Full opinion text
OPINION PER CURIAM. We withdraw the opinion, concurring and dissenting opinion, concurring opinion and judgment issued May 23, 2008, and substitute the following in their place. We overrule the appellants’ motion for rehearing. This appeal arises from the final order of the Public Utility Commission in the true-up proceeding to finalize “stranded costs” and other true-up balances for the AEP Texas Central Company and CPL Retail Energy, L.P. (collectively “TCC”) as a result of the legislative mandate to bring competition to the retail energy market in Texas. The district court affirmed the Commission’s final order in most respects, but reversed on three issues. This Court affirms the district court’s judgment in part, reverses in part, and remands this cause to the Commission for further proceedings consistent with the Court’s opinions. Justice Patterson filed a concurring and dissenting opinion, joined by Justices Pur-year and Pemberton in part. Justice Pem-berton filed a concurring opinion, joined by Justice Puryear. For the reasons expressed in Justice Patterson’s opinion, the Court affirms the district court’s judgment, except that the Court reverses the district court’s judgment that: (1) the Commission erred in excluding the testimony and expert report of Ross A. Sollosy; (2) the Commission erred in using the interest rate specified in PUC Rule 25.263(Z )(3); (3) the Commission properly refused to consider the potential normalization violation resulting from its treatment of the amounts held in TCC’s federal tax accounts for Accumulated Deferred Investment Tax Credits (AD-ITC) and Excess Deferred Federal Income Tax (EDFIT); and (4) the Commission properly accounted for the excess mitigation credits and interest paid by TCC. For the reasons expressed in Justice Pemberton’s opinion, the Court affirms the district court’s judgment that section 39.252(d) of the Public Utility Regulatory Act precludes the Commission from adjusting the net book value of TCC’s generation assets where the Commission has found that TCC has disposed of those assets in a bona fide third-party transaction under a competitive offering as required in section 39.262(h). Accordingly, the Court does not reach the question of whether the Commission’s adjustments to the net book values of TCC’s share in the South Texas Nuclear Project and the Coleto Creek Coal Plant for “commercial unreasonableness” were supported by substantial evidence. The Court also affirms the district court’s judgment affirming the Commission’s refusal to make book-value adjustments based on the failure to employ bridge power sales agreements. Justice Patterson dissents from the majority’s conclusion that section 39.252(d) precludes the Commission’s adjustments to the net book value of TCC’s generation assets for “commercial unreasonableness” related to TCC’s sales of the South Texas Nuclear Project and the Coleto Creek Coal Plant to the extent TCC’s commercially unreasonable behavior benefitted the utility and was not captured in the market valuation of TCC’s generation assets. Concurring and Dissenting Opinion by Justice PATTERSON, joined in part by Justices PURYEAR and PEMBERTON. Concurring Opinion by Justice PEMBERTON, joined by Justice PURYEAR. . Several appellants, referred to collectively as the "Joint Intervenors,” including the cities served by AEP Texas Central Company, the State of Texas, Texas Industrial Energy Consumers, and Alliance Valley Healthcare, filed a joint motion for rehearing, which the Court overrules today.
JAN P. PATTERSON, Justice, concurring and dissenting. The Public Utility Commission issued a final order in the true-up proceeding to finalize “stranded costs” and other true-up balances for the AEP Texas Central Company and CPL Retail Energy, L.P. (collectively “TCC”). The district court affirmed the Commission’s final order in most respects, but reversed on three issues. For the reasons discussed below, I would affirm the district court’s judgment in part, reverse in part, and remand this cause to the Commission for further proceedings. I. Factual and Procedural Background In 1999, the legislature determined it was in the public interest to restructure and partially deregulate the Texas retail electric power industry. See generally Tex. UtiLCode Ann. § 39.001 (West 2007). To accomplish this mandate, the legislature enacted Senate Bill 7 (“SB 7”), which amended the Public Utility Regulatory Act (“PURA”). See Act of May 27, 1999, 76th Leg., R.S., ch. 405, 1999 Tex. Gen. Laws 2543 (now codified in Chapter 39 of the PURA, Tex. UtiLCode Ann. §§ 39.001-.910 (West 2007)); see also CenterPoint Energy Houston Electric, LLC v. Gulf Coast Coalition of Cities, 252 S.W.3d 1, 7-12 (Tex.App.-Austin 2008, no pet. h.) (op. on reh’g) (describing statutory framework for transition to competitive retail electric market) (hereafter “CenterPoint ”). SB 7 required each integrated electric utility to separate its business activities into three separate units — a power generation company, a transmission and distribution utility, and a retail electric provider. See Tex. Util. Code Ann. § 39.051 (West 2007). As part of the transition from regulation to retail competition, the legislature authorized each electric utility to recover “all of its net, verifiable, nonmitigable stranded costs incurred in purchasing power and providing electric generation service.” Tex. UtiLCode Ann. § 39.252(a) (West 2007). The term “stranded costs” is defined in section 39.251 of the PURA, but generally speaking, stranded costs represent prudently incurred expenditures made by the utilities in a regulated environment — previously recoverable over time through regulated rates paid by consumers — that have become unrecoverable in a competitive market. See Reliant Energy, Inc. v. Public Util. Comm’n, 101 S.W.3d 129, 132 (TexApp.-Austin 2003) (hereafter “Reliant I ”), rev’d in paH sub nom. CenterPoint Energy, Inc. v. Public Util. Comm’n, 143 S.W.3d 81 (Tex.2004) (op. on reh’g). Recovery of stranded costs is one of the final steps in the transition from traditional cost-of-service regulation to retail competition. In addition to the recovery of stranded costs, the legislature’s deregulation plan required the Commission to determine each electric utility’s final fuel balance and capacity auction true-up award. See Tex. UtiLCode Ann. §§ 39.201, .202(c), .262(d) (West 2007). Once determined by the Commission, the net sum of the final fuel balance and the capacity auction true-up award would result in a credit or bill from the affiliated power generation company to the transmission and distribution utility. See id. § 39.262(d). To recover its stranded costs and finalize its other true-up balances, TCC filed an application with the Commission seeking a total true-up balance of $2,406,271,176, including interest through September 2005. This amount included a requested capacity auction true-up award of $482,664,890, less TCC’s final fuel balance of $176,698,379. Several consumer groups intervened in the proceedings before the Commission to challenge TCC’s requested recovery. Among the intervenors were the State of Texas, the Office of Public Utility Counsel (OPC), the Texas Industrial Energy Consumers (TIEC), the Cities served by TCC (Cities), the Alliance for Valley Healthcare (AVH), the Alliance for Retail Markets, the Brownsville Public Utility Board, the Commercial Customers Group (CCG), Occidental Power Marketing, Reliant Energy, Inc., and the Texas Cotton Ginners’ Association. On review of TCC’s application, the Commission made several adjustments to the amounts requested by TCC. These adjustments related to TCC’s failure to use commercially reasonable means to mitigate potential stranded costs in relation to the sale of TCC’s share of the South Texas Nuclear Project (STP), the bundling of certain TCC gas plants as part of the sale of the Coleto Creek Coal Plant, disallowances to TCC’s capacity auction true-up award, and other items. In sum, the Commission awarded TCC a total recovery of $1,475,933,779. TCC and six intervenors sought judicial review of the Commission’s final order in district court. See Tex. UtiLCode Ann. §§ 15.001, 39.262(j) (West 2007); Tex. Gov’t Code Ann. §§ 2001.171, .176 (West 2000). The district court reversed the Commission’s order on three issues. The district court held that the Commission erred by making adjustments to the net book value of TCC’s generation assets, by excluding the testimony and report offered by an expert witness, and by applying an interest rate specified in a rule that the supreme court had previously invalidated. TCC and six of the intervenors have filed separate appeals challenging the district court’s judgment, and the Commission has filed a cross-appeal. II. Discussion On appeal, the parties urge this Court to reverse the district court’s judgment on various grounds. The Commission urges us to reverse those portions of the district court’s judgment which reversed the Commission’s final order. Specifically, the Commission urges that the district court erred in its findings that the Commission was prohibited from making adjustments to the net book value of TCC’s generation assets, that the interest rate used by the Commission was invalid, and that the Commission erred in excluding the testimony and report of an expert witness. TCC urges us to reverse portions of the district court’s judgment on the grounds that the district court erred in upholding the Commission’s disallowance and reduction to TCC’s capacity auction true-up award, and in affirming the Commission’s treatment of Accumulated Deferred Investment Tax Credits, Excess Deferred Federal Income Taxes, and excess mitigation credits. In addition, like the Commission, TCC urges that the district court erred in reversing the Commission’s use of the interest rate specified in the Commission’s true-up rule. The six intervenors likewise assert various challenges to the district court’s judgment. The Joint Intervenors argue that the district court erred in reversing the Commission’s adjustments to the net book value of TCC’s generation assets and in reversing the Commission’s exclusion of the testimony and report of an expert witness. The Joint Intervenors further argue that the district court erred in affirming the Commission’s adjustments to the net book value of the STP and the Coleto Creek Coal Plant, as well as the Commission’s inclusion of construction work in progress (CWIP) in its calculation of net book value. The Joint Intervenors also argue that the district court erred in affirming the Commission’s failure to use the ECOM, or excess-cost-over-market, method to value TCC’s nuclear generation assets and in affirming the Commission’s determination that TCC’s auction of its share of the STP met statutory requirements. Finally, the Joint Intervenors argue that the Commission erred in allowing TCC to recover excess mitigation credits paid to retail electric providers, allowing TCC to recover interest on its capacity auction true-up award, and by refusing to reduce stranded costs to account for certain profits achieved by TCC from the sale of its generation assets. In addition to the claims raised by the Joint Intervenors, OPC/CCG also raise three challenges to the district court’s judgment affirming the Commission’s final order. First, OPC/CCG argue that the Commission violated the PURA by allowing TCC to recover stranded costs for generation assets that were not “uneconomic.” Like the Joint Intervenors, OPC/ CCG also allege that the Commission erred in its failure to use the ECOM method to value TCC’s nuclear generation assets. Finally, OPC argues that the Commission erred in failing to reduce TCC’s stranded cost recovery by the total amount of TCC’s excess earnings for 1999-2001. A. Standard of Review This Court reviews the Commission’s final order under the substantial evidence rule. See Tex. UtiLCode Ann. § 15.001; Tex. Gov’t Code Ann. § 2001.174 (West 2000). Under the substantial evidence rule, we give significant deference to the agency in its field of expertise. Railroad Comm’n v. Torch Operating Co., 912 S.W.2d 790, 792 (Tex.1995); Texas Health Facilities Comm’n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984). We presume that the agency’s order is valid and that its findings, inferences, conclusions, and decisions are supported by substantial evidence. City of El Paso v. Public Util. Comm’n, 883 S.W.2d 179, 185 (Tex.1994); Charter Medical, 665 S.W.2d at 452. The complaining party has the burden to overcome this presumption. City of El Paso, 883 S.W.2d at 185; Ham-mack v. Public Util. Comm’n, 131 S.W.3d 713, 725 (Tex.App.-Austin 2004, pet. denied). In conducting a substantial evidence review, we evaluate the entire record to determine whether the evidence as a whole is such that reasonable minds could have reached the conclusion the agency must have reached in order to take the disputed action. Texas State Bd. of Dental Exam’rs v. Sizemore, 759 S.W.2d 114, 116 (Tex.1988); Suburban Util. Corp. v. Public Util. Comm’n, 652 S.W.2d 358, 364 (Tex.1983). We may not substitute our judgment for that of the agency on the weight of the evidence on questions committed to the agency’s discretion. Tex. Gov’t Code Ann. § 2001.174; Charter Medical, 665 S.W.2d at 452; H.G. Sledge, Inc. v. Prospective Inv. & Trading Co., Ltd., 36 S.W.3d 597, 602 (Tex.App.-Austin 2000, pet. denied). Under a substantial evidence review, the issue for the reviewing court is not whether we believe the agency’s decision was correct, but whether the record demonstrates some reasonable basis for the agency’s action. Charter Medical, 665 S.W.2d at 452; Central Power & Light Co. v. Public Util. Comm’n, 36 S.W.3d 547, 561 (Tex.App.-Austin 2000, pet. denied). The evidence in the record may preponderate against the decision of the agency and nevertheless amount to substantial evidence. Charter Medical, 665 S.W.2d at 452; Meier Infiniti v. Motor Vehicle Bd., 918 S.W.2d 95, 98 (TexApp.-Austin 1996, writ denied). We will sustain the agency’s order if the evidence is such that reasonable minds could have reached the conclusion that the agency must have reached in order to justify its action. Charter Medical, 665 S.W.2d at 453; Suburban Util. Corp., 652 S.W.2d at 364. We must uphold the agency’s order unless the agency’s decision is not reasonably supported by substantial evidence, in violation of a constitutional or statutory provision, in excess of the agency’s statutory authority, made through unlawful procedure, affected by other error of law, arbitrary or capricious, or characterized by an abuse of discretion. See Tex. Gov’t Code Ann. § 2001.174(2)(A)-(F). Several issues raised by the parties involve questions of statutory construction, which we review de novo. See, e.g., City of San Antonio v. City ofBoeme, 111 S.W.3d 22, 25 (Tex.2003) (appellate courts review matters of statutory construction de novo); In re Humphreys, 880 S.W.2d 402, 404 (Tex.1994) (questions of law are always subject to de novo review). When construing a statute, our primary goal is to determine and give effect to the legislature’s intent. City of San Antonio, 111 S.W.3d at 25. To determine legislative intent, we look to the statute as a whole, as opposed to isolated provisions. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). We begin with the plain language of the statute at issue and apply its common meaning. City of San Antonio, 111 S.W.3d at 25. Where the statutory text is unambiguous, we adopt a construction supported by the statute’s plain language, unless that construction would lead to an absurd result. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999). We give serious consideration to an agency’s interpretation of the statutes it is charged with enforcing, so long as that interpretation is reasonable and consistent with the statutory language. Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex.1993); Steering Comms. for the Cities Served by TXU Elec. v. PUC, 42 S.W.3d 296, 300 (Tex.App.-Austin 2001, no pet.). This is particularly true when the statute involves a complex subject matter. Steering Comms. for Cities, 42 S.W.3d at 300. Courts, however, “do not defer to administrative interpretation in regard to questions which do not he within administrative expertise, or deal with a nontechnical question of law.” Rylander v. Fisher Controls Int’l, Inc., 45 S.W.3d 291, 302 (TexApp.-Austin 2001, no pet.). Additionally, several issues raised by the parties challenge the Commission’s authority. The Public Utility Commission “is a creature of the Legislature and has no inherent authority.” Public Util. Comm’n v. GTE-SW, Inc., 901 S.W.2d 401, 407 (Tex.1995). Like other state administrative agencies, the Commission “has only those powers that the Legislature expressly confers upon it” and “any implied powers that are necessary to carry out the express responsibilities given to it by the Legislature.” Public Util. Comm’n v. City Pub. Serv. Bd., 53 S.W.3d 310, 316 (Tex. 2001). It is not enough that the power claimed by the Commission be reasonably useful to the Commission in discharging its duties; the power must be either expressly conferred or necessarily implied by statute. The agency may not “exercise what is effectively a new power, or a power contradictory to the statute, on the theory that such a power is expedient for administrative purposes.” Id. B. The Statutory Scheme Before addressing the issues raised by the parties, it is helpful to review the statutory scheme allowing for the recovery of stranded costs and other true-up balances. 1. Recovery of stranded costs When the legislature mandated the transition from traditional cost-of-service regulation to retail competition, it recognized that many utility companies had made very large investments to build power generation plants, and that while the costs of these power plants might be recoverable from ratepayers in a regulated environment, these same costs “might well become uneconomic and thus unrecoverable in a competitive, deregulated power market.” CenterPoint Energy, 143 S.W.3d at 82; see also City of Corpus Christi v. Public Util. Comm’n, 51 S.W.3d 231, 237-38 (Tex.2001). The legislature called these uneconomic assets “stranded costs.” Cen-terPoint Energy, 143 S.W.3d at 82; see also Tex. Util.Code Ann. §§ 39.001(b)(2), .251(7) (West 2007). As part of the transition to retail competition, the legislature made an express finding that it was in the public interest to allow utility companies to recover their stranded costs. See Tex. Util.Code Ann. § 39.001(b)(2) (West 2007). The legislature thus “set forth a comprehensive scheme for estimating, finalizing, and recovering those costs.” CenterPoint Energy, 143 S.W.3d at 83; see Tex. Util. Code Ann. §§ 39.201, .251-.254, ,256-.265, .301-313 (West 2007). The legislature provided a mechanism in section 39.262 of the PURA for each utility to recover its stranded costs. See Tex. Util-Code Ann. § 39.262. This mechanism requires each transmission and distribution utility, its affiliated retail electric provider, and its affiliated power generation company to jointly file an application with the Commission to finalize stranded costs. Id. § 39.262(c). The legislature provided a formula to calculate a utility’s stranded costs. Id. § 39.251(7). Under this formula, a utility’s stranded costs equal the excess amount of the net book value of generation assets minus the market value of those assets — i.e., SC = NBV - MV". Id. Each utility has the burden of quantifying its stranded costs using one of four statutory methods. Id. § 39.262(h). These methods include sale-of-assets, stock valuation, partial stock valuation, or exchange of assets. Id. § 39.262(h)(l)-(4). TCC chose to establish its stranded costs using the sale-of-assets method. Under this method, TCC was required to demonstrate that it sold its generating assets in a “bona fide third-party transaction under a competitive offering.” Id. § 39.262(h)(1). Once this showing has been made, the total net value realized from the sale will establish the market value of the generation assets sold. Id. The legislature recognized, however, that during the transition from regulation to retail competition, utilities would not necessarily have a business incentive to reduce their potential stranded costs. Accordingly, the legislature provided a statutory incentive — the legislature required each utility to “pursue commercially reasonable means to reduce its potential stranded costs, including good faith attempts to renegotiate above-cost fuel and purchased power contracts or the exercise of normal business practices to protect the value of its assets.” Id. § 39.252(d). The legislature also required the Commission to consider each utility’s efforts to mitigate potential stranded costs when determining the utility’s final stranded cost balance. Id. In addition, the legislature required the Commission to ensure that each utility does not overrecover stranded costs. Id. § 39.262(a); see also CenterPoint Energy, 143 S.W.3d at 98-99. 2. Determination of non-stranded-cost true-ups As part of the transition to deregulation, the legislature also required the Commission to conduct additional true-up proceedings to calculate each utility’s final fuel balance and capacity auction true-up award. Tex. Util.Code Ann. § 39.262(d). The parties do not dispute the Commission’s determination of TCC’s final fuel balance, but TCC and the Joint Interve-nors both challenge the Commission’s determination of TCC’s capacity auction true-up award. Following is a brief description of the purpose of the capacity auction and its statutory requirements. To ensure the availability of power in the emerging competitive market, the legislature required power generation companies to auction entitlements to at least 15% of their installed generation capacity beginning 60 days prior to the start of customer choice on January 1, 2002. See Tex. UtiLCode Ann. §§ 39.153, .156 (West 2007); Reliant I, 101 S.W.3d at 137. The utilities’ obligation to auction generation capacity continued until the earlier of 60 months (five years) after January 1, 2002, or the date on which the Commission determines that 40 percent or more of the electric power consumed by residential and small commercial customers within the affiliated transmission and distribution company’s service area before the onset of customer choice is provided by nonaffiliat-ed retail electric providers. See Tex. Util. Code Ann. § 39.153(b). The legislature directed the Commission to adopt rules defining the scope of the capacity entitlements to be auctioned and the procedure for the auction of those entitlements. Id. § 39.153(e)-(g); see also 16 Tex. Admin. Code § 25.381 (West 2007) (PUC Capacity Auction Rule). The legislature was concerned that consumers and generation companies could be harmed by “distortions and fluctuations in the market price of power during the first two years of deregulation.” See Center-Point Energy, 143 S.W.3d at 96. To alleviate this concern, the legislature designed the capacity auction true-up proceeding. Id. The purpose of the capacity auction true-up proceeding was to provide those companies forced to participate in the required capacity auctions with a guaranteed return on the sales of power, while at the same time ensuring that consumers would not be harmed by fluctuating prices and market instability. Id. The “guaranteed return,” or capacity auction true-up award, represents the difference between the price of power projected by the Commission in the 2001 ECOM model and the price of power obtained through the auctions. See Tex. UtiLCode Ann. § 39.262(d)(2). The Commission was charged with calculating this return in the capacity auction true-up proceeding. Id. § 39.262(d). As a result of the capacity auction true-up proceeding, consumers and generation companies were guaranteed that generation companies “will receive no more and no less” than a set margin for power sales predetermined by the Commission in 2001 when the ECOM model was run in compliance with section 39.201. CenterPoint Energy, 143 S.W.3d at 96. With this statutory scheme in mind, I examine the parties’ complaints regarding the Commission’s determination of TCC’s stranded costs and other true-up balances. C. Stranded Cost True-up The legislature defined stranded costs as the positive excess of the net book value of a utility’s generation assets over the market value of those assets. Tex. Util. Code Ann. § 39.251(7). The parties raise several challenges to the Commission’s determinations regarding both the market value and net book value of TCC’s generation assets. 1. Determination of market value The Joint Intervenors and OPC/CCG challenge the Commission’s determinations regarding the market value of TCC’s interest in the STP. As a preliminary matter, OPC argues that the Commission erred in allowing TCC to recover stranded costs for the STP because there was no evidence that the STP was an “uneconomic asset.” Assuming the Commission properly allowed TCC to recover stranded costs for the STP, the Joint Intervenors and OPC/ CCG argue that the Commission erred in its market valuation of the STP because it failed to use the ECOM method prescribed in section 39.262(i) for valuing nuclear assets. The Joint Intervenors also argue in the alternative that the Commission erred in its conclusion that the STP auction was a bona fide third-party transaction within the meaning of section 39.262(h). (A) Was the STP an “uneconomic asset”? OPC argues that TCC cannot recover stranded costs for its share of the STP because the STP was not an “uneconomic asset.” In support of this argument, OPC cites to section 39.001(b)(2) of the PURA. In that section, the legislature found that it was in the public interest to “allow utilities with uneconomic generation related assets and purchased power contracts to recover the reasonable excess costs over market [value] of those assets and purchased power contracts.” Tex. UtiLCode Ann. § 39.001(b)(2) (emphasis added). Based on this language, OPC argues that TCC was only permitted to recover stranded costs for its demonstrated “uneconomic generation related assets.” See id. As a result, OPC argues that the Commission erred in allowing TCC to recover stranded costs for the STP because “the undisputed evidence in the record shows that net margins over the life of the STP far exceed the net book value of the plant.” OPC’s argument involves a matter of statutory construction. When construing a statute, our primary goal is to determine and give effect to the legislature’s intent. City of San Antonio, 111 S.W.3d at 25. To determine legislative intent, we look to the statute as a whole, as opposed to isolated provisions. Gonzalez, 82 S.W.3d at 327. In addition to the language relied on by OPC in section 39.001(b)(2), section 39.251(7) of the PURA defines the term “stranded costs” as “the positive excess of the net book value of generation assets over the market value of the assets, taking into account all of the electric utility’s generation assets.” Tex. UtiLCode Ann. § 39.251(7) (emphasis added). Section 39.251(3) defines the term “generation assets” as “all assets associated with the production of electricity, including generation plants, electrical interconnections of the generation plant to the transmission system, fuel contracts, fuel transportation contracts, water contracts, lands, surface or subsurface water rights, emissions related allowances, and gas pipeline interconnections.” Id. § 39.251(3) (emphasis added). Section 39.252(a) provides that “[a]n electric utility is allowed to recover all of its net, verifiable, nonmitigable stranded costs incurred in purchasing power and providing electric generation service.” Id. § 39.252(a) (emphasis added). When read together, these provisions allow a utility to recover all of its stranded costs for generation related assets when the net book value exceeds the market value of those assets. See id. §§ 39.251(3), (7), .252(a). None of these provisions includes the phrase “uneconomic assets,” nor does the legislature otherwise limit the recovery of stranded costs to only “uneconomic assets.” In section 39.252(a), the legislature expressly provided that a utility may recover “all of its net, verifiable, non-mitigable stranded costs.” See id. § 39.252(a) (emphasis added). There is no indication in other provisions of the PURA that the legislature intended to limit a utility’s recovery of stranded costs by its use of the phrase “uneconomic assets” in section 39.001(b)(2). It does not follow then that the legislature intended to limit recovery of stranded costs in the manner urged by OPC. Because the STP is a generation asset and all generation assets must be valued to determine TCC’s stranded costs, I conclude that the Commission properly determined that the STP was eligible for inclusion in the calculation of TCC’s stranded costs. I would overrule OPC’s issue one. (B) Was the Commission required to use the ECOM method to determine the market value of the STP ? OPC/CCG and the Joint Intervenors argue that the Commission was required to use the ECOM method in section 39.262(f) when determining the market value of the STP. OPC/CCG argue that TCC must use the ECOM method to value its nuclear assets absent a stock valuation, and that the sale-of-assets method can never be used for that purpose. In contrast, the Joint Intervenors argue that because a utility has a duty to mitigate its stranded costs, the ECOM method in section 39.262® must be used to value nuclear assets unless another method is shown to produce lower stranded costs. These arguments also involve a matter of statutory construction. As previously stated, the primary objective when construing a statute is to ascertain and give effect to the legislature’s intent. City of San Antonio, 111 S.W.3d at 25. To determine legislative intent, courts look to the statute as a whole, as opposed to isolated provisions. Gonzalez, 82 S.W.3d at 327. A reviewing court gives deference to the Commission’s interpretation of a statute it is charged with enforcing as long as that interpretation is reasonable and consistent with the plain language of the statute. Tarrant Appraisal Dist, 845 S.W.2d at 823; Steering Comms. for Cities, 42 S.W.3d at 300. Accordingly, I begin with the plain language of the PURA. In relevant part, section 39.262(h) provides, “Except as provided in Subsection (i) ... the affiliated power generation company shall quantify its stranded costs using one or more of the following methods.Tex. Util.Code Ann. § 39.262(h). Section 39.262(h) goes on to specify four methods a utility may use to quantify its stranded costs: sale-of-assets, stock valuation, partial stock valuation, and exchange-of-assets. Id. § 39.262(h)(l)-(4). In addition, section 39.262(i) provides, “Unless an electric utility or its affiliated power generation company combines all of its remaining generation assets into one or more transferee corporations as described in Subsections (h)(2) and (h)(3), the electric utility shall quantify its stranded costs for nuclear assets using the ECOM method....” Id. § 39.262(i). The Commission determined that, when read together, these statutes allow TCC to quantify its stranded costs for nuclear assets using any of the methods in section 39.262(h), including the sale-of-assets method. The Commission adopted PUC Substantive Rule 25.264, which confirms its interpretation allowing TCC to quantify its stranded costs for nuclear assets using the methods established in section 39.262(h). Rule 25.264 states: The market value of an affiliated power generation company’s nuclear assets may be established by compliance with any of the four methods of quantification specified in Public Utility Regulatory Act (PURA) § 39.262(h) and related requirements specified in § 25.263 of this title (relating to True-up Proceeding). If the electric utility or its affiliated power generation company values some of its assets using the sale of assets or an exchange of assets, any remaining assets shall be combined in one or more transferee corporations as described in PURA § 39.262(h)(2) and (3) for purposes of determining their market value, or the electric utility or its affiliated power generation company shall quantify its stranded costs for remaining nuclear assets using the “excess costs over market” or ECOM method. 16 Tex. Admin. Code § 25.264 (2006) (Pub. Util.Comm’n). In its order adopting Rule 25.264, the Commission explained: This rule is necessary to firmly establish the methods that may be employed to determine the stranded cost of nuclear power generation assets. In addition, the rule is needed to serve the public interest and legislative policy stating that utilities with uneconomic generation-related assets should be allowed to recover the reasonable excess costs over market value of those assets. In order to assure that the market value of nuclear generation assets is properly quantified in a manner that reduces, to the extent possible, the amount of excess costs over market value for those assets, the rule clarifies that a public utility and its affiliated companies may use any of the valuation methods specified in PURA § 39.262(h) and (i) to quantify the market value of nuclear generation assets. Tex. Pub. Util. Comm’n, Rulemaking Proceeding Concerning Quantification of Stranded Costs of Nuclear Generation Assets, Substantive Rule § 25.264, Docket No. 27464, Order at 2 (May 23, 2003). The plain language of section 39.262(h) allows a utility or its affiliates to quantify stranded costs “using one or more of the following methods,” including the sale-of-assets method. Tex. Util.Code Ann. § 39.262(h). That section does not preclude a utility from using the sale-of-assets method to quantify its stranded costs for nuclear generation assets. Id. Nor does the plain language of section 39.262(i) require a utility to use the ECOM method to quantify its stranded costs for nuclear generation assets. Id. § 39.262(i). By its use of the word “remaining,” the language of section 39.262© presumes that it is a fallback provision and that a utility will use one of the four methods in section 39.262(h) to quantify stranded costs for nuclear assets. Id. Only if a company has “remaining” assets will section 39.262© come into play. The definition of “market value” in section 39.251(4) likewise confirms this interpretation. Section 39.251(4) defines market value “for nonnuclear assets and certain nuclear assets, [as] the value the assets would have if bought and sold in a bona fide third-party transaction or transactions on the open market under Section 39.262(h) or, for certain nuclear assets, as described by Section 39.262©, the value determined under the method provided by that subsection.” Id. § 39.251(4). The plain language of section 39.251(4) contemplates that nuclear assets might be “bought and sold in a bona fide third-party transaction.” Id. The Commission’s interpretation allowing TCC to quantify its stranded costs for nuclear assets using the sale-of-assets method was reasonable and consistent with the plain language of the statute. In addition, PUC Rule 25.264 comports with the statute. For these reasons, I would overrule OPC/CCG’s issue two. To the extent the Joint Intervenors argue that TCC was required to use the ECOM method to quantify its stranded costs for nuclear assets because that method would have produced lower stranded costs, I would likewise reject that claim. To adopt the Joint Intervenors’ argument would require the utility to know in advance which method would produce the least amount of stranded costs. It is only in hindsight that a utility will know whether the method it has chosen to quantify its stranded costs will produce lower stranded costs than the ECOM method. The plain language of section 39.262(h) does not require a utility to engage in forecasting the future. Although the legislature required utilities to mitigate their potential stranded costs and provided that a utility may recover only its “net, verifiable, nonmitiga-ble stranded costs,” the legislature also gave the utility the option of choosing which method it would use to quantify stranded costs. See Tex. UtiLCode Ann. § 39.262(h). That the utility had this choice is confirmed by the mandatory language of section 39.262(h), which states that “the affiliated power generation company shall quantify its stranded costs using one of the following methods.” Id. § 39.262(h). I would overrule Joint Inter-venors’ issue three. (C) Was the sale of TCC’s share of the STP a bona fide third-party transaction under a competitive offering? In the alternative, the Joint Intervenors argue that the Commission erred in its conclusion that TCC’s sale of its share of the STP was a bona fide third-party transaction under a competitive offering as required under section 39.262(h). This argument is without merit. The primary complaint of the Joint In-tervenors is that the Commission failed to follow its precedent in the Texas-New Mexico Power true-up, where the Commission determined that TNMP’s sale of generation assets was not a bona fide third-party transaction under a competitive offering. But the record reflects that the facts of TCC’s sale of the STP differed from TNMP’s sale of its generation assets. The Commission determined that one of the most important aspects for determining whether a transaction meets the statutory requirements is whether the utility acquires competent and independent advice before and during the transaction. The record reflects that TCC chose several financial advisors to assist with the sale of its share of the STP, not just one, as TNMP did. The record also reflects that TCC’s choice of financial advisors was not motivated by an inside connection as was TNMP’s. The Commission also noted that two additional strengths of TCC’s sales process not present in that of TNMP’s was the marketing of the offering and the aggressive negotiations with bidders. The Commission determined that the basic structure of TCC’s process promoted competitive and good-faith participation by bidders. Because the facts of TCC’s sales process differed substantially from that of TNMP’s, the Commission was not bound to follow its precedent in that case or, in any event, it did not constitute precedent as to this transaction. On this record, there was a reasonable basis to support the Commission’s determination that TCC’s sale of its share of the STP was a bona fide third-party transaction under a competitive offering in compliance with section 39.262(h). I would overrule Joint Intervenors’ issue four. 2. Adjustments to net book value (A) Commercial unreasonableness In its final order, the Commission made two adjustments to the net book value of TCC’s generation assets to address what it determined to be commercial unreasonableness and the failure to mitigate stranded costs by TCC. Specifically, the Commission reduced the net book value of TCC’s Coleto Creek Coal Plant by $8 million and reduced the net book value of TCC’s share in the STP by $68.7 million. The district court found that these two adjustments were barred by section 39.252(d) of the PURA. The Commission and the Joint Intervenors appeal the reversal of these two adjustments. In addition, the Joint Intervenors contend that the Commission’s calculation of these two adjustments was in error. In a related issue, the Joint Intervenors also argue that the Commission erred in failing to adjust net book value for TCC’s commercial unreasonableness in failing to use “bridge power sales agreements.” For the reasons stated in Justice Pem-berton’s opinion, a majority of this Court affirms the district court’s judgment that section 39.252(d) of the PURA precludes the Commission from making adjustments to the net book value of TCC’s generation assets for “commercial unreasonableness.” I disagree with the majority’s decision. As an initial matter, these claims require the Court to consider the Commission’s authority under section 39.252(d) to make adjustments to the net book value of TCC’s generation assets — a question this Court already decided in Reliant I, 101 S.W.3d at 149. Section 39.252(d) provides: An electric utility shall pursue commercially reasonable means to reduce its potential stranded costs, including good faith attempts to renegotiate above-cost fuel and purchased power contracts or the exercise of normal business practices to protect the value of its assets. The commission shall consider the utility’s efforts under this subsection when determining the amount of the utility’s stranded costs; provided, however, that nothing in this section authorizes the commission to substitute its judgment for a market valuation of generation assets determined under Sections 39.262(h) and (i). Tex. UtiLCode Ann. § 39.252(d). In Reliant I, this Court held that section 39.252(d) authorized the Commission to make adjustments to net book value when a utility does not pursue commercially reasonable means to reduce potential stranded costs. See 101 S.W.3d at 149. We further observed that the relevant statutory goal was calculating not just an accurate stranded cost amount, but “calculating an accurate ‘verifiable, non-mitigable stranded cost[]’ amount.” Id. (quoting Tex. UtiLCode Ann. § 39.252(d)). And we recognized that “[cjompliance with the duty to pursue commercially reasonable means to mitigate its potential stranded costs is what makes stranded costs non-mitigable.” See id. Given the plain language of section 39.252(d), we held in Reliant I that nothing in section 39.252(d) prohibits the Commission from reducing net book value if it concludes that a utility fails to comply with the duty to mitigate potential stranded costs. Id. I disagree with TCC’s assertion that Reliant I “does not address the issue of when the Commission may properly adjust net book value.” This Court’s holding in Reliant I made clear that the Commission may properly adjust net book value when it determines that a utility has not pursued commercially reasonable means to reduce its potential stranded costs. Id. I see no reason to re-examine that holding here. Accordingly, I would reaffirm this Court’s prior holding in Reliant I that section 39.252(d) allows the Commission to adjust the net book value of a utility’s generation assets when the utility fails to “pursue commercially reasonably means to reduce its potential stranded costs.” Id.; see also Tex. UtiLCode Ann. § 39.252(d). This Court also considered the Commission’s authority to adjust net book value for commercial unreasonableness in the CenterPoint true-up appeal. See Center-Point, 252 S.W.3d at 33-34. In Center-Point, the Commission’s final order set forth a primary and alternative holding. Id. at 12-13. Under its primary holding, the Commission adopted its own market valuation of CenterPoint’s generation assets based on its finding that CenterPoint had failed to establish the market value of those assets as required under section 39.262(h). Id. at 13, 16-18. Under its alternative holding, the Commission adopted the market value proposed by CenterPoint, but made reductions to net book value based on commercial unreasonableness. Id. at 13, 32. This Court considered whether the Commission’s reductions to net book value for commercial unreasonableness should also be applied to its primary holding. Id. at 32-34. This Court concluded that reductions to net book value for commercially unreasonable behavior were not meant to be punitive in nature. Id. at 33. The Court stated that where a utility’s commercially unreasonable behavior benefits the utility financially and lessens the impact of stranded costs by increasing the utility’s stranded cost recovery, the amount of stranded costs recovered by the utility should be modified to capture the utility’s unreasonable behavior. Id. The Court further explained that, if the commercially unreasonable behavior has no financial impact or, if the financial impact is irrelevant to or has already been accounted for in the valuation of the utility’s generation assets, any adjustment to the net book value of the utility’s generation assets would be contrary to the legislative directive. Id. This Court ultimately concluded that the Commission’s decision in the CenterPoint true-up proceeding to limit the adjustments to net book value to its alternative holding was reasonable because the negative effects of any commercially unreasonable behavior on the part of CenterPoint had no effect on the valuation of Center-Point’s generation assets. Id. at 34. But this Court’s statements in CenterPoint suggest that an adjustment for commercial unreasonableness is appropriate if the valuation method chosen does not account for the commercially unreasonable behavior and the utility’s commercially unreasonable behavior benefits the utility unfairly by increasing its stranded cost recovery. See id. at 33. TCC argues that section 39.252(d) only imposes a duty to mitigate potential stranded costs prior to a utility’s divestiture of its generation assets and that a utility has no duty to mitigate potential stranded costs during or after divestiture. Thus, because the Commission determined that TCC’s sales of the Coleto Creek Coal Plant and its share of the STP were bona fide third-party transactions under a competitive offering within the meaning of section 39.262(h)(1), TCC maintains that the Commission could not thereafter adjust the net book value of these assets for commercial unreasonableness. TCC’s argument is essentially one of timing — namely that a utility is required to pursue commercially reasonable means to mitigate stranded costs only up to the point that it decides to sell its generation assets, but not thereafter. This is not what the legislature provided. See Tex. UtiLCode Ann. § 39.252(d). Nowhere in section 39.252(d) does the legislature limit a utility’s duty to mitigate potential stranded costs in the manner urged by TCC. The determination of whether a sale is a bona fide third-party transaction under a competitive offering is distinct from the determination of whether TCC used commercially reasonable means to mitigate stranded costs. As the Commission explained in its final order, the analysis of whether a sale is a bona fide third-party transaction under a competitive offering is directed towards the requirements of section 39.262(h)(1) in determining the market value of generation assets. See id. § 39.262(h)(1). In contrast, a determination of commercial reasonableness of a company’s mitigation efforts is made under section 39.252(d), and applies not only to the sales process, but also to other actions that the seller may take to mitigate stranded costs. See id. § 39.252(d). The Commission’s interpretation of the statute is further supported by the plain language of section 39.262(a), which provides that a utility “may not be permitted to overrecover stranded costs through the procedures established by this section or through the application of the measures provided by the other sections of this chapter.” Tex. UtiLCode Ann. § 39.262(a). The legislative intent is clear — a utility may not be permitted to overrecover stranded costs. See id. In light of the statute’s plain language and deferring to the Commission’s reasonable construction of the statute it is charged with enforcing, I would hold that the Commission’s finding that TCC’s sales of its generation assets were bona fide third-party transactions under a competitive offering does not preclude it from determining that TCC’s conduct undertaken in pursuit of those sales was commercially unreasonable. Under a plain reading of the statute, the former simply does not foreclose the latter. See id. To the extent it holds otherwise, the majority restricts a utility’s duty to mitigate stranded costs in a manner not contemplated by the legislature. There is nothing temporal in the statute that precludes the Commission from adjusting the net book value of a utility’s generation assets based on commercially unreasonable conduct occurring before, during, or after an asset sale — particularly where the market valuation method employed by TCC does not take into account its commercially unreasonable behavior. Accordingly, I would sustain the Commission’s issue one and Joint Intervenor’s issue one, and I would reverse the district court’s judgment that section 39.252(d) prohibits the Commission’s adjustments to net book value. Because the majority does not, I respectfully dissent. As a result of my conclusion that section 39.252(d) does not prohibit the Commission’s adjustments to net book value, it is necessary to consider the parties’ challenges to the Commission’s calculation of individual adjustments to net book value and whether the valuation method chosen by TCC accounts for the alleged commercially unreasonable behavior found by the Commission. See CenterPoint, 252 S.W.3d at 33-34. Unlike its order in CenterPoint, the Commission adopted only one holding in its final order here. In that order, the Commission adopted two adjustments for commercial unreasonableness: (1) an $8 million reduction to net book value based on TCC’s decision to bundle and sell the Coleto Creek Coal Plant with other less desirable generation assets; and (2) a $68.7 million reduction to net book value based on TCC’s failure to develop an estimate of the value of its share of the STP, the corresponding lack of knowledge of the STP’s intrinsic value, and the lack of a walk-away price for its share of the STP. (i) TCC’s choice to bundle the gas plants with Coleto Creek The record shows and TCC admits that its decision to bundle the gas plants with the Coleto Creek Coal Plant for purposes of divestiture decreased the market value of the Coleto Creek Coal Plant by $8 million — the amount of the Commission’s adjustment for commercial unreasonableness. The Commission accepted TCC’s proposal to reduce net book value for Cole-to Creek by $8 million and rejected the intervenors’ request for a much greater reduction. The $8 million reduction to net book value was based on the difference between Sempra’s bid for the Coleto Creek Coal Plant alone and its bid for the bundle of plants, which was $8 million lower than the stand-alone bid for Coleto Creek. TCC’s decision to bundle the gas plants with Coleto Creek financially benefitted the utility and lessened the impact of stranded costs. Moreover, the valuation method chosen — the total net value realized from the asset sale — did not account for the decreased market value caused by TCC’s decision to bundle the plants. Because the effect of TCC’s commercially unreasonable decision to bundle the Coleto Creek Coal Plant with other less desirable assets was not captured in the valuation method chosen by TCC, I would conclude that the Commission’s $8 million reduction to TCC’s net book value for the Coleto Creek Coal Plant was appropriate. I would therefore consider the Joint Inter-venors’ challenge to this adjustment. The Joint Intervenors challenge the Commission’s $8 million adjustment to the net book value of the Coleto Creek Coal Plant on the grounds that it is not supported by substantial evidence. They argue that the Commission’s adjustment to the net book value of Coleto Creek should have been higher than $8 million. When conducting a substantial evidence review, a reviewing court must determine whether the evidence as a whole is such that reasonable minds could have reached the conclusion reached by the Commission. City of El Paso, 888 S.W.2d at 186; Size-more, 759 S.W.2d at 116. The true test is not whether we believe the agency reached the correct conclusion, but whether some reasonable basis exists in the record for the action taken by the agency. Charter Medical, 665 S.W.2d at 452. The Commission is the sole judge of the weight to be accorded the testimony of each witness. Central Power & Light Co., 36 S.W.3d at 561. We may not substitute our judgment for that of the Commission on the weight of the evidence on questions committed to the Commission’s discretion. Tex. Gov’t Code Ann. § 2001.174; see Charter Medical, 665 S.W.2d at 452; H.G. Sledge, 36 S.W.3d at 602. The Commission was entitled to accept or reject in whole or in part the testimony of the various witnesses who testified. See City of Corpus Christi v. Public Util. Comm’n, 188 S.W.3d 681, 695 (TexApp.-Austin 2005, pet. denied); Central Power & Light Co., 36 S.W.3d at 561. The Commission concluded that TCC’s action of bundling Coleto Creek with the old gas-fired and hydroelectric plants adversely affected the amount bid for Coleto Creek, thereby increasing TCC’s stranded costs. The prevailing bidder, Sempra/Riv-erstone, submitted a bid for Coleto Creek alone and a separate bid for the bundled plants. The bid for Coleto Creek alone was $8 million higher than the bid for the bundled plants together. Because the bids were virtually contemporaneous and were made by the same bidder for the same facilities, the Commission concluded that TCC’s decision to bundle its gas-fired and hydroelectric plants with Coleto Creek increased TCC’s stranded costs by $8 million. Accordingly, the Commission reduced TCC’s net book value by $8 million. The Joint Intervenors complain that this adjustment was not high enough because other evidence in the record suggested that TCC could have received an additional $68.2 to $87.2 million for Coleto Creek. Because the Commission was entitled to accept or reject all or part of the testimony presented, see City of Corpus Christi, 188 S.W.3d at 695; Central Power & Light Co., 36 S.W.3d at 561, I would conclude that the Commission’s decision to reduce the net book value of the Coleto Creek Coal Plant was supported by substantial evidence, and I would overrule Joint Interve-nors’ issue five. (ii) Failure to develop estimated value of the STP share The record shows that TCC never developed an estimate of the value of its share of the STP that was supported by economic or financial analysis. Thus, prior to the auction of its share of the STP, TCC had not formulated how much its share was worth. Without this information, TCC could not make an informed decision as to whether the negotiated sales price was reasonable. The valuation method chosen could not have accounted for TCC’s lack of knowledge. The Commission determined that TCC’s failure to develop an estimate of the value of its share of the STP, the corresponding lack of knowledge of the STP’s intrinsic value, and the lack of a walk-away price for the STP was commercially unreasonable and amounted to a failure to mitigate stranded costs. To account for TCC’s commercial unreasonableness, the Commission reduced the net book value of TCC’s share in the STP by $68.7 million. Under the standard set forth in Center-Point, I would conclude that the Commission’s reduction to TCC’s net book value for its share of the STP was appropriate. I would therefore consider the Joint Inter-venors’ challenge to this adjustment. The Joint Intervenors argue that the Commission’s adjustment should have been higher. We review the Commission’s adjustment under the substantial evidence rule, and we presume that the Commission’s determination is supported by substantial evidence. City of El Paso, 883 S.W.2d at 187; Office of Pub. Util. Counsel v. Public Util. Comm’n, 185 S.W.3d 555, 567 (Tex.App.-Austin 2006, pet. denied). The Joint Intervenors have the burden of proving otherwise. Office of Pub. Util. Counsel, 185 S.W.3d at 567. The record reflects that the Commission calculated the adjustment to net book value for TCC’s share of the STP based on the SEC filing of GC Power, the “Project Crayola” documents, and a comparison of the pricing differential between Texas Genco’s sale of its share in the STP and TCC’s sale of its share in the STP. GC Power’s SEC filing states, “The purchase price for the nuclear acquisition ... was $707.6 million, which includes $700 million in cash paid to Texas Genco Holdings, Inc. and approximately $7.6 million in acquisition costs.” The “Project Crayola” documents likewise demonstrated that the price of Texas Genco’s sale of its share in the STP was $700 million for 1100 MW, or approximately $636/kW. This was $109/kW higher than the price of TCC’s sale to Cameco for $527/kW. The Commission calculated its adjustment to net book value by multiplying the $109/kW difference times TCC’s 630 MW share of the STP, which produced an adjustment of $68.7 million. The Joint Intervenors argue that this adjustment was too low because Texas Genco actually received more than $636/kW for the sale of its share in the STP. The Joint Intervenors argue that the SEC filing shows that Texas Genco received $700 million for its original 770 MW share of the STP, not including the 330 MW it received when exercising its right of first refusal to purchase a portion of TCC’s share. But, as explained in the rebuttal testimony of TCC witness Mujeeb Qazi, the Joint Intervenors misconstrue the SEC filing relied upon by the Commission to determine the price that Texas Genco received for its share of the STP. As Qazi testified, the sale of Texas Genco’s share of the STP included the 330 MW that it received from TCC under the right of first refusal; thus, Texas Genco sold the entire 1100 MW share of the STP to GC power for $700 million. The Commission is the sole judge of the weight to be accorded the testimony of each witness. Central Power & Light Co., 36 S.W.3d at 561. The Commission was entitled to accept or reject in whole or in part the testimony of the various witnesses who testified. See City of Corpus Christi, 188 S.W.3d at 695; Central Power & Light Co., 36 S.W.3d at 561. We may not substitute our judgment for that of the Commission on the weight of the evidence on questions committed to the Commission’s discretion. Tex. Gov’t Code Ann. § 2001.174; see Charter Medical, 665 S.W.2d at 452; H.G. Sledge, 36 S.W.3d at 602. Based upon Qazi’s testimony, I would conclude that there is a reasonable basis in the record to support the Commission’s $68.7 million adjustment to the net book value of TCC’s share of the STP, and I would overrule Joint Intervenors’ issue two. (in) Bridge Power Sales Agreements In their seventh issue on appeal, the Joint Intervenors assert that the Commission erred in failing to adjust net book value for TCC’s commercial unreasonableness in failing to use bridge power sales agreements. According to the Joint In-tervenors, the Commission’s failure to require TCC to use bridge power sales agreements resulted in TCC’s failure to mitigate its potential stranded costs and allowed TCC to overrecover stranded costs in violation of sections 39.252(d) and 39.262(a) of the PURA. Because TCC retained the profits from the interim power sales, the Joint Intervenors argue that, as a result of TCC’s failure to use bridge power sales agreements, the Commission should have reduced TCC’s stranded cost recovery by $206 million. Applying the standard set forth in Cen-terPoint, however, I would conclude that TCC’s failure to use bridge power sales agreements does not warrant an adjustment for commercial unreasonableness. Because TCC’s failure to use such agreements allowed TCC to retain the profits from power sales prior to closing the asset sale, the failure to use such agreements was accounted for in the valuation method chosen in the form of a lower asset sales price. I would overrule Joint Intervenors’ issue seven. (B) Inclusion of construction work in progress The Commission included in net book value the amount that TCC had spent on generation related construction work in progress as of December 31, 2001. In their sixth issue, the Joint Intervenors ar