20201120Motion to Accept Reply.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
m cc@ g i ve n sp u rsley. co m
[e-mail]
Attorneys for SUEZ Water ldaho lnc.
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
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IN THE MATTER OF THE APPLICATION
OF SUEZ WATER IDAHO INC. FOR
AUTHORITY TO INCREASE ITS RATES
AND CHARGES FOR WATER SERVICE
!N THE STATE OF IDAHO
Case No. SUZ-W-20-O2
MOTION TO ACCEPT REPLY IN
SUPPORT OF MOTION IN
OPPOSITION TO
INTERMOUNTAIN FAIR HOUSING
COUNCIL'S PETITION TO
INTERVENE
lntroduction
SUEZ Water ldaho lnc., ("SUEZ Water," "Applicant," or "Company"), by and
through its attomeys of record, Givens Pursley LLP, and in accordance with ldaho
Public Utilities Commission Rules 56 and 75, submits this Motion to Accept Reply in
Support of Motion in Opposition to lntermountiain Fair Housing Council's ("lFHC')
Petition to lntervene.l
I The Commission's rules do not specifically address reply briefs. However, SUEZ believes the Commission has
discretion to accept reply briefs as necessary to facilitate deciding a motion. Here SUEZ submits that a reply brief is
appropriate to address the CiO of LaGrange case, which IFHC did not cite in its Petition to Intervene and which, as
explained below, does not apply to this proceeding.
MOTION TO ACCEPT REPLY IN SUPPORT OF OPPOSITION TO IFHC'S
PETITION TO INTERVENE. 1
1 s409390_1.DOCX [3e209]
Argument
On November 18, 2020 SUEZ Water moved to deny the IFHC's Petition to
lntervene. On November 19, 2020, the IFHC filed a response. SUEZ Water does not
see a need to reply to the entirety of IFHC's response; many of the assertions made in
the Response are selfdefeating.2
1. The LaGrange case-which is not binding in ldaho4oes not apply to
ratemaking proceedings brought by an investor-owned utility.
IFHC cites a single case from the Eleventh Circuit Court of Appeals-which is not
binding in ldaho-for the proposition that the Fair Housing Act applies to this
proceeding. See Response at 3 (citing Georgia Sfafe Conference of the NAACP v. CW
of LaGrange, Georgia, 940 F.3d 627,631-32 (11th Cir. 2019)).
The LaGrange case does not apply here. ln that case, the City of LaGrange was
the "sole provider of electricity, gas, and water to its residents." LaGrange,940 F.3d at
630. The City denied its residents from obtaining any utility services if the resident owed
any deblto the City, including court judgments and fines. ld. at630 (noting that, to
obtain service, "both applicants and current utility customers must pay debts they owe
to the City, including court judgments and fines"). In other words, the City denied gas,
water, and electric services to its residents if the residents had an outstanding parking
ticket. Under those circumstances, the Court held that the City's denial of services
2 For example, IFHC asserts that "suez has apparently consulted only guidance contained in a HUD website in
support of its contentions that the FHA does not apply to the matters at issue in this proceeding." Response at 2.
However, SUEZ addressed each operative provision of the Act, the U.S. Supreme Court caselaw that governs
disparate-impact claims, and HUD regulations. All of which the IFHC ignores.
MOTION TO ACCEPT REPLY IN SUPPORT OF OPPOSITION TO IFHC'S
PETITION TO INTERVENE - 2
1s409390_1.DOCX [30-209]
rendered housing unavailable to certain residents and could therefore be viewed as a
violation of the Fair Housing Act.3 LaGrange, 940 F.3d at 635.
In this proceeding, SUEZ proposes nothing of the sort. SUEZ's Application seeks
a rate increase, to be applied equally among all customer classes, in accordance with
utility ratemaking proceedings. No more, no less. The proceeding has nothing to do with
the sale or rental of a dwelling, the denial of sale or rental of a dwelling, or anything else
related to the sale or rental of a dwelling. Construing the Fair Housing Act as applying to
this case would indeed "expand that Act into a civil rights statute of general applicability
rather than one dealing with the specific problems of fair housing opportunities," a result
thal LaGrange warned asainst. LaGrange,g40 F.3d at 633 (quoting Clifton Terrac
Assocg Ltd. v. United Tech. Corp.,929 F.3d 714,72O (D.C. Cir. 1991)).
Stated another way, the LaGrange decision related to the denial of utility services
to a City resident if the resident had an unrelated, past-due debt to the City. ln this case,
SUEZ does not propose to deny utility services. SUEZ's Application relates to setting a
fair rate for the utility services that SUEZ will actually provide to its customers.
ln addition,in LaGrange the Court dealt with a municipal provider that provided
all utility services to its residents, and that attempted to leverage the necessary nature
of utility services to secure payment of unrelated debt. The case did not involve a rate
increase by an investor-owned utility. E.9., LaGrange,940 F.3d at 630 ("The municipal
qovernment of the City of LaGrange, Georgia, is the sole provider of electricity, gas, and
water utility services in LaGrange." (emphasis added)); td. at 633 ("ffie must decide
3 Because that case was decided on a motion to dismiss, the Court did not determine whether the City actually
violated the Fair Housing Act. The Court also did not decide whether the plaintiff had met the pleading requirements
for disparate-impact claims. LaGrange,940 F.3d at 635 n.5.
MOTION TO ACCEPT REPLY IN SUPPORT OF OPPOSIT]ON TO IFHC'S
PETITION TO INTERVENE - 3
1 5409390_1.DOCX [3G209]
whether S 3604(b) applies to the specific post-acquisition services at issue here:
municipallv provided electricity, gas, and water services." (emphasis added)); id.
(discussing precedent "involving services provided bv local oovernments" (emphasis
added)); id. at634 ("ln this case, the City is the sole provider of the basic utility services
of water, gas, and electricity." (footnote omitted)).
By contrast, SUEZ is an investor-owned utility seeking an across-the-board
general rate increase in accordance with general ratemaking principles. ldaho Fair
Housing Council has failed to identify any authority that applies the Fair Housing Act to
a ratemaking case brought by an investor-owned utility.
IFHC does cite 24 CFR S 100.5(b), which expresses HUD's interpretation of the
Fair Housing Act as applying to the sale or rental of dwellings or the provision of
services in connection to the sale or rental of dwellings. IFHC Response at 3 (quoting
24 CFR S 100.5(b)). But SUEZ's application is not connected to the sale or rentalof
dwellings. IFHC does not cite to any caselaw, HUD regulation, or other authority that
applies the Fair Housing Act to a general rate case brought by an investor-owned utility.
2. IFHC has not met, and does not attempt to meet, the pleading requirements
for disparate-impact claims. Nor has it explained how an across-the-board
rate increase could constitute discrimination on the basis of sex, race,
color, national origin, religion, sex, familial status, or disability.
IFHC fails to address, much less meet, the heightened pleading requirements for
a disparate-impact case. See SUEZ Motion in Opposition to IFHC's Motion to lntervene
at7 n.2 (setting forth U.S. Supreme Court caselaw and HUD regulations regarding
pleadings requirements for disparate-impact claims). lf IFHC is allowed to argue that
SUEZ's Application, SUEZ's notices, and, by implication, the Commission's practices,
MOTION TO ACCEPT REPLY IN SUPPORT OF OPPOSITION TO IFHC'S
PETITION TO INTERVENE - 4
1 5409390_1.DOCX [30-209]
violate the Fair Housing Act, then IFHC must meet the procedural requirements that
apply to its claims.
ln addition, the Fair Housing Act prohibits housing discrimination on the basis of
certain classes-race, color, national origin, religion, sex, familial status, or disability.
SUEZ's Application seeks a uniform rate increase for all customers, based on prudently
incurred expenses related to provision of water service. IFHC entirely fails to explain
how such an increase could possibly constitute discrimination on the basis of a
protected class.
IFHC argues that it could later be dismissed from the proceeding if it turns out
that it has no direct or substantial interest in the proceeding. IFHC Response at 5. But
we already know what IFHC's alleged interests are-it alleges that the proposal, and
the notice provided, violates the Fair Housing Act. But as noted above, the Fair Housing
Act does not apply to this proceeding. The Commission need not wait to determine
whether IFHC seeks to inject irrelevant issues in this proceeding. The entire basis that
IFHC sets forth for its intervention is irrelevant.
IFHC argues that SUEZ's "only argument in support" of SUEZ's argument that its
notices were sufficient "is that such notices have always been provided in English."
IFHC Response at 5. That is incorrect. SUEZ argues that 1) its notices fully comply with
the Commission's rules, and2) the Fair Housing Act-,which forms the basis for IFHC's
arguments that notice in English constitutes housing discrimination in violation of the
Fair Housing Act{oes not aPPlY.
It would be one thing if the IFHC represented, for example, Spanish-speaking
SUEZ customers and requested that SUEZ and the Commission provide notice in
MOTION TO ACCEPT REPLY IN SUPPORT OF OPPOSITION TO IFHC'S
PETITION TO INTERVENE - 5
1 5409390_1 .DOCX [30-209]
Spanish. But that is not what IFHC argues. IFHC argues only that it seeks to prohibit
unlawful housing discrimination, and that the notices allegedly violate the Fair Housing
Act. Housing discrimination and the Fair Housing Act is not at issue in this proceeding.
IFHC's petition should be denied on that basis.
Conclusion
The lntermountain Fair Housing Council requests that this Commission apply the
Fair Housing Act to a utility ratemaking proceeding initiated by an investor-owned utility,
and to hold that a uniform rate increase justified by prudently incurred expenses
constitutes discrimination on the basis of race, color, national origin, religion, sex,
familial stiatus, or disability. ln doing so, it cites a single case, from a non-binding
jurisdiction, that involves a factually distinct scenario.
IFHC's intervention in this case has already diverted the parties' and the
Commission's resources away from the ratemaking principtes actually at issue to legal
wrangling over an irrelevant statute. lf allowed to intervene, tFHC's participation will
continue to divert attention and resources away from the ratemaking issues presented
in the Application. Because IFHC's participation as an intervenor will unduly broaden
the issues in the case, SUEZ Water respectfully submits that the Commission deny
Intermountain Fair Housing Council's Petition to lntervene.
DATED: November 20, 2020.
SUEZ WATER IDAHO INC.
/ *----e-* z:--^
By:
Michael C. Creamer
Preston N. Carter
Aftorneys for Applicant
MOTION TO ACCEPT REPLY IN SUPPORT OF OPPOSITION TO IFHC'S
PETITION TO INTERVENE - 6
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CERTIFICATE OF SERVICE
I certify that on November 20,2020, a true and correct copy of the foregoing was served
upon all 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
[e-mail]
Dayn Hardie
Deputy Attomey General
Idaho 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
/ ----- -.
Preston N. Carter
MOTION TO ACCEPT REPLY IN SUPPORT OF OPPOSITION TO IFHC'S
PETITION TO INTERVENE. 7
15409390_1.DOCX [30-209]