216 October 2, 2014 No. 63

IN THE SUPREME COURT OF THE

STATE OF OREGON

Frank GEARHART;

Patricia Morgan;

Kafoury Brothers, Inc.,

Petitioners on Review,

and

UTILITY REFORM PROJECT,

Petitioner,

v.

PUBLIC UTILITY COMMISSION OF OREGON

and Portland General Electric Company,

Respondents on Review.

(PUC 08487, 09093; CA A140317; SC S061517 (Control))

Frank GEARHART;

Patricia Morgan;

Kafoury Brothers, Inc.,

Petitioners,

and

UTILITY REFORM PROJECT,

Petitioner on Review,

v.

PUBLIC UTILITY COMMISSION OF OREGON

and Portland General Electric Company,

Respondents on Review.

(PUC 08487, 09093; CA A140317; SC S061518)

En Banc

On review from the Court of Appeals.*

Argued and submitted March 4, 2014.

Linda K. Williams, Portland, argued the cause and filed 

the briefs for petitioners on review Gearhart, Morgan, and 

Kafoury Brothers, Inc.

______________

* Judicial review of an order of the Public Utility Commission, 255 Or App 

58, 299 P3d 533 (2013).
Cite as 356 Or 216 (2014) 217

Daniel W. Meek, Portland, argued the cause and filed the 

brief for petitioner on review Utility Reform Project.

Michael A. Casper, Deputy Solicitor General, Salem, 

argued the cause and filed the brief for respondent on review 

Public Utility Commission of Oregon. With him on the brief 

were Ellen F. Rosenblum, Attorney General, and Anna M. 

Joyce, Solicitor General.

James N. Westwood, Stoel Rives LLP, Portland, argued 

the cause and filed the brief for respondent on review 

Portland General Electric Company. With him on the brief 

was Rachel C. Lee.

Scott G. Seidman, Portland, filed a brief for amicus

curiae Edison Electric Institute.

Katherine McDowell, McDowell Rackner & Gibson PC, 

Portland, filed a brief for amici curiae Avista Corporation, 

Idaho Power Company, Northwest Natural Gas Company, 

and PacifiCorp. With her on the brief was Lisa Rackner.

G. Catriona McCracken, Portland, filed a brief for amicus 

curiae Citizens’ Utility Board of Oregon. With her on the 

brief were Sommer Templet and Ray Myers.

BALMER, C. J.

The decision of the Court of Appeals and the order of the 

Public Utility Commission are affirmed.

On remand from the Court of Appeals of earlier rate orders, the Public 

Utilities Commission (PUC) issued Order No. 08-487, now before the court on 

judicial review in this case. In the order, the PUC had reexamined the rates 

it would have set for 1995-2000 if it had not made a legal error, concluded that 

the post-2000 rates would have been lower without the legal error, and ordered 

Portland General Electric (PGE) to order a refund to the post-2000 ratepayers. 

The Court of Appeals upheld the PUC order. Held: (1) The PUC had authority 

to take the actions in the order, including reexamining the rates, ordering the 

refund, and allowing PGE to recover interest on its investment to account for 

the time value of money; and (2) the PUC order was supported by substantial 

evidence in the record.

The decision of the Court of Appeals and the order of the Public Utility 

Commission are affirmed.
218 Gearhart v. PUC

BALMER, C. J.

At issue in this case is an order of the Public 

Utility Commission (PUC) that addressed Portland 

General Electric’s (PGE) recovery of its capital investment 

in the Trojan nuclear generating facility after that facility was retired from service. In that order, the PUC made 

three key decisions that are now before this court. First, to 

determine whether a legal error that the PUC had made in 

an earlier rate case had affected rates that the PUC had 

authorized PGE to charge, the PUC reexamined those earlier rates. Second, in undertaking that reexamination, the 

PUC determined that PGE had been required to recover 

its capital investment over time, and that the rates therefore should have included interest to account for the time 

value of money. Third, the PUC determined that, despite 

the legal error, the rates that it had authorized for the 1995 

to 2000 time period were just and reasonable, but that 

to make the post-2000 rates just and reasonable, it was 

required to order a refund to the post-2000 ratepayers. In 

affirming the PUC order, the Court of Appeals concluded 

that the PUC had not erred in making those three determinations. We affirm the decision of the Court of Appeals 

and the order of the PUC.

This case dates back to 1976, when PGE began commercial operation of the Trojan nuclear generating facility. Initially, PGE was allowed to recover its investment in 

that facility through rates charged over a 35-year period. 

Problems with the facility and other considerations led 

PGE to retire Trojan in 1993, before the end of that 35-year 

period. Since that time, PGE, the Utility Reform Project 

(URP), and plaintiffs (the Class Action Plaintiffs, or CAPs) 

in two class action cases against PGE have argued before 

the PUC, the Court of Appeals, and this court about PGE’s 

recovery of the remaining balance of its capital investment 

in Trojan and about whether and to what extent ratepayers 

can recover their payments of certain amounts associated 

with the retired Trojan facility.1

1 As discussed below, the CAPs are class action plaintiffs representing PGE 

ratepayers from the period of April 1995 through September 2000 in two class 

action cases against PGE.
Cite as 356 Or 216 (2014) 219

The order at issue here, PUC Order No. 08-487, 

followed the Court of Appeals’ remand of three prior PUC 

orders involving PGE’s ability to recover the remaining balance of its investment in Trojan through rates. The Court 

of Appeals in this case affirmed the PUC’s order, rejecting arguments by URP and the CAPs that the PUC had 

exceeded its authority on remand. Gearhart v. PUC, 255 Or 

App 58, 104-05, 299 P3d 533 (2013). Judge Schuman dissented, arguing that the methodology used by the PUC went 

beyond the scope of the remands and that the case should 

have been remanded to the PUC for further proceedings. 

Id. at 105, 113 (Schuman, J., dissenting). For the reasons 

discussed below, we affirm the Court of Appeals.

I. PUBLIC UTILITY RATEMAKING

We begin with a brief overview of public utility 

ratemaking. Public utilities exhibit characteristics of natural monopolies. For that reason, public utilities often are 

granted exclusive territories within which to operate, and 

many aspects of public utility operation are closely regulated 

by public utility commissions. See Charles F. Phillips, Jr., 

The Regulation of Public Utilities 4 (2d ed 1988) (explaining 

that public utilities are unique because they operate more 

efficiently as monopolies, they must be regulated to ensure 

they contribute to the general welfare, there is a high degree 

of public interest in the services rendered, and administrative commissions have jurisdiction over rates and services). 

In Oregon, the PUC’s responsibilities include “establishing 

fair and reasonable rates” for services provided by public 

utilities. ORS 756.040(1).2

2 ORS 756.040(1) provides:

“In addition to the powers and duties now or hereafter transferred to or 

vested in the Public Utility Commission, the commission shall represent the 

customers of any public utility or telecommunications utility and the public 

generally in all controversies respecting rates, valuations, service and all 

matters of which the commission has jurisdiction. In respect thereof the commission shall make use of the jurisdiction and powers of the office to protect such customers, and the public generally, from unjust and unreasonable 

exactions and practices and to obtain for them adequate service at fair and 

reasonable rates. The commission shall balance the interests of the utility 

investor and the consumer in establishing fair and reasonable rates. Rates 

are fair and reasonable for the purposes of this subsection if the rates provide adequate revenue both for operating expenses of the public utility or 
220 Gearhart v. PUC

The statutes direct the PUC to examine three key 

components in ratemaking. First, the PUC determines the 

utility’s operating expenses, such as wages, fuel, maintenance, and taxes. See id. (fair and reasonable rates allow 

recovery of revenue “for operating expenses”); see also 

Phillips, The Regulation of Public Utilities at 169. Second, the 

statute provides that rates should provide adequate revenue 

“for capital costs of the utility.” ORS 756.040(1). That amount 

is represented in the PUC’s calculation of rate base. Although 

the term “rate base” is not defined by statute, it is understood within public utility ratemaking to represent “the net 

or depreciated value of the tangible and intangible property, 

or net investment in the property,” although there are limitations on what may be included in rate base. Phillips, The 

Regulation of Public Utilities at 169-70. Third, the PUC must 

determine the appropriate rate of return on the utility’s capital investment. See ORS 756.040(1) (fair and reasonable rates 

allow recovery of “capital costs of the utility, with a return 

to the equity holder *** [c]ommensurate with the return on 

investments in other enterprises having corresponding risks” 

and “[s]ufficient to ensure confidence in the financial integrity of the utility”); see also Phillips, The Regulation of Public 

Utilities at 170. The rate of return should “be fair to investors 

so as to avoid the confiscation of their property” and “preserve the credit standing of the utility to enable it to attract 

new capital to maintain, improve, and expand its services.” 

Phillips, The Regulation of Public Utilities at 170.

Taken together, those components are represented 

in the following formula: R = E + (V–d)r, where “R” represents the revenue requirement, “E” represents allowable 

operating expenses, “V” represents rate base, “d” represents 

accumulated depreciation, and “r” represents the rate of 

return. In calculating those components, and in calculating 

“adequate revenue,” there is no single correct sum, but rather 

a range of reasonable rates. See Phillips, The Regulation of 

telecommunications utility and for capital costs of the utility, with a return 

to the equity holder that is:

“(a) Commensurate with the return on investments in other enterprises 

having corresponding risks; and

“(b) Sufficient to ensure confidence in the financial integrity of the utility, allowing the utility to maintain its credit and attract capital.”
Cite as 356 Or 216 (2014) 221

Public Utilities at 173 (“[T]he required earnings of a utility 

cannot be represented by a specific sum, nor determined by 

a precise formula.”); PUC Order No. 08-487 at 7 (noting that 

the Commission uses this “standard ratemaking formula” to 

determine how much revenue a utility should receive).

When the PUC makes those calculations and sets 

rates, it is performing a quasi-legislative function. Dreyer v. 

PGE, 341 Or 262, 282, 142 P3d 1010 (2006). Rate orders are 

prospective, Valley & Siletz R. R. Co. v. Flagg, 195 Or 683, 

715, 247 P2d 639 (1952), but, “[i]n determining the amount 

of each of the terms in the ratemaking formula and in making its estimate of revenues under the proposed rates, the 

[PUC] looks at data for a given ‘testyear’ either in the past, 

present, or future.” Stefan Krieger, The Ghost of Regulation 

Past: Current Applications of the Rule Against Retroactive 

Ratemaking in Public Utility Proceedings, 1991 U Ill L Rev 

983, 995 (1991); see PUC Order No. 08-487 at 12 (listing test 

year estimates of power costs for 1995 and 1996 as one factor 

affecting estimated revenue requirement). The use of a test 

year results in rates that inherently are based on estimates 

that may overcompensate or undercompensate utilities. See 

Krieger, 1991 U Ill L Rev at 995, 995 n 52; see also Phillips, 

The Regulation of Public Utilities at 188 (“[T]he actual rate 

of return earned by a utility may be quite different from the 

rate allowed by the commission.”); PUC Order No. 08-487 at 

7 (“The utility absorbs the expenses if they are higher than 

expected and benefits if the expenses are lower, which gives 

the utility the incentive to manage its operations efficiently 

***.”). In sum, ratemaking is a unique enterprise that is 

governed by statute but largely left to the PUC’s discretion. 

See Springfield Education Assn. v. School Dist., 290 Or 217, 

230, 621 P2d 547 (1980) (explaining that the PUC is empowered to “make delegated policy choices of a legislative nature 

within the broadly stated legislative policy”).

II. FACTUAL BACKGROUND AND

 PROCEEDINGS BELOW

There are three separate, but related, proceedings 

that are relevant on review. We describe those three proceedings in detail to provide the background necessary for 
222 Gearhart v. PUC

understanding the order at issue in this case, PUC Order 

No. 08-487.

A. Rate Case After Trojan’s Closure: PUC Order No. 95-322 

in UE 88 and Trojan I

PGE began commercial operation of the Trojan 

nuclear facility in 1976. At that time, the PUC allowed PGE 

to recover its investment in Trojan by including that amount 

in rates over a 35-year period. PGE also had the opportunity 

to earn a return on its investment in Trojan because PGE’s 

investment in the facility was included in rate base.

PGE retired the facility in 1993, before the end of 

the 35-year period for recovering its investment, because, 

as the PUC explained in PUC Order No. 08-487, “PGE concluded that closing the plant was the least-cost option for its 

customers, meaning that closing Trojan and replacing its 

output with purchased power was expected to be less expensive than continuing to operate the plant.”

After retiring the Trojan facility, PGE sought a 

declaratory ruling on whether PGE could recover in rates 

the remaining balance of its capital investment in the 

Trojan facility. In PUC Order No. 93-1117, the PUC declared 

that “if PGE met certain conditions and could show certain 

‘assumed facts’ to be true in a rate case or similar forum, 

then PGE could set rates to obtain both a ‘return of’ and 

a ‘return on’ its Trojan investment.” Dreyer, 341 Or at 267 

(emphasis in original; footnote omitted) (summarizing PUC 

Order No. 93-1117). URP and the Citizens’ Utility Board 

(CUB) challenged that order in circuit court, and the court 

summarily affirmed. Id. URP and CUB appealed.

Meanwhile, the PUC conducted a rate case consistent with PUC Order No. 93-1117, which resulted in PUC 

Order No. 95-322. PUC Order No. 95-322 set PGE’s rates 

to include both a return of and a return on PGE’s investment in the Trojan facility.3 See Utility Reform Project v. 

PUC, 215 Or App 360, 365, 170 P3d 1074 (2007) (Trojan 

II) (so noting). URP and CUB had intervened in the

rate case, and they challenged the order in circuit court.

3 Those rates were in effect from 1995 to 2000. 
Cite as 356 Or 216 (2014) 223

Id.

4

 The court concluded that PGE could not recover a 

return on its investment in Trojan and reversed. Id. PGE 

and the PUC appealed.

The Court of Appeals consolidated the two appeals 

and analyzed the two statutes at issue—ORS 757.140(2), 

which addressed the inclusion of undepreciated investments 

in rates, and ORS 757.355, which addressed the exclusion of

certain costs from rates.5 The court held that, “read together, 

ORS 757.140(2) and ORS 757.355 allow only the principal 

amount of the undepreciated investment to be recovered 

through rates.” Citizens’ Utility Board v. PUC, 154 Or App 

702, 714, 962 P2d 744 (1998) (Trojan I). In other words, the 

court held, “ORS 757.140(2) authorizes rates that would reimburse the utility for its principal investment in retired capital 

assets”—a return of PGE’s investment—“but it does not authorize the return on the investment that ORS 757.355 proscribes.” 

Id. at 716. The court “reversed and remanded with instructions to remand [the] orders to PUC for reconsideration.” Id.

at 717. As explained below, the PUC addressed that remand in 

PUC Order No. 08-487, now at issue before this court.6

B. Rates Implementing Settlement: PUC Order No. 00-601 

in UM 989, PUC Order No. 02-227, and Trojan II

Following the Court of Appeals’ decision in Trojan I,

CUB and PGE agreed to a settlement that removed the 

4 As discussed below, the procedure for challenging PUC orders was changed 

in 2005, and judicial review proceedings are now filed in the Court of Appeals.

5 ORS 757.140(2) now (as then) provides, in part, that “the commission may 

allow in rates, directly or indirectly, amounts on the utility’s books of account 

which the commission finds represent undepreciated investment in a utility 

plant, including that which has been retired from service * ** [w]hen the commission finds that the retirement is in the public interest.” At the time, ORS 757.355 

(1993) provided that “[n]o public utility shall, directly or indirectly, by any device, 

charge, demand, collect or receive from any customer rates which are derived 

from a rate base which includes within it any construction, building, installation 

or real or personal property not presently used for providing utility service to the 

customer.” The legislature amended ORS 757.355 in 2003, but no party argues 

that those amendments are material to this case. See Or Laws 2003, ch 202, § 2. 

All references to ORS 757.355 are to the 1993 version of the statute.

6 The PUC and PGE sought review of the court’s decision in Trojan I. This 

court granted review, but held the case in abeyance based on settlement talks 

between PGE and CUB, as well as pending legislation that could have affected 

the case. See Dreyer, 341 Or at 269. After PGE and CUB reached a settlement, 

which the PUC approved, this court dismissed the petition for review on its own 

motion. Id. at 269-70.
224 Gearhart v. PUC

remaining balance of PGE’s investment in the Trojan facility 

from PGE’s balance sheet entirely by offsetting that amount 

against existing credits owed to PGE’s ratepayers. Trojan 

II, 215 Or App at 366. The theory behind the settlement was 

that the parties could end the controversy over Trojan by 

removing the remaining balance from PGE’s books. Dreyer, 

341 Or at 269. As a result, following the settlement, rates 

would no longer include a return of or a return on PGE’s 

investment in Trojan. The PUC approved revised rate schedules implementing the settlement in PUC Order No. 00-601, 

and the rates went into effect in October 2000. Id.

URP, however, was not a party to the settlement, 

and it filed a complaint with the PUC challenging the rates 

that the PUC imposed to implement the settlement. Trojan 

II, 215 Or App at 366. Among other things, URP argued 

that the rates did not provide a mechanism for recovery of 

amounts collected under the 1995 to 2000 rates that were 

attributable to a return on PGE’s investment in Trojan. 

The PUC rejected all of URP’s arguments in PUC Order 

No. 02-227, reasoning, in part, that it had no authority to 

order refunds. Id. at 367. URP sought review of PUC Order 

No. 02-227 in circuit court, and the court determined that 

PGE should have been required to issue refunds for the 

“‘unlawfully collected rates as a matter of law.’” Id. at 368 

(quoting circuit court). The court reversed and remanded, 

directing the PUC “‘to immediately revise and reduce the 

existing rate structure’” or “‘to order PGE to immediately 

issue refunds’” to allow ratepayers to recover any amounts 

attributable to a return on PGE’s investment in Trojan. Id.

at 368 (quoting circuit court). The PUC and PGE appealed.

The Court of Appeals vacated and remanded. Id. at 

376. The Court of Appeals reasoned that the PUC had relied 

on an incorrect interpretation of ORS 757.225 in concluding 

that it had no authority to issue refunds.7

 Accordingly, the 

7 ORS 757.225 provides: 

“No public utility shall charge, demand, collect or receive a greater or 

less compensation for any service performed by it within the state, or for any 

service in connection therewith, than is specified in printed rate schedules as 

may at the time be in force, or demand, collect or receive any rate not specified in such schedule. The rates named therein are the lawful rates until they 

are changed as provided in ORS 757.210 to 757.220.”
Cite as 356 Or 216 (2014) 225

court concluded that the order had to be remanded to the 

PUC for reconsideration in light of the correct interpretation 

of that statute. Id. at 373. Moreover, the court noted, the circuit court’s remand instructions were erroneous because the 

court improperly had assumed that the PUC had authority 

to offer a remedy and was required to exercise that authority. Id. at 374. The Court of Appeals explained that those 

issues had to be resolved by the PUC in the first instance, 

and the court vacated the judgment and “remanded to circuit court with instructions to remand Order No. 02-227 to 

PUC for reconsideration of issues raised on appeal and crossappeal.” Id. at 375-76. That remand also was addressed in 

PUC Order No. 08-487, now at issue before this court.

C. The CAPs’ Claims Against PGE: Mandamus Proceeding 

in Dreyer

After Trojan I, the CAPs filed an action against PGE 

in circuit court alleging, among other things, that PGE was 

liable for damages under ORS 756.185. See ORS 756.185(1) 

(providing that public utility is liable to person injured for 

damages sustained when public utility “does, or causes or 

permits to be done, any matter, act or thing prohibited by 

ORS chapter 756, 757 or 758 or omits to do any act, matter 

or thing required to be done by such statutes”). The CAPs 

alleged that they were entitled to damages for rates paid 

between 1995 and 2000 because PGE had violated ORS 

757.355 by charging rates that included a return on PGE’s 

investment in Trojan.

After the circuit court denied PGE’s motion to 

dismiss, PGE sought a writ of mandamus from this court 

directing the circuit court to dismiss the case. Dreyer, 341 

Or at 275-76. In Dreyer, we held that we could not issue a 

peremptory writ ordering the circuit court to dismiss the 

case because we concluded that the CAPs’ claim under ORS 

756.185 had a basis in law. Id. at 279-80, 283. In particular, 

we rejected PGE’s argument that ORS 757.225, which prohibits public utilities from collecting rates greater or lesser 

than those approved by the PUC, made the rates approved 

by the PUC and charged by PGE between 1995 and 2000 

necessarily lawful. See id. at 279-80 (explaining that ORS 

757.225 “is not aimed, as PGE suggests, at conclusively and 
226 Gearhart v. PUC

permanently binding the entire world to the rate decisions 

of the PUC”). In other words, we rejected PGE’s argument 

that ORS 757.225 embodies a strict version of the “filed rate 

doctrine” that would treat all PUC-approved rates as conclusively lawful until changed, and to bar any claim by the 

CAPs for damages based on the PUC-approved rates that 

PGE had charged between 1995 and 2000. See id. at 278-

80.8 Dreyer also rejected PGE’s argument that the circuit 

court lacked jurisdiction to hear the case because it inherently would involve ratemaking. See id. at 282 (concluding 

that one approach for addressing damages might “invade 

the PUC’s exclusive ratemaking authority,” but that alternative approach might not do so).

Nonetheless, we concluded that the circuit court 

had “a legal duty to abate the proceedings” because the PUC 

remand proceedings for PUC Order No. 95-322 involved 

“(essentially) the same controversy.” Id. at 283. We reasoned 

that the PUC had primary jurisdiction “to determine what, 

if any, remedy it [could] offer to PGE ratepayers.” Id. at 286. 

We went on to explain that, if the PUC could provide a remedy, the CAPs’ claims might become moot. Id. We issued 

a peremptory writ ordering the circuit court to abate the 

CAPs’ case.

D. Order at Issue on Review: PUC Order No. 08-487

Following the three appellate cases discussed above, 

the PUC conducted further proceedings and issued a 106-page

order addressing the Trojan I and Trojan II remands. That 

order began by resolving three threshold issues. First, the 

PUC explained that Trojan I had not declared the 1995 to 

2000 rates unlawful, but rather had held that the rate order

was based on an error of law. The PUC concluded that even 

if the rate order was erroneous, the overall rates themselves 

could be lawful.

Second, the PUC determined that it had authority 

to order a utility to issue refunds in limited circumstances, 

including when necessary to “remedy an error identified by 

8 The filed rate doctrine provides that “any rate filed with and approved by 

the relevant ratemaking agency represents a contract between the utility and the 

customer and is conclusively lawful until a new rate is approved.” Dreyer, 341 Or 

at 270 n 10.
Cite as 356 Or 216 (2014) 227

a reviewing court on appeal.” The PUC appeared to conclude 

that that authority stemmed from ORS 756.040, which gives 

the PUC authority to do “all things necessary and convenient” in the exercise of its legislatively delegated powers.

Third, the PUC clarified its understanding of this 

court’s decision in Dreyer, particularly noting that this court 

had not determined the scope of the filed rate doctrine or its 

impact on the PUC’s remedial authority. On the contrary, 

noted the PUC, this court had left it to the PUC to determine in the first instance whether and to what extent the 

PUC had remedial authority.

In applying those legal principles, the PUC concluded that its task was to determine whether the 1995 to 

2000 rates and the post-2000 settlement rates were just 

and reasonable. The PUC began by examining what rates 

it would have approved for the period from 1995 to 2000 if 

it had known that it could not authorize PGE to recover a 

return on its investment in Trojan. The PUC concluded that 

it had to “undertake a comprehensive review of the ratemaking decisions” at issue in Trojan I as a “natural consequence of [the PUC’s] statutory and constitutional mandates.” Although the PUC acknowledged that in doing so 

it would not be setting rates, it concluded that ratemaking 

principles should guide its analysis. In adopting that framework, the PUC rejected URP’s argument that the PUC 

could simply remove the return on investment in Trojan 

from rates “while holding all other rate determinations constant.”9

 Instead, the PUC’s review involved reexamining elements of the revenue requirement that were affected by the 

decision in Trojan I, and then comparing the new revenue 

requirement with that approved in 1995. In undertaking 

that review, the PUC reopened the record to allow the PUC 

to consider new evidence in light of Trojan I.

The PUC analyzed aspects of its ratemaking decision in PUC Order No. 95-322 that it believed would have 

been affected by Trojan I. Before this court, URP and the 

9 According to URP, using its proposed method, PGE would owe the 1995 to 

2000 ratepayers $522.8 million, which includes interest. URP further contends 

that PGE owes the post-2000 ratepayers $436.4 million. As discussed below, 

using the PUC’s method, the only refund ordered was $33.1 million to the post2000 ratepayers.
228 Gearhart v. PUC

CAPs challenge the PUC’s decision to use a different amortization period for return of PGE’s investment in Trojan 

than it had used when it set rates previously and its related 

decision to reexamine rates as if PGE had been allowed to 

recover interest on the undepreciated balance during that 

shorter amortization period.

In undertaking its reexamination, the PUC shortened the amortization period from 17 years to 10 years 

because, without the opportunity to earn a return on its 

investment in Trojan, recovery of PGE’s investment over

17 years “would likely increase PGE’s risk profile.”10 Because 

of that “opportunity cost,” the PUC concluded that, had it 

not provided for a return on PGE’s investment, it would have 

used the shorter period of 10 years to “equitably allocate the 

benefits and burdens while allowing quicker recovery to offset any increase in PGE’s risk profile.”

Moreover, the PUC concluded, if it had not allowed 

PGE to earn a return on its investment, it would have 

allowed it to recover “some form of interest—not profit—to 

compensate the utility for the delayed recovery of the investment.” Although the PUC noted that it often uses a utility’s 

authorized rate of return as the applicable interest rate, it 

concluded in its reexamination that it would have used a 

different interest rate because of Trojan I. The PUC used 

the 1994 United States Treasury 10-year bond rate, which 

was 7.09 percent, reasoning that that rate would reflect only 

the time value of money, and not any risk premiums, profit, 

or other return on investment.11

Based on the shorter amortization period, the inclusion of interest, and other adjustments that the PUC made in 

10 The PUC originally had chosen the 17-year amortization period because it 

had allowed PGE to continue to include its undepreciated investment in Trojan 

in rate base, and there were 17 years left in the original 35-year amortization 

period at that time. In setting these rates, the PUC is directed by statute to provide “a return to the equity holder that is: (a) Commensurate with the return on 

investments in other enterprises having corresponding risks; and (b) Sufficient 

to ensure confidence in the financial integrity of the utility, allowing the utility 

to maintain its credit and attract capital.” ORS 756.040(1).

11 In contrast, in its original rate order, PUC Order No. 95-322, “PGE’s pretax rate of return was 13.22 percent for 1995 and 13.34 percent from 1996 forward. PGE’s authorized rate of return was 9.51 percent in 1995 and 9.6 percent 

from 1996 forward.” See PUC Order No. 08-487 at 62 n 227.
Cite as 356 Or 216 (2014) 229

its reexamination, the PUC concluded that the 1995 to 2000 

rates would have been $4.03 million higher than the authorized 

rates. Because ratepayers would have had to pay $4.03 million more in rates during the 1995 to 2000 time period if the 

PUC had not made the legal error identified in Trojan I, the 

PUC reasoned that “there [was] no basis to conclude that the 

error identified in Trojan I * * * resulted in unjust and unreasonable rates” during that period. In other words, because the 

PUC’s error had benefitted ratepayers by creating rates that 

were too low, the rates that the ratepayers actually had paid 

could not have been unjust and unreasonable.

The PUC went on to explain that its recalculation 

of the 1995 to 2000 rates also would have affected the rates 

it would have set following the 2000 settlement. Specifically, 

the PUC concluded that, had it used the shorter amortization period, the result would have been a remaining Trojan 

balance at the time of settlement that was $15.4 million less 

than the balance that it had actually used to calculate the 

settlement. Thus, fewer offsetting ratepayer credits would 

have been needed to remove the remaining Trojan balance 

from PGE’s books. That, in turn, would have left more credits on PGE’s books to benefit ratepayers following the 2000 

settlement. Because the PUC concluded that it had remedial 

authority, the PUC determined that it could compensate the 

post-2000 ratepayers for the difference between the rates 

approved following settlement and the rates that would have 

been approved if the remaining balance had been $15.4 million lower. The PUC ordered PGE to issue a refund to the post2000 ratepayers to compensate for the amount of that difference plus interest at PGE’s authorized rate of return from 

2000—9.6 percent—for a total refund amount of $33.1 million. With the $33.1 million refund as an adjustment to the 

settlement that had originally produced the post-2000 rates, 

the PUC concluded that “the settlement was reasonable and 

appropriate, and that the resulting rates were just and reasonable.” The PUC rejected URP’s remaining challenges to 

the settlement rates.

E. The Court of Appeals Decision

The Court of Appeals affirmed. Gearhart, 255 Or App 

at 105. The court began by addressing the PUC’s authority
230 Gearhart v. PUC

on remand, concluding that the PUC had authority to exercise its broad discretion and reexamine rates for the period 

when rates had included an unlawful component. The court 

ruled that the PUC could undertake that inquiry to determine what rates it would have approved in the absence of 

error because no judicial instruction limited the PUC from 

doing so. Id. at 88. The court also affirmed the outcome 

of that inquiry: “We hold that the PUC’s conclusion—that 

the inclusion of the unlawful component did not cause the 

rates to be unjust or unreasonable and, therefore, has not 

resulted in any unrectified damage to ratepayers—was consonant with the remands and with the PUC’s responsibility 

** *.” Id. at 94. In support of that conclusion, the court noted 

that the legality of the end result of ratemaking, and not the 

legality of each calculation or input, controls. Id.

The court went on to conclude that “[t]he PUC did 

not err in allowing PGE interest,” because it was within the 

PUC’s discretion to reach that issue and to allow rates to 

account for the time value of money. Id. at 95. Moreover, the 

court stated, the PUC’s decision to allow interest was not 

equivalent to allowing PGE to recover a prohibited return 

on its investment, but rather was part of allowing PGE to 

recover a return of its investment. Id. at 95-96.

The court next concluded that the PUC had the 

authority to order PGE to issue refunds, and the court again 

noted the breadth of the PUC’s statutory authority. Id. at 

98, 103. The court also noted that the PUC had not engaged 

in retroactive ratemaking when it ordered those refunds.12

Id. at 100. The court detailed prior Oregon cases that had 

addressed the rule against retroactive ratemaking and reasoned that it “is or should be ** * narrow” in Oregon, prohibiting the PUC from incorporating past profits or losses in 

future rates but allowing certain other retroactive adjustments. Id. at 100. Along those lines, the court held that 

the rule “does not prohibit the PUC from determining that 

a refund is appropriate when there is a determination on 

12 As discussed below, the rule against retroactive ratemaking has been differently defined and applied by various courts, but one commentator describes 

the rule as “prohibit[ing] a public utility commission from setting future rates 

to allow a utility to recoup past losses or to refund to consumers excess utility 

profits.” Krieger, 1991 U Ill L Rev at 984.
Cite as 356 Or 216 (2014) 231

judicial review that a timely appealed rate order is erroneous.” Id. The Court of Appeals concluded by rejecting URP’s 

arguments that certain aspects of the PUC’s order were 

not supported by substantial evidence and were outside the 

PUC’s discretion. Id. at 103-04.

Judge Schuman dissented. Although he agreed 

with most of the majority’s discussion, he argued that prior 

appellate decisions limited the PUC’s authority on remand 

so that the PUC had to “simply determin[e] the effect on 

the previously approved rates of including Trojan in the rate 

base.” Id. at 105, 107 (Schuman, J., dissenting). Moreover, 

Judge Schuman reasoned that the PUC had violated the law 

by including Trojan in the rate base. As a result, the rates 

were “unlawful no matter how fair and reasonable they may 

be, and the PUC’s role on remand [was] to determine a remedy for that unlawfulness.” Id. at 108, 112-13. The dissent 

would have “reverse[d] [the PUC’s] order on the pre-October

2000 rates and remand[ed] the case for further proceedings.” Id. at 113.

The Court of Appeals denied a request for reconsideration, and URP and the CAPs petitioned for review. 

On review, the parties ask this court to address five issues:

(1) whether the PUC exceeded its authority on remand with 

respect to the April 1995 to September 2000 rates and with 

respect to the rates implemented in October 2000 after the 

settlement; (2) whether the PUC had authority to order PGE 

to issue refunds to its customers; (3) whether the PUC erred 

in allowing PGE to recover interest; (4) whether the PUC 

order was supported by substantial evidence; and (5) whether

the CAPs can proceed with their action against PGE in circuit court.13

III. THE PUC’S AUTHORITY ON REMAND

The powers and duties of the PUC, like those of 

other executive agencies, are limited to those expressly 

13 Since 2005, PUC final orders have been subject to judicial review as orders 

in contested cases under the Oregon Administrative Procedures Act (APA). ORS 

756.610(1); see also ORS 183.315(6) (noting sections of the APA that do not apply 

to the PUC). Under the APA, “[r]eview of a contested case shall be confined to the 

record, and the court shall not substitute its judgment for that of the agency as to 

any issue of fact or agency discretion.” ORS 183.482(7).
232 Gearhart v. PUC

authorized or necessarily implied by statute. See Ochoco 

Const. v. DLCD, 295 Or 422, 426, 667 P2d 499 (1983) 

(“[Agency] power includes that expressly conferred by statute as well as such implied power as is necessary to carry 

out the power expressly granted.”). The PUC has express 

authority to “establish[] fair and reasonable rates” for utility services, and, in doing so, the PUC must “balance the 

interests of the utility investor and the consumer.” ORS 

756.040(1). As part of that balance, the legislature directed 

the PUC to, on the one hand, “protect [public utility] customers, and the public generally, from unjust and unreasonable 

exactions and practices and to obtain for them adequate service at fair and reasonable rates,” and, on the other hand, to 

establish rates that “provide adequate revenue” for both the 

operating expenses and the capital costs of the utility, “with 

a return to the equity holder.” Id.

In this case, the PUC exercised its ratemaking 

authority when it originally issued PUC Order No. 95-322, 

allowing PGE to recover both a return of and a return on 

its investment in Trojan, and again when it issued the order 

implementing the rates agreed to in the settlement between 

PGE and CUB. We examine the PUC’s actions on remand in 

light of its ratemaking authority and the authority arising 

from the binding remand order from the Court of Appeals.14

In particular, we examine the PUC’s actions of reexamining the rates that it previously had authorized; ordering 

PGE to refund a portion of rates that had been collected as 

a result of the PUC’s legal error of allowing PGE to recover 

a return on its investment in Trojan; and concluding that 

it would have allowed PGE to recover interest on the undepreciated balance of its investment in Trojan to account for 

the time value of money. We begin by examining the scope 

of the remand, and then turn to the statutory scheme to 

determine whether the PUC had authority to take those 

actions.

14 As noted, Trojan II—and the subsequent remand—did not arise directly 

out of the PUC’s order setting rates following the PGE and CUB settlement, PUC 

Order No. 00-601. Rather, after the PUC issued that order, URP filed a complaint 

before the PUC challenging those rates, and it was the order rejecting that challenge that was at issue in Trojan II, PUC Order No. 02-227. See Trojan II, 215 Or 

App at 366-67.
Cite as 356 Or 216 (2014) 233

A. The Scope of the Remand

PUC rate orders are subject to judicial review. 

See ORS 756.610(1) (“[F]inal orders of the Public Utility 

Commission are subject to judicial review as orders in contested cases under the provisions of ORS 183.480 to 183.497 

[of the APA].”). Although a 2005 law made PUC final orders 

subject to review under the APA, the PUC orders at issue 

in both Trojan I and Trojan II were subject to review under 

the PUC’s own judicial review statutes. See Or Laws 2005, 

ch 638, § 6 (amending PUC judicial review statute to bring 

review of PUC orders under the APA). Under those statutes, a party aggrieved by a PUC order could bring a suit 

against the PUC in circuit court. See former ORS 756.580 

(2003), repealed by Or Laws 2005, ch 638, § 21 (allowing a 

party “aggrieved by any findings of fact, conclusions of law 

or order” to “prosecute a suit against the commission” in circuit court). The circuit court could “affirm, modify, reverse 

or remand the order,” but could not “substitute its judgment 

for that of the Public Utility Commission as to any finding 

of fact supported by substantial evidence.” Former ORS 

756.598(1) (2003), repealed by Or Laws 2005, ch 638, § 21. A 

party challenging an order had to show “that the order [was] 

unreasonable or unlawful.” Former ORS 756.594 (2003), 

repealed by Or Laws 2005, ch 638, § 21 (“[T]he burden of 

proof is upon the party seeking to modify, vacate or set aside 

findings of fact, conclusions of law or the order to show by 

clear and satisfactory evidence that the order is unreasonable or unlawful.”).

Unlike the APA, the PUC judicial review statutes 

did not direct the court to take any particular action when 

concluding that the PUC had erred. Compare Mitchell Bros. 

Trk. Lines v. Hill, 227 Or 474, 480, 363 P2d 49 (1961) (concluding that the purpose of the PUC judicial review statute 

was “to grant to the courts a full scope of review to administer the relief appropriate to the cause”), with Megdal v. 

Board of Dental Examiners, 288 Or 293, 319-20, 605 P2d 273 

(1980) (explaining that, under the APA, “[i]f error is found, 

the statute provides for reversal, modification, or remand as 

appropriate to the character of the error and the agency’s

further role in the matter”). Under general principles of 
234 Gearhart v. PUC

administrative law, however, remand usually is the appropriate remedy when the court concludes that an agency 

has erred. Charles H. Koch, Jr., 3 Administrative Law and 

Practice § 8:62[1], 295 (3d ed 2010) (“The most appropriate 

remedy is usually remand to the agency for it to correct any 

error.”); see also Krieger, 1991 U Ill L Rev at 1022 (noting 

that, in most jurisdictions, if a rate order is reversed by a 

reviewing court, “the court remands the case to the commission either for further proceedings or the entry of a new 

order”). In particular, a general remand, without specific 

instructions to the agency, allows the court to perform its 

review function without invading the province of the agency. 

See Koch, 3 Administrative Law and Practice § 8:62 at 295 

(“Rarely should a court impose its will on the agency by specific instructions. Usually the best approach is for the court 

to note the error and allow the agency to correct that error.”).

Even when an agency has interpreted a statute 

incorrectly—that is, when the agency has made a legal 

error—courts ordinarily remand for the agency to apply the 

law as interpreted by the court. See, e.g., Jefferson County 

School Dist. No. 509-J v. FDAB, 311 Or 389, 395-96, 399, 

812 P2d 1384 (1991) (concluding that agency erroneously 

interpreted the term “duty” and affirming Court of Appeals 

decision to remand to agency under the APA “to apply the 

proper interpretation of ‘duty’”); but see Dearborn v. Real 

Estate Agency, 334 Or 493, 504-06, 53 P3d 436 (2002) 

(reversing, without remanding, agency order revoking real 

estate license where order acknowledged that there was no 

evidence to support the ruling under the interpretation of 

the law adopted by the court). It is particularly appropriate for a court to remand when application of the correct 

interpretation of law requires a discretionary decision that 

has been delegated to the agency. See Dickinson v. Davis, 

277 Or 665, 675-76, 561 P2d 1019 (1977) (explaining that, 

under PUC judicial review statutes, modification of an 

agency order on review “is proper only when the court can 

find that the law mandates one single correct result,” and 

remanding case back to trial court that improperly had 

substituted its judgment on discretionary issue decided by 

agency); Springfield Education Assn., 290 Or at 240 (modifying agency order where it could “simply be corrected by 
Cite as 356 Or 216 (2014) 235

modification in [a] single respect” and where “no further 

determinations need[ed to] be made by [the agency]”).

As noted, ratemaking involves discretionary decisions that the legislature largely has entrusted to the PUC. 

See ORS 756.040(1) (providing that the PUC is charged 

with “establishing fair and reasonable rates”); Springfield 

Education Assn., 290 Or at 229-30 (noting that legislature 

delegated discretionary decisions involved in ratemaking 

to PUC). Accordingly, courts reviewing a rate order “do 

not attempt as an original question to exert authority over 

rates.” Valley & Siletz R. R. Co., 195 Or at 715 (internal 

quotation marks omitted). In other words, courts review a 

rate order to determine whether it complies with statutory 

and constitutional requirements; on determining that a rate 

order violates a statute or the constitution, courts typically 

remand, rather than modify, a rate order because such a 

modification often would involve ratemaking. See Krieger, 

1991 U Ill L Rev at 997 (“Because courts consider the fixing 

of specific rates a function solely for the commission, judges 

will not order new rates if they reverse the commissionordered rates on review. Instead, they will remand the case 

to the commission for the setting of new rates consistent 

with the decision on review.”).

In accordance with those limitations, in both 

Trojan I and Trojan II, the Court of Appeals directed that 

the orders be remanded to the PUC, and the court did not 

direct the PUC to take any particular action on remand. In 

Trojan I, after the court concluded that the PUC had erred 

by interpreting the statutes to allow PGE the opportunity 

to recover a return on its investment in Trojan, the court 

“reversed and remanded with instructions to [the circuit 

court to] remand orders to PUC for reconsideration.” 154 Or 

App at 717. In Trojan II, the court “remanded to circuit court 

with instructions to remand Order No. 02-227 to PUC for 

reconsideration of issues raised on appeal and cross-appeal.” 

215 Or App at 376. The court did not, for example, remand 

with instructions for the PUC to calculate the amount of 

rates attributable to a return on investment in Trojan or 

with instructions to refund that amount. Nor did the court 

modify the PUC’s order to remove that amount from rates. 
236 Gearhart v. PUC

The remand instructions from the Court of Appeals did not 

purport to limit the authority of the PUC on remand, consistently with the general understanding that a reviewing 

court should direct agency action on remand only when 

“the law mandates one single correct result.” See Dickinson, 

277 Or at 675. Here, Trojan I held that the PUC could not 

include a return on PGE’s Trojan investment in rates. It 

did not hold, however, that that interpretation of law mandated a single result. Consequently, the court remanded the 

case to the PUC to determine the result, or effect, of that 

interpretation.

Moreover, although the parties argue about whether 

Trojan I declared the rate order or the rates themselves 

unlawful, that distinction does not control our analysis. 

Rather, we focus on the effect of the holding in Trojan I. 

Trojan I held that the statutes “preclude[d]” the PUC “from 

allowing rates *** that include[d] a rate of return” on 

retired capital assets, as the orders at issue in that case had 

allowed. Trojan I, 154 Or App at 716. Stated differently, the 

court concluded that the PUC did not have statutory authority to include a return on PGE’s Trojan investment in rates. 

The court did not address the effect of that error on PGE or 

its ratepayers. At no point did the court conclude that either 

PGE or its ratepayers had been injured by that error. Thus, 

contrary to URP’s arguments, Trojan I required only that 

the PUC not include a return on investment in Trojan in 

PGE’s rates. It had no more specific effect in limiting the 

PUC’s authority on remand.15

We turn next to the statutory scheme to determine 

whether the PUC had authority to determine the effect of 

15 The PUC concluded in PUC Order No. 08-487 that removal of a return 

on investment would have led to higher rates and that the PUC’s legal error 

therefore did not “result in unjust and unreasonable rates during the April 1995 

through September 2000 period.” The PUC went on to state that those rates 

“were just and reasonable.” We focus on the total effect of the rate order, rather 

than the rates themselves, in affirming the PUC. We do not address whether 

rates that include a component prohibited by the law can be just and reasonable, 

an issue discussed by both the majority and dissenting opinions in the Court of 

Appeals. Instead, consistent with our decision in Dreyer, we determine only that 

the fact that rates include a component that is prohibited by statute does not 

necessarily mean that ratepayers have been injured. See Dreyer, 341 Or at 285 

(noting that PUC proceeding could determine “whether [ratepayers] have been 

injured (and, if they have been, the extent of the injury)”).
Cite as 356 Or 216 (2014) 237

the PUC’s error on ratepayers by reexamining prior rates, 

and, if so, whether the PUC had authority to order PGE to 

issue refunds.

B. Reexamination of Previously Authorized Rates to Determine Injury

Rate orders are inherently prospective, setting 

rates to be collected from future ratepayers. See Valley & 

Siletz R. R. Co., 195 Or at 715 (noting that “all rate orders 

are prospective in character”). Accordingly, URP and the 

CAPs reason, the PUC cannot reexamine past rate orders, 

reversed on judicial review, to determine whether the rates 

set were just and reasonable. Moreover, they note, courts 

around the country have held that state utility commissions 

cannot reexamine past rates on remand. URP and the CAPs 

urge this court to adopt a similar approach by adopting a 

rule against retroactive ratemaking.

Although the rule against retroactive ratemaking 

has been defined and applied in many different ways, the 

rule can be described generally as “prohibit[ing] a public 

utility commission from setting future rates to allow a utility to recoup past losses or to refund to consumers excess 

utility profits.” Krieger, 1991 U Ill L Rev at 984; see also 

Dreyer, 341 Or at 270 n 10 (explaining that, under the rule, 

“approved utility rates may be modified only prospectively” 

and “utilities cannot provide retrospective relief from such 

rates”). We have never expressly decided whether Oregon 

accepts some form of the rule against retroactive ratemaking. See id. (so noting). For purposes of this case, we need not 

precisely define the contours of that rule or decide whether 

Oregon accepts that rule in all circumstances. It is sufficient for present purposes to conclude, as we do, that the 

rule against retroactive ratemaking does not preclude the 

action that the PUC took on remand in this case. The PUC 

did not alter PGE’s rates retroactively, but rather used ratemaking principles to calculate the rates that it would have 

authorized PGE to charge had it not included a return on 

the investment in Trojan.

First, nothing in Oregon’s statutory scheme, which 

delegates extensive power to the PUC, limits the PUC’s 
238 Gearhart v. PUC

authority in a way that would have prevented it from reexamining past rates in this case. See Hammond Lbr. Co. v. Public 

Service Com., 96 Or 595, 609, 189 P 639 (1920) (explaining 

that predecessor to the PUC was charged “with statutory 

duties closely allied to the legislative power of the state”). 

Courts applying the rule against retroactive ratemaking to 

prevent utility commissions from retroactively examining 

or altering rates often rely on statutes that differ in their 

terms from the Oregon statutes. In Arkansas Louisiana Gas 

Co. v. Hall, 453 US 571, 578, 101 S Ct 2925, 69 L Ed 2d 856 

(1981), for example, the United States Supreme Court stated 

that the Federal Energy Regulatory Commission (FERC) 

had “no power to alter a rate retroactively” because the 

governing statute provided that, when FERC found a rate 

unreasonable, it had to determine the just and reasonable 

rate to be “thereafter” observed. See also Krieger, 1991 U Ill 

L Rev at 1033 (explaining that some courts have relied on 

the word “thereafter” to conclude that utility commissions 

have power to set rates only prospectively). In contrast, in 

Oregon, any time a public utility files a new rate or schedule or an increase in an existing rate or schedule, the PUC 

may “conduct a hearing to determine whether the rate or 

schedule is fair, just and reasonable.” ORS 757.210(1)(a). 

After the PUC conducts a “full hearing, whether completed 

before or after such rate or schedule has gone into effect, 

the commission may make such order in reference thereto 

as would be proper in a proceeding initiated after such rate 

or schedule has become effective.” ORS 757.215(3); see also 

ORS 756.558(2) (providing that PUC shall “make and enter 

the order” of the PUC on a complaint based on findings of 

fact and conclusions of law, and that order shall state effective date). The complaint and hearing provisions of the PUC 

statutes say nothing about setting rates only prospectively, 

or rates to be “thereafter” observed. Therefore, the statutes 

did not preclude the PUC from reexamining the previously 

charged rates as ordered by the Court of Appeals.

Second, in Dreyer, this court rejected the notion 

that Oregon’s statutory scheme incorporates an “extreme” 

version of the filed rate doctrine, which serves as another 

common rationale for prohibiting the retroactive examination of rates. See Dreyer, 341 Or at 278-79. As noted, the filed 
Cite as 356 Or 216 (2014) 239

rate doctrine generally provides that “any rate filed with and 

approved by the relevant ratemaking agency represents a 

contract between the utility and the customer and is conclusively lawful until a new rate is approved.” Id. at 270 n 10. In 

Dreyer, PGE argued that that doctrine is embodied in ORS 

757.225, which provides:

“No public utility shall charge, demand, collect or receive a 

greater or less compensation for any service performed by 

it within the state, or for any service in connection therewith, than is specified in printed rate schedules as may at 

the time be in force, or demand, collect or receive any rate 

not specified in such schedule. The rates named therein are 

the lawful rates until they are changed as provided in ORS 

757.210 to 757.220.”

The court in Dreyer did not find that argument persuasive. Although the court stated in a footnote that it was not 

rejecting “the possibility that Oregon utility law incorporates some form of the doctrine,” Dreyer, 341 Or at 279 n 14, 

the court rejected the notion that PGE was shielded from 

liability because it was required by ORS 757.225 to charge 

the rates that were later held to improperly include a return 

on the investment in Trojan. Id. at 279-80.

Thus, unlike some courts, this court has not read 

ORS 757.225 as a manifestation of legislative intent to allow 

retroactive relief only when a utility collects rates different 

than those approved by the PUC. See Krieger, 1991 U Ill L 

Rev at 1033-34 (noting that some courts have interpreted 

similar provisions to “infer that the legislature intended 

the granting of retroactive relief only in the limited circumstances when a utility assesses a rate that is different 

from the approved tariff”). Dreyer instead suggests that a 

utility that collects rates approved by the PUC may have 

to return a portion of those rates if they are later found to 

be invalid on judicial review. See Dreyer, 341 Or at 278-79 

(ORS 757.225 does not absolutely shield utilities from having to return part of rates later determined to have included 

an unlawful component). Moreover, as this court noted in 

Dreyer, ORS 757.225 is a direction to utilities—“[n]o public 

utility shall charge *** greater or less compensation * * * 

than is specified in printed rate schedules”—and not a limit 

on the authority of the PUC. Id. at 278; see Krieger, 1991 
240 Gearhart v. PUC

U Ill L Rev at 1034 (suggesting that those types of provisions prevent utilities from changing their rates without 

PUC approval, but noting that, textually, such provisions 

do not address PUC authority). This court’s analysis of ORS 

757.225 in Dreyer suggests that that statute is not a limit on 

the PUC’s authority to reexamine past rates, because commission-approved rates are not “conclusively lawful for all 

purposes.” See Dreyer, 341 Or at 278.

Finally, we consider whether the rule against retroactive ratemaking, independently of the statutory provisions 

discussed above, precluded the action that the PUC took on 

remand in this case. We conclude that it did not. The theory 

behind the rule is that ratemaking inherently is a prospective process. Krieger, 1991 U Ill L Rev at 998. Courts have 

applied the rule against retroactive ratemaking in a variety of ways, with some courts rejecting the rule entirely. See 

id. at 1022, 1027 (explaining that cases are “almost evenly 

split” as to whether a prevailing party can obtain retroactive 

relief in the form of a refund or a surcharge for the period 

between the order and reversal and the period after reversal). Of those courts adhering to the rule, some have interpreted it as preventing a PUC from ordering any refunds or 

surcharges. See, e.g., In re Application of Columbus S. Power 

Co., 138 Ohio St 3d 448, 460-61, 8 NE 3d 863, 874-76 (2014) 

(explaining that excessive rates charged during the appeal of 

a commission order are not subject to refund and that “present rates may not make up for revenues lost due to regulatory delay”). Others have interpreted the rule as preventing 

a PUC from adjusting future rates based on actual expenses 

and revenues. See, e.g., In re Providence Water Supply Bd.’s 

Application to Change Rate Schedules, 989 A2d 110, 115, 

118 (RI 2010) (explaining that future rates may not be 

designed to recoup past losses and affirming PUC denial of 

request to increase rates to cover past payments for retirees’

health-care costs).

In considering whether the rule against retroactive 

ratemaking prohibits the PUC’s reexamination of previously 

set rates in this case, it is important to recognize the context: 

the issue was not back before the PUC because projected 

circumstances on which rates were based (such as expected 
Cite as 356 Or 216 (2014) 241

profits or losses) had not come to pass as forecast. Rather, 

the orders at issue in PUC Order No. 08-487 were remanded 

to the PUC because it made an error of law in exercising its 

ratemaking authority described in ORS 756.040. The PUC 

was not reexamining past rates because ratepayers were 

seeking to benefit from PGE’s excess profits, or because PGE 

was asking ratepayers to make up for a year of particularly 

bad losses. The PUC was reexamining past rates because 

the Court of Appeals concluded that the PUC had made a 

legal error in setting those rates. See Indep. Voters of Ill. v. 

Ill. Commerce Com’n, 117 Ill 2d 90, 104-05, 510 NE 2d 850, 

857 (1987) (rejecting argument that rule against retroactive 

ratemaking applies after rate order is reversed by reviewing court where commission action was “a result of a direct, 

statutorily authorized, review” of the commission’s order); 

District of Columbia v. D.C. Pub. Serv. Com’n, 905 A2d 249, 

258-59 (DC 2006) (suggesting that refund might be appropriate where agency is implementing judicial reversal of 

order, but rejecting argument that agency, like courts, can 

undo what is wrongfully done by its order where final order 

was not subject to judicial review or reversed on appeal).

Given the posture of the remand orders, the PUC 

could rely on the ratemaking authority that it had exercised 

in the original proceedings under ORS 756.040 to determine on remand the effect of the Court of Appeals’ interpretation of law on its earlier decision. See Jefferson County 

School Dist. No. 509-J, 311 Or at 395, 399 (affirming Court 

of Appeals decision to remand order reversing dismissal of a 

school teacher to Fair Dismissal Appeals Board “to apply the 

proper interpretation of ‘duty’ and, in the light of that interpretation, to reconsider whether [the teacher] had neglected 

a duty she owed”); Sec. & Exch. Comm’n v. Chenery Corp., 332 

US 194, 200, 67 S Ct 1575, 91 L Ed 1995 (1947) (“After the 

remand was made, therefore, the [Securities and Exchange] 

Commission was bound to deal with the problem afresh, 

performing the function delegated to it by Congress.”). The 

exercise of that authority on remand included the authority 

to reconsider all aspects of the decision affected by the error. 

See Jefferson County School Dist. No. 509-J, 311 Or at 396-

97, 399 (affirming remand for agency to apply correct interpretation of term “duty” in determining whether teacher 
242 Gearhart v. PUC

properly was dismissed for “neglect of duty,” and, because 

that error “permeated [the agency’s] sanction analysis,” also 

affirming remand for reconsideration of that issue).16 The 

ability to reconsider multiple aspects of the rate order was 

necessary because ratemaking involves a variety of interrelated variables. See Hammond Lbr. Co., 96 Or at 609 (noting 

that “it is impossible to fix rates that will be mathematically 

correct or exactly applicable to all the new conditions that 

may arise” because “the factors involved in an inquiry of this 

kind are so many and so variable”); Phillips, The Regulation 

of Public Utilities at 168 (explaining that the different 

aspects of rate regulation “overlap in many instances”). To 

the extent that the PUC’s error in allowing PGE to recover 

a return on its investment in Trojan affected other parts of 

the PUC’s original ratemaking analysis, the PUC could consider those effects in assessing the effect of the error on the 

rate order.

In addition, the rationale behind the rule against 

retroactive ratemaking does not support its application to 

this circumstance. The rule against retroactive ratemaking 

serves the important function of providing stability in the 

regulatory process—parties can reasonably rely on the fact 

that rates will not be changed after they have been set and 

paid. Krieger, 1991 U Ill L Rev at 1044. Moreover, the rule 

plays a critical role in providing an incentive for efficient 

operations because utilities know that they can keep profits 

16 The CAPs attempt to distinguish Jefferson County School District No. 509-

J, 311 Or 389, by noting that the agency in that case “did not redetermine past 

facts” or allow new issues or evidence. However, nothing in this court’s opinion 

suggested that the agency could not have reopened the record or reconsidered 

prior determinations if it had concluded that that was appropriate.

Moreover, there is nothing in the PUC judicial review statutes in place during 

Trojan I that suggests that the PUC could not reopen the record on remand or 

otherwise reconsider its analysis of facts in the existing record. Administrative 

records often are reopened on remand. See Pierce, 3 Administrative Law Treatise 

§ 18.1 at 1679 (5th ed 2010) (discussing agency options on remand, including 

option of reopening record to receive additional evidence). Although a remand 

based on legal error may not typically require the taking of additional evidence, 

the CAPs have not identified anything in the statutes or the remand instructions 

in Trojan I that prevented the PUC from doing so. See id. (explaining agency 

options on remand, but not discussing reopening the record when remand is 

based on error of law); Koch, Administrative Law and Practice § 8:31 at 186, 191 

(suggesting that remand for application of correct legal principle may occur on 

the existing record, but also noting that “the agency is somewhat free to decide 

how to carry out the judicial will”).
Cite as 356 Or 216 (2014) 243

even if they exceed the authorized rate of return and that 

they cannot seek to recover losses from ratepayers. Id. Here, 

however, when URP and CUB appealed the PUC’s original 

rate order, PUC Order No. 95-322 from 1995, all parties 

knew that the rate order might be reversed on review. Given 

that knowledge, the parties could not reasonably rely on the 

rates not being reexamined, and PGE continued to have 

an incentive to operate efficiently because it did not know 

whether the rate order would be reversed on review. See id. 

at 1046 (explaining that appeal of rate order should lead to 

expectation that court may reverse rates on review and that 

allowing retroactive ratemaking after judicial review does 

not create negative economic incentives).

In sum, when a PUC order issued in the exercise of 

its ratemaking authority has been reversed and remanded 

after a reviewing court determines that there was a legal 

error, the PUC can again use ratemaking principles on 

remand to determine the effect of its error on the outcome of 

the proceeding. Although the rule against retroactive ratemaking may prevent certain actions on remand, it does not 

prevent the PUC from reexamining prior rates to determine 

what rates it would have set in the absence of its legal error. 

Because the PUC in this case reexamined past rates following judicial review and reversal of prior rate orders, we conclude that that reexamination was permissible and did not 

violate the rule against retroactive ratemaking.

C. PUC Authority to Order Refunds

Independent of their challenge to PUC’s methodology for determining the effect of its legal error, the CAPs 

challenge the PUC’s authority to remedy that error by ordering refunds to the post-2000 ratepayers who were injured by 

that error.17 More fundamentally, however, the CAPs argue 

that they should be able to proceed in circuit court regardless 

17 URP challenges the refund primarily on the ground that the PUC erred 

in calculating the refund by engaging in retroactive ratemaking, and does not 

challenge the PUC’s authority to order PGE to issue refunds. In fact, URP seems 

to assume that the PUC can order PGE to issue refunds, albeit by reducing future 

rates, rather than reexamining past rates. URP asserts that, on remand, the 

PUC had to “calculate the prior unlawful charges” and “return those funds, 

with appropriate interest, to those who paid them.” Because we have already 

addressed URP’s retroactive ratemaking arguments above, we do not discuss 

URP’s arguments regarding refunds further in this section.
244 Gearhart v. PUC

of whether the PUC has the authority to issue refunds. That 

is so, the CAPs assert, because either the PUC lacks authority to offer a remedy to the CAPs or the PUC has declined to 

offer any remedy that it has the authority to provide.

We begin by considering whether the PUC had 

authority to provide a remedy to the post-2000 ratepayers by ordering PGE to issue refunds. As noted, the PUC’s 

statutory authority is phrased in sweeping terms. See ORS 

756.040(2) (granting the PUC authority to “supervise and 

regulate every public utility” in the state and “to do all 

things necessary and convenient in the exercise of such 

power and jurisdiction”). In exercising that authority, the 

PUC is charged with “mak[ing] use of the jurisdiction and 

powers of the office to protect [public utility] customers, and 

the public generally, from unjust and unreasonable exactions and practices and to obtain for them adequate service 

at fair and reasonable rates.” ORS 756.040(1). In addition, 

the legislature has directed that laws administered by the 

PUC “shall be liberally construed in a manner consistent 

with the directives of ORS 756.040(1) to promote the public 

welfare, efficient facilities and substantial justice between 

customers and public and telecommunications utilities.” 

ORS 756.062(2). Reading those statutes together, a liberal 

construction of both the PUC’s power to “supervise and regulate public utilities” and its duty to protect ratepayers by 

obtaining adequate service at fair and reasonable rates supports the PUC’s implied authority to correct legal errors that 

lead to “unjust and unreasonable exactions.” Refunds are 

one way of correcting those types of errors, and if the PUC 

could not order refunds, it would be limited in its ability 

to protect ratepayers. See Springfield Education Assn., 290 

Or at 230 (PUC must regulate to allow just and reasonable 

rates and has authority to make delegated policy choices 

“within the broadly stated legislative policy”). See generally 

Ochoco Const., 295 Or at 434 (concluding that agency did 

not have specific implied power, in part because none of the 

duties expressly delegated to the agency would be frustrated 

by the agency’s inability to exercise that implied power).

An additional source of authority to order the refund 

comes from the binding final remand order from the Court of 
Cite as 356 Or 216 (2014) 245

Appeals. The PUC ordered the refund in this case after the 

Court of Appeals, having engaged in statutorily authorized 

judicial review, remanded the case to the PUC for reconsideration in light of the court’s ruling that the PUC had made 

a legal error. See Indep. Voters of Ill., 117 Ill 2d at 105, 510 

NE 2d at 857-58 (concluding that commission could order 

refund where it was “a result of a direct, statutorily authorized, review of [a] Commission order” and where court had 

remanded the case “to correct the erroneous portion of the 

rates, not for original rate-making”).18 The authority to order 

a refund reasonably can be implied when a rate order has 

been reversed on judicial review and sent back to the PUC 

for additional proceedings. See Appeal of Granite State Elec. 

Co., 120 NH 536, 540, 421 A2d 121, 123 (1980) (“[T]he PUC 

has authority to order the Electric Company to refund revenues collected under rates authorized and approved by the 

PUC but later found upon judicial review to have been collected under improper rates.”). If the PUC could not order a 

refund in the circumstances presented in this case, judicial 

review would lose much of its effectiveness because the problem could only be addressed prospectively. See Indep. Voters 

of Ill., 117 Ill 2d at 105, 510 NE 2d at 858 (“The function 

of the courts in reviewing Commission proceedings would 

be meaningless if no remedy could be provided after the 

court holds that a Commission-approved rate order included 

allowance of improper expenses and deductions for the utility company.”).

We recognize, as the CAPs note, that certain statutory provisions authorize the PUC to order refunds in specific circumstances. See ORS 757.215(4) (providing that, 

when a public utility has filed to establish new rates or 

18 Notably, the court in Independent Voters of Illinois concluded that ratepayers were not entitled to refunds for amounts paid during the pendency of the 

appeal, and instead limited refunds to the period after the rates were invalidated. 117 Ill 2d at 99-100, 510 NE 2d at 855. That conclusion was based, at 

least in part, on statutes requiring utilities to collect the rates approved by the 

commission. See id. at 97, 510 NE 2d at 854. As explained above, this court has 

rejected that construction of Oregon’s parallel statutory provision. The court also 

suggested that provisions allowing for a stay during appeal suggested that the 

utility was entitled to collect and keep rates approved by the commission in the 

absence of a stay. Id. We reject that conclusion. The availability of a stay does not 

make it the only option for correcting an error, particularly where the fact that 

the order is being appealed puts the parties on notice that the rates may be subject to reexamination.
246 Gearhart v. PUC

increase existing rates, and the PUC conducts a hearing on 

those rates without suspending them, amounts exceeding 

rates later approved by the PUC must be refunded); ORS 

757.215(5) (providing that the PUC has authority to authorize interim rates and to later order refund of any portion of 

those rates that was not justified). We do not agree with the 

CAPs, however, that those provisions preclude the PUC from 

ordering refunds in other circumstances. The fact that the 

PUC must order refunds in certain proceedings under ORS 

757.215 does not mean that the PUC may not order refunds 

in other circumstances, such as those presented in this case. 

Express authority to act in one set of circumstances does 

not necessarily preclude implied authority to carry out similar actions in entirely different circumstances.19 In fact, the 

PUC’s authority to order refunds under ORS 757.215 suggests that allowing the PUC to order refunds here would 

not “materially alter the nature” of the PUC’s authority. See 

Southern Pacific Co. v. Heltzel, 201 Or 1, 39-40, 44, 268 P2d 

605 (1954) (concluding that Public Utilities Commissioner 

lacked authority to set minimum rates or order a railroad 

to increase rates because that power would alter the nature 

of the Commissioner’s duties without guidance from the 

legislature).20

19 An express grant of general power does not necessarily confer implied general powers. See, e.g., Southern Pacific Co. v. Heltzel, 201 Or 1, 24, 268 P2d 605 

(1954) (“The fact that the Commissioner has been given some power to act in some 

areas of utility regulation does not imply that he may exercise all the power that the 

legislature might have exercised had it chosen to act directly.”). In this case, however, the implied power to order refunds is necessary to the PUC’s ability to carry 

out its express duty to obtain “adequate service at fair and reasonable rates.” See 

ORS 756.040(1) (setting forth powers and duties). Moreover, the express authority 

to order refunds of interim rates does not imply that refunds in all other circumstances are prohibited—the PUC’s authority to order refunds on interim rates is 

not inconsistent with its authority to order refunds after a rate order is invalidated 

on judicial review. The absence of a conflict between the express and implied powers makes it more likely that the legislature intended to vest the implied power 

in the PUC, particularly given the legislature’s direction that the PUC statutes 

should be liberally construed. See ORS 756.062(2) (so stating).

20 Similarly, we reject the CAPs’ argument that a statutory provision allowing for stay of a PUC rate order “upon the giving of [a] bond” demonstrates that 

the legislature intended losses incurred during appeal to be paid only by a bond, 

and not remedied by the PUC. See former ORS 756.590 (2003), repealed by Or 

Laws 2005, ch 638, § 21 (providing that PUC order can be stayed pending final 

disposition of a case “upon the giving of such bond or other security, or upon such 

conditions as the court may require”). At most, that provision indicates that the 

legislature intended errors identified during judicial review to be remedied by 
Cite as 356 Or 216 (2014) 247

This court’s decision in McPherson et al v. Pacific P. & 

L. Co., 207 Or 433, 296 P2d 932 (1956), does not compel a different result, as the CAPs contend. In McPherson, this court 

held that a surcharge added to a public utility’s rates had 

been approved lawfully by the Public Utilities Commissioner 

and therefore had been “established as [a] lawful rate[].” Id.

at 461. As a result, the court did not have to reach the issue 

of whether the Public Utilities Commissioner or the court 

could order the utility to refund the surcharge. In addition, 

to the extent that McPherson discussed the commissioner’s 

authority to order reparations, that discussion involved a different statutory context. The court emphasized, for example, 

that the railroad statutes conferred jurisdiction on the commissioner to award reparations, but that the public utility 

statutes did not; that analysis is outdated, however, because 

the PUC no longer regulates railroads and no longer has 

express authority to order reparations in some industries, 

but not others. Moreover, since McPherson, we have suggested that the PUC’s refund authority was not a matter of 

settled law—in Dreyer we ordered the circuit court to abate 

its proceedings so that the PUC could determine “what, if 

any, remedy it [could] offer to PGE ratepayers, through rate 

reductions or refunds.” Dreyer, 341 Or at 286.

We conclude that the PUC had authority to order 

PGE to issue refunds to the post-2000 ratepayers in this 

case. To the extent that the CAPs argue that the PUC 

declined to award them a remedy by ordering a refund only 

for the post-2000 ratepayers, we note that the PUC did not 

order a refund to the CAPs who claimed to be injured by the 

1995-2000 rates because it determined that the CAPs were 

not injured by those rates. As we discuss below, whether the 

CAPs can nonetheless proceed in circuit court is an issue 

that they must address before that court.

IV. INTEREST

 As noted, when the PUC reexamined the 1995 

to 2000 rates, it observed that the previously approved 

17-year period for PGE’s recovery of its investment in Trojan 

“appropriately balanced the interests of the utility and its 

returning money to those injured. The existence of a remedy through a bond does 

not foreclose an alternative remedy through a refund.
248 Gearhart v. PUC

customers,” but only because PGE had had the opportunity 

to earn a return on its investment. PUC Order No. 08-487 

at 67. Consequently, when the Court of Appeals determined 

that the rates could not include a return on PGE’s investment in Trojan, the PUC had to decide what rates it would 

have allowed if it had not included that factor in its rate calculation. Id. at 71. As part of that reconsideration, the PUC 

decided that it would not have used a proposed one year 

recovery period. The PUC explained that that would have 

led to “an immediate 30.5 percent increase in rates for one 

year,” which would have been inconsistent with the PUC’s 

policies “to avoid rate shock and to promote rate stability 

and intergenerational equity.” Id. at 70. The PUC instead 

concluded that a 10-year period would have “equitably allocate[d] the benefits and burdens while allowing quicker 

recovery to offset any increase in PGE’s risk profile” resulting from PGE’s inability to earn a return on its investment 

in Trojan. Id. at 72.

The PUC also concluded that it would have been 

reasonable to include interest on the investment “to compensate for the time value of money” because PGE would be 

recovering its investment over a 10-year period. Id. at 71. 

As the PUC explained, “[t]o allow PGE the ability to fully 

recover that amount [of its investment] over time, we need 

to include some form of interest—not profit—to compensate the utility for the delayed recovery of the investment.” 

Id. Although the PUC often uses a utility’s authorized rate 

of return as the applicable interest rate when an amount 

is amortized over time, because of Trojan I the PUC reasoned that it could not use that rate in this case. Id. at 72. 

Therefore, instead of using (1) PGE’s pre-tax rate of return 

for 1995 (13.22 percent) or for 1996 forward (13.34 percent); 

or (2) PGE’s authorized rate of return for 1995 (9.51 percent) 

or for 1996 forward (9.6 percent), the PUC chose to use in 

its calculation an interest rate that was “unrelated to utilities” to “ensure the rate reflect[ed] solely the time value of 

money.” Id. at 62 n 227, 73. The PUC calculated the rates it 

would have set had it allowed PGE to recover 7.09 percent 

interest, based on the Treasury rate for 10-year bonds in 

1994. Id. at 73. URP now argues that Trojan I forbids that 

result, and that, independent of Trojan I, the PUC lacked 
Cite as 356 Or 216 (2014) 249

the statutory authority to include interest in its recalculation. As explained below, we reject both of those arguments.

The holding in Trojan I prohibiting PGE from recovering a return on its investment in Trojan did not prohibit 

PGE from recovering interest because, in the public utility 

context, the rate of return—the return on investment—is 

distinguishable from interest: “Return is the term used 

in public utility regulation to describe the compensation 

which the owners receive over and above allowable deductions from gross revenues. It is a word having a connotation 

different from such words as earnings, net income, interest, and dividends.” Ellsworth Nichols, Ruling Principles of 

Utility Regulation: Rate of Return 1 (1955). Although interest rates may be taken into account, a rate of return typically “pays something over and above the usual interest rate 

on well-secured loans, to compensate for the hazards of the 

business and for the profits of management.” Id. at 210; see 

also Richard A. Posner, Economic Analysis of Law 142 (9th 

ed 2014) (explaining that a reasonable rate of return is “a 

weighted average of the long-term interest rate plus the rate 

of return to the equity shareholders that the agency considers appropriate in light of the risk of the investment and 

the rate of return enjoyed by shareholders in comparable 

firms” (emphasis added)); ORS 756.040(1)(a) (directing that 

rates are fair and reasonable if, in part, the return to the 

equity holder is “[c]ommensurate with the return on investments in other enterprises having corresponding risks”). 

Thus, Trojan I prevented the PUC from allowing a return 

on PGE’s investment in Trojan, but did not prevent the PUC 

from allowing PGE to recover interest to account for the 

time value of money.21

21 Trojan I did not, as URP contends, equate the terms “return on investment” and “interest.” Instead, the court equated the phrase “return on investment” with profit. See, e.g., Trojan I, 154 Or App at 706 (explaining that PUC 

orders allowed PGE to “include a ‘rate of return’ (i.e., profit) component” in rates); 

id. at 713 (explaining that text of statute did not “contemplate[] a return or profit 

on undepreciated investment”). In fact, the court rejected PGE’s attempt to justify the return on investment by characterizing it as interest, indicating that 

the court considered interest to be a separate concept. See id. at 713-14 (“PGE’s 

arguments that turn on the word ‘interest’ instead of the term ‘rate of return’ 

also lose sight of ORS 757.355. * ** It makes no difference whether the profit

is called ‘interest’ instead of a ‘return.’” (Emphasis added.)). We also reject 

URP’s argument that the court’s reference to PGE recovering only the “principal amount of the undepreciated investment” demonstrates that the PUC cannot 
250 Gearhart v. PUC

Here, the PUC was careful not to recalculate rates 

using a factor that would allow PGE to recover a profit on its 

investment, instead relying on lower Treasury bond rates to 

account only for the time value of money. See Irving Fisher, 

The Theory of Interest 34-35 (1930) (describing a “pure rate 

of interest” as “the rate on loans which are practically devoid 

of chance,” such as “safe securities of fixed terms not likely 

to be transferred or transferred often before maturity”); 

Paul A. Samuelson & William D. Nordhaus, Microeconomics

288 (19th ed 2010) (“The safest assets in the world are the 

securities of the U.S. government.”). In other words, to the 

extent that interest generally accounts for both the time 

value of money and the risk involved in an investment, the 

PUC used an interest rate that primarily accounted for the 

time value of money, rather than for risk. See Samuelson & 

Nordhaus, Microeconomics at 288 (describing the bond rate 

as a “‘riskless’ interest rate”). Trojan I does not prevent the 

PUC from allowing PGE to recover interest to account for 

the time value of money.

In addition, the PUC’s statutory authority to conclude that it would have allowed PGE to recover interest 

on its investment in Trojan can be implied from the PUC’s 

discretionary ratemaking authority. As noted, the legislature expressly delegated the authority to establish fair and 

reasonable rates under ORS 756.040(1), and the PUC was 

charged with determining how to set those rates within the 

broader legislative policy. See Springfield Education Assn., 

290 Or at 230 (explaining that the legislature delegated 

authority to the PUC to set just and reasonable rates in a 

way that allows the PUC “to make delegated policy choices 

of a legislative nature within the broadly stated legislative 

policy”). We recognize, as URP notes, that the legislature 

has expressly stated when interest can be awarded in other 

statutes, including other provisions within ORS chapter 757. 

See, e.g., ORS 757.215(6) (providing that refunds of interim 

rates shall include interest). As discussed above, however, 

those express grants of authority, which address different 

award interest. See id. The court was not asked to decide whether the “principal 

amount,” if recovered over a period of years, would include interest to account for 

the time value of money or whether a recovery in the absence of interest would 

sufficiently compensate PGE for its investment in Trojan.
Cite as 356 Or 216 (2014) 251

circumstances, do not necessarily preclude the PUC from 

using interest in its recalculation, particularly where those 

other statutes indicate that the legislature intends to allow 

the PUC to award interest to account for the time value of 

money.22 See ORS 757.215(6) (requiring the PUC to include 

interest on amount subject to refund after the PUC approves 

rates lower than interim rates); ORS 757.259(4) (allowing 

the PUC to authorize deferrals for later incorporation in 

rates of certain amounts, “together with interest established 

by the commission”). Those statutes indicate that the use 

of interest to account for the time value of money is within 

the policy choice expressed by the legislature—the PUC is 

charged with establishing “fair and reasonable rates” that 

“provide adequate revenue *** for operating expenses of 

the public utility.” ORS 756.040(1). We therefore affirm the 

PUC’s decision to include interest on PGE’s investment in 

Trojan.

V. SUBSTANTIAL EVIDENCE

URP argues that the PUC’s order is not supported 

by evidence that was in the record. Under ORS 183.482(8)

(c), “[t]he court shall set aside or remand [an agency’s] order 

if the court finds that the order is not supported by substantial evidence in the record.” Substantial evidence supports 

an agency’s finding “when the record, viewed as a whole, 

would permit a reasonable person to make that finding.” Id.

Here, URP asserts that, in making the calculations necessary for PUC Order No. 08-487, the PUC used two electronic 

spreadsheets provided by PGE and PUC staff in response to 

a July 2008 PUC request. Hard copies of those spreadsheets 

were submitted by PGE and PUC staff as part of the record 

in 2005 during the first phase of the remand proceedings, 

which addressed the 1995 to 2000 rates, but URP contends 

that the hard copies did not contain the formulas and certain 

other data on which the PUC ultimately relied. Accordingly, 

URP reasons, the PUC’s findings are not supported by 

22 Similarly, although ORS 757.140(2) authorizes the PUC to allow rates that 

include “amounts on the utility’s books of account which the commission finds 

represent undepreciated investment in a utility plant,” which may not include 

interest, that statutory provision does not state that the PUC can include only

amounts listed on the books of account, without adjustment for factors such as 

the time value of money.
252 Gearhart v. PUC

evidence in the record because those formulas and data were 

not in the record.

Formulas, however, are methods of reasoning and 

analysis, not evidence. As long as the data used in those 

formulas is supported in the record—and URP does not 

point to any indication that the data were unsupported—the 

method for analyzing that data need not be separately supported by evidence. In addition, in a footnote in PUC Order 

No. 08-487, the PUC explained how it reached the conclusion that the 1995 to 2000 rates would have been higher if 

Trojan had not been included in rate base. The PUC detailed 

each of the ways in which it modified the spreadsheet provided by PUC staff. Thus, to the extent that the PUC had 

to disclose or explain that analysis, the PUC did so in the 

order.

VI. THE ABATED CIRCUIT COURT PROCEEDINGS

In Dreyer, this court issued a peremptory writ ordering the circuit court to abate the CAPs’ claims against PGE 

for damages, pending the PUC’s determination of “what, if 

any, remedy it [could] offer to PGE ratepayers, through rate 

reductions or refunds, for the amounts that PGE collected 

in violation of ORS 757.355 (1993) between April 1995 and 

October 2000.” Dreyer, 341 Or at 286-87. The CAPs argue 

that the abatement should be lifted either because the PUC 

has no authority to provide a remedy to the CAPs or the 

PUC has declined to offer a remedy to the CAPs. URP similarly contends that this court should lift the abatement so 

that the ratepayers from 1995 to 2000 can pursue their remedies in circuit court.

We decline to reach that issue because it is not 

properly before this court in this proceeding, which arises 

out of the PUC’s order following the remand proceedings 

stemming from Trojan I and Trojan II. Dreyer involved an 

entirely separate proceeding in circuit court that is not now 

before us. Accordingly, if the CAPs want the abatement 

lifted, they must address their request to the circuit court. 

See Dreyer, 341 Or at 286 (“Certainly, after the PUC has 

made its ruling, plaintiff will retain the right to return to 

the circuit court for disposition of whatever issues remain 
Cite as 356 Or 216 (2014) 253

unresolved.” (Emphasis added.)). If the circuit court denies 

that request, the CAPs can appeal from that order.

VII. CONCLUSION

The PUC did not exceed either the scope of the 

remand or the scope of its statutory authority in PUC Order 

No. 08-487. Moreover, the order is supported by substantial 

evidence.

The decision of the Court of Appeals and the order 

of the Public Utility Commission are affirmed.