The government should be grateful to Justice Denis Clifford for his (and Messrs Shogren and Davey’s) electricity price control merit review decision (click on Wellington International Airport Ltd & Ors v Commerce Commission ). If the Commerce Commission picks up the baton thrown by the High Court, there could be a $150 million election year announcement of a reduction in cost to consumers. From 2015 to 2020 it could save up to $750m. MEUG sought this for its members and all consumers.
But it now depends on the Commerce Commission. Because of the way price-quality paths interact with input methodologies (IM), if the commission does not bring forward a review of the current IM before the end of September next year, the monopoly suppliers will retain their current ability to extract excessive profits until 2020. The scheduled 2015 reset of their price-quality paths will apply the current, uncorrected IM for the full length of the paths till 2020, even though that current IM must be reviewed in two years time.
The commission could have a busy January, working out how to resource a review of the cost of capital input mthodology for completion by September 2014. If they can’t do it, they will leave years of uncertainty for investors in the regulated suppliers.
It is possible, but not at all certain, that it could be clarified on appeal. The Court of Appeal may share the High Court’s strong views ( see paragraphs 1472 to 1486 in the decision linked above) on the errors in the commission’s approach without disturbing the High Court's narrow view on its power to send an issue back to the commission for correction. So the mistake could apply uncorrected for the next six years. The commission now has nine months to avoid being blamed for the next six years' extraction of monopoly profits for which the High Court could see no justification.
The impact of the mistake is exacerbated by Vector’s small win in the High Court merit review. They gained an ability to seek a reset of DPP partway through a DPP period (five years) to cover costs incurred from catastrophic events. Read with the recent Orion CPP decision the “pure” ex ante set and forget regime is heavily undermined. The pure regime allows suppliers during a period to take excess profits from being more efficient than the ex ante set parameters, but also to accept the downside of increasing costs.
Now suppliers can seek ex post compensation for “unexpected” costs but customers have no right to seek a DPP reset to share wind fall gains. The reduction in risk to suppliers as a combined result of the High Court decision and the ComComs’s liberal interpretation of “catastrophic event” should also affect their beta. If more suppliers risks’ can now be laid off to consumers, there is even less justification for them to retain permitted WACCs that are by definition expected to be higher than market.
Stephen Franks is principal of Wellington commercial and public law firm Franks and Ogilvie.