A Brief of Amicus Curiae

On March 27, 2006, the Mackinac Center for Public Policy filed a brief of amicus curiae[*] with the Michigan Supreme Court in the case Attorney General v. Michigan Public Service Commission. The legal dispute involves the commission’s decision to place a 5 cent per-meter per-month "surcharge" on the electrical bills of all customers of Consumers Energy. The surcharge is meant to finance subsidies for Michigan-based projects in "renewable energy," such as wind, solar, geothermal, and biomass power.

While the outcome of this case will probably depend on the narrow legal question of which powers the commission has been granted under statute, the dispute also raises core constitutional questions about the powers of unelected agencies of state government. If the Michigan Supreme Court allows the Public Service Commission to levy such "surcharges," state officials will have subverted Americans’ longstanding rejection of taxation without representation.

The Michigan Public Service Commission, an agency of state government, regulates Michigan’s markets for electrical power, natural gas, telephone services, and intrastate trucking. The commission is composed of three people appointed by the governor and confirmed by the Michigan Senate for six-year terms. The MPSC is arguably Michigan’s most powerful regulatory agency.

The MPSC levied its 5 cent "surcharge" on every Consumers Energy customer in an order dated May 18, 2004. The commission separately placed a similar charge on all customers of Detroit Edison.[†] The MPSC claimed that it had been empowered by the Legislature to assess these charges under the "Customer Choice and Electricity Reliability Act" of 2000, a law whose primary purpose was to establish a less regulated and more competitive market in electrical energy in Michigan.

The MPSC’s program was challenged by the Michigan Attorney General on grounds that the CCERA did not in fact authorize the MPSC to levy this "surcharge." On Nov. 22, 2005, the Michigan Court of Appeals sided with the attorney general on this question and suspended the program.

The MPSC subsequently sought leave to appeal the case to the Michigan Supreme Court. The attorney general has asked the Supreme Court to deny leave to appeal, and the Mackinac Center’s brief of amicus curiae, which is reprinted on Pages 1-35 of this document, requests the same result. The Center’s brief, however, also suggests that if the court were to hear the case, the justices should use the dispute to clarify the constitutional limits on the powers of the MPSC. Such limits on the powers of unelected state agencies are fundamental to representative democracy.


[*] "Amicus curiae" means "friend of the court." Thus, the Mackinac Center is not a litigant in Attorney General v. Michigan Public Service Commission, but rather an interested observer supplying additional legal reasoning for the Michigan Supreme Court to consider.

[†] The MPSC’s imposition of this surcharge on Detroit Edison customers has been challenged in a separate legal case that is currently being heard in the state’s appellate courts.