Changes to PSC appeals process advanced

After eight hours of discussion over three days, lawmakers voted May 2 to end general file debate and advance a bill that would change appeal procedures for the Public Service Commission (PSC).

Under LB545, introduced by Fullerton Sen. Annette Dubas, PSC appeals would go directly to the court of appeals instead of the district court as currently required under the Administrative Procedures Act (APA).

Dubas said the proposed change would streamline the appeals process for highly technical PSC rulings. A more streamlined process would reduce the cost of appeals, which are borne by ratepayers, she said.

“We’ll create a system that will take the ratepayers … into consideration, ensuring that there is due process and ensuring that things work as they’re supposed to work,” she said.

A Transportation and Telecommunications Committee amendment, adopted April 22 on a 25-1 vote, replaced the bill.

Under the amended bill, the court of appeals would review commission decisions to determine if they are arbitrary or capricious, whereas the district court conducted a
de novo review.

Among other provisions, the bill also would:
• require that commission orders, except natural gas rate orders, may be reconsidered within 10 business days after the effective date of the order;
• suspend the time for filing a notice of intention to appeal pending resolution of a motion to reconsider; and
• allow parties to natural gas rate orders to file a motion for reconsideration within 30 days.

Dubas offered an amendment May 1, adopted 27-2, which would require the appellate court to conduct a review of a PSC order de novo on the record.

She said the amendment would ensure that the appeals court would review a case from the beginning.

Omaha Sen. Scott Lautenbaugh supported the bill, saying most decisions on PSC rulings eventually come from the appeals court, so the bill simply would skip the first level of review and speed up the appeals process.

“I don’t think we’re shortchanging any kind of review,” he said.

Omaha Sen. Ernie Chambers opposed LB545, saying no compelling public interest would be served by the bill’s passage.

“I have not heard anything that shows me where the public benefits,” he said. “This is an industry bill.”

Chambers brought an amendment May 1 that would have stricken the changes outlined in the amended bill.

Dubas opposed the amendment, saying her bill would not impede due process but simply would make rate appeals more efficient, thereby saving the public money.

The amendment failed 4-30.

Sen. Paul Schumacher of Columbus also opposed the bill, saying appeals courts are not equipped to have a special master or referee to help sort through complicated information.

In addition, he said, the small number of cases that would be covered by the bill’s provisions would not be enough to justify the proposed change in public policy.

“We have an efficient mechanism now,” Schumacher said. “There has not been a demonstrated need for a change here of any kind.”

Schumacher offered, and later withdrew, an amendment May 1 that would require a de novo review if the appellant is not a regulated party. He said the change would open the process to individuals and interest groups.

Chambers filed several additional motions and an amendment in an attempt to kill the bill, which he called a “radical” and unnecessary change.

Dubas offered a cloture motion during discussion of a Chambers amendment May 2. A successful motion for cloture ceases debate and forces a vote on all pending action on a bill.

Following adoption of the cloture motion on a 35-7 vote, senators voted 33-8 to advance the bill to select file.