This case was litigated by the office of the state consumer advocate, Patrick Cicero. Well, done, Patrick! Here’s the story, as reported by WHYY. https://whyy.org/articles/pa-court-puc-east-whiteland-sewer-sale-aqua/
Here’s the link to the decision
P. Cicero v. PUC – Pa. Cmwlth. – July 31, 2023 – reported, precedential decision
https://www.pacourts.us/assets/opinions/Commonwealth/out/910CD22_7-31-23.pdf?cb=1
Here’s what Patrick had to say about the decision:
- The Court correctly recognized that the Section 1329 of the Public Utility Code deals solely with the ratemaking rate base valuation of a system if and only if the application is approved and that it is not a short cut to approval. Specifically, it correctly recognized that nothing in Section 1329 altered the requirements of Section 1102 and 1103 of the Public Utility Code that require a specific, fact-based showing that the acquisition provides an affirmative public benefit. The Court unequivocally set out that in every 1329 case, the determination of an affirmative public benefit must be rooted in facts that are specific to the transaction and outweigh the harms of the transaction. This requires the PUC to conduct a fact-based evaluation and balancing such that any approval must demonstrate that the public is better off – on net – because of the transaction than it would be in the absence of the transaction.
- The Court correctly rejected the Commission and Aqua’s argument that Aqua’s technical and legal fitness was, in the abstract, an affirmative public benefit.
- The Court also appropriately clarified that while aspirational benefits can be considered, they must be rooted in the facts that are specific to the transaction in question and not general in nature or result from the technical or legal fitness of the buyer.
Here is a proposed quote from me:
“The Commonwealth Court provided unequivocal clarity that the Public Utility Commission must do more than rubber stamp water and wastewater acquisitions brought pursuant to Section 1329 of the Public Utility Code. It correctly found that the PUC must conduct a fact-based evaluation pursuant to Section 1102 and 1103 which sections require the PUC to only approve acquisitions where the public is affirmatively better off – on net – because of the transaction than it would be in the absence of the transaction. The OCA takes seriously the requirement that each case must be dealt with on its facts. The Court correctly recognized the limits of Section 1329 as simply a means of determining the value of an acquired system that forms the basis of rates if the application is approved, but that at the same time the rate impact of the proposed acquisition at the higher costs allowed by Section 1329 is an important factor in determining whether there are affirmative public benefits. This means that each transaction must stand alone and provide affirmative benefit to the public before the PUC can approve the sale.”
