In June, the Federal Energy Regulatory Commission
("FERC" or "Commission") issued Opinion No.
531, which details three significant changes to the way FERC
determines the rate of return on equity ("ROE") in public
utility rate cases.1 First, FERC modified its
longstanding discounted cash flow ("DCF") model for
calculating ROE.2 Second, FERC ended its practice of
applying a post-hearing adjustment to ROE based on changes in
United States Treasury bond yields.3 Third, FERC decided
that the ROE of the group of public utilities in question should
not be set at the "point of central tendency" established
by the range of reasonable ROEs, but instead should be set at the
point halfway between the range's point of central tendency and
the range's highest point.4 Each of these changes is
explained below.
In conjunction with Opinion No. 531, FERC set for hearing a
backlog of cases involving disputes over public utility
rates.5 In each case, the Commission stated that
"we expect the evidence and any DCF analyses presented by the
participants in this proceeding to be guided by our decision in
Opinion No. 531."6 As compared to FERC's
preexisting approach to ROE, Opinion No. 531 appears likely to
increase the ROE component in public utility cost-based rates,
thereby increasing a public utility's overall return. However,
the long-term reach of FERC's new ROE analysis remains
unclear.
How Regulators Use the DCF Model and Establish a Range of Reasonable ROEs
Under cost-of-service ratemaking, certain costs are considered
operating expenses and are recovered dollar-for-dollar in the
utility's annual revenue requirements, while other costs are
capitalized, "thus entering the cost of service in the form of
annual allowances for depreciation and return on the undepreciated
portion of the investment."7 In order to attract
necessary capital, the utility must offer "a risk-adjusted
expected rate of return sufficient to attract
investors."8 This "return" on the
utility's investments represents the cost expended by the
utility to raise capital.9
For more than 30 years, the dominant method used by FERC to
estimate investors' required rate of return has been the DCF
model. The premise of the DCF methodology is that "an
investment in common stock is worth the present value of the
infinite stream of dividends discounted at a market rate
commensurate with the investment's risk."10
This "constant growth" DCF model can be expressed as a
formula:
In this formula, D is the current dividend, P
is the price of the company's common stock, and g is
the expected growth rate in the company's dividends. The
formula solves for k, which represents the rate of return
investors require to invest in a company's common
stock.11
In a rate case, FERC applies the DCF formula to each member of a
group of comparable utilities, known as a proxy group. This
generates a range of ROEs. Screening criteria, which can result in
the exclusion of particular companies from the analysis, are
applied to establish a range of reasonable ROEs. The ROE of the
public utility that is the subject of FERC's review is selected
from within this range. FERC's past practice has been to set
the subject public utility's ROE at the point of central
tendency of the proxy group's range of ROEs.
Applying the Two-Step DCF Methodology to Public Utilities
Since the mid-1990s, FERC has used a "one-step" DCF
methodology in public utility rate cases (i.e., in the electric
industry) while using a "two-step" DCF methodology in
natural gas pipeline and oil pipeline rate cases. Under the
one-step DCF methodology, FERC calculates two dividend yields for
each proxy group company: one based on the proxy group
company's highest stock price from a six-month study period,
and one based on the proxy group company's lowest stock price
from the same study period. Next, FERC develops two estimates of
short-term dividend growth rates. A low cost of equity for each
proxy group company is developed using the lowest dividend yield
plus the lowest dividend growth rate projection. A high cost of
equity for each proxy group company is developed using the highest
dividend yield plus the highest dividend growth rate
projection.12
In Opinion No. 531, FERC decided that henceforth it will apply the
two-step DCF methodology in public utility rate cases. The result
is a single average dividend yield calculated for each company in
the proxy group. The dividend growth rate estimate for each proxy
group company will take into account both projected short-term
growth rates (constituting two-thirds of the total growth rate
estimate) and projected long-term growth (one-third of the
total).13 The short-term growth rate estimate will be
based on the five-year forecast for each proxy group company, as
published in the Institutional Brokers Estimate System
("IBES"). The long-term growth rate estimate will be
based on forecasts of the long-term growth of the economy as a
whole, stated in terms of gross domestic product.14 In
the case before it, FERC reopened the record and established a
"paper hearing" to give the participants in that case
"an opportunity to present evidence concerning the appropriate
long-term growth projection to be used for public utilities under
the two-step DCF methodology."15
Eliminating the Post-Hearing ROE Adjustment Based on U.S. Treasury Bond Yields
FERC's cost-of-service ratemaking for public utilities
relies predominantly on "test-period" evidence, which is
evidence about the subject utility's costs limited to a
specific time period that ends before the rate case goes to
hearing. Use of test-period evidence gives the parties a known
universe of facts to dispute. One exception is FERC's use of
post-test-period data regarding ROE. FERC's practice has been
to adjust the subject utility's ROE based on U.S. Treasury bond
yields. FERC determines the change in U.S. Treasury bond yields as
of the date of its order as compared to such yields as of the end
of the hearing in the case.16 FERC then adjusts the
final ROE by the amount of the change in U.S. Treasury bond yields.
For example, a 1 percent drop in bond yields between the end of a
hearing and FERC's order would result in a 1 percent downward
adjustment to the utility's ROE.17
In Opinion No. 531, FERC decided that U.S. Treasury bond yields no
longer "provide a reliable and consistent metric for tracking
changes in ROE after the close of the record in a
case."18 Instead, FERC will allow participants in a
rate case "to present the most recent financial data available
at the time of the hearing, including post-test period financial
data then available."19 FERC already uses this
approach in natural gas pipeline and oil pipeline rate
cases.20
Selecting an ROE From Within the Range of Reasonable ROEs
Once a range of reasonable ROEs is developed by applying the DCF
model to each member of a proxy group, FERC must select one ROE
from within that range. Traditionally, FERC has set the subject
public utility's ROE at the "point of central
tendency" within the range of ROEs. For a diverse group of
public utilities, the point of central tendency is the midpoint
within the range, which, as FERC uses the term, is the arithmetic
mean of the single lowest and the single highest ROE. In contrast,
for an individual public utility, the point of central tendency is
the median.21 The median is the middle number in a
series, such that half of the numbers are higher and half are lower
than the median.
In Opinion No. 531, the issue in dispute was the appropriate ROE
for the New England Transmission Owners, a group of utilities that
had transferred operational control of their transmission
facilities to ISO-New England. FERC decided that it would not set
the ROE at the midpoint of the range of ROEs. Instead, FERC
selected the point halfway between the midpoint and the highest
point in the zone of reasonableness (the 75th percentile), which
FERC described as the "central tendency for the top half of
the zone of reasonableness."22 In Opinion No. 531,
the resulting midpoint was 9.39 percent, but the point at the 75th
percentile of the range was 10.57 percent.
In rejecting the midpoint ROE, FERC explained its concern that the
"capital market conditions in the record are anomalous,
thereby making it more difficult to determine the return necessary
to attract capital."23 The New England Transmission
Owners had argued that five other "benchmark
methodologies" showed that the DCF-based midpoint in that case
was too low to attract capital: (i) a risk premium analysis, which
examines the premium that investors require to invest in equities;
(ii) a capital asset pricing model ("CAPM"), which is a
model that examines investor expectations about the future by
taking into consideration the tendency of a stock's price to
follow changes in the market as a whole; (iii) an analysis of
natural gas pipeline ROEs; (iv) a DCF analysis applied to
non-utilities; and (v) an expected earnings analysis, which
involves a comparison of the earnings investors can expect to
receive from investing in public utilities, as compared to
investing in other opportunities of comparable
risk.24
FERC found that the risk premium analysis, the CAPM, and the
expected earnings analysis were "informative" and
supported the conclusion that the midpoint ROE was too low to
attract capital. FERC did not consider the DCF analysis of
non-utilities or the natural gas pipeline ROE analysis to be
probative because they did not analyze the returns of public
utilities.25
At several points, FERC's analysis focused on the unique
characteristics of companies in the business of building and owning
electric transmission assets. For example, FERC found persuasive
the fact that state regulatory commissions have approved public
utility ROEs above the DCF midpoint ROE. According to FERC,
transmission investment "entails unique risks that
state-regulated electric distribution does not."26
Investors in electric transmission infrastructure face risks such
as "long delays in transmission siting, greater project
complexity, environmental impact proceedings, requiring regulatory
approval from multiple jurisdictions overseeing permits and rights
of way, liquidity risk from financing projects that are large
relative to the size of a balance sheet, and shorter investment
history."27 FERC emphasized that it has an
obligation to set an ROE in this case "at a level sufficient
to attract investment in interstate electric transmission,"
explaining that such investment "helps promote efficient and
competitive electricity markets, reduce costly congestion, enhance
reliability, and allow access to new energy resources, including
renewables."28
Opinion No. 531 may allow a utility to justify an ROE greater than
the median without making a company-specific showing of relative
risk. In prior decisions, FERC has required a showing that the risk
affecting the subject company be higher than the risk faced by the
other members of the proxy group. As recently as 2013, FERC
explained that any analysis attempting to "demonstrate that a
deviation from the median ROE is justified" must present a
comparison between "the risk level of the subject company and
the risk level of each of the proxy group companies. This is the
crux of the analysis, and if it is lacking, the analysis is
incomplete."29 In light of the general evidence
relied on in Opinion No. 531, a company-specific showing of
relative risk may no longer be the "crux" of the
analysis.
Finally, FERC explained that its decision to set the New England
Transmission Owners' base ROE above the range's point of
central tendency involved considerations that are distinct from its
analysis of "incentive adders" pursuant to Section 219 of
the Federal Power Act.30 FERC's task when evaluating
a base ROE is to set the ROE at a level that "enables the
utility to attract investment." In contrast, FPA Section 219
authorized FERC to establish incentive above that base ROE. FERC
cautioned that it will not permit its new analysis of base ROE and
its analysis of FPA Section 219 incentives to be combined in a way
that results in an ROE that exceeds the top of the zone of
reasonableness established by its new two-step DCF
methodology.31
Likely Effect on Public Utility Rates
FERC's departure in Opinion No. 531 from three aspects of
its existing policy on ROE will result in a higher ROE for the New
England Transmission Owners. In the Initial Decision under review
in Opinion No. 531, the Administrative Law Judge found that the
prospective ROE for the New England Transmission Owners should be
set at 9.7 percent.32 In contrast, FERC's analysis
in Opinion No. 531 resulted in a tentative finding that the
appropriate ROE was 10.57 percent.33
Opinion No. 531's higher ROE did not result from FERC's
switch to the two-step DCF model. The two-step DCF model alone
resulted in a midpoint ROE of 9.39 percent34—lower
than the prospective 9.7 percent ROE approved in the Initial
Decision. Rather, the higher ROE resulted from FERC's decision
to select the midpoint of the "upper half" of the zone of
reasonableness rather than selecting the midpoint of the full zone.
Moreover, FERC's focus on the midpoint as the point of central
tendency (because the ROE of a group of utilities was at issue)
raises questions about how FERC's analysis from Opinion No. 531
will be applied in the context of setting a single public
utility's ROE, where the Commission uses the median of the
range of reasonable ROEs as opposed to the midpoint.35
Notwithstanding the differences in the ROE analysis for a single
utility and grous of utilities, the Commission's order in
Seminole Electric Cooperative, Inc. v. Florida Power Corp.
instructs the parties to apply Opinion No. 531 in establishing a
single utility's ROE.36
FERC also emphasized that the new two-step DCF model produces
"a narrower zone of reasonableness, consistent with the fact
[that] different firms in a regulated industry would not ordinarily
be expected to have widely varying levels of
profitability."37 This narrower zone of
reasonableness may result in a point of central tendency within the
"upper half" of the zone of reasonableness that is close
enough to the overall point of central tendency to support the
selection of that higher ROE.
In sum, although two aspects of Opinion No. 531 will apply in all
future public utility rate cases, the largest identifiable change
in the ROE in that order was based on a case-specific
analysis—performed in the context of "anomalous"
capital market conditions—of the level of return needed to
encourage investments in transmission where that ROE will apply to
a group of public utilities rather than to a single public utility.
Had FERC's ROE policies remained unchanged, the result would
have been lower ROEs. Therefore, Opinion No. 531 is likely to
increase public utility returns in cost-based rates, but the scope
and magnitude of this effect as applied to other public utilities
remains unclear.
Footnotes
1 Martha Coakley v. Bangor Hydro-Electric Co., Opinion No. 531, 147 FERC ¶ 61,234 at P 7 (2014) ("Opinion No. 531"). A public utility is an entity subject to the Federal Power Act because it owns facilities used for the transmission of electric energy in interstate commerce or for the sale of such energy at wholesale in interstate commerce. 16 U.S.C. § 824 (2012).
2 Opinion No. 531 at PP 32–41.
3 Id. at PP 157–160.
4 Id. at P 151.
5 ENE (Environment Northeast) v. Bangor Hydro-Electric Co., 147 FERC ¶ 61,235 (2014); Seminole Electric Cooperative, Inc. v. Florida Power Corp., 147 FERC ¶ 61,236 (2014); Seminole Electric Corp. v. Duke Energy Florida, Inc., 147 FERC ¶ 61,237 (2014); Golden Spread Electric Cooperative, Inc. v. Southwestern Public Service Co., 147 FERC ¶ 61,238 (2014); Golden Spread Electric Cooperative, Inc. v. Southwestern Public Service Co., 147 FERC ¶ 61,239 (2014).
6 Seminole Electric Corp. v. Duke Energy Florida, Inc., 147 FERC ¶ 61,237 at P 21.
7 Alfred E. Kahn, The Economics of Regulation: Principles and Institutions 27 (2nd ed. 1988).
8 Canadian Ass'n of Petroleum Producers v. FERC, 254 F.3d 289, 293 (D.C. Cir. 2001).
9 See id.
10 Opinion No. 531 at P 14 (citing, as an example, Canadian Ass'n of Petroleum Producers, 254 F.3d at 293).
11 Id. at P 15.
12 Id. at PP 25–26.
13 Id. at P 39.
14 Id. at P 39.
15 Id. at P 43.
16 Id. at P 157.
17 Id. at P 159.
18 Id. at P 160.
19 Id. at P 160.
20 Id. at P 160.
21 Id. at P 26.
22 Id. at P 151.
23 Id. at P 145.
24 Id. at P 146.
25 Id. at P 146.
26 Id. at P 148.
27 Id. at P 149.
28 Id. at P 150.
29 El Paso Natural Gas Co., 145 FERC ¶ 61,040 at P 698 (2013); see also id. at P 686 (reversing the Administrative Law Judge's finding that the pipeline's relative risk justifies an ROE "well above" the median of the proxy group companies, and setting the pipeline's ROE at the median). See, e.g., Southern California Edison Co., 92 FERC ¶ 61,070 at 61,266 (finding that the appropriate ROE for the subject public utility should be above the point of central tendency for the comparison group because the utility "is more risky than the comparison group"), reh'g denied, 108 FERC ¶ 61,085 (2004).
30 Opinion No. 531 at P 153.
31 Id. at P 165.
32 Id. at P 5.
33 Id. at P 142.
34 Id. at P 147.
35 See S. Cal. Edison Co. v. FERC, 717 F.3d 177, 186 (D.C. Cir. 2013).
36 Seminole Electric Cooperative, Inc. v. Florida Power Corp., 147 FERC ¶ 61,236 at P 16.
37 Opinion No. 531 at PP 38, 161.
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