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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


January 2002 Term

FILED
February 22, 2002
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

RELEASED
__________ No. 29989 __________
February 22, 2002
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

THE AFFILIATED CONSTRUCTION TRADES FOUNDATION,
A DIVISION OF THE WEST VIRGINIA STATE BUILDING AND
CONSTRUCTION TRADES COUNCIL, AFL-CIO,
Appellant
v. THE PUBLIC SERVICE COMMISSION OF WEST VIRGINIA
AND BIG SANDY PEAKER PLANT, LLC,
Appellees
_______________________________________________________ Appeal from the Public Service Commission of West Virginia Case No. 00-1807-E-C AFFIRMED _______________________________________________________

Submitted: January 22, 2002 Filed: February 22, 2002

Stuart Calwell
Vincent Trivelli
Law Office of Stuart Calwell
Charleston, West Virginia
Attorneys for the Appellant


Caryn Watson Short


Charleston, West Virginia Attorney for the Appellee, The Public Service Commission of West Virginia Christopher L. Callas Stephanie H. D. Mullett Jackson & Kelly, PLLC Charleston, West Virginia Attorney for the Appellee, Big Sandy Peaker Plant, LLC

JUSTICE ALBRIGHT delivered the Opinion of the Court. CHIEF JUSTICE DAVIS and JUSTICE MAYNARD concur in part and dissent in part, and reserve the right to file separate opinions. JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.

SYLLABUS BY THE COURT


1. "`"`[A]n order of the public service commission based upon its finding of facts will not be disturbed unless such finding is contrary to the evidence, or is without evidence to support it, or is arbitrary, or results from a misapplication of legal principles.' United Fuel Gas Company v. The Public Service Commission, 143 W. Va. 33, 99 S.E.2d 1 (1957)." Syllabus Point 5, in part, Boggs v. Public Service Comm'n, 154 W. Va. 146, 174 S.E.2d 331 (1970).' Syllabus Point 1, Broadmoor/Timberline Apartments v. Public Service Commission, 180 W. Va. 387, 376 S.E.2d 593 (1988)." Syl. Pt. 1, Sexton v. Public Service Commission, 188 W. Va. 305, 423 S.E.2d 914 (1992).

2. "In reviewing a Public Service Commission order, we will first determine whether the Commission's order, viewed in light of the relevant facts and of the Commission's broad regulatory duties, abused or exceeded its authority. We will examine the manner in which the Commission has employed the methods of regulation which it has itself selected, and must decide whether each of the order's essential elements is supported by substantial evidence. Finally, we will determine whether the order may reasonably be expected to maintain financial integrity, attract necessary capital, and fairly compensate investors for the risks they have assumed, and yet provide appropriate protection to the relevant public interests, both existing and foreseeable. The court's responsibility is not to supplant the Commission's balance of these interests with one more nearly to its liking, but instead to assure itself that the i

Commission has given reasoned consideration to each of the pertinent factors." Syl. Pt. 2, Monongahela Power Co. v. Public Service Commission, 166 W. Va. 423, 276 S.E.2d 179 (1981).

3. "The detailed standard for our review of an order of the Public Service Commission contained in Syllabus Point 2 of Monongahela Power Co. v. Public Service Commission, 166 W. Va. 423, 276 S.E.2d 179 (1981), may be summarized as follows: (1) whether the Commission exceeded its statutory jurisdiction and powers; (2) whether there is adequate evidence to support the Commission's findings; and, (3) whether the substantive result of the Commission's order is proper." Syl. Pt. 1, Central West Virginia Refuse, Inc. v. Public Service Commission, 190 W. Va. 416, 438 S.E.2d 596 (1993).

4. "The test as to whether or not a person, firm or corporation is a public utility is that to be such there must be a dedication or holding out either express or implied that such person, firm, or corporation is engaged in the business of supplying his or its product or services to the public as a class or any part thereof as distinguished from the serving of only particular individuals; and to apply this test the law looks at what is being done, not to what the utility or person says it is doing." Syl. Pt. 3, Wilhite v. Public Service Commission, 150 W. Va. 747, 149 S.E.2d 273 (1966).

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5. "The public service commission has the statutory power and authority to control the facilities, charges and services of all public utilities and to hear and determine the complaints of persons entitled to the services which such utilities afford; and the only limitation upon such power and authority is that the requirements shall not be contrary to law and that they shall be just and fair, just and reasonable, and just and proper." Syl. Pt. 6, State ex rel. City of Wheeling v. Renick, 145 W. Va. 640, 116 S.E.2d 763 (1960).

6. "The Public Service Commission of West Virginia has no jurisdiction and no power or authority except as conferred on it by statute and necessary implications therefrom, and its power is confined to the regulation of public utilities. It has no inherent power or authority." Syl. Pt. 2, Wilhite v. Public Service Commission, 150 W. Va. 747, 149 S.E.2d 273 (1966).

7. Electric generation and transmission facilities intended solely for the sale of electricity on the wholesale market are within the statutory definition of a public utility set forth in West Virginia Code

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