IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

PACIFICORP d/b/a PACIFIC POWER & 

LIGHT COMPANY,

No. 46009-2-II

Appellant,

v.

WASHINGTON UTLITIES AND 

TRANSPORTATION COMMISSION, a 

Washington State agency,

Respondent,

PUBLIC COUNSEL DIVISION OF THE 

WASHINGTON ATTORNEY GENERAL’S 

OFFICE,

 Intervenor-Respondent,

PACKAGING CORPORATION OF 

AMERICA f/k/a BOISE WHITE PAPER, 

L.L.C.,

 Intervenor-Respondent.

PUBLISHED OPINION

LEE, J. — PacifiCorp appeals the Washington Utilities and Transportation Commission’s 

(the Commission) final order (Final Order) in its 2013 general rate case.1 PacifiCorp challenges 

two aspects of the Final Order. First, PacifiCorp challenges the Commission’s refusal to accept 

PacifiCorp’s proposed revisions to its West Control Area interjurisdictional cost allocation 

methodology. Second, PacifiCorp challenges the Commission’s refusal to accept its proposed 

 

1 Docket UE-130043, Order 05. 

Filed

Washington State

Court of Appeals

Division Two

April 27, 2016
No. 46009-2-II

2

revision to PacifiCorp’s capital structure used by the Commission in rate-making, specifically the 

equity component in the debt-to-equity ratio. Because PacifiCorp has not demonstrated that the 

Commission erred, we affirm. 

FACTS

A. THE PARTIES

The parties to this appeal are:

(1) Appellants: PacifiCorp, doing business as Pacific Power & Light. PacifiCorp serves 

retail customers in Washington, Oregon, California, Idaho, Utah, and Wyoming. 

(2) Respondents: The Commission.2 The Commission is the regulatory agency charged 

by statute with setting public utility rates in this state. RCW 80.01.040; US W. Commc’ns v. Wash. 

Utils. & Transp. Comm’n, 134 Wn.2d 48, 53, 949 P.2d 1321 (1997) (US W. Commc’ns I). The 

Commission has jurisdiction over PacifiCorp’s business activities in Washington. See RCW 

80.01.040.

(3) Intervenor-Respondent: Public Counsel Division of the Washington Attorney 

General’s Office (Public Counsel). Public Counsel is the statutory representative of PacifiCorp’s 

electric customers in Washington.

3

(4) Intervenor-Respondent: Packaging Corporation of America4(Packaging Corp.). 

Packaging Corp. is PacifiCorp’s largest customer in Washington. 

 

2

In the proceedings below, the Commission’s staff (the Staff) participates as a party. 

3 RCW 80.01.100.

4

In the proceedings below, Packaging Corp. participated as Boise White Paper.
No. 46009-2-II

3

B. BACKGROUND OF PACIFICORP AND THE COMMISSION

In 1987, PacifiCorp merged with Utah Power. In approving the merger, the Commission 

expressed concern about the effects on ratepayers of merging PacifiCorp with a higher cost system, 

but determined that it “was satisfied with the use of [PacifiCorp’s] pre-merger average system cost 

as the basis for” Washington rates.5 

In 2005, MidAmerican Energy Holdings Company (MEHC) acquired PacifiCorp.6 In re 

Joint Application of MidAmerican Energy Holdings & PacifiCorp, Docket UE-051090, Order 07 

(Feb. 22, 2006) at ¶¶ 1, 3. The Commission, MEHC, and PacifiCorp agreed that “MEHC and 

PacifiCorp will not advocate for a higher cost of capital as compared to what PacifiCorp’s cost of 

capital would have been, using Commission standards, absent MEHC’s ownership.” Docket UE051090, Order 07 (Feb. 22, 2006) (Appendix A at 5). 

1. 2006 Rate Case

In PacifiCorp’s 2006 general rate case,7 PacifiCorp proposed the “Revised Protocol,” an 

interjurisdictional cost allocation methodology for use in Washington. Wash. Utils. & Transp.

Comm’n v. PacifiCorp, Docket UE 050684, Order 04 (April 17, 2006) at ¶ 26. “The Revised 

Protocol is a method or plan for allocating the costs and wholesale revenues associated with 

PacifiCorp’s generation, transmission and distribution system among the six states in PacifiCorp’s 

 

5 Utilities operating in Washington must seek approval of mergers and sales from the Commission. 

RCW 80.12.020.

6 PacifiCorp continued to operate as a subsidiary of MEHC and retained its name. MEHC is 

privately held by Berkshire Hathaway. Docket UE-051090, Order 07 (Feb. 22, 2006) at ¶ 33. 

7 A general rate case, or general rate proceeding, “is a filing by any regulated company specified 

in WAC 480-07-500 for an increase in rates,” subject to certain limitations. WAC 480-07-505(1). 
No. 46009-2-II

4

jurisdiction for the purpose of setting retail rates.” Docket UE 050684, Order 04 at ¶ 27. Under 

the proposed Revised Protocol, PacifiCorp’s six jurisdictions would each bear a share of 

PacifiCorp’s system-wide costs. 

The Commission rejected the proposed Revised Protocol, finding that “the resources 

[PacifiCorp] attempted to assign as costs to Washington were not in fact proven to be used and 

useful for service in Washington, as required by RCW 80.04.250.” AR at 857, Wash. Utils. & 

Transp. Comm’n v. PacifiCorp, Order 05, (Dec. 4, 2013) at ¶ 79; accord Docket UE 050684, Order 

04 at ¶ 49. The Commission noted that when the Oregon Utilities Commission approved 

PacifiCorp’s merger with Utah Power, it found: “PacifiCorp agrees, however, that its shareholders 

will assume all risks that may result from less than full system cost recovery if interdivisional 

allocation methods differ among the merged company’s jurisdictions.” Docket UE 050684, Order 

04 at ¶ 56 (quoting Pub. Util. Comm’n of Oregon, Docket UF 4000, Order 88-767 (July 15, 1988)). 

The Commission found that “[PacifiCorp] admits in the Revised Protocol that it bears the risk of 

inconsistent allocation methods adopted by the states. In short, any claim of entitlement to a

uniform allocation methodology among the states is inconsistent with the ‘deal’ [PacifiCorp]

agreed to in the merger [with Utah Power].” Docket UE 050684, Order 4 at ¶ 56 (footnote 

omitted). 

2. 2007 General Rate Case

In PacifiCorp’s 2007 general rate case, PacifiCorp proposed the West Control Area 

interjurisdictional cost allocation methodology (the “WCA methodology”). The WCA 

methodology separated PacifiCorp’s jurisdictions and included Washington, Oregon, California,
No. 46009-2-II

5

and select other resources located outside of those three states.8 The WCA methodology isolated 

the costs associated with the assets, purchases and sales in the WCA jurisdictions, and allocated to 

Washington a proportionate share of the costs based on Washington’s relative contribution to the 

WCA’s demand and energy requirements. 

Under the WCA methodology, PacifiCorp sought to recover costs attributable to qualifying 

facility9(QFs) power purchase agreements (PPAs) through customer rates in the state where the 

QF is physically located. In other words, Washington customer rates include 100 percent of the 

costs PacifiCorp incurs in buying power from Washington QFs, regardless of whether that cost is 

higher or lower than market rates, even though power from Washington QFs arguably also serves 

loads in Oregon and California. But any power attributed to an Oregon or California QF is priced 

at market rates for Washington customers, not the higher prices from QF production in those states. 

The Commission adopted the WCA methodology for a five-year trial period. 

3. 2011 General Rate Case

In PacifiCorp’s 2011 general rate case, PacifiCorp proposed that, for rate-making purposes, 

the Commission adopt a capital structure with a 52.1 percent equity component and 47.6 percent 

 

8 PacifiCorp’s other jurisdictions (Idaho, Utah, and Wyoming) comprise the East Control Area.

9

“Qualifying facility means a cogeneration facility or a small power production facility” that meets 

statutory guidelines. 18 C.F.R. § 292.101(b)(1); WAC 480-107-007. Prior to the enactment of 

Section 210 of the Public Utility Regulatory Policies Act of 1978 (PURPA), qualifying facilities 

faced a variety of financial and regulatory obstacles. PURPA Section 210(m) Regulations 

Applicable to Small Power Production and Cogeneration Facilities, Fed. Reg. 64,342, at ¶¶ 19-23. 

Section 210 sought to alleviate some of these obstacles, and promote the development of QFs in 

an effort to reduce reliance on fossil fuels. Cal. Pub. Utils. Comm’n, 133 FERC ¶ 61,059, at ¶¶ 

23-24 (Fed. Energy Regulatory Comm’n Oct. 21, 2010) (Order Granting Clarification and 

Dismissing Reh’g); 71 Fed. Reg. 64,342, at ¶ 23. 
No. 46009-2-II

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debt component in the debt-to-equity ratio.10 The Commission found that PacifiCorp’s equity 

component had increased from 46 percent to 52.1 percent over three years as a result of MEHC 

infusing PacifiCorp with equity. PacifiCorp expected the infusion of equity and growth to 

continue. The Commission noted that it understood “MEHC’s interest in expanding PacifiCorp’s 

equity . . . and reaping the benefit of greater equity returns,” but “this interest is inconsistent with 

the ratepayer interest in a capital structure that reflects economy.” Wash. Utils. & Transp. Comm’n 

v. PacifiCorp, Docket UE 100749, Order 06 (Mar. 25, 2011) at ¶ 40. Therefore, the Commission 

adopted “a hypothetical capital structure for rate-making purposes consisting of 49.1 percent 

equity” and “50.60 percent long-term debt.” Docket UE 100749, Order 06 ¶ 40. In adopting a 

hypothetical capital structure for rate-making purposes, the Commission “recognize[d] that the 

decision on the appropriate actual capital structure for PacifiCorp will be made by the parent 

company, MEHC, and by the ultimate owner, Berkshire Hathaway.” Docket UE 100749, Order 

06 at ¶ 41. 

C. PACIFICORP’S RATE CASE ON APPEAL

In PacifiCorp’s 2013 general rate case, PacifiCorp sought to increase its Washington 

customer rates by 12.2 percent ($37 million). In relevant part to this appeal, PacifiCorp proposed 

revisions to the existing WCA methodology and existing hypothetical capital structure used for 

 

10 The debt-to-equity ratio in a capital structure, particularly the amount of equity, materially 

impacts the price customers pay. Because of the difference between the cost of equity and the cost 

of debt, a capital structure with relatively more debt and less equity may result in lower cost of 

capital, and lower customer rates. And, a capital structure with relatively less debt and more equity 

may result in higher cost of capital, and higher customer rates. 
No. 46009-2-II

7

rate-making. Following evidentiary hearings and testimony, the Commission issued the Final 

Order determining PacifiCorp’s rates. 

1. Costs From Out-of-state QFs for Rate-making Purposes

In PacifiCorp’s 2013 general rate case, PacifiCorp proposed changes to the WCA 

methodology. PacifiCorp proposed “that the cost of power from [Oregon and California QF PPAs]

should be included” in Washington customer rates.11 Transcripts (TR) at 294. PacifiCorp argued 

that its Oregon and California QF PPA costs should be included in Washington customer rates 

because those QF PPAs benefitted Washington customers. PacifiCorp also argued that the 

Oregon’s and California’s determinations of its costs were reasonable and comparable to QF PPAs 

in Washington, and that Washington’s energy policies are “substantially aligned with Oregon and 

California.” AR at 648-89 (boldface omitted) (some capitalization omitted). Further, PacifiCorp 

asserted “cost recovery of QF contracts is consistent with PURPA [Public Utility Regulatory 

Policies Act of 1978].” AR at 651 (boldface omitted) (some capitalization omitted). 

 

11 PacifiCorp’s Oregon and California QF PPA costs are determined by Oregon’s and California’s 

state regulatory authority. State ex rel. Utils. Comm’n v. N.C. Power, 338 N.C. 418, 450 S.E.2d 

896, 898 (1994). 

Pursuant to section 210 of the Public Utility Regulatory Policies Act of 1978 

(PURPA), regulations of the Federal Energy Regulatory Commission (FERC) 

promulgated thereunder, and implementation mechanisms of the states, electric 

utilities are required to purchase power produced by qualifying cogeneration and 

small power production facilities and are required to pay their “avoided costs” for 

the power unless another rate is negotiated.

Id. at 416. “‘Avoided costs’ means the incremental costs which the utility would incur if it supplied 

the power itself or purchased it from another source.” Id. at 417. 
No. 46009-2-II

8

The Staff, Public Counsel, and Packaging Corp. argued that the Commission should not 

include PacifiCorp’s Oregon and California QF PPA costs, as determined by Oregon and 

California, in its Washington customer rates. David Gomez, on behalf of the Staff, testified that 

“[t]he recent and substantial expansion of QF power purchases . . . is entirely due to other states’ 

policies designed to rely on the QF requirement of PURPA to considerably increase generation 

from independent power producers.” AR at 3236. Sebastian Coppola, on behalf of Public 

Counsel, testified that “the proliferation of QFs in Oregon and California is a reflection of those 

states’ energy policies. Washington customers should not pay for decisions made in other states, 

to serve other states.” AR at 3794. Michael Deen, on behalf of Packaging Corp., similarly testified 

that Washington has implemented its energy policies differently. Gomez and Deen testified that 

including Oregon’s and California’s determinations of PacifiCorp’s costs would inappropriately 

increase Washington rates. Coppola noted that “Washington customers should not pay for 

decisions made in other states, to serve other states.” AR at 3794.

2. Capital Structure for Rate-making Purposes

PacifiCorp also asked the Commission to increase the equity component in its capital 

structure used for rate-making from 49.1 percent to 52.22 percent. PacifiCorp argued that 

increasing its equity component for rate-making increases the likelihood that it can earn its allowed 

rate of return, which would help it maintain its credit rating. 

The Commission heard testimony from three expert witnesses regarding PacifiCorp’s 

proposed capital structure: Bruce Williams for PacifiCorp, Kenneth Elgin for the Staff, and 
No. 46009-2-II

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Michael Gorman for Packaging Corp.

12

 Williams, on behalf of PacifiCorp, recommended that the 

Commission increase PacifiCorp’s equity level from 49.1 percent to its actual equity level of 52.22 

percent. Williams testified that PacifiCorp’s high credit ratings are in part due to support from its 

parent company, MEHC, and “[a]bsent ownership by MEHC and supportive regulatory treatment” 

PacifiCorp’s credit ratings “would have likely suffered a downgrade.” AR at 2950-51. 

Elgin, on behalf of the Staff, recommended that the Commission decrease the equity 

component in PacifiCorp’s debt-to-equity ratio. Elgin proposed that the Commission decrease 

PacifiCorp’s equity component from 49.1 percent equity to 46 percent equity. Elgin testified that 

“[w]hen MEHC acquired PacifiCorp, one of the commitments from the new owner was that 

ratepayers would not be harmed by paying a higher cost of capital as a result of the sale.” AR at 

3176 (citing In re Joint Application of MidAmerican Energy Holdings & PacifiCorp, Docket UE051090, Order 07). Elgin asserted that, because of MEHC’s “decision to capitalize PacifiCorp 

with excessive equity,” PacifiCorp’s actual capital structure does not properly balance safety and 

economy for rate-making purposes. AR at 3176. 

Gorman, on behalf of Packaging Corp., recommended that the Commission maintain the 

49.1 percent equity component that the Commission had used in PacifiCorp’s previous two rate 

cases. Gorman testified that the hypothetical capital structure the Commission had used allows 

for returns that will support PacifiCorp’s credit ratings. And Gorman testified that PacifiCorp’s 

 

12 The expert testimony on this topic “included 487 pages of pre-filed written testimony and 

attendant exhibits and extensive live testimony.” Br. of Resp’t (Commission) at 32-33. 
No. 46009-2-II

10

proposed capital structure “imposes unnecessarily high costs on Washington ratepayers.” AR at 

4088. Gorman further testified that during the period where the Commission had used a 

hypothetical capital structure in determining PacifiCorp’s rates, PacifiCorp’s credit ratings have 

been stable and the credit rating agencies report a “[s]table credit outlook.” AR at 4087.

3. The Final Order

In its Final Order, the Commission rejected PacifiCorp’s proposed rate increase revisions 

to the WCA methodology because PacifiCorp “failed to carry its burden to show that revisions” 

were appropriate. AR at 828. The Commission also rejected PacifiCorp’s proposed 52.22 percent 

equity component in PacifiCorp’s debt-to-equity ratio and maintained a hypothetical capital 

structure with a 49.1 percent equity component for rate-making purposes. PacifiCorp appealed the 

Final Order to the Thurston County Superior Court and petitioned for direct review by this court 

under RCW 34.05.518 and RAP 4.1. We accepted direct review. 

ANALYSIS

PacifiCorp challenges two aspects of the Commission’s underlying rate-making

methodology in the Final Order. First, PacifiCorp challenges the Commission’s refusal to allow 

PacifiCorp to recover, through its Washington customer rates, its costs associated with Oregon and 

California QF PPAs. Specifically, PacifiCorp argues that the Commission’s refusal to accept its 

out-of-state QF PPA costs, as determined by Oregon and California, (1) violates PURPA, (2) is 

unsupported by the record, and (3) violates the Dormant Commerce Clause. Second, PacifiCorp 

challenges the Commission’s continuing use of a hypothetical capital structure, specifically the 

equity component in PacifiCorp’s debt-to-equity ratio, for rate-making purposes. Specifically, 

PacifiCorp argues that the Commission erred by (1) using a hypothetical capital structure, (2) 
No. 46009-2-II

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relying on evidence from a past case, and (3) rejecting PacifiCorp’s actual capital structure.

13

 We 

disagree.

A. LEGAL PRINCIPLES

1. Review of the Commission’s Final Order

We review the Commission’s Final Order under the Administrative Procedure Act (APA), 

chapter 34.05 RCW. US W. Commc’ns I, 134 Wn.2d at 55. The party asserting the invalidity of 

the Commission’s action has the burden of demonstrating invalidity. RCW 34.05.570(1)(a); US 

W. Commc’ns I, 134 Wn.2d at 55. 

RCW 34.05.570(3) provides several grounds for relief from an agency order, including:

(a) The order . . . is in violation of constitutional provisions on its face or as applied;

. . . .

(e) The order is not supported by evidence that is substantial when viewed in light 

of the whole record before the court . . . .

. . . .

(i) The order is arbitrary or capricious.

US W. Commc’ns, Inc. v. Wash. Utils. & Transp. Comm’n, 134 Wn.2d 74, 85, 949 P.2d 1337 

(1997) (US W. Commc’ns II). 

 

13 PacifiCorp’s assignments of error are based on the Commission’s underlying rate-making

methodologies; specifically, the WCA methodology and capital structure used for rate-making. 

PacifiCorp does not assign error to the Commission’s findings of facts, and it does not claim that 

the Commission’s order is arbitrary and capricious. Rather, PacifiCorp contends that specific 

portions of the Commission’s background discussions lack substantial evidence and are arbitrary. 

This opinion addresses PacifiCorp’s claims as raised in PacifiCorp’s briefing. 
No. 46009-2-II

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The Commission’s findings are reviewed for substantial evidence supporting the finding. 

City of Vancouver v. State Pub. Emp’t Relations Comm’n, 180 Wn. App. 333, 347, 325 P.3d 213 

(2014). Substantial evidence is “evidence sufficient to persuade a fair-minded person of their 

truth.” Id. The substantial evidence standard is “highly deferential.” ARCO Prods. v. Wash. Utils. 

& Transp. Comm’n, 125 Wn.2d 805, 8123, 888 P.2d 728 (1995). Unchallenged findings are 

verities on appeal. City of Vancouver, 180 Wn. App. at 347. 

An agency’s action is arbitrary and capricious only if it “‘is willful and unreasoning and 

taken without regard to the attending facts or circumstances.’” Attorney Gen.’s Office v. Wash. 

Utils. & Transp. Comm’n, 128 Wn. App. 818, at 824, 116 P.3d 1064 (2005) (quoting Hillis v. 

Dep’t of Ecology, 131 Wn.2d 373, 383, 932 P.2d 139 (1997)). “‘Where there is room for two 

opinions, an action taken after due consideration is not arbitrary and capricious even though a 

reviewing court may believe it to be erroneous.’” Attorney Gen.’s Office, 128 Wn. App. at 824 

(quoting Rios v. Dep’t of Labor & Indus., 145 Wn.2d 483, 501, 39 P.3d 961 (2002)). “Neither the 

existence of contradictory evidence nor the possibility of deriving conflicting conclusions from 

the evidence renders an agency decision arbitrary and capricious.” Attorney Gen.’s Office, 128 

Wn. App. at 824. 

2. The Commission’s Authority 

The Commission is directed to “[r]egulate in the public interest . . . the rates, services, 

facilities, and practices of all persons . . . supplying any utility service . . . .” RCW 80.01.040(3); 

US W. Commc’ns I, 134 Wn.2d at 53. The function of rate-making is legislative in character, and 

the judicial branch is not empowered to undertake the job of fixing rates. US W. Commc’ns I, 134 

Wn.2d at 53-54. The burden of proof for increased rates is on the utility. RCW 80.04.130(4).
No. 46009-2-II

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The Commission must set “just, fair, reasonable and sufficient” rates. RCW 80.28.010. 

“A utility is not permitted to recover every expense in its rate structure; the WUTC ‘has the power 

to review operating expenses incurred by a utility and to disallow those which were not prudently 

incurred.’” Willman v. Wash. Utils. & Transp. Comm’n, 122 Wn. App. 194, 204, 93 P.3d 909 

(2004) (quoting People’s Org. for Wash. Energy Res. v. Utils. & Transp. Comm’n (POWER), 104 

Wn.2d 798, 810, 711 P.2d 319 (1985)), aff’d, 154 Wn. 2d 801, 117 P.3d 343 (2005). But the 

Commission must “‘assure that regulated utilities earn enough to remain in business.’” Willman, 

122 Wn. App. at 204 (quoting POWER, 104 Wn.2d at 808). “The statutory requirement that rates 

be ‘just and reasonable’ is obviously incapable of precise judicial definition, and we afford great 

deference to the Commission in its rate decisions.”14 Morgan Stanley Capital Grp. Inc. v. Pub. 

Util. Dist. No. 1, 554 U.S. 527, 532, 128 S. Ct. 2733, 171 L. Ed. 2d 607 (2008). Moreover, “[t]he 

economic judgments required in rate proceedings are often hopelessly complex and do not admit 

of a single correct result.” Duquesne Light Co. v. Barasch, 488 U.S. 299, 313, 109 S. Ct. 609, 102 

L. Ed. 2d 646 (1989).

“The Commission has broad generalized powers in rate-setting matters.” US W. Commc’ns 

I, 134 Wn.2d at 56. “[C]ourts are not at liberty to substitute their judgment for that of the 

Commission in rate cases and that within a fairly broad range, regulatory agencies exercise 

 

14 In discussing whether “an otherwise reasonable rate [was] subject to constitutional attack by 

questioning the theoretical consistency” of the underlying methodology, the United States 

Supreme Court held, “‘[I]t is not theory but the impact of the rate order which counts. If the total 

effect of the rate order cannot be said to be unreasonable, judicial inquiry . . . is at an end. The 

fact that the method employed to reach that result may contain infirmities is not then important.” 

Duquesne Light Co. v. Barasch, 488 U.S. 299, 310, 109 S. Ct. 609, 102 L. Ed. 2d 646 (1989)

(alteration in original) (quoting Fed. Power Comm’n v. Hope Nat. Gas Co., 320 U.S. 591, 602, 64 

S. Ct. 281, 88 L. Ed. 333 (1944)). 
No. 46009-2-II

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substantial discretion in selecting the appropriate rate-making methodology.” US W. Commc’ns 

I, 134 Wn.2d at 56. 

“We give substantial deference to a regulatory agency’s judgment about how best to serve 

the public interest.” Attorney Gen.’s Office, 128 Wn. App. at 824. An agency’s decision cannot 

be set aside absent a clear showing of abuse of discretion. Attorney Gen.’s Office, 128 Wn. App. 

at 825; accord Arco Prods. v. Utils. & Transp. Comm’n, 125 Wn.2d 805, 812, 888 P.2d 728 (1995). 

We do not weigh evidence or judge witness credibility. City of Vancouver, 180 Wn. App. at 347. 

Similarly, the Commission is afforded broad discretion in weighing the testimony of experts. See 

US W. Commc’ns I, 134 Wn.2d at 62. 

Thus, the Commission’s findings are prima facie correct. RCW 80.04.430. “This is 

especially true where, as here, the issues involve complex factual determinations peculiarly within 

the expertise of the commission.” Cole v. Wash. Utils. & Transp. Comm’n, 79 Wn.2d 302, 309, 

485 P.2d 71 (1971). 

B. RECOVERY OF OUT-OF-STATE QF PPA COSTS 

1. PURPA Challenge

PacifiCorp argues that the Commission violated PURPA by (a) disallowing “cost recovery 

of PacifiCorp’s out-of-state QF PPAs when it was undisputed that they were priced at PacifiCorp’s 

avoided costs”; (b) re-pricing the out-of-state QF PPAs in Washington at market rates; and (c) 

ignoring PURPA’s specific cost recovery mandate.15 Br. of Appellant at 22. We disagree. 

 

15 PacifiCorp also argues that the Commission’s “refusal to allow cost recovery for PacifiCorp’s 

out-of-state QF PPAs is arbitrary and capricious and inconsistent with the Commission’s treatment 

of other regional QF PPAs.” Br. of Appellant at 31. PacifiCorp references the Commission’s 

treatment of Avista Utilities, but offers no substantive argument about how the Commission’s 
No. 46009-2-II

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Whether the Commission violated PURPA is a question of law, which this court reviews 

de novo. See Office of the Governor v. Pub. Emp’t Relations Comm’n, 183 Wn. App. 758, 763-

64, 334 P.3d 1177 (2014). 

PURPA was enacted in an effort to “reduce the country’s dependence on imported fuels by 

encouraging the addition of cogeneration and small power production facilities to the nation’s 

electrical generating system.” Pub. Serv. Co. of Oklahoma of Oklahoma v. State ex rel. Oklahoma 

Corp. Comm’n, 115 P.3d 861, 870 (Okla. 2005). In relevant part, PURPA provides rate and 

purchase guidelines for utilities and small producers. New PURPA Section 210(m) Regulations 

Applicable to Small Power Production and Cogeneration Facilities, 71 Fed. Reg. 64,342 (Nov. 1, 

2006). 

Utilities are required to offer for purchase energy from QFs at rates that are “just and 

reasonable to the ratepayers of the utility” and do not exceed the utility’s avoided costs. New 

PURPA Section 210(m) Regulations, 71 Fed. Reg. 64,342, at ¶ 23. Avoided costs are the 

incremental costs the utility would incur if it supplied the power itself or purchased it from another 

source. State ex rel. Utils. Comm’n v. North Carolina Power, 338 N.C. 412, 417, 450 S.E.2d 896 

(1994).

 

decision was arbitrary or capricious, or inconsistent with its treatment of Avista Utilities. It notes 

that PacifiCorp’s expert testified that Avista’s rates include QF PPAs located in Idaho, but it 

provides no further information about those parties’ agreed upon cost allocation methodology. We 

decline to address arguments unsupported by citation to authority or argument. RAP 10.3(a)(6); 

Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). Accordingly, 

we do not address PacifiCorp’s argument regarding the treatment of Avista Utilities.
No. 46009-2-II

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Congress tasked the Federal Energy Regulatory Commission (FERC) with implementing 

PURPA, and each state regulatory authority is required to implement FERC’s rules.16 Fed. Energy 

Regulatory Comm’n v. Mississippi, 456 U.S. 742, 751, 102 S. Ct. 2126, 72 L. Ed. 2d 532 (1982) 

(citing PURPA § 210(f), codified at 16 U.S.C. § 824a-3(f)). FERC’s regulations “provide state 

commissions with guidelines” to implement rate provisions and determine a utility’s avoided costs. 

Cal. Pub. Utils. Comm’n, 133 FERC ¶ 61,059, at ¶¶ 23-24 (Fed. Energy Regulatory Comm’n Oct. 

21, 2010) (Order Granting Clarification and Dismissing Reh’g); New PURPA Section 210(m) 

Regulations, 71 Fed. Reg. 64,342 at ¶ 23. 

In 2005, Congress enacted the Energy Policy Act, which added § 210(m) to PURPA.17 

New PURPA Section 210(m) Regulations, 71 Fed. Reg. 64,342, at ¶ 1. Section 210(m)(7), 

codified at 16 U.S.C. § 824a-3(m)(7), provides that “[t]he Commission shall issue and enforce 

such regulations as are necessary to ensure that an electric utility that purchases electric energy or 

capacity from a [qualifying facility] . . . under this section recovers all prudently incurred costs 

associated with the purchase.” New PURPA Section 210(m) Regulations, 71 Fed. Reg. 64,342, at 

 

16 FERC has exclusive jurisdiction over rates for interstate wholesale energy sales. New York v. 

FERC, 535 U.S. 1, 18-20, 122 S. Ct. 1012, 152 L. Ed. 2d 47 (2002). And, “[o]nce FERC sets such 

a rate, a State may not conclude in setting retail rates that the FERC-approved wholesale rates are 

unreasonable.” Nantahala Power & Light Co. v. Thornburg, 476 U.S. 953, 966, 106 S. Ct. 2349, 

90 L. Ed. 2d 943 (1986). Rather, a State must give effect to Congress’ desire to give FERC plenary 

authority over interstate wholesale rates and States must not interfere with this authority. 

Nantahala Power, 476 U.S. at 966. FERC did not set PacifiCorp’s QF PPA rates in Oregon or 

California. 

17 Section 210(m) is titled “Termination of Mandatory Purchase and Sale Requirements.” “The 

section revises the rights and obligations between electric utilities and QFs.” New PURPA Section 

210(m) Regulations, 71 Fed. Reg. 64,342, at ¶ 25. 
No. 46009-2-II

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¶ 25. Pursuant to Section 210(m), FERC issued new regulations. See New PURPA Section 210(m) 

Regulations, 71 Fed. Reg. 64,342. 

During the proposed rulemaking, the utilities argued that FERC should adopt new 

regulations to implement § 210(m)(7) to “permit consistent, complete and timely recovery of the 

utility’s prudently-incurred QF purchase costs,” because “the states and the Commission often use 

different methodologies for allocating costs between the jurisdictions.” New PURPA Section 

210(m) Regulations, 71 Fed. Reg. 64,342, at ¶ 215. Despite the utilities’ arguments, FERC stated 

that it was “reluctant to review an issue that should be handled by the states in the first instance.” 

New PURPA § 210(m) Regulations, 71 Fed. Reg. 64,342, at ¶ 216. FERC’s final rule stated: “The 

Final Rule does not adopt new regulations implementing section 210(m)(7), regarding an electric 

utility’s recovery of prudently incurred costs relating to purchases of electricity from QFs.”

18

 New 

PURPA Section 210(m) Regulations, 71 Fed. Reg. 64,342, at ¶ 18. 

a. Cost recovery of Oregon and California’s QF PPAs

PacifiCorp argues that the Commission violated PURPA by disallowing “cost recovery of 

PacifiCorp’s out-of-state QF PPAs when it was undisputed that they were priced at PacifiCorp’s 

avoided costs.” Br. of Appellant at 22. We disagree because PURPA does not require that 

PacifiCorp be entitled to recover its Oregon and California QF PPA costs through its Washington 

customer rates, even where Oregon and California did not price those QF PPAs at rates that 

exceeded Oregon and California’s determinations of PacifiCorp’s avoided costs. 

 

18 Washington has not implemented regulations that mandate recovery of a utility’s QF PPA costs 

through customer rates. 
No. 46009-2-II

18

In approving a utility’s QF PPA, the state regulatory authority determines a utility’s 

avoided costs. New PURPA Section 210(m) Regulations, 71 Fed. Reg. 64,342, at ¶ 23; Cal. Pub. 

Utils. Comm’n, 133 FERC ¶ 61,059, at ¶ 24. A state regulatory authority cannot require a utility 

to purchase energy from a QF at rates in excess of the utility’s avoided costs, as determined by 

that state regulatory authority. New PURPA Section 210(m), 71 Fed. Reg. 64,342, at ¶ 23; Cal.

Pub. Utils. Comm’n, 133 FERC ¶ 61,059, at ¶ 24. PacifiCorp’s QF PPAs in Oregon and California 

are based on Oregon’s and California’s determination of PacifiCorp’s avoided costs in their 

respective jurisdictions. See Cal. Pub. Utils. Comm’n, 133 FERC ¶ 61,059, at ¶ 24. 

PacifiCorp claims that the Commission is required to accept Oregon’s and California’s 

determination of PacifiCorp’s avoided costs. PacifiCorp frames the relevant inquiry as whether 

its Oregon and California QF PPAs are priced consistently with Oregon’s and California’s avoided 

cost determinations. 19 However, the relevant inquiry is whether the Commission is required to 

adopt Oregon’s and California’s determination of PacifiCorp’s avoided costs and include those 

avoided costs in PacifiCorp’s Washington customer rates. 

PacifiCorp relies on North Carolina Power, 338 N.C. 412, to assert that because “[t]he 

Commission did not find that the out-of-state QF PPA prices exceeded PacifiCorp’s avoided 

costs,” the Commission was required to accept Oregon’s and California’s avoided cost 

 

19 PacifiCorp repeatedly argues that it is entitled to recover the costs attributable to Oregon and 

California QF PPAs because it presented unrebutted evidence that the costs it seeks to recover in 

Washington are consistent with the costs determined by Oregon’s and California’s regulatory 

authorities for recovery in their respective states. PacifiCorp’s argument requires this court to 

assume that the Commission must accept Oregon’s and California’s determination of PacifiCorp’s 

avoided costs in setting Washington customer rates. Practically speaking, PacifiCorp’s position 

would strip the Commission of its authority to set rates if it were required to set a utility’s customer 

rates based on the utility’s avoided costs as determined by other jurisdictions. 
No. 46009-2-II

19

determination. Br. of Appellant at 23. But North Carolina Power does not support that contention. 

Rather, North Carolina Power held that PURPA does not require a state regulatory authority to 

accept another state’s avoided cost determination for rate-making purposes. 338 N.C. at 421. 

In North Carolina Power, the utility sought to increase its North Carolina customer rates 

to recover its costs attributable to a QF PPA in Virginia. 338 N.C. at 418. The Virginia QF PPA 

costs were determined by the Virginia State Corporation Commission and were based on 

Virginia’s determination of North Carolina Power’s avoided costs. N.C. Power, 338 N.C. at 418. 

The North Carolina Utilities Commission rejected Virginia’s avoided cost determination and did 

not allow the utility to pass on the Virginia QF PPA costs on to its North Carolina customers. Id.

at 421. 

On appeal, the utility argued that the North Carolina Utility Commission’s refusal to allow 

full cost recovery violated PURPA. Id. at 417. The North Carolina Supreme Court affirmed the 

Utility Commission, holding that under PURPA and North Carolina state law, the North Carolina 

Utilities Commission was not required to accept Virginia’s avoided cost determinations and to 

include those costs in North Carolina customer rates. Id. at 421. 

PacifiCorp’s authority does not support its assertion that PURPA requires a state utility 

commission to accept another state utility commission’s determination of a utility’s avoided costs. 

Accordingly, PacifiCorp’s claim that the Commission violated PURPA by disallowing recovery 

of PacifiCorp’s avoided costs as determined by Oregon and California fails. 

b. Re-pricing of QF PPAs 

PacifiCorp claims that the Commission “re-priced” PacifiCorp’s Oregon and California 

QF PPAs. Br. of Appellant at 25. PacifiCorp does not provide factual support, meaningful 
No. 46009-2-II

20

argument, or relevant authority to support its claim that the Commission violated PURPA by “repricing” PacifiCorp’s out-of-state QF PPAs at market rates.20

 Because PacifiCorp fails to provide 

authority for its argument, PacifiCorp’s “re-priced” argument fails. 

c. Cost recovery mandate 

PacifiCorp argues that the Commission violated PURPA’s “cost recovery mandate,” and 

that “attempts by state regulatory commissions to deny full cost recovery are preempted by 

PURPA.” Br. of Appellant at 25. We disagree because PacifiCorp has not demonstrated that 

PURPA has a cost recovery mandate requiring one state to adopt another state’s avoided costs 

determination. 

PacifiCorp relies on 16 U.S.C. § 824a-3(m)(7)(A) in support of its assertion. PacifiCorp’s 

reliance is misplaced. 

16 U.S.C. § 824a-3(m)(7)(A) provides that “[FERC] shall issue and enforce such 

regulations as are necessary to ensure that [a utility] . . . recovers all prudently incurred costs 

associated with the purchase.” To the extent that 16 U.S.C. § 824a-3(m)(7) is a mandate, the plain 

language of that section mandates FERC to consider regulations regarding a utility’s cost recovery. 

 

20 PacifiCorp cites to authority governing utility energy purchase requirements from QFs and a 

utility’s ability to modify its QF PPAs. But the issue is whether the Commission is obligated to 

allow PacifiCorp to recover all of its costs related to its Oregon and California QF PPAs, as 

determined by Oregon and California, through Washington customer rates. Thus, PacifiCorp’s 

cited authority are not applicable. 

To the extent PacifiCorp argues that regulations governing utility energy purchase 

requirements are applicable here, PacifiCorp fails to provide authority for the proposition that the 

rules governing the utility’s purchase of energy from QFs also govern a state utility commission’s 

decision in setting customer rates. “Where no authorities are cited in support of a proposition, the 

court is not required to search out authorities, but may assume that counsel, after diligent search, 

has found none.” DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962).
No. 46009-2-II

21

FERC considered but expressly declined to adopt a rule implementing the language in 16 U.S.C. 

§ 824a-3(m)(7), in part because it found that the recovery of costs was a matter of state discretion. 

New PURPA Section 210(m), 71 Fed. Reg. 64,342, ¶¶ 18, 214-16. Accordingly, PacifiCorp’s 

reliance on 16 U.S.C. § 824a-3(m)(7)(A) fails. 

PacifiCorp also cites Freehold Cogeneration Associates, L.P. v. Board of Regulatory 

Commissioners, 44 F.3d 1178, 1194 (3d Cir. 1995), to support its assertion that it is entitled to full 

cost recovery. However, PacifiCorp does not provide argument about how Freehold applies here. 

Moreover, Freehold is distinguishable from the issue in the present case. Freehold held that:

[O]nce the [state utility commission] approved the power purchase agreement 

between [the QF] and [the utility] on the ground that the rates were consistent with 

avoided cost, any action or order by the [state utility commission] to reconsider its 

approval or to deny the passage of those rates to [the utility’s] consumers under 

purported state authority was preempted by federal law.

Freehold, 44 F.3d at 1194. Freehold is inapplicable because the Commission did not determine 

PacifiCorp’s avoided costs or approve the Oregon and California QF PPAs. Rather, Oregon and 

California determined PacifiCorp’s avoided costs relating to the QF PPAs in their respective states. 

See Cal. Pub. Utils. Comm’n, 133 FERC ¶ 61,059, at ¶¶ 23-24. Therefore, because the 

Commission did not approve PacifiCorp’s Oregon and California QF PPAs, Freehold does not 

support PacifiCorp’s argument. 

The crux of PacifiCorp’s argument is that PURPA requires the Commission to accept 

Oregon’s and California’s avoided cost determination for rate-making in Washington. But 

PacifiCorp has not provided any authority that PURPA requires a state utility commission to accept 
No. 46009-2-II

22

another state’s avoided cost determinations for purposes of setting customer rates. Therefore, 

PacifiCorp’s argument that the Commission violated PURPA’s “cost recovery mandate” fails.21 

2. Substantial Evidence Supports the Final Order

PacifiCorp argues that the Commission’s “disallowance of out-of-state QF PPAs lacks 

substantial evidence in the record.”22 Br. of Appellant at 26 (boldface omitted). We disagree. 

PacifiCorp does not assign error to the Commission’s findings of fact. Unchallenged 

findings of fact are verities on appeal. City of Vancouver, 180 Wn. App. at 347. Therefore, the 

Commission’s findings are verities on appeal. 

PacifiCorp challenges paragraphs 111, 113, and 100 in the Final Order. These paragraphs 

are presented as factual background in the Final Order, not as findings or conclusions. As a 

threshold matter, PacifiCorp does not explain how, even if paragraphs 111, 113, and 100 are 

unsupported by substantial evidence, PacifiCorp’s challenge would require us to reverse the Final 

Order. And even if the factual background paragraphs to which PacifiCorp assigns error could, in 

part, be interpreted as findings of fact, PacifiCorp’s challenge fails. 

 

21 PacifiCorp also asserts that the “aspects” of the Commission’s Final Order refusing to allow 

PacifiCorp to recover Oregon’s and California’s avoided cost determinations are preempted under 

the Supremacy Clause of the United States Constitution. Br. of Appellant at 26. To the extent 

PacifiCorp is arguing that the Commission’s Final Order violated PURPA and is therefore 

preempted by the Supremacy Clause, that argument fails because PacifiCorp has not demonstrated 

that the Commission’s Final Order violated PURPA.

22 Although PacifiCorp asserts that the Commission’s disallowance of out-of-state QF PPAs is 

unsupported by substantial evidence, its argument focuses on justifying the validity of its proposed 

revisions to the WCA interjurisdictional cost allocation methodology. The Commission has 

“substantial discretion in selecting the appropriate rate-making methodology”; we do not reverse 

the Commission’s decision absent an abuse of discretion. US W. Commc’ns I, 134 Wn.2d at 56-

57; Arco Prods., 125 Wn.2d at 812. 
No. 46009-2-II

23

a. Final Order, Paragraph 111

PacifiCorp argues that substantial evidence does not support the Commission’s finding in 

paragraph 111. We disagree. 

Paragraph 111 states:

Furthermore, situs allocation is fair. Like Oregon and California, Washington has 

adopted policies favoring and encouraging renewable energy. However, the 

approaches of the three states are different. Oregon and California have 

implemented PURPA to carry out policies favoring renewable energy that has 

resulted in 74 percent of PacifiCorp’s QF power for 2014 coming from contracts 

PacifiCorp entered in the last 5 years at avoided cost rates for Oregon and 

California. Washington policy makers have relied less on PURPA and more on 

renewable portfolio standards and greater use of tax-related incentives to promote 

renewable energy development in this state. Washington’s policies are paid for by 

Washington taxpayers or ratepayers, as this state’s policy makers determine. 

Absent a regionally negotiated alternative arrangement, Oregon’s and California’s 

renewable energy policies should be paid for by the taxpayers and ratepayers of 

those states, as determined by their policy makers. 

AR at 872, Order 05, at ¶ 111 (footnote omitted). PacifiCorp contends that “[t]here is no evidence 

to support the Commission’s position that Oregon and California are promoting a different energy 

policy agenda than Washington through renewable QF PPA development.” Br. of Appellant at 

27. 

PacifiCorp essentially argues that the Commission is required to include PacifiCorp’s costs 

as determined by Oregon and California because of similarities between Washington’s, Oregon’s, 

and California’s energy policies. PacifiCorp’s argument focuses on similarities in policies, but 

does not address the distinction between different methods of promoting similar policy objectives 

and different policy objectives. Moreover, whether the energy policies of the three states are 

sufficiently similar to justify adopting a new interjurisdictional cost allocation methodology is an 
No. 46009-2-II

24

issue of energy policy—not an issue of substantial evidence.23 Even assuming without deciding 

that Washington, Oregon, and California have similar energy policies and similar methods of 

implementing those policies, PacifiCorp has not offered any authority that the Commission is 

required to adopt Oregon’s and California’s determination of PacifiCorp’s avoided costs when the 

utility incurs costs that are determined by different but “similar” states.24 In the absence of any 

authority that the Commission is required to adopt Oregon’s and California’s determination of 

PacifiCorp’s avoided cost in their respective states based on the fact that the three states have 

similar energy policies, PacifiCorp’s argument fails. 

To the extent that PacifiCorp’s argument is based on the fact that the record contains some 

evidence that contradicts the Commission’s determination, PacifiCorp’s argument fails. The mere 

presence of contradictory evidence in the record does not render the Commission’s determination 

unsupported by substantial evidence. See Schatz v. Dep’t of Soc. & Health Servs., 178 Wn. App. 

16, 25, 314 P.3d 406 (2013), review denied, 180 Wn.2d 1013 (2014) (“As long as substantial 

evidence supports a finding, it does not matter that other evidence may contradict it.”). 

Moreover, to the extent that paragraph 111 is construed as a finding of fact, it is supported 

by substantial evidence in the record. David Gomez, on behalf of the Staff, testified that “[t]he 

recent and substantial expansion of QF power purchases . . . is entirely due to other states’ policies 

 

23 To the extent PacifiCorp is asking this court to dictate energy policy and replace the 

Commission’s judgment with our own, that argument fails because energy policy is a discretionary 

function of the Commission. See US W. Commc’ns II, 134 Wn.2d at 99 (questions of policy are 

within the discretion of the Commission).

24 PacifiCorp acknowledges that Washington would determine its avoided costs differently than 

Oregon and California. 
No. 46009-2-II

25

designed to rely on the QF requirement of PURPA to considerably increase generation from 

independent power producers.” AR at 3236. Sebastian Coppola, on behalf of Public Counsel, 

testified that “the proliferation of QFs in Oregon and California is a reflection of those states’ 

energy policies. Washington customers should not pay for decisions made in other states, to serve 

other states.” AR at 3794. Michael Deen, on behalf of Packaging Corp., noted as one example 

that, unlike Oregon and Idaho, Washington does not implement fixed price standards for QFs. 

Thus, substantial evidence supports the Commission’s “finding” that situs allocation is fair, 

leading to each state’s ratepayers bearing the burden for their own state’s policies. 

b. Final Order, Paragraph 113

PacifiCorp argues that paragraph 113 is not supported by the substantial evidence; rather,

the evidence “shows that PacifiCorp’s out-of-state QF PPA costs are comparable to . . . other 

Washington QF PPAs.” Br. of Appellant at 28. We disagree.

Paragraph 113 states:

Staff’s analyses show that there is a significant financial impact on Washington 

state ratepayers due to the different QF policies in Oregon and Washington. The 

Oregon and California QF contracts result in net power costs that are significantly 

higher than would be the case if they were priced at Washington avoided cost rates. 

Again, as argued by Staff, absent a regionally negotiated alternative arrangement, 

each state should bear the costs of its respective renewable energy policies. 

AR at 872 (footnote omitted). 

PacifiCorp asserts that the “if all of PacifiCorp’s out-of-state QF PPAs had been re-priced 

under Washington’s avoided cost methodology,” it would result in “a small differential in avoided 

costs” of “only $2.6 million.” Br. of Appellant at 29. There is no authority addressing whether a 

cost differential of $2.6 million is significant or insignificant. The significance of the resulting 
No. 46009-2-II

26

cost differential is a policy consideration for the Commission to determine. See US W. Commc’ns 

II, 134 Wn.2d at 99 (questions of policy are within the discretion of the Commission). Without 

authority, we decline PacifiCorp’s invitation to dictate energy policy to the Commission.

Moreover, to the extent that paragraph 113 is construed as a finding of fact, it is supported 

by substantial evidence. Gregory Duvall, for PacifiCorp, and Gomez, for the Staff, testified that 

including Oregon’s and California’s QF PPAs would increase power costs by roughly $10 million. 

Further, Michael Deen, for Packaging Corp., testified that accepting PacifiCorp’s proposed 

changes would “inappropriately assign more system costs to Washington customers.” AR at 3975 

(also noting that situs allocation protected Washington customers from other state’s pricing 

policies). Thus, PacifiCorp’s challenge against paragraph 113 fails.

c. Final Order, Paragraph 100

PacifiCorp also assigns error to paragraph 100. Paragraph 100 states: 

In this case, even though PacifiCorp recognizes the need to show “‘tangible and 

quantifiable benefits to Washington[] before the resources can be included in rates” 

[PacifiCorp] simply makes the vague assertion that the Oregon and California QFs 

provide “undifferentiated generation to serve Washington load and [enable] 

PacifiCorp to avoid generation costs that would otherwise be incurred in the 

absence of these resources.” [PacifiCorp] adds that:

Other benefits of renewable QF contracts include system diversity, 

increased transmission reliability, reduced environmental impact, and 

promotion of Washington’s energy policies to mitigate greenhouse gas 

emissions and climate change.

Concerning PacifiCorp’s focus on “undifferentiated generation to serve 

Washington load,” however, Mr. Gomez testified during his cross-examination that 

the relationship between situs allocation and Washington load is not a material 

consideration. Situs allocation is about “the assignment of costs” and “doesn’t 

speak to what the actual flow of power is.”

AR 866-67, Order 05 at ¶ 100. 
No. 46009-2-II

27

PacifiCorp appears to take issue with the Commission’s characterization of PacifiCorp’s 

argument that the out-of-state QF PPAs provide benefit to Washington as a “vague assertion.” Br. 

of Appellant at 30. PacifiCorp argues that out-of-state QF PPAs directly benefit Washington 

customers, yet does not cite to evidence in the record demonstrating that benefit. Instead, the 

evidence shows that PacifiCorp had not prepared power flow studies for the Washington service 

areas and did not provide the quantitative evidence necessary for the Commission to accept 

PacifiCorp’s proposed QF contract allocation. 

PacifiCorp also argues that “the Commission’s justifications for rejecting recovery of outof-state QF PPAs are neither supported nor compelling.” Br. of Appellant at 31. To the extent 

PacifiCorp suggests that the Commission has the burden, it is incorrect. Before the Commission, 

PacifiCorp had the burden to justify its rate proposal. US W. Commc’ns II, 134 Wn.2d at 84 (noting 

that the utility has the burden to justify increasing its rates). And before this court, PacifiCorp has 

the burden to demonstrate that the Commission erred or the Final Order is invalid. RCW 

34.05.570. PacifiCorp has done neither. Therefore, PacifiCorp’s substantial evidence challenge 

fails. 

3. The Dormant Commerce Clause

PacifiCorp claims that the Final Order violates the dormant Commerce Clause25 because it 

is discriminatory on its face. We disagree. 

 

25 U.S. CONST., art. I, § 8, cl. 3. 
No. 46009-2-II

28

a. Legal principles 

Constitutional challenges are questions of law that this court reviews de novo. City of 

Redmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d 875 (2004); Attorney Gen.’s Office, 128 Wn. 

App. at 827. PacifiCorp bears the burden of establishing that the Final Order violates the dormant 

Commerce Clause because it discriminates against out-of-state economic interests. Int’l Franchise 

Ass’n v. City of Seattle, 803 F.3d 389, 401 (9th Cir. 2015); see New York State Rifle & Pistol Ass’n 

v. City of New York, 86 F. Supp. 3d 249, 266 (S.D.N.Y. 2015).

The Commerce Clause provides Congress the authority to regulate interstate commerce. 

Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070, 1087 (9th Cir. 2013), cert. denied, 134 

S. Ct. 2875 (2014). The dormant Commerce Clause is the negative implication of the Commerce 

Clause and prohibits states from enacting laws that discriminate against or unduly burden interstate 

commerce. North Dakota v. Heydinger, 15 F. Supp. 3d 891, 910 (2014) (citing South Dakota 

Farm Bureau, Inc. v. Hazeltine, 340 F.3d 583, 592 (8th Cir. 2003), cert. denied, 541 U.S. 1037 

(2004)). For dormant Commerce Clause purposes, discrimination simply means treating in-state 

and out-of-state economic interests differently by benefitting the former and burdening the latter. 

Rocky Mountain Farmers, 730 F.3d at 1087. 

Facial discrimination is recognized where a regulation distinguishes between in-state and 

out-of-state products without showing a nondiscriminatory reason for the distinction. Rocky 

Mountain Farmers, 730 F.3d at 1089. “But a regulation is not facially discriminatory simply 

because it affects in-state and out-of-state interests unequally. . . . [T]here must be ‘some reason, 
No. 46009-2-II

29

apart from their origin, to treat [the interests] differently.’” Id. (quoting Philadelphia v. New 

Jersey, 437 U.S. 617, 627, 98 S. Ct. 2531, 57 L. Ed. 2d 475 (1978)). 

b. Comparison of economic interests

In order to determine whether the Final Order is discriminatory, we must first determine 

which entities are suitable for comparison. See Rocky Mountain Farmers, 730 F.3d at 1088. 

“Entities are similarly situated for constitutional purposes if their products compete against each 

other in a single market.” Id. at 1088.

PacifiCorp asserts that the affected in-state and out-of-state economic interests are 

PacifiCorp’s in-state and out-of-state QF PPAs. This assertion fails.

While the QF PPAs involve commerce, the Final Order does not affect PacifiCorp’s instate or out-of-state QF PPAs. The only evident economic interest at issue here is PacifiCorp’s 

economic interest. However, even assuming without deciding that the Final Order affected 

PacifiCorp’s in-state and out-of-state QF PPAs, PacifiCorp fails to show that the in-state and outof-state QFs are suitable for comparison. As noted, determining whether the order is 

discriminatory requires evaluating in-state and out-of-state interests that “compete against each 

other in a single market.” Id. at 1088. PacifiCorp does not argue or establish that its in-state and 

out-of-state QFs compete in a single market. Thus, PacifiCorp fails to identify competing in-state 

and out-of-state economic interests suitable for comparison. 

c. Interstate commerce not implicated

Also, PacifiCorp provides no authority to support its argument that the Commission’s 

treatment of PacifiCorp’s various costs in setting Washington customer rates implicates the 

dormant Commerce Clause. PacifiCorp relies on cases where the regulatory authority regulated 
No. 46009-2-II

30

the movement of commerce, which affected in-state and out-of-state economic interests. However, 

those cases are distinguishable. 

PacifiCorp cites to New England Power Co. v. New Hampshire, 455 U.S. 331, 102 S. Ct. 

1096, 71 L. Ed. 2d 188 (1982). There, the Court held that New Hampshire had “sought to restrict 

the flow of privately owned and produced electricity in interstate commerce” and required New 

England Power to sell electricity to New Hampshire utilities in an amount equal to the output of 

its facility. Id. at 344, 336. But here, the Final Order does not direct the purchase or sale of energy, 

or affect the flow of energy to and from the State. Instead, the Commission sets PacifiCorp’s 

customer rates, which includes a determination about the appropriate allocation of PacifiCorp’s 

costs, which are in part, based on PacifiCorp’s purchase of energy. 

PacifiCorp also cites to Middle South Energy, Inc. v. Arkansas Public Service Commission,

772 F.2d 404 (8th Cir. 1985). In Middle South Energy, the court found that the Arkansas Public 

Service Commission violated the Commerce Clause where it prohibited an Arkansas utility from 

purchasing out-of-state energy. 772 F.2d at 417. Here, however, the Final Order does not prohibit, 

or attempt to dictate, where PacifiCorp purchases its energy. Thus, Middle South Energy is 

inapplicable. 

Finally, PacifiCorp relies on Illinois Commerce Commission v. Federal Energy Regulatory 

Commission, 721 F.3d 764 (7th Cir. 2013), cert. denied, 134 S. Ct. 1278 (2014). PacifiCorp asserts 

that the Illinois Commerce Commission, “observed in dicta that states cannot ‘discriminate against 

out-of-state renewable energy’ by requiring a utility to use only in-state renewable energy to 

comply with a renewable portfolio standard.” Br. of Appellant at 35-36 (quoting Illinois 

Commerce Comm’n, 721 F.3d at 776). While PacifiCorp accurately recites Illinois Commerce 
No. 46009-2-II

31

Commission’s comments, there is no indication that the Commission required PacifiCorp to use 

in-state energy, or prohibited PacifiCorp from using out-of-state energy. Accordingly, Illinois 

Commerce Commission is also inapplicable. 

This case is similar to North Carolina Power, 338 N.C. 412. In North Carolina Power, 

the utility argued that North Carolina Utility Commission’s disallowance of North Carolina 

Power’s avoided costs as determined by Virginia’s utility commission in setting North Carolina 

customer rates violated PURPA and the Commerce Clause.26 338 N.C. at 419, 422. The North 

Carolina Supreme Court held that the North Carolina Utilities Commission’s rejection of 

Virginia’s avoided-cost methodology did not violate the Commerce Clause. Id. at 422. The North 

Carolina Supreme Court noted: “While we recognize that inconsistent determinations of avoided 

costs by the [Virginia State Corporation Commission] and the [North Carolina] Commission may 

burden NC Power, we believe this burden is a necessary consequence of doing business in more 

than one state.” N. Carolina Power, 338 N.C. at 422. 

Similarly here, disparate cost allocation methodologies amongst the jurisdictions where 

PacifiCorp conducts business may result in burdensome accounting. But neither disparate 

methodologies among jurisdictions nor burdensome accounting violates the dormant Commerce 

Clause. 

 

26 See North Carolina Power discussion regarding PURPA supra section B(1)(a).
No. 46009-2-II

32

d. Facial discrimination27 

PacifiCorp argues that the Final Order’s “differential treatment of out-of-state QF PPAs,” 

which is “based on their geographic location,” is “discriminatory on its face.” Br. of Appellant at 

36. We disagree. 

First, we reject PacifiCorp’s contention that the Commission’s disallowance of full cost 

recovery of out-of-state QF PPAs was based exclusively on geography. The Commission 

explained that “[t]he rationale for situs allocation, as recognized in [the WCA methodology], is to 

insulate states from policy decisions made by other states.” AR at 869 (emphasis added). Like 

Washington, Oregon and California have the discretion to calculate avoided costs in their 

respective jurisdictions to promote their own state’s energy policy. See Cal. Pub. Utils. Comm’n, 

133 FERC ¶ 61,059, ¶ 24. Thus, Oregon and California calculate avoided costs to further their 

respective state’s energy policies. And the Commission’s use of a situs allocation methodology is 

premised on Washington’s underlying energy policy considerations. 

Second, PacifiCorp fails to demonstrate that the Commission’s disallowance of full cost 

recovery of out-of-state QF PPAs is facially discriminatory. As noted above, discrimination 

“‘simply means differential treatment of in-state and out-of-state economic interests that benefits 

the former and burdens the latter.’” Rocky Mountain Farmers, 730 F.3d at 1087 (quoting Oregon 

Waste Sys., 511 U.S. at 99). For the first time in its reply, and at oral argument, PacifiCorp argues 

that the Final Order “creates a preference for in-state [energy] generation to protect the economic 

interests of Washington customers.” Reply Br. of Appellant at 13. We generally do not address 

 

27 PacifiCorp’s arguments relate only to facial discrimination under the dormant Commerce 

Clause. It does not offer argument or authority regarding a discriminatory intent or effect. 
No. 46009-2-II

33

issues raised for the first time in the reply brief. Cowiche Canyon Conservancy v. Bosley, 118 

Wn.2d 801, 809, 828 P.2d 549 (1992). However, we address PacifiCorp’s belated argument in 

order to resolve this dispute.

PacifiCorp argues that the Commission’s refusal to allow PacifiCorp to recover its costs 

associated with Oregon and California QF PPAs from Washington ratepayers, and the 

Commission’s adherence to a situs allocation methodology, is discriminatory because it protects 

Washington ratepayers’ financial interests. PacifiCorp’s argument is belied by the record. The 

Staff’s expert, David Gomez, testified before the Commission that the Staff would advocate using 

the WCA methodology and situs allocation even if it resulted in higher power costs. 

Q: If QF power was acquired in Washington at prices that increased [costs], would 

Staff still recommend continued situs allocation? 

[Gomez]: Absolutely. Situs allocation of QFs is not driven by costs, but instead 

by principles that account properly for variances in the pricing and acquisition 

policies of individual jurisdictions established under PURPA, and, coincidentally, 

protect each jurisdiction’s ratepayers from those variances. Therefore, if those 

policies resulted in purchases of power from QFs located in Washington that 

increased [costs], fairness would dictate continued situs allocation to Washington.

AR 3237 (boldface omitted). Gomez’s testimony indicates that the Commission’s adoption of a 

situs allocation methodology was not based on benefitting the economic interests of Washington 

ratepayers. Rather, it was based on the nondiscriminatory purpose of following policies 

established under PURPA, regardless of whether the situs allocation methodology increased costs 

to Washington ratepayers.

PacifiCorp fails to establish that the Final Order discriminates against out-of-state 

economic interests or affects interstate commerce. Therefore, PacifiCorp’s claim that the Final 

Order violates the dormant Commerce Clause fails. 
No. 46009-2-II

34

C. HYPOTHETICAL CAPITAL STRUCTURE

PacifiCorp argues that the Commission’s use of a hypothetical capital structure in 

determining PacifiCorp’s customer rates is arbitrary and unsupported by substantial evidence. We 

disagree.

1. Legal Principles

The Commission has broad generalized powers in making rate-setting decisions, including 

substantial discretion in selecting the appropriate rate-making methodology. US W. Commc’ns II, 

134 Wn.2d at 86; POWER, 104 Wn.2d at 812. The Commission’s discretionary decision will not 

be set aside absent a clear showing of abuse. Arco Prods., 125 Wn.2d at 812. PacifiCorp has the 

burden to demonstrate that the Commission’s order is invalid. US W. Commc’ns I, 134 Wn.2d at

56. 

To set customer rates, the Commission determines an appropriate rate of return for the 

utility. The overall rate of return is based on the utility’s debt and equity, and its respective costs 

of debt and equity, which requires the Commission to determine the debt-to-equity ratio, which is 

part of the utility’s capital structure.

The Commission determines a utility’s capital structure in a way that seeks to balance “debt 

and equity on the bases of economy and safety.” WUTC v. Puget Sound Energy, Inc., Dockets 

UG-040640/UE-040641 (consolidated), Order 06 at ¶ 27; accord WUTC v. Puget Sound Energy, 

Inc., Dockets UE-111048/UG-111049 (consolidated), Order 08 at ¶ 35. “The economy of lower 

cost debt, on which [a utility] has a legal obligation to pay interest, must be balanced against the 

safety of higher cost common equity on which [a utility] has no legal obligation to pay a return at 

any particular time.” Dockets UG-040640/UE-040641, Order 06 at ¶ 27. The Commission uses 
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“actual, pro forma, or imputed capital structures to strike the right balance and determine overall 

rate of return on a case-by-case basis.” Dockets UG-040640/UE-040641, Order 06 at ¶ 27. 

A capital structure of greater equity and less debt results in higher customer rates. WUTC 

v. Puget Sound Energy, Inc., Dockets UE-111048/UG-111049, Order 08 at ¶ 35. On the other 

hand, a utility capital structure with greater debt and less equity results in lower costs to customers 

and a lower rate of return for the utility. Dockets UE-111048/UG-111049, Order 08 at ¶ 35. The 

Commission may use either actual or hypothetical capital structures to strike the right balance on 

a case-by-case basis. See WUTC v. Puget Sound Energy, Inc., Dockets UG-040640/UE-040641, 

Order 06 at ¶ 27.

2. The Commission’s Use of a Hypothetical Capital Structure

PacifiCorp claims that the Commission’s discussion that the hypothetical capital structure 

will support PacifiCorp’s credit rating in the future is unsupported by substantial evidence.28 We 

disagree. 

PacifiCorp again challenges statements in the Final Order that are presented as factual 

background, not as findings or conclusions. PacifiCorp does not explain how, even if background 

discussions are unsupported by substantial evidence, PacifiCorp’s challenge would require us to 

reverse the Final Order. And, even if the factual background discussion to which PacifiCorp 

assigns error could, in part, be interpreted as findings of fact, PacifiCorp’s challenge fails.

 

28 PacifiCorp also asserts that the Commission erroneously determined that “an equity ratio of 49.1 

percent ‘has proven over several years to be well-balanced in terms of safety and economy’” and 

“PacifiCorp’s reduced cost of long-term debt was tangible evidence that [PacifiCorp] has sufficient 

access to low-cost capital.” Br. of Appellant at 38. However, PacifiCorp does not offer argument 

on those points. Accordingly, we do not address its unsupported assertions. RAP 10.3(a)(6).
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As noted, the Commission has substantial discretion in selecting rate-making methodology, 

and the Commission’s findings are prima facie correct. US W. Commc’ns I, 134 Wn.2d at 56; 

RCW 80.04.430. Substantial evidence is evidence that is sufficient to persuade a fair-minded 

person of their truth. City of Vancouver, 180 Wn. App. at 347. Further, the substantial evidence 

standard is “highly deferential.” Arco Prods., 235 Wn.2d at 812. We will not reverse a 

discretionary decision absent an abuse of discretion.29 Arco Prods., 125 Wn.2d at 812. 

The Commission’s discussion that a hypothetical 49.1 percent equity component in 

PacifiCorp’s debt-to-equity ratio would continue to maintain PacifiCorp’s credit rating was 

supported by substantial evidence.30 The Commission heard testimony from three expert witnesses 

regarding PacifiCorp’s proposed capital structure. PacifiCorp presented Bruce Williams. The 

Staff presented Kenneth Elgin, and Packaging Corp. presented Michael Gorman. Ultimately, the 

Commission maintained the “currently approved” hypothetical capital structure, including an 

equity component of 49.1 percent, will continue to support PacifiCorp’s current credit rating as 

 

29 We review the Commission’s use of a hypothetical capital structure for an abuse of discretion. 

The Commission has substantial discretion in selecting appropriate rate-making methodology. See 

US West I, 134 Wn.2d at 57. While PacifiCorp contends that the Commission’s use of a 

hypothetical capital structure is unsupported by substantial evidence, its argument merely explains 

the validity of its proposal. 

30 PacifiCorp also asserts that the “Commission’s adoption of a fictitious capital structure in [the 

Final Order] is based on findings that are erroneous and entirely lacking in evidentiary support.” 

Br. of Appellant at 40. To the extent that PacifiCorp asserts that the Commission’s order lacks 

substantial evidence, we do not address the argument because PacifiCorp fails to assign error to 

the Commission’s findings or offer arguments demonstrating which findings it takes issue with. 

RAP 10.3(a), (g), (h).
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evidenced by PacifiCorp’s ability to obtain capital during the pendency of the case. AR at 840-

41. 

PacifiCorp’s argument highlights evidence supporting its argument that its credit rating 

would be downgraded if PacifiCorp was actually capitalized with the equity component used by 

the Commission. Before the Commission, Williams, PacifiCorp’s expert, testified that 

PacifiCorp’s credit rating will be downgraded if the company was actually capitalized at 49.1 

percent. See Transcript (TR) at 260-62. But, PacifiCorp fails to support its argument that its credit 

rating will be downgraded if the Commission maintains the hypothetical capital structure for ratemaking of 49.1 percent equity.31

 

The Commission considered the significant variation in the parties’ respective capital 

structure recommendations, noted that PacifiCorp’s actual “equity capitalization is largely the 

result of cash infusions from MEHC,” and recited the Staff’s concerns about passing the resulting 

higher costs of capital from MEHC’s cash infusions onto ratepayers. AR at 839. The Commission 

weighed the evidence and adopted the capital structure that it determined appropriately balanced 

safety and economy. The existence of conflicting evidence and opinions does not render the 

Commission’s determination unsupported by substantial evidence. See Schatz, 178 Wn. App. at 

25. 

 

31 PacifiCorp also argues that Gorman offered inconsistent testimony during cross-examination. 

To the extent that PacifiCorp is arguing that Gorman was not a credible witness or that the 

Commission erred by considering Gorman’s testimony, that argument fails because this court does 

not make credibility determinations or weigh evidence. Darkenwald v. State Emp’t Sec. Dep’t, 

182 Wn. App. 157, 172, 328 P.3d 977 (2014), aff’d, 183 Wn.2d 237, 350 P.3d 647 (2015). 
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We will not substitute our judgment for that of the Commission in rate cases where the 

regulatory agency has substantial discretion in selecting the appropriate rate-making methodology. 

US W. Commc’ns I, 134 Wn.2d at 56. And we do not reverse a discretionary decision absent a 

showing that the Commission abused its discretion. Arco Prods., 125 Wn.2d at 812; see US W. 

Commc’ns I, 134 Wn.2d at 56 (noting that the Commission exercises discretion in rate-making). 

PacifiCorp does not demonstrate that the Commission abused its discretion by continuing to use 

the hypothetical capital structure after considering extensive testimony and various proposals.32 

To the extent that PacifiCorp argues that the Commission cannot use a hypothetical capital 

structure for rate-making purposes, that argument also fails. The use of a hypothetical capital 

structure is an accepted methodology. See 2005 PacifiCorp, Docket UE-050684, Order 04 at ¶¶ 

230-33; accord In re Application of Citizens Utils. Co. v. Idaho Pub. Utils. Comm’n, 112 Idaho 

1061, 739 P.2d 360, 363 (1987) (holding the Idaho Utilities Commission’s use of a hypothetical 

capital structure is within its power to protect ratepayers).33 And, Williams, PacifiCorp’s expert,

 

32 It is reasonable that, because the various parties disagreed about the best approach, the parties 

would submit competing evidence and proposals. And because competing evidence was 

presented, the Commission would have used its discretion to make complex factual determinations 

and select a proposal. It is precisely in this sort of circumstance that we defer to the Commission’s 

discretion and authority. See US W. Commc’ns I, 134 Wn.2d at 56 (quoting Cole, 79 Wn.2d at 

309) (holding that the Commission exercises substantial discretion in selecting the appropriate 

rate-making methodology, and “[t]his is especially true where, as here, the issues involve complex 

factual determinations peculiarly within the expertise of the commission”); see also RCW 

80.04.430 (providing the Commission’s findings are prima facie correct). 

33 See also Gen. Tel. Co. of the Nw., Inc. v. Idaho Pub. Utils. Comm’n, 109 Idaho 942, 712 P.2d 

643, 645-46 (1986) (holding that the Utilities Commission has the discretion to use a hypothetical 

capital structure in setting customer rates, particularly where the utility is a wholly-owned 

subsidiary of a holding company). The Utility argued that the Commission erred by using a 

hypothetical capital structure because it improperly substituted the Commission’s judgment for 

that of the Utility’s directors. Id. The Idaho Supreme Court rejected that argument, holding that 
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testified that while hypothetical capital structures are appropriate in some cases, the capital 

structure should be assessed “case-by-case.” TR at 224. 

PacifiCorp also argues that the Commission did not “address the fact that every other state 

jurisdiction in which [PacifiCorp] operates uses the Company’s actual capital structure for 

ratemaking.” Br. of Appellant at 40. However, PacifiCorp does not provide authority to support 

the requirement that the Commission must adopt or defer to the decisions or methodologies of 

other state commissions. See RCW 80.01.040 (providing the Commission regulate rates, services, 

facilities, and practices of utility’s providing services in Washington State). 

PacifiCorp challenge to the Commission’s discussion of the effect of a hypothetical capital 

structure on its credit rating fails. 

3. Evidence From PacifiCorp’s 2010 Rate Case

PacifiCorp argues that the Commission improperly relied on evidence from a prior rate 

case to support the use of a hypothetical capital structure. Again, we disagree. 

PacifiCorp claims that “[t]o support its reliance on past evidence, the Commission in the 

[Final Order] claimed that “all of the cost of capital evidence and advocacy in this case closely 

matches that presented in the earlier case.” Br. of Appellant at 42 (citing AR at 842). And while 

PacifiCorp cites the passage from paragraphs 39-41 to explain how the Commission justified its 

 

the Commission “is not telling the company to change its capital structure. Rather, the [C]omission 

is merely recognizing the existence of the holding company arrangement, for purposes of setting 

rates.” Id. at 648. Further, “[t]he function of this commission is regulatory and not managerial. 

The determination of debt-equity ratios of capital is for management, but when a policy adopted 

by management results in the payment by subscribers of rates higher than might be required under 

another policy available to management, then this commission must take note.” Id. at 649.
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alleged reliance on a past case, PacifiCorp does not provide argument demonstrating that the 

Commission actually relied only on past evidence. 

PacifiCorp cites to a recent Puget Sound Energy rate case to support its claim that the 

Commission erred by considering evidence from a prior case. Br. of Appellant at 43 (citing 

Thurston County Superior Court, Cause Nos. 13-2-01576-2 and 13-2-01582-7 (consolidated) on 

July 25, 2014. Docket UE 121697/UG 121705 (consolidated), Order 11 at ¶ 1). Even assuming 

without deciding that the Commission “relied” on evidence from a prior case, as PacifiCorp 

contends, PacifiCorp’s authority is distinguishable. In that case, the Thurston County Superior 

Court reversed a Commission order because it found that the Commission lacked sufficient 

evidence for its decision. Wash. Utils. & Transp. Comm’n v. Puget Sound Energy, Dockets UE 

121697/UG 121705 (consolidated), Order 11, at ¶¶ 2, 4, 5. In Puget Sound Energy, 

The Court determined however that the Commission, having expressed the point 

that “the record on the issue [of return on equity] in this case lacks the depth and 

breadth of data analysis, and the diversity of expert evaluation and opinion on 

which the Commission customarily relies in setting return on equity,” should not 

have left the previously approved rate of return on equity in place and should 

instead have required the submission of additional evidence. 

Dockets UE 121697/UG 121705, Order 11 at ¶ 4. Here, unlike Puget Sound Energy, the parties 

presented and the Commission considered extensive expert testimony and evidence. Therefore, 

Puget Sound Energy is unpersuasive. 

As discussed above, based on the evidence presented through experts, the Commission 

weighed the evidence and made credibility determinations in reaching its decision to adopt a 

hypothetical capital structure with a 49.1 percent equity component. PacifiCorp presented Bruce 

Williams, the Staff presented Kenneth Elgin, and Packaging Corp. presented Michael Gorman. 
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The Commission found, “The record in this case demonstrates that this capital structure will 

continue to support PacifiCorp’s current credit rating, and provide sufficient cash flows to support 

the financial metrics analyzed by the credit rating agencies.” AR at 840-412, Order 05 ¶¶ 39, 40-

42. The Commission noted a “similarity between [PacifiCorp’s] evidence and advocacy in its 

2010/2011 general rate case and the case here.” AR at 841; see AR (Pleadings) at 638-42. But 

acknowledging similarities between the current case and prior cases does not support PacifiCorp’s 

contention that the Commission relied on evidence from its prior case. Thus, PacifiCorp’s claim 

fails.

4. Rejection of PacifiCorp’s Actual Capital Structure 

Lastly, PacifiCorp asserts that the “Commission’s rejection of PacifiCorp’s actual 

capitalization was arbitrary and contrary to precedent,” because “PacifiCorp’s actual capital 

structure properly balances economy and safety.” Br. of Appellant at 44 (boldface omitted) (some 

capitalization omitted). PacifiCorp also claims that the Commission’s “refusal . . . to address 

[PacifiCorp’s] chronic under-recovery of its costs in Washington” and refusal to adopt its proposal 

were arbitrary and capricious. Br. of Appellant at 46. We find PacifiCorp’s arguments here 

without merit because PacifiCorp’s assertion lacks meaningful argument and relevant authority. 

An agency’s action is arbitrary and capricious only if it is made willfully and unreasoningly 

without regard to the attending facts or circumstances. Attorney Gen.’s Office, 128 Wn. App. at 

824 (quoting Hillis, 131 Wn.2d at 383). If there is room for two opinions, any action taken after 

due consideration is not arbitrary and capricious even though a reviewing court may believe it to 

be erroneous. Attorney Gen.’s Office, 128 Wn. App. at 824 (quoting Rios, 145 Wn.2d at 501). 

Also, the existence of contradictory evidence or the possibility of deriving conflicting conclusions 
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from the evidence does not render an agency decision arbitrary and capricious. Attorney Gen.’s 

Office, 128 Wn. App. at 824. 

This examination of agency action is consistent with the APA’s requirement that 

“[i]n reviewing matters within agency discretion, the court shall limit its function 

to assuring that the agency has exercised its discretion in accordance with law, and 

shall not itself undertake to exercise the discretion that the legislature has placed in 

the agency.”

Wash. Indep. Tel. Ass’n v. Wash. Utils. & Transp. Comm’n, 148 Wn.2d 887, 904, 64 P.3d 606 

(2003) (quoting RCW 34.05.574(1)).

The Commission considered capital structure proposals from PacifiCorp, the Staff, and 

Packaging Corp. PacifiCorp recommended that the Commission increase PacifiCorp’s equity 

component from 49.1 percent to 52.22 percent for rate-making purposes. The Staff recommended 

that the Commission decrease PacifiCorp’s equity component from 49.1 percent to 46 percent. 

Packaging Corp. recommended that the Commission maintain PacifiCorp’s equity level at 49.1

percent but adjust other factors in PacifiCorp’s cost of capital. 

The Commission determined that the hypothetical capital structure of 49.1 percent equity 

component in PacifiCorp’s debt-to-equity ratio was the most appropriate for PacifiCorp. The 

Commission rejected PacifiCorp’s proposed 52.22 percent equity component as tipping the safety 

and economy balance too far in favor of investor interests over those of ratepayers. While 

PacifiCorp presented expert testimony supporting its proposal, an action is not arbitrary and 

capricious simply because of the possibility of contradictory evidence or conflicting conclusions. 

See Attorney Gen.’s Office, 128 Wn. App. at 824. 
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The Commission’s order reflects careful consideration of the extensive evidence. The 

Commission rejected the Staff’s proposal and PacifiCorp’s proposal, and selected a proposal it 

found to be the best option based on the evidence presented. PacifiCorp fails to meet its burden to 

demonstrate that the Commission’s hypothetical capital structure for rate-making purposes was 

arbitrary and capricious. 

To the extent PacifiCorp argues that the Commission must determine its rates using its 

actual capital structure to ensure PacifiCorp’s credit rating, its argument fails because PacifiCorp 

offers no authority to support its argument. And “[w]here no authorities are cited in support of a 

proposition, the court is not required to search out authorities, but may assume that counsel, after 

diligent search, has found none.” DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 

P.2d 193 (1962).

PacifiCorp also claims that the Commission should have adopted its actual equity 

capitalization to mitigate its under-recovery of its Washington costs. Again, PacifiCorp fails to 

support this claim with meaningful argument or authority. 

PacifiCorp offers a discussion of Washington’s regulatory climate and former Governor 

Gregoire’s recommendations, presumably in support of its argument that the Commission should 

better address PacifiCorp’s under-recovery. We decline PacifiCorp’s invitation to join the 

discussion of “Washington’s energy future” and the appropriate regulatory climate. Br. of 

Appellant at 45.
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CONCLUSION

We hold that PacifiCorp has not demonstrated that the Commission erred in rejecting 

PacifiCorp’s proposed revisions to the WCA methodology or by rejecting PacifiCorp’s actual 

capital structure used for rate-making purposes. Accordingly, we affirm. 

Lee, J.

We concur:

Bjorgen, C.J.

Maxa, J.