Md. Office of People's Counsel v. Md. Pub. Serv. Comm'n

McDonald, J. The Maryland General Assembly has determined that an acquisition of a company that supplies electricity in the State, including a merger with another utility, should be reviewed by the administrative body with specialized knowledge of utility markets and energy generation and distribution - the Respondent Public Service Commission ("Commission"). The Commission must assess whether such a transaction is "consistent with the public interest, convenience, and necessity, including benefits and no harm to consumers." The Legislature has identified specific issues for the Commission to consider, and has also given the Commission discretion to examine other matters that the Commission may find pertinent to its assessment. After it has completed its analysis, the Commission is to either approve, reject, or set conditions for approval of the transaction. The General Assembly has provided for judicial review of such decisions of the Commission, but that review is to be deferential to the Commission's expertise and findings.

The role of the courts is to ensure that the Commission has exercised its discretion in carrying out this important responsibility within the bounds prescribed by the General Assembly and the Constitution. This case concerns the Commission's approval of the acquisition of Respondent Pepco Holdings, Inc. ("PHI") and its utility subsidiaries by Respondent Exelon Corporation ("Exelon"). Petitioners, the Office of People's Counsel ("People's Counsel"), the Sierra Club, and Chesapeake Climate Action Network, have presented two questions concerning the merits of the Commission's decision. First, People's Counsel raises the question whether the Commission was required to regard an "acquisition premium" paid by Exelon to PHI shareholders as part of the transaction as a harm to consumers or as inconsistent with the public interest.

Second, all Petitioners question whether the Commission acted arbitrarily or capriciously in how it addressed alleged harms to the distributed generation and renewable energy markets. The Circuit Court for Queen Anne's County and the Court of Special Appeals held that the Commission acted within its authority when it approved the transaction. We agree. I Background A. The Commission's Authority over Utility Mergers As a general rule, one must obtain prior authorization from the Commission to acquire control of an electric company 1 - a species of "public service company" under Maryland law 2 - that operates in the State.

Maryland Code, Public Utilities Article ("PU"), § 6-105(e). To obtain that authorization, the acquirer is to submit an application to the Commission containing detailed information about the transaction and providing certain documentation. PU § 6-105(f). The Commission is to "examine and investigate" the application and to conduct any necessary administrative proceedings for review of the application.

PU § 6-105(g)(1). The applicant has the burden of persuading the Commission that the acquisition is "consistent with the public interest, convenience, and necessity, including benefits and no harm to consumers." PU § 6-105(g)(3), (5). In connection with its review, the Commission is to consider the following factors: (i) the potential impact of the acquisition on rates and charges paid by customers and on the services and conditions of operation of the public service company; (ii) the potential impact of the acquisition on continuing investment needs for the maintenance of utility services, plant, and related infrastructure; (iii) the proposed capital structure that will result from the acquisition, including allocation of earnings from the public service company; (iv) the potential effects on employment by the public service company; (v) the projected allocation of any savings that are expected to the public service company between stockholders and rate payers; (vi) issues of reliability, quality of service, and quality of customer service; (vii) the potential impact of the acquisition on community investment; (viii) affiliate and cross-subsidization issues; (ix) the use or pledge of utility assets for the benefit of an affiliate; (x) jurisdictional and choice-of-law issues; (xi) whether it is necessary to revise the Commission's ring fencing and code of conduct regulations in light of the acquisition; and (xii) any other issues the Commission considers relevant to the assessment of acquisition in relation to the public interest, convenience, and necessity. PU § 6-105(g)(2).

At the conclusion of any proceedings, the Commission is to issue a written decision that is based on its consideration of the record of the proceedings and that states the grounds for the conclusions it has reached. PU § 3-113(a). If the Commission finds that the applicant has borne its burden, the Commission is to issue an order granting the application. PU § 6-105(g)(3)(i).

The Commission may condition its approval of a transaction. PU § 6-105(g)(3)(ii). If the Commission finds that the burden is not met, it is to issue an order denying the application. PU § 6-105(g)(4).

B. The Transaction 1. The Companies Exelon is a utility services holding company incorporated in Pennsylvania and headquartered in Chicago, Illinois. Its principal subsidiaries before the merger at issue in this case were Baltimore Gas & Electric ("BGE"), a Maryland public utility; PECO Energy Company, a Pennsylvania public utility; Commonwealth Edison Company, an Illinois public utility; and Exelon Generation Company, LLC ("Exelon Generation"). Together, the three utility subsidiaries provide electricity service to 6.6 million customers, of whom about 1.2 million are in Maryland.

They also provide natural gas distribution service to more than 1 million customers, of whom about half are in Maryland. Exelon Generation operates Exelon's generation business, including its generation fleet and Constellation, its wholesale energy marketing and competitive retail sales business. Many of Exelon's generation assets rely on nuclear power. PHI is a utility services holding company incorporated in Delaware and headquartered in Washington, D.C. 3 PHI owns three public utilities - Potomac Electric Power Company ("Pepco"), Delmarva Power & Light Company ("Delmarva"), and Atlantic City Electric Company ("ACE").

Pepco delivers electricity to customers in Montgomery County and Prince George's County, as well as the District of Columbia. Delmarva delivers electricity to the Eastern Shore of Maryland and Delaware. 4 ACE delivers electricity in New Jersey, but not in Maryland. Together, the three utility subsidiaries of PHI provide electricity service to about 1.8 million customers, of whom about 1.3 million are in Maryland. 5 2. The Merger Proposal On August 19, 2014, Exelon and PHI submitted to the Commission an application for approval of a proposed merger between the companies.

Exelon proposed acquiring PHI in a cash-for-stock transaction for $27.25 per share - a total of $6.8 billion. The purchase price exceeded PHI's book value at that time ($3.1 billion) as well as its average market capitalization during the prior year ($5 billion based on an average stock price of $19.94). After the merger, Exelon would provide electricity service to more than 80 percent of Maryland customers through its subsidiaries. 3. Commission Consideration of the Merger Proposal More than 25 parties, including the Sierra Club and Chesapeake Climate Action Network, 6 Montgomery County, and Prince George's County, the two counties where the majority of PHI customers reside, 7 petitioned to intervene in the Commission proceedings concerning the merger application.

Other participants in the proceedings included People's Counsel and the Commission's Technical Staff ("Staff"). Beginning in January 2015, the Commission held five hearings to receive public comment and an initial 12 days of evidentiary hearings. The intervenors cited many potential issues with the merger. We will not attempt to list them all, but will focus on those germane to this appeal.

According to some of the intervenors, Exelon's nuclear power assets posed financial risks due to safety concerns, and also created a conflict of interest with respect to other types of energy production. This conflict existed with respect to specific alternative sources of energy, such as solar or wind, as well as with respect to the method by which energy is delivered to consumers ( i.e. , distributed generation vs. wholesale markets). Another significant issue to those opposing the merger was market consolidation. There was concern that, if Exelon gained control over 80 percent of the Maryland market through multiple affiliates, public policy might be disproportionately shaped by Exelon's interests as a vertically integrated electricity company.

Some intervenors preferred that PHI remain a company that had no affiliation with generation assets. It was important to those parties that regulators be able to compare a "wires only" company with a company associated with energy generation that might prefer a high price for electricity. Several parties also raised concerns over the price Exelon offered to pay to acquire PHI - the acquisition premium - describing it as a "windfall" to PHI's shareholders. During the proceedings, Exelon amended its merger proposal to reflect commitments reached in two settlement agreements with most of the intervenors, including The Alliance for Solar Choice, and Montgomery County and Prince George's County.

The Commission held five additional days of hearings in April 2015 to consider the settlements. After considering the oral and written testimony along with other evidence, the Commission approved the application, subject to conditions, by a three to two vote. On May 15, 2015, the Commission issued an 86-page order explaining its decision, together with a 48-page appendix setting forth the conditions for approval of the transaction ("PSC Order"). The two dissenting members issued a 52-page dissenting opinion ("PSC Dissent").

In the Matter of the Merger of Exelon Corporation and Pepco Holdings, Inc. , Case No. 9361, Order No. 86990, 2015 WL 5566183 (May 15, 2015). The Commission found that, contrary to the objections of some intervenors, the merger would not diminish the Commission's regulatory authority, would not create disincentives to distributed and renewable energy sources, and would not cause an increase in rates. The Commission concluded that, when subject to the conditions set forth in the Commission order, the merger was "consistent with the broader public interest [and] will bring specific and measurable benefits and no harm" to Maryland consumers, including increased service reliability and lower rates (compared to what rates would be without the merger). PSC Order at 2.

The Commission premised its approval of the acquisition on various conditions including, among other things: "ring-fencing," local control, and affiliate protections to ensure that PHI utilities' assets are protected from risks incurred by Exelon's generation business; a one-time $100 consumer rate credit totaling $66 million; an investment of $43 million in energy efficiency programs; a payment of $14.4 million to Green Sustainability Funds for Montgomery and Prince George's counties; a $4 million investment in workforce development programs; and construction of renewable energy facilities. PSC Order at A-1 - A-48. The Commission also retained the right to order Exelon to divest itself of assets and operations of Delmarva and Pepco in Maryland under specified circumstances. PSC Order at 49, A-37 - A-38.

The dissenting Commissioners disagreed, citing many of the alleged harms described by intervenors. 4. Judicial Review of the Commission Decision In June 2015, several intervenors who had opposed the merger before the Commission and had not entered into one of the settlements sought judicial review of the Commission's decision in the Circuit Court for Queen Anne's County. On January 8, 2016, the Circuit Court issued an opinion affirming the final decision of the Commission. The Circuit Court declined to stay the transaction.

People's Counsel and the Sierra Club noted appeals to the Court of Special Appeals, but did not seek a stay to prevent the merger from closing. In the meantime, following the District of Columbia Public Service Commission's approval of the merger, the transaction closed in March 2016. On January 27, 2017, the Court of Special Appeals affirmed the decision of the Circuit Court in an unreported decision. 2017 WL 382886 (2017). People's Counsel and the Sierra Club filed petitions for certiorari , which we granted.

The Commission, Exelon and its subsidiaries, as well as Montgomery and Prince George's counties, have appeared as Respondents. The Petitioners have posed two questions, which we rephrase as follows: (1) Did the Commission err as a matter of law, or act arbitrarily or capriciously, when it failed to consider the acquisition premium Exelon paid to PHI shareholders as inconsistent with the public interest or as a harm to consumers? (2) Was the Commission's assessment of the alleged harms to the renewable and distributed generation markets arbitrary or capricious? II Discussion A. Standard of Review 1.

Review of a Commission Decision In an appeal from judicial review of an agency decision, we review the agency's decision rather than the decision of the Circuit Court or of the Court of Special Appeals. Accokeek, Mattawoman, Piscataway Creeks Community Council, Inc. v. Public Service Commission , 451 Md. 1 , 11, 150 A.3d 856 (2016). Accordingly, we review directly the Commission's decision and apply the same standard of review as those courts did. 2. General Standard of Review for Commission Decisions There is a statute that sets forth the standard for judicial review of Commission actions.

It provides: Every final decision, order, or regulation of the Commission is prima facie correct and shall be affirmed unless clearly shown to be: (1) unconstitutional; (2) outside the statutory authority or jurisdiction of the Commission; (3) made on unlawful procedure; (4) arbitrary or capricious; (5) affected by other error of law; or (6) if the subject of review is an order entered in a contested proceeding after a hearing, unsupported by substantial evidence on the record considered as a whole. PU § 3-203. Thus, the standard of review does not depend on whether we would reach the same conclusions as the Commission, but on whether the Commission's decision or process is infected by the specified defects. In this case, Petitioners do not contend that the Commission's decision was unconstitutional, outside of its statutory authority or jurisdiction, or made as a result of an unlawful procedure.

Rather, they contend that the Commission decision is legally erroneous and arbitrary or capricious in specific respects. It has often been said that the standard of review of Commission decisions is "consistent with the standard of review applicable to all administrative agencies." E.g., Office of People's Counsel v. Public Service Commission , 355 Md. 1 , 15, 733 A.2d 996 (1999) ; Town of Easton v. Public Service Commission , 379 Md. 21 , 31, 838 A.2d 1225 (2003). The standard of review set forth in PU § 3-203 is certainly consistent with that applied to other administrative agencies under Maryland Administrative Procedure Act ("APA"), which does not apply to the Commission. In particular, the specified bases for reversing a Commission decision are the same as set forth for reversing an agency decision in the provision for judicial review in the APA.

See Maryland Code, State Government Article, §§ 10-203(a)(3)(v), 10-222(h). However, PU § 3-203 also appears to be a more deferential standard in some respects compared to the standard of review under the APA. In particular, with respect to decisions of the Commission, the General Assembly has directed that the Commission's decision is " prima facie correct" and is to be affirmed unless the listed defects are "clearly shown." That language is absent from the APA's provision concerning judicial review. The distinction does not appear to be unintended.

The statute establishing the Commission preceded the APA and the APA provision concerning judicial review was enacted just two years after enactment of the current version of the judicial review provision in the Commission's statute. 8 See Mid-Atlantic Power Supply Ass'n v. Public Service Commission , 361 Md. 196 , 214, 760 A.2d 1087 (2000). ("Had the Legislature intended that the standard for judicial review of ... Commission proceedings be the same as ... under the APA, it is inconceivable that it would have excluded the ... Commission from the APA").

In giving meaning to this language in PU § 3-203 without rendering it surplusage, 9 we believe that it calls for a court to be particularly mindful of the deference owed to the Commission on those issues on which courts typically accord some degree of deference to administrative agencies - i.e. findings of fact, 10 mixed questions of law and fact, 11 and the construction of particular statutes administered, and regulations adopted, by the agency. 12 On those questions on which a court does not typically defer to an agency - general questions of law, jurisdiction and constitutionality - PU § 3-203 requires no greater deference to the Commission than any other agency. Such legal questions "are completely subject to review by courts." 13 In sum, with respect to the Commission, "this Court has tended to accord particular deference (though not total deference) to PSC decisions." Accokeek, Mattawoman, Piscataway Creeks Community Council, Inc., 451 Md. at 12 , 150 A.3d 856 ; see also Baltimore Gas & Elec. Co., 305 Md. at 170, 501 A.2d 1307 (recognizing that this Court has "consistently held that Commission orders enjoy a high degree of judicial deference on review") (citations omitted). B. Whether the Commission Should Have Concluded that the Acquisition Premium Was a Consumer Harm or Was Inconsistent with the Public Interest The initial issue, raised by People's Counsel alone, concerns the price Exelon paid PHI shareholders to purchase their shares and obtain control of PHI.

It is undisputed that Exelon paid a premium to acquire PHI - referred to the "acquisition premium" - but there is disagreement to some extent on the amount of the acquisition premium and, in any event, whether the acquisition premium is significant for purposes of the Commission's review under PU § 6-105. People's Counsel argues that the acquisition premium was a harm to consumers and was inconsistent with the public interest. 1. Defining the Acquisition Premium As the label implies, the purpose of paying an acquisition premium - sometimes called a "control" or "takeover" premium - is to acquire control of a company. The price paid to PHI shareholders, including the acquisition premium, reflects what Exelon thought was necessary for PHI management and shareholders to approve Exelon's offer to purchase the company.

The purchase price here included a premium because it exceeded the company's market valuation prior to the announcement of the transaction. 14 Such premiums are typical in any acquisition of a publicly traded company. See Lynn A. Stout, Are Takeover Premiums Really Premiums? Market Price, Fair Value, and Corporate Law , 99 Yale L.J. 1235 , 1259-60, 1264-67 (1990). At any given market price for a share of stock, there will be shareholders who do not wish to sell because they place a greater value on the stock than the current market clearing price.

That category of shareholder, and the value they place on their shares, is likely to grow if word gets out that someone wishes to buy all shares to take control of the company. Thus, if Exelon had attempted to purchase a controlling interest at the market price on the open market, it would have driven the market price higher, encouraging some shareholders to "hold out" for even higher prices. Recognizing this dynamic, an acquirer may bring its proposed premium directly to the acquired company's board to avoid the time, expense, and uncertainty of attempting to acquire a company one share at a time. There is thus always likely to be an "acquisition premium" above the market clearing price when an acquirer seeks to take control of a company by purchasing its shares.

The purchaser's willingness to pay the acquisition premium presumably depends on the benefits it anticipates from the acquisition. In a merger situation, such benefits are often referred to as "synergies" resulting from the combination of the separate entities. It may also be the case that, when the company being acquired holds a monopoly position and the acquisition may enhance the monopoly position of that company or of the acquirer, part of the premium may represent the value of the enhanced monopoly position. In the case of a utility, a regulated monopoly, the company's monopoly position is partly the result of the company's franchise - an aspect of the business imbued with the public interest, as public policy otherwise discourages enhancement of monopoly status.

See Maryland Code, Commercial Law Article, § 11-201 et seq. (Maryland Antitrust Act). 2. The Applicable Standard of Review for this Issue An initial question is the standard of review. People's Counsel argues that the Commission erred as a matter of law in failing to consider the acquisition premium as a harm to consumers or as inconsistent with the public interest.

In framing the question in that way, People's Counsel is urging that we apply the least deferential standard of review to the Commission's decision. However, it has also argued that the Commission's "failure to make any findings whatsoever on the appropriate treatment of the [acquisition premium] renders its decision arbitrary or capricious" - a standard more deferential to the Commission. In our view, the latter standard of review applies here. As explained above, the fact that the acquisition of an electric company is likely to involve payment of an acquisition premium to the departing shareholders is nothing new and hardly unexpected.

See Electric Public Utilities Co. v. West , 154 Md. 445 , 140 A. 840 (1928) (review of Commission decision concerning utility acquisition that involved premium). Yet the Legislature did not include it in the list of specific factors that the Commission is required to consider under PU § 6-105(g)(2)(i)-(xi). There is one reference to shareholders in the list of factors that the Legislature included in the statute: the Commission is to assess "the projected allocation of any savings that are expected to the public service company between stockholder and rate payers [.]" PU § 6-105(g)(2)(v). This is a clear legislative command that the public interest requires an evaluation of the split of the anticipated benefits, presumably expressed in dollar terms, between consumers and shareholders of the resulting consolidated company.

However, the funds that are to be allocated are the "savings that are expected to the public service company." The acquisition premium is not itself "savings," nor is it "expected" (as the amount of the premium is already known at the time of the application). Furthermore, in the case of a cash-for-stock transaction, such as this one, the acquisition premium is not received by the acquired public service company, but is paid directly to the departing shareholders. It appears that the Legislature was requiring the Commission to consider the allocation of merger synergies resulting from the transaction, not necessarily the acquisition premium paid to effect the transaction. 15 This is not to say that the two concepts are unrelated. The acquirer may intend to recover any premium paid to departing shareholders from future savings generated by the consolidation.

In that respect, the amount of the acquisition premium that the acquirer is willing to pay may depend in part on the proportion of the expected savings allocated to the consolidated entity. In any event, the acquisition premium might also affect some of the other considerations listed in the statute. For example, a large premium could weaken the proposed capital structure of the new entity, depending on how the acquisition is financed. It could also discourage future investments or encourage later cost-saving lay-offs to make up the expense.

But these effects do not come from the acquisition premium alone. The acquisition premium is one of many facts that may apply to the statutory considerations. People's Counsel has not indicated how the Commission should have considered the acquisition premium as it would relate to the enumerated factors in the statute. There is no indication in PU § 6-105 that the Commission is required to consider the acquisition premium in its analysis.

There is no other applicable law that requires the Commission to consider the acquisition premium. Of course, the final catch-all provision of the statute authorizes the Commission to consider "any other issues the Commission considers relevant ..." and the acquisition premium could be such an issue. PU § 6-105(g)(2)(xii). In sum, while the absence of the acquisition premium from the list of factors in PU § 6-105(g)(2) does not foreclose the Commission from exercising its discretion to consider the acquisition premium as part of its analysis, the Commission is not legally compelled to do so.

In that context, the appropriate standard of review is whether the Commission was "arbitrary or capricious" in not considering the acquisition premium as a harm to consumers or as contrary to the public interest. PU § 3-203(4). This Court has characterized the arbitrary or capricious standard as similar to the standard under federal administrative law, 16 in that one challenging an agency decision must show that the agency exercised its discretion unreasonably or without a rational basis. Harvey v. Marshall , 389 Md. 243 , 297-304, 884 A.2d 1171 (2005).

Whether an agency decision is arbitrary or capricious also depends, to some extent, on the degree of discretion that the Legislature has conferred on the particular agency with respect to the particular decision. Communication Workers of America , 424 Md. at 434, 36 A.3d 449 ("[W]hen an agency acts in its discretionary capacity, it is taking actions that are specific to its mandate and expertise and, unlike conclusions of law or findings of fact, have a non-judicial nature ... [for which] we owe a higher level of deference.") (quotation marks and citation omitted). It is not a standard easily defined. Harvey , 389 Md. at 297 , 884 A.2d 1171 .

Courts may look for consistency with the policy goals stated in the pertinent statutes or regulations and with the agency's past decisions. Id. at 302-3 , 884 A.2d 1171 . Because the standard is highly contextual, neither of these is a precise measuring stick. However, to the extent that the agency is expected to apply expertise to carry out its decision-making responsibility, courts will accord it greater leeway before labelling its exercise of that responsibility as arbitrary or capricious.

To overturn a Commission decision as arbitrary or capricious, a petitioner must overcome a very deferential standard to rebut the presumption that the Commission exercised its discretion properly. We apply this standard in assessing whether the Commission properly considered the factors listed in PU § 6-105(g)(2) and exercised its discretion as to what weight to accord factors other than those specifically listed in the statute. 3. Application in this Case In its order in this case, the Commission noted that the ratio of the credits provided to ratepayers in connection with the transaction compared to the acquisition premium paid to the selling shareholders was within the range of such ratios in previous transactions approved by the Commission. PSC Order at 67.

It also noted that Exelon had committed not to seek to recover the acquisition premium and its other transaction costs in the rates charged by its utility subsidiaries. Id. at 69. As one of the conditions for its approval of the transaction, the Commission required that Exelon adhere to that commitment. Id. at A-39.

However, the Commission did not otherwise address the acquisition premium in its analysis of consumer harm or the public interest. 17 The question then is whether the Commission was arbitrary or capricious in failing to treat the acquisition premium as a consumer harm or as inconsistent with the public interest. One possibility would be if the Commission deviated, without adequate explanation, from a long-standing practice of treating acquisition premiums as consumer harms. See Frederick Classical Charter School, Inc. v. Frederick County Board of Education , 454 Md. 330 , 406-7, 164 A.3d 285 (2017) (agency cannot casually ignore prior policies and standards). However, as noted above, in its decision in this case, the Commission considered whether this premium was in line with acquisition premiums in previous applications and found that it was within that range.

And, as in prior cases, it prohibited the acquiring company from recovering the acquisition premium from ratepayers. As far as we can tell, under those circumstances, the Commission has never considered the acquisition premium as a consumer harm. It was not unreasonable for the Commission to maintain a view consistent with its prior decisions. Although a long-held view of an agency could be arbitrary or capricious if it is illogical, that is not the case here.

It is difficult to see how consumers are necessarily worse off as a result of the payment of a premium, or would necessarily be better off if an acquiring company paid a smaller premium. While the acquiring company might have spent part of a premium for the benefit of consumers, it could also have simply issued a larger dividend to its own shareholders. Moreover, the same could be said for any of the other transaction costs involved in executing a merger, such as legal and accounting fees. In an effort to relate the payment of the premium to consumer harm, People's Counsel analogizes this situation to cases where the sale of tangible property by a utility created a customer entitlement.

It is true that ratepayers have an interest in the property of a utility in some circumstances. See, e.g., Washington Gas Light Co. v. Public Service Commission , 450 A.2d 1187 , 1238-39 (D.C.Ct.App. 1982) (excess propane sold at a profit); Democratic Cent. Comm. of Dist. of Columbia v. Washington Metro. Area Transit Comm'n, 485 F.2d 786 , 808-11, 822 (D.C. Cir. 1973) (" WMTC " ), cert. denied , 415 U.S. 935 , 94 S.Ct. 1451 , 39 L.Ed.2d 493 (1974) (land that could no longer be used for the intended purpose). 18 However, this is because the property either has been included in the rate base or would have been if the property were sold at a loss.

The Commission has adopted a similar approach in its own decisions. See, e.g. , In re Chesapeake & Potomac Tel. Co, of Md. , 74 Md. PSC 595, 618, 1983 WL 911083 , Case 7735, Order 66504 (December 30, 1983) (recognizing that because real property and taxes paid on it were part of the rate base, proceeds from sale should benefit ratepayers). However, the Commission has not taken this approach with the sale of stock in a utility.

See In the Matter of the Current and Future Financial Condition of Baltimore Gas and Electric Company , 100 Md. PSC 348, 2009 WL 3817449 , Case 9173, Order 82986 (October 30, 2009) (proposed cash-for-stock acquisition); In the Matter of the Application FirstEnergy Corp. and Allegheny Energy Corp. , 102 Md. PSC 11, 2011 WL 722020 , Case 9233, Order 83788 (January 18, 2011) (proposed stock-for-stock merger); In the Matter of the Merger of Exelon Corp. and Constellation Energy Corp., 103 Md. PSC 22, 2012 WL 833884 , Case 9271, Order 84698 (February 17, 2012) (proposed stock-for-stock merger). The Commission's approach is not unreasonable. Unlike tangible property owned by the utility, shares of stock represent an ownership interest in the utility. They are not depreciable assets because they do not have a finite useful life.

They are not consumed in the course of providing utility service. Shares of utility stock are not part of the rate base and the risk and reward of a fluctuating stock price does not lie with the ratepayer. Indeed, one of the express conditions adopted by the Commission for approval of this merger is that recovery of the acquisition premium will not be included in the ratemaking structure - consistent with the Commission's approach in previous orders. People's Counsel also argues that permitting the departing shareholders to receive the entire acquisition premium violates longstanding notions of the public interest.

According to People's Counsel, although acquisition prices of non-regulated 19 businesses are primarily determined by market forces, the primary consideration here must be the public interest because that is the foundation of utility regulation. It is true that the public interest is important to nearly everything a utility does. However, "the use of the words "public interest" in a regulatory statute is not a broad license to promote the general public welfare. Rather, the words take meaning from the purposes of the regulatory legislation." NAACP v. Federal Power Commission , 425 U.S. 662 , 669, 96 S.Ct. 1806 , 48 L.Ed.2d 284 (1976).

Although an acquisition of a public service company must be consistent with the public interest, it does not follow that public service companies cannot be market participants capable of entering into transactions involving stock. People's Counsel has provided no authority to the contrary. This is not to suggest that an acquisition premium can never be considered by the Commission, either as a potential harm or as contrary to the public interest. The Legislature has authorized the Commission to consider "any other issues the Commission considers relevant to the assessment of acquisition in relation to the public interest, convenience, and necessity." PU § 6-105(g)(2)(xii).

In a particular case, the Commission may find that a premium is so large that it poses a potential harm to consumers. For example, the Commission could conceivably find that a very large premium is evidence that the acquirer could not carry out the acquisition without laying off essential employees, or has unrealistic expectations about future profits that risk consumer harm. In evaluating the credibility of executives of an acquired company who testify in favor of a transaction, the Commission could consider whether that testimony was influenced by any personal financial benefit that they would receive from the acquisition premium. But those are determinations for the Commission to make in its discretion under subparagraph (xii).

In sum, the Legislature has granted the Commission discretion to decide which issues, in addition to those specified in the statute, are relevant in determining whether a proposed merger or acquisition of a utility will harm consumers or be inconsistent with the public interest. In its order in this case, the Commission discussed the issue of the acquisition premium generally and resolved it consistently with its prior decisions. That approach was not inconsistent with language of the statute that it was applying or with the policy underlying it. The Commission's limited discussion of the acquisition premium - and the condition it placed on Exelon's recovery of that payment - was not arbitrary or capricious.

It was within the Commission's discretion to consider the issue to the degree it did. C. Whether the Commission was Arbitrary or Capricious in Evaluating Harm to Renewable and Distributed Generation Markets Both People's Counsel and the Sierra Club assert that the Commission was arbitrary or capricious in its assessment whether the merger would cause harm to consumers with regard to markets for alternative energy generation. In particular, they argue that Exelon has incentives to oppose technologies - such as renewable and distributed generation of electricity 20 - that could depress prices or challenge traditional power generation, while PHI as an independent utility did not have the same incentive. They conclude that the merger would therefore harm the markets for those technologies.

In its decision, the Commission acknowledged these contentions, but found the prospect "that Exelon may encourage BGE, Delmarva and Pepco to be resistant to other new grid developments, to be little more than speculation" that did not rise to the level of harm. PSC Order at 39 n.186. As indicated earlier, the assessment whether an agency decision is arbitrary or capricious is a deferential standard in which a court may consider such things as the agency's expertise, policy goals stated in pertinent statutes or regulations, consistency with the agency's past decisions, and whether it is possible to follow the path of the agency's reasoning. With respect to relevant policy goals, the General Assembly has recognized that "[g]lobal warming poses a serious threat to the State's future health, well-being, and prosperity[.]" Maryland Code, Environment Article ("EN"), § 2-1201(2). 21 The State has implemented a number of programs to combat climate change.

These include net metering, 22 renewable energy portfolio standards (RPS), 23 tax credits for renewable energy, 24 and markets for emissions allowances and renewable energy credits. 25 Renewable energy, distributed generation, and related practices have the potential to advance Maryland environmental policy. The Commission properly considered these issues pursuant to the General Assembly's directive that it take into account the public interest in assessing an acquisition. In particular, in its order, the Commission found that Exelon's commitments to enhance certain interconnection protocols were consistent with the public interest. PSC Order at 78-80.

It also found that renewable energy developments provided a benefit to all Maryland citizens, and were thus consistent with the public interest as well. Id. According to People's Counsel and the Sierra Club, the Commission failed to adequately discuss the potential harm of the transaction to consumers with respect to alternative energy generation. However, the Commission's findings with respect to loss of voice, harm to the regulatory process, and related issues all relate to this issue as well.

The Sierra Club urges us to see these as distinct theories, but it is not dispositive that the Commission made these findings in response to other alleged harms. These were presented as related potential harms, all premised on Exelon abusing its status as a vertically integrated electricity distribution monopoly. Although intervenors alleged multiple ways that such power could manifest as harm, each is based on the market power Exelon would obtain as a result of the transaction. The Commission was not required to repeat itself in its fact findings and analysis when a reasoning mind can readily grasp the connection between related issues.

It is indisputable that the Commission made fact findings that are applicable to this issue. Specifically, the Commission found that PHI had existing incentives comparable to Exelon's to oppose disruptive technologies. PSC Order at 39-40. Indeed, the Commission noted that both Delmarva and Pepco recently acted on these incentives by seeking increased fixed charges for their