals is to ensure that the rates customers pay for their electricity are "just and reasonable." See §§ 205, 206(a) of the FPA, 16 U.S.C. §§ 824d, 824e(a).

Congress enacted PUHCA to supplement, not to supplant, the FPA. Yet, this is the effect that the Court of Appeals opinion would have in those areas in which the two agencies' authority overlap. In these overlapping areas, the subject matter would come under the scrutiny of only the SEC despite the difference between the goals and expertise of the two agencies. As the Court of Appeals decision would apply in this case, Ohio Power would be allowed to buy coal at prices that would be higher than those paid by any utility not owned by a holding company, and then pass those higher costs along to its customers. I do not believe that Congress intended to relieve utilities owned by holding companies of substantial technical regulation because of their corporate structure. It intended those utilities to be subject to the regulation of both the SEC and FERC as much as practicable. The Court's construction of § 318 is consistent with this goal.