ARCADIA, OHIO, et al. v. OHIO POWER CO.

No. 89-1283

[November 27, 1990]

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. ^[n.1]

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 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. ^[n.2] At most, these orders establish a ceiling requiring that the price SOCCO charges its affiliates for coal remain at or below its costs. The market price for coal during the time relevant to this proceeding has been less than SOCCO's costs. ^[n.3] 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 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 Powers 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 (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 House 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. It entrusted the administration of the FPA to the FPC and later the FERC as the agency with the proper technical expertise required to regulate energy transmission. One of the FPA's principle 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 supplant, the FPA. Yet this is the effect that the Court of Appeals opinion would have in those areas where 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.^[n.4] 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 practical. The Court's construction of 318 is consistent with this goal.

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Notes

1 I agree with the Court that the legislative history provides little guidance in interpreting the scope of 318's " `other subject matter' " language. See ante, at 10, n. 2. The relevant information provided by the legislative history essentially cancels itself out. The Conference Report on the Public Utility Act contains a statement to the effect that the "or other subject matter" language in 318 should be read as all inclusive. That Report stated: "[t]he conference substitute [of 318] is enlarged to include any conflict arising under this bill." H. R. Conf. Rep. No. 1903, 74th Cong., 1st Sess., 75 (1935). The revision of 318 that accompanied that Report, however, contained language that indicates that "or any other subject matter" is a subset of the "aquisition or disposition of" language in that section. That version of 318 provided: "[i]f, with respect to the issue, sale, or guaranty of a security, or assumption of obligation or liability in respect of a security, the method of keeping accounts, the filing of reports, or the aquisition or disposition of any security, capital assets, facilities, or any other subject matter . . . ." Id., at 63.

2 See ante, at 2.

3 See ante, at 2-3.

4 For example, 9 and 10 of PUHCA, 15 U.S.C. 79i, 79j, require SEC approval before a holding company and any of its affiliates acquire any securities of assets of a utility. The SEC review of such a merger seeks, among other things, to avoid undue concentration of control over utilities. See 15 U.S.C. 79j(b). Section 203 of the FPA, 16 U.S.C. 824b, requires FERC to approve a public utility's sale, lease, merger, or consolidation of its facilities. FERC's goals under 203 of the FPA are to maintain adequate service and coordination of facilities. See Savannah Elec. & Power Co., 42 FERC  61,240, p. 61,778 (1988). Under the Court of Appeals' interpretation of 318, FERC review of any matter involved in a sale of part or all of a utility's facilities to a holding company would be improper despite the differing focus and goals of the two agencies.