20201118Motion in Opposition to IFHC Petition.pdf

Michael C. Creamer (lSB No. 4030)
Preston N. Carter (lSB No. 8462)
Givens Pursley LLP
601 W. Bannock St.
Boise, lD 83702
Telephone: [phone]
Facsimile: (208) 388-1 300
[e-mail]
prestonca rter@g iven spu rsley. com
Attorneys for SUEZ Water ldaho lnc.
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
ft;r-'.iIit1Sft
:x:: if*Y I s PH l: ?S
:,, r,r i,:i'riiiliigu,uu
IN THE MATTER OF THE APPLICATION
OF SUEZ WATER IDAHO INC. FOR
AUTHORITY TO INCREASE ITS RATES
AND CHARGES FOR WATER SERVICE
IN THE STATE OF IDAHO
Case No. SUZ-W-2O-O2
MOTION IN OPPOSITION TO
INTERMOUNTAIN FAIR HOUSING
COUNCIL'S PETITION TO
INTERVENE
SUEZ Water ldaho lnc., ("SUEZWater," "Applicant,,, or,,Company',), by and
through its attomeys of record, Givens Pursley LLP, and in accordance with ldaho
Public Utilities Commission Rule 75, submits this Motion in Opposition to lntermountain
Fair Housing Council's ("lFHC") Petition to lntervene.
lntroduction
SUEZ Water recognizes and respects the Commission's traditionalapproach of
broadly allowing intervention to interested parties. Ratemaking is a public process, and
a broad range of perspectives can make the outcome of the process thorough,
transparent, accurate, and fair.
While broad intervention is appropriate-indeed, laudable-a line must be drawn
somewhere. Injecting complicated, contentious, and irrelevant legal issues into a
OPPOSITION TO INTERMOUNTAIN FAIR HOUSING COUNCIL'S PETITION TO INTERVENE - 1
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ratemaking proceeding can impede rather than facilitate a process designed to result in
rates that are fair, just, and reasonable. See ldaho Code S 61-504 (requiring
Commission to establish rates that are "fair, just and reasonable").
So it is here. ln this case, the IFHC has petitioned to intervene. IFHC does not
purport to represent a particular customer segment; does not identify any ratemaking
issue that it would like to address; and does not otherwise express an interest in the
relevant ratemaking principles. lnstead, IFHC alleges that the proposed rate increase is
likely to violate the Fair Housing Act. Petition at2.lFHC also alleges that the public
notices provided by SUEZ Water-which fully comply with the Commission's rules-
violate the Fair Housing Act. /d. at 3.
While the Fair Housing Act is an important federal law, it applies to specific and
enumerated circumstances-activities related to selling, renting, or financing dwellings.
The Fair Housing Act does not apply to SUEZ Water, or to utility ratemaking
proceedings by investor-owned utilities. Accordingly, SUEZ Water respectfully submits
that the IFHC's intervention would unduly broaden the issues in this proceeding. IFHC's
Petition to lntervene should be denied'
Factual Background
On September 30, 2020, SUEZ Water filed an application to initiate a general
rate case to increase SUEZ Water's rates across all customer classes by approximately
22.3o/o. Case No. SUZ-W-20-02, Application (filed Sept. 30, 2020) ("Application") at 2'
The proposed rate increase, which would reflect an expected rate of return of
approximately 7 .460/o is based on prudent investments and other utility ratemaking
principles. ld. at2'3.
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As required by the Commission's rules, on July 30, 2020, SUEZ Water filed with
the Commission a notice of intent to file a general rate case. See Case No. SUZ-W-26-
02, Notice of lntent to File General Rate Case (filed July 30,2020); IDAPA 31.01 .01.122
(requiring large utilities to file notice before initiating a generat rate case).
As required by the Commission's rules, SUEZ Water provided news releases to
local media and mailed notices to each individual customer. Both are attached to
SUEZ's Application. Application at 4,lDAPA 31 .01 .01.12s.01 (requiring customer
notice) & .04 (requiring press release).
After processing the Application, the Commission issued notice-in English-
informing the public that SUEZ Water had filed the Application, providing information
about the Application, and providing instructions on how to participate in this
proceeding. Case No. SUZ-W-2O-02, Notice of Application & Order No. 34819 (filed
Oct.21, 2020); IDAPA 31.01 .01.123.O2 (requiring Commission to provide public notice).
On November 11 ,2020, the lntermountain Fair Housing Council petitioned to
intervene. The Petition focuses exclusively on housing discrimination. IFHC alleges:
1) The IFHC seeks to "ensure open and inclusive housing for all people" and toeradicate discrimination under the federal Fair Housing Act and other laws andregulations which prohibit housino discrimination. Petition at 2 (emphasis added).
2) IFHC believes the proposed rate increase will likely cause a disparate impact "in
violation of the FHA [Fair Housing Act] and other liws and reguiations whichprohibit housinq discrimination." /d (emphasis added).
3) IFHC alleges that the notices provided by SUEZ-which were in English, not
other languages spoken in SUEZ's service q1s3-"ylslat[e] the FHAlFair
Housing Actl and other laws and regulations which prohibit housino
discrimination." ld. at3 (emphasis added).
4) IFHC alleges that granting intervention will allow it "to provide further input on thepossible violations of the FHA and other laws and regulations which prohibit
housinq discrimination." /d. (emphasis added).
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Five additional groups have petitioned to intervene in this proceeding:
(1) Community Action Partnership Association of ldaho ("CAPA|), which states that it
represent SUEZ's low-income customers; (2) Ada County, which states that it
represents SUEZ's customers within the County as well as itself as a SUEZ customer;
(3) the City of Boise, which states that it represents SUEZ's customers within the City as
well as itself as a SUEZ customer; (4) John Gannon, Stephanie Montero, Kyme
Graziano, and Karoline Philp, who state that they will represent themselves as SUEZ
customers; and (5) a group styled as SUEZ Water Customer Group, which states that it
represents SU EZ ratepaYers.
SUEZ Water does not oppose intervention by these groups'
Legal Standards
The Commission has discretion to deny intervention "to prevent disruption,
prejudice to existing parties, or undue broadening of the issues, or for other reasons."
IDAPA 31.01 .01.072.
The Fair Housing Act prohibits housing discrimination on the basis of race, sex,
national origin, and other characteristics. See, e.g., Housing Discrimination Under the
Fair Housing Act, U.S. Department of Housing and Urban Development, available at
w (last vis1ed Nov. 13,20201("The Fair Housing Act protects people from discrimination
when they are renting or buying a home, getting a mortgage, seeking housing
assistance, or engaging in other housing-related activities.")
The Fair Housing Act reflects the nationwide importance of prohibiting
discrimination in housing-related practices. However, it does not apply to ratemaking by
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investor-owned utilities. lt applies to, and prohibits, discrimination in enumerated,
specific circumstances related to the sale, rental, and financing of dwellings. None of
the activities to which the Fair Housing Act applies are at issue in this proceeding.
Argument
1. lf allowed to intervene, IFHC will unduly broaden the issue in this proceeding.
A. IFHC does not express an interest in, or a position regarding, any of theutility ratemaking issues addressed in the Application.
SUEZ Water's Application is based on generally accepted utility ratemaking
principles. SUEZ proposes to increase rates such that the expected rate of return on
prudently incurred investments will be approximately 7.460/o. Application at 2. The
testimony submitted in support of the Application discusses SUEZ's financial
statements, analysis of SUEZ's revenues, analysis of cost of service, analysis of cost of
capital, and description of recent capital improvements. /d. at 3. SUEZ proposes to
implement the requested increase by a uniform percentage to all rate elements; it does
not propose to alter customer classes, or the allocation of costs between them. /d.
lntermountain Fair Housing Council does not address any of the ratemaking
concepts presented in the Application. Nor does IFHC purport to represent any segment
of SUEZ's customers. lnstead, IFHC's petition to intervene specifically alleges that the
proposed rate increase, and notice of the Application, constitute housing discrimination
on the basis of protected classes.l IFHC's Petition at fl3-6. IFHC does not express an
interest in, or otherwise address, the ratemaking principles at issue in the Application.
I The Fair Housing Act prohibits discrimination on the basis of race, color, national origin, religion, sex,familial status, and disability.
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SUEZ Water does not question that housing discrimination is an important
national issue, or that IFHC may do important work in other areas of the !aw. However,
SUEZ Water's Application raises issues of utility ratemaking. !FHC's Petition to
lntervene does not address any issues related to utility ratemaking, but instead presents
issues entirely outside the scope of this proceeding. IFHC's intervention would unduly
broaden the issues in the proceeding'
B. The Fair Housing Act applies to persons engaged in the business of
renting, selling,6r financing dwellings. lt does not apply to investor owned
utilities like SUEZ Water.
The Fair Housing Act "protects people from discrimination when they are renting
or buying a home, getting a mortgage, seeking housing assistance, or engaging in other
housing-related activities." Housing Discrimination Under the Fair Housing Act, U.S'
Department of Housing and Urban Development, website provided above.
The Act contains three main sections, each of which prohibits discrimination in a
specifi c, housing-related circumstance'
42 U.S.C. S 3604(a)-(f) prohibits discrimination in the sale or rental of dwellings;
discrimination in the terms, conditions, or privileges of sale or rental of a dwelling;
discrimination in advertising for the sale or rental of a dwelling; representing to a person
that a dwelling is not available for inspection, sale, or rentalwhen the dwelling is in fact
available; inducing any person from selling or renting a dwelling in a neighborhood
based on that person's membership in a protected class; and discriminating in the sale
or rental of a dwelling because of a disability.
42 U.S.C. S 3605 prohibits discrimination in "residential realestate-related
transactions," defined as "the making or purchasing of loans or providing other financial
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assistance - (A) for purchasing, constructing, improving, repairing, or maintaining a
dwelling; or (B) secured by residential realestate."
42 U.S.C. S 3606 prohibits "deny[ing]any person access to or membership or
participation in any multiple-listing service, realestate brokers' organization or other
service . . . relating to the business of selling or renting dwellings" on the basis of
membership in a protected class.
The Fair Housing Act does not contiain any provision regarding utility ratemaking.
IFHC does not identify any statute, regulation, or authority that applies the Fair Housing
Act to ratemaking by an investor-owned utility. SUEZ Water's independent research has
not revealed any.
SUEZ Water does not engage in the housing-related activities regulated by the
Fair Housing Act. Nor does the Application involve any of the housing-related activities
regulated by the Fair Housing Act. Accordingly, IFHC's intervention would unduly
broaden the issues in the case.2
c. suEz's notices comply with the commission's rures, which do notimplicate-much less violate-the Fair Housing Act.
IFHC alleges that the notices provided in this case viotate the Fair Housing Act
because they were not provided "in languages commonly spoken in Suez's service
'z.lfHC alleges that the proposed rate increase "will likely constitute a disparate impact upon ratepayers inviolation of the FHA.' Petition at 2. Disparate-impact claims are subject to specific pleadings requirementsthat are designed to "protect potential defendants against abusive disparate-impaci claims]' and to allowgovernmental entities to'achiev[e] legitimate objectives.' Texas Dept. of Housing & Commty. Affairs vs.lnclusive Commtys Proiect, \nc.,576 U.S. 519, 544 (2015). U.S. Department of liousing and UrbanDev_elopment regulations likewise impose specific pleading requirements for disparate-impact claims. See24 CFR S 100.500(b) ('At the pleading stage, to state a discriminatory effects claim based on anallegation that a specific, identifiable policy or practice has a discriminatory effect, a plaintiff or chargingparty must sufficiently plead facts to support each of the following etemenis: (1) Thai the challenged-policy or practice is arbitrary, artificial, and unnecessary to achieve a valid inielrest or legitimate objectivesuch as a practical business, profit, poticy consideration, or requirement of law . . . .'). IfIFHC is all'owedto interyene, it must comply with the pleading requirements for disparate impact claims.
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area." Petition at 2. SUEZ's notices fully comply with the Commission's rules. See
IDAPA 31.01 .01.122 (requiring notice of intent to file general rate case); 125.01
(requiring customer notice); 125.04 (requiring press release). The notices provided by
the Commission in this case-and in every other case in which SUEZ is aware-were
provided in English.
Neither SUEZ nor the Commission engages in any of the housing-related
activities regulated by the Fair Housing Act. Accordingly, the Fair Housing Act's notice
requirements do not apply to the notices provided in this case. Allowing IFHC to
intervene would inject this irrelevant issue into the proceeding, unduly broadening the
case and diverting the parties' attention from what is at issue'
2. The proceeding is not a proper forum to seek expansion of the Fair Housing
Act.
As discussed above, IFHC does not identify any specific aspect of SUEZ Water's
Application that implicates its interests. lnstead, IFHC broadly asserts that the proposed
rate increases may have a disparate impact upon members of classes protected by the
Fair Housing Act. Petition at2.ln addition, IFHC does not identify anything specific to
SUEZ Water's notice of the Application, but rather contends generally that notices given
in English violate the Fair Housing Act. /d. at 3.
Accordingly, IFHC's allegations are not so much arguments about SUEZ Water's
proposal, but instead allegations that utility ratemaking and the Commission's notice
requirements, more generally, violate the Fair Housing Act. The implications of IFHC's
arguments are not limited to the case. lf the Fair Housing Act applies to utility
ratemaking, then all rate increases must be analyzed for disparate impact, and notice
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provided in accordance with Commission rules have violated the Fair Housing Act in all
ratemaking proceedings.
Simply stated, IFHC's issue does not appear to be SUEZ Water, but rather with
the entire endeavor of utility ratemaking in this Commission.
IFHC is free to argue that the Fair Housing Act should be expanded to include
utility ratemaking. However, those arguments should be made to the political branches,
to a court, or perhaps (at most) in an independent proceeding in this Commission. The
parties and the Commission have enough to handle in the context of this case. Allowing
IFHC to intervene to advance its unsupported interpretation of the Fair Housing Act will
unduly broaden the issues and detract from the parties' abilities to focus on the merits of
SUEZ's Application.
Conclusion
For these reasons, SUEZ Water respectfully submits that the Commission deny
lntermountain Fair Housing Council's petition to lntervene.
DATED: November 18, 2020
SUEZ WATER IDAHO INC.
a -z--*,P
By:
Michael C. Creamer
Preston N. Carter
Attorneys for Applicant
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CERTIFICATE OF SERVICE
I certify that on November 18,2020, a true and correct copy of the foregoing was served
,pon ,ll parties of record in this proceeding via electronic mail as indicated below:
Commission Staff
Jan Noriyuki, Commission Secretary
ldaho Public Utilities Commission
11331 W. Chinden Blvd., Bldg. 8, Ste. 201-A
Boise, lD 83714
i@
Dayn Hardie
Deputy Attomey General
ldaho Public Utilities Commission
11331 W. Chinden Blvd., Bldg. 8, Ste. 201-A
Boise, lD 83714
[e-mail]
Ken Nagy
Attorney at Law
P.O. Box 164
Lewiston, lD 83501
[e-mail]
."
Electronic Mail
Electronic Mail
Electronic Mail
ri-.*
Preston N. Carter
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