Discussion
Enron's complaint sought tens of millions of dollars from PG&E based on its interpretation of PG&E's tariffs and pertinent Commission decisions. PG&E's answer to the complaint raised significant legal uncertainties regarding the propriety of the DA credits. These were: (1) that PG&E's rate freeze was over in May 2000 and, therefore, no DA credits should have been calculated; (2) that until FERC established the just and reasonable wholesale power prices for 2000 and 2001, the proper level of DA credits could not be calculated; and (3) that the DA credits might belong to customers rather than to Enron.
The parties then settled the dispute in Enron's favor. Our obligation is to see that the tariff is enforced and that no preference is given or received. (§ 453(a) and § 532.)
In Empire West v. So.Cal.Gas (1974) 12 C.3d 805, the Supreme Court discussed § 532:
Section 532 forbids any utility from refunding "directly or indirectly, in any manner or by any device" the scheduled charges for its services. In addition, a public utility "cannot by contract, conduct, estoppel, waiver, directly or indirectly increase or decrease the rate as published in the tariff . . . ." (Transmix Corp. v. Southern Pac. Co., 187 Cal.App.2d 257, 264 [9 Cal.Rptr. 714]; accord South Tahoe Gas Co. v. Hofmann Land Improvement Co., 25 Cal.App.3d 750, 760 [102 Cal.Rptr. 286].) Scheduled rates must be inflexibly enforced in order to maintain equality for all customers and to prevent collusion which otherwise might be easily and effectively disguised. (R. E. Tharp, Inc. v. Miller Hay Co., 261 Cal.App.2d 81 [67 Cal.Rptr. 854]; People ex rel. Public Util. Com. v. Ryerson, 241 Cal.App.2d 115, 120-121 [50 Cal.Rptr. 246.) (12 C.3d at 809.)
We have said the same. A utility may not deviate from its published tariff. (C.02-03-060, D.03-11-026 at mimeo., p. 3.) "The filed rate doctrine states that the relationship between a utility and the user of a service is governed by the tariff the utility has filed with the appropriate administrative agency (regulatory authority). This relationship is in the first instance contractual, but the tariff is incorporated into the contract between the utility and its customer. (Sherwood v. County of Los Angeles (1962) 203 Cal.App.2d 354, 359; Gardner v. Basich Bros. Constr. Co. (1955) 44 Cal.2d 191, 193-194.) The tariff clearly regulates the terms of service, e.g., price (Gardner)." (C.01-08-022, D.02-10-036, at mimeo., p. 5.)
We hold that, although not clear at the time, subsequent events have confirmed that PG&E owed Enron the DA credits alleged in C.01-01-032. There is no doubt that prior to the energy crisis in 2001, PG&E's tariff provided for its owing the DA customer a net credit if PX prices became high enough. (D.99-06-058 removed the zero minimum bill provision.) In D.04-01-026 we ruled that PG&E's rate freeze was over on January 18, 2001. Therefore, prior to January 18, 2001, PG&E was obligated to pay to DA customers any net credit. FERC's investigation into the California wholesale power market provided sufficient guidance as to the just and reasonable level of wholesale prices in California for May 2000 through January 2001. Further, PG&E may pay the credit to ESPs rather than the ESP customer. Pursuant to PG&E's filed tariff, and especially Rule 22, Enron is entitled to recover the $22 million. We have previously dismissed analogous complaint cases by Enron against Southern California Edison Company (SCE), including return to Enron of escrowed monies for payments of SCE T&D charges made by Enron into a similar escrow account. (Enron v. So.Cal.Edison, C.01-01-029 and C.01-08-041, dismissed and escrow funds returned to Enron in D.02-08-013 and D.02-08-014.)
1. C.01-01-032 and C.01-09-011 allege that PG&E had violated its tariffs by failing to remit to Enron amounts owing for DA customers' credits. Enron deposited with the Commission approximately $22 million.
2. PG&E raised defenses to the complaints (1) that PG&E's rate freeze was over in May 2000 and, therefore, no DA credits should have been calculated; (2) that until FERC established the just and reasonable wholesale power prices for 2000 and 2001, the proper level of DA credits could not be calculated; and (3) that the DA credits might belong to customers rather than to Enron.
3. Prior to the energy crisis in 2001, PG&E's tariff provided for its owing the DA customer a net credit if PX prices became high enough.
4. In D.04-01-026, we ruled that PG&E's rate freeze was over on January 18, 2001. Prior to January 18, 2001, PG&E was obligated to pay to DA customers any net credit.
5. FERC's investigation into the California wholesale power market provided sufficient guidance as to the just and reasonable level of wholesale prices in California for May 2000 through January 2001.
6. PG&E may pay the credit to ESPs rather than the ESP customer.
7. Pursuant to PG&E filed tariff, and especially Rule 22, Enron is entitled to recover the approximate $22 million including interest.
1. C.01-01-032 and C.01-09-011 should be dismissed with prejudice and the money on deposit with the Commission should be disbursed to complainants.
2. The motion of the parties to dismiss is granted.
IT IS ORDERED that:
1. Case (C.) 01-01-032 and C.01-09-011 are dismissed with prejudice.
2. The money on deposit with the Commission in C.01-09-011, approximately $22 million with accumulated interest, shall be disbursed to complainants.
3. These cases are closed.
This order is effective today.
Dated , at San Francisco, California.
