S-17-0471 Municipal Energy Agency of Nebraska (Appellant) v. City of Sidney, Nebraska
Power Review Board
Attorneys: John M. Guthery, Derek A. Aldridge, Richard D. Sievers (Perry Guthery Haase & Gessford PCLLO) (Appellant) ---Stephen M. Bruckner, Alexander D. Boyd (Fraser Stryker PCLLO) (for City of Sidney)
Civil: Arbitration; breach of contract
Proceedings below: The City brought this action against Appellant Municipal Energy Agency of Nebraska (MEAN) alleging breach of contract relating to an increase in electric transmission charges of transmission service providers for wholesale electric power to the City. Pursuant to Neb. Rev. Stat. §§ 70-1301 et seq. the matter was submitted to arbitration and a hearing was held. The Board determined that Appellant breached the parties’ contract and the City was entitled to a return of all transmission charges in excess of $2,367.40 per month billed between December 1, 2014 and the date of the Board’s Order. Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.
Issues: 1. The Arbitration Board erred by failing to consider and decide whether the pass-through transmission charges at issue are consistent with MEAN’s sound business practices, protect the financial integrity of MEAN, and are adequate to MEAN, and whether such charges are nondiscriminatory to other members of MEAN. 2. The Arbitration Board erred by altering and modifying the parties’ contract when it determined that the pass-through transmission charge from MEAN to Sidney would be a fixed amount and could never change. 3. The Arbitration Board erred by finding that MEAN breached the parties’ contract by passing through to Sidney transmission charges that were unfair, unreasonable and discriminatory to Sidney. 4. The Arbitration Board erred in failing to find that a “gap” existed in the scheduled and contracted transmission path of electric power and energy from MEAN to Sidney. 5. The Arbitration Board erred in finding that MEAN could not be charged for use of the Western Area Power Administration’s 115kV bus facility located in the substation near Sidney. 6. The Arbitration Board erred in finding that MEAN was not required to use the Western Area Power Administration’s transmission service. 7. The Arbitration Board erred by altering and modifying the parties’ existing contracts by making MEAN responsible for transmission services beyond the contractually specified Point of Delivery. 8. The Arbitration Board erred in finding that MEAN breached the parties’ contract by changing the Point of Delivery without Sidney’s consent and that any Point of Delivery change caused damages to Sidney. 9. The Arbitration Board erred in finding that MEAN failed to consider alternative transmission paths to deliver electric power and energy to Sidney. 10. The Arbitration Board erred in finding that MEAN could subsidize transmission costs among other members of MEAN. 11. The Arbitration Board erred in finding that the parties’ contract did not allow MEAN to separately charge transmission costs to Sidney. 12. The Arbitration Board erred in receiving Exhibit 100 into evidence. 13. The Arbitration Board lacked subject matter jurisdiction to hear an action for breach of contract. 14. The Arbitration Board erred in allowing Sidney to amend its notice of dispute.