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Chapter 12
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433. See Hawaii, Department of the Attorney General, An
Investigation of Gasoline Prices in Hawaii: A Preliminary
Report (Honolulu: Sept. 1990) (hereinafter, "AG (1990)") at
22.
434. Letter to researcher from Ted Gamble Clause, Deputy Attorney
General, dated July 26, 1995, at 2.
435. See AG (1990) at 23.
436. AG letter, July 26, 1995, supra note 2, at 2-3.
437. Letter from John Tantlinger, Ed.D., Energy Planner for the
Department of Business, Economic Development, and Tourism,
to Wendell K. Kimura, Director, Legislative Reference
Bureau, dated July 26, 1995, at 2.
438. Id. at 2-3.
439. Letter to researcher from Richard C. Botti, Executive
Director of the Hawaii Automotive & Retail Gasoline Dealers
Association, dated August 1, 1995, at 2.
440. Id.
441. Letter to researcher from Alec McBarnet, Jr., Vice President
of the Hawaii Petroleum Marketers Association, dated August
14, 1995, at 1.
442. Id.
443. Letter to researcher from Jennifer A. Aquino, Administrative
Manager, Aloha Petroleum, Ltd., dated September 21, 1995, at
6-7.
444. Id. at 6-7.
445. Letter to researcher from R. A. Broderick, Western Region
Business Manager, Shell Oil Products Company, dated July
31,
1995, at 2-3, citing Allen, Preechemetta, Shao, and Singer,
"The Impact of State Economic Regulation of Motor Carriage
on Intrastate and Interstate Commerce," (United States
Department of Transportation, May 1990) with respect to
studies of state motor carrier regulation.
446. Letter from Susan A. Kusunoki, BHP Hawaii Inc., to Wendell
K. Kimura, Director, Legislative Reference Bureau, dated
August 10, 1995, at 2.
447. Id. at 3-4.
448. Letter from J. W. McElroy, Regional Manager, Chevron U.S.A.
Products Co., to Wendell K. Kimura, Director, Legislative
Reference Bureau, dated August 7, 1995, at 7.
449. Id. at 7-8.
450. See generally 15 U.S.C. §13; Richard A. Posner, The
Robinson-Patman Act: Federal Regulation of Price
Differences (Washington D.C.: American Enterprise Institute
for Public Policy Research, 1976); see also Richard Albert,
"Recent Decisions: Trade Regulations--Clayton Act-
-Robinson-Patman Price Discrimination Act--Oil Company
[Texaco v. Hasbrouck, 496 U.S. 543 (1990)]," 29 Duq. L. Rev.
803 (Summer 1991).
451. See chapter 9 of this study.
452. In the context of public utility regulations, a tariff "is
an algorithm for determining the bill to the customer for
consumption of a firm's products. In the trivial case of
one good with one price, the tariff is simply that price:
the customer's bill is the price times the quantity
consumed." Kenneth E. Train, Optimal Regulation: The
Economic Theory of Natural Monopoly (Cambridge, MA: The MIT
Press, 1991) at 191 (footnote omitted). "Multipart" tariffs
are those with several billing components, while "optional",
"voluntary", or "self-selecting" tariffs are those that give
a customer a choice among two or more tariffs. For a
discussion of multipart and self-selecting tariffs, see id.
at 191-237 and 263-295, respectively.
453. Section 271-21, HRS, reads as follows:
§271-21 Tariffs of common carriers by motor
vehicle. (a) Every common carrier by motor vehicle
shall file with the public utilities commission, and
print, and keep open to public inspection, tariffs
showing all the rates, fares, and charges for
transportation, and all services in connection
therewith, of passengers or property. The rates,
fares, and charges shall be stated in terms of lawful
money of the United States. The tariffs required by
this section shall be published, filed, and posted in
such form and manner, and shall contain such
information as the commission by regulations shall
prescribe; and the commission may reject any tariff
filed with it which is not in consonance with this section and with the regulations. Any tariff so
rejected by the commission shall be void and its use
shall be unlawful.
(b) No common carrier by motor vehicle shall
charge or demand or collect or receive a greater or
less or different compensation for transportation or
for any service in connection therewith between the
points enumerated in the tariff than the rates, fares,
and charges specified in the tariffs in effect at the
time; and no carrier shall refund or remit in any
manner or by any device, directly or indirectly, or
through any agent, or otherwise, any portion of the
rates, fares, or charges so specified, or extend to
any person any privileges or facilities for
transportation except such as are specified in its
tariffs.
(c) No change shall be made in any rate, fare,
charge, or classification, or any rule, regulation, or
practice affecting the rate, fare, charge, or
classification, or the value of the service
thereunder, specified in any effective tariff of a
common carrier by motor vehicle; except after thirty
days' notice of the proposed change filed and posted
in accordance with subsection (a) of this section.
The notice shall plainly state the change proposed to
be made and the time when it will take effect. The
commission may in its discretion and for good cause
shown allow the change upon notice less than that
herein specified or modify the requirements of this
section with respect to posting and filing of tariffs
either in particular instances or by general order
applicable to special or peculiar circumstances or
conditions.
(d) No common carrier by motor vehicle shall
engage in the transportation of passengers or property
unless the rates, fares, and charges upon which the
same are transported by the carrier have been filed
and published in accordance with this chapter.
454. See, e.g., Haw. Rev. Stat. §§269-16(b) and 271-20(c).
455. For example, section 271-20, HRS (rates, fares, and charges
of common carriers by motor vehicle), establishes the
following procedures for ensuring that rates are just and
reasonable and for filing complaints before the Public
Utilities Commission:
§271-20 Rates, fares and charges of common
carriers by motor vehicle. * * *
(c) All charges made for any service rendered by
any common carrier by motor vehicle in the
transportation of passengers or property or in
connection therewith shall be just and reasonable, and
every unjust and unreasonable charge for such service
or any part thereof, is prohibited and declared to be
unlawful. It shall be unlawful for any common carrier
by motor vehicle to make, give, or cause any undue or
unreasonable preference or advantage to any particular
person, locality, region, district, island, or
description of traffic, in any respect whatsoever; or
to subject any particular person, locality, region,
district, island, or description of traffic to any
unjust discrimination or undue or unreasonable
prejudice or disadvantage in any respect whatsoever;
provided that this subsection shall not be construed
to apply to discrimination, prejudice, or disadvantage
to the traffic of any other carrier of whatever
description.
(d) Any person, organization, or body politic
may make complaint in writing to the public utilities
commission that any such rate, fare, charge,
classification, rule, regulation, or practice, in
effect or proposed to be put into effect, is or will
be in violation of this section or of section 271-21.
Whenever, after hearing, upon complaint or an
investigation of its own initiative, the commission
shall be of the opinion that any individual rate,
fare, or charge, demanded, charged, or collected by
any common carrier or carriers by motor vehicle for
transportation, or any classification, rule,
regulation, or practice whatsoever of the carrier or
carriers, affecting such rate, fare, or charge or the
value of the service thereunder, is or will be unjust
or unreasonable, or unjustly discriminatory or unduly
preferential or unduly prejudicial, it shall determine
and prescribe the lawful rate, fare, or charge or the
maximum or minimum or maximum and minimum rate, fare,
or charge thereafter to be observed, or the lawful
classification, rule, regulation, or practice
thereafter to be made effective.
(e) Whenever there is filed with the commission
any schedule stating a new rate, fare, charge, or
classification for the transportation of passengers or
property by a common carrier or carriers by motor
vehicle, or any rule, regulation, or practice
affecting such rate, fare, or charge, or the value of
the service thereunder, the commission may upon
complaint of any interested person or upon its own
initiative at once and, if it so orders, without
answer or other formal pleading by the interested
carrier or carriers, but upon reasonable notice, enter
upon a hearing concerning the lawfulness of the rate,
fare, or charge, or the rule, regulation, or practice,
and pending the hearing and the decision thereon the
commission, by filing the schedule and delivering to
the carrier or carriers affected thereby a statement
in writing of its reasons for such suspension, may
from time to time suspend the operation of the
schedule and defer the use of the rate, fare, or
charge, or the rule, regulation, or practice, but not
for a longer period than five months beyond the time
when it would otherwise go into effect, and after
hearing, whether completed before or after the rate,
fare, charge, classification, rule, regulation, or
practice goes into effect, the commission may make
such order with reference thereto as would be proper
in a proceeding instituted after it had become
effective. If the proceeding has not been concluded
and an order made within the period of suspension, the
proposed changed rate, fare, or charge, or
classification, rule, regulation, or practice, shall
go into effect at the end of such period; provided
that this subsection shall not apply to any initial
schedule or schedules filed by any carrier in bona
fide operation when this section takes effect. At any
hearing involving a change in a rate, fare, charge, or
classification, or in a rule, regulation, or practice,
the burden of proof shall be upon the carrier to show
that the proposed changed rate, fare, charge,
classification, rule, regulation, or practice, is just
and reasonable.
(f) In any proceeding to determine the justness
or reasonableness of any rate, fare, or charge of any
carrier, there shall not be taken into consideration
or allowed as evidence or elements of value of the
property of the carrier, either goodwill, earning
power, or the certificate under which the carrier is
operating; and in applying for and receiving a
certificate under this part any carrier shall be
deemed to have agreed to the provisions of this
subsection on its own behalf and on behalf of all
transferees of the certificate.
(g) In the exercise of its power to prescribe
just and reasonable rates, fares, and charges for the
transportation of passengers or property by common
carriers by motor vehicle, and classifications,
regulations, and practices relating thereto, the
commission shall give due consideration, among other
factors, to the effect of rates upon the movement of
traffic by the carrier or carriers for which the rates
are prescribed; to the need, in the public interest,
of adequate and efficient transportation service by
the carriers at the lowest cost consistent with the
furnishing of the service; and to the need of revenues
sufficient to enable the carriers, under honest,
economical, and efficient management, to provide the
service. * * *
456. See, e.g., AG (1990) at 10 ("it would not be in the interest
of the existing oil companies to supply a new competitor
with petroleum products in bulk quantities or with terminal storage.") For a discussion of inadequate information as a
justification for government regulation requiring disclosure
of information, see note 14 in chapter 13.
457. The Fifth Amendment of the U.S. Constitution provides in
relevant part: "... nor shall private property be taken for
public use, without just compensation." Article 1, section
20 of the Hawaii Constitution similarly provides that
"[p]rivate property shall not be taken or damaged for public
use without just compensation." (emphasis added).
458. The state Department of Transportation, in the name of the
State and subject to the approval of the Governor, may
acquire private property by eminent domain as may be
necessary for the establishment and maintenance of energy
corridors in Hawaii. See Haw. Rev. Stat. chapter 277. The
purpose of these corridors is to maximize "the utilization
of lands available for use in connection with transporting
by pipeline or other means, sources of energy including but
not limited to oil, its derivatives and natural gas...".
Haw. Rev. Stat. §277-2. The Legislature further found that
the acquisition of private property for these purposes was
for a public use. Haw. Rev. Stat. §277-1(4). While
pipelines and appurtenant equipment may already be subject
to the State's power of eminent domain under this chapter to
the extent that these properties are necessary for
transporting oil along energy corridors, it does not
necessarily follow that the terminals used for storing
petroleum products would be subject to the same
requirements.
459. John E. Nowak, Ronald D. Rotunda, and J. Nelson Young,
Constitutional Law, 3d ed. Hornbook Series (St. Paul, MN:
West Publishing Co., 1986) at 408 (footnote omitted).
460. Lucas v. South Carolina Coastal Council, 60 LW 4842, 4848,
112 S.Ct. 2886 (1992); see also Dolan v. City of Tigard, 62
LW 4576, 114 S.Ct. 2309 (1994); James D. Smith, "Note:
Private Property Protection Legislation and Original
Understandings of the Takings Clause: Can They Co-Exist?,"
21 J. of Legis. 93 (1995); Larry Morandi, "Takings for
Granted," State Legislatures, vol. 21, no. 6 (June 1995) at
22.
461. 444 U.S. 164 (1979).
462. 438 U.S. 104 (1978).
463. Kaiser Aetna, 444 U.S. at 164, citing Penn Central
Transportation Co., 438 U.S. at 124.
464. Nowak, Rotunda, and Young (1986) at 409.
465. Hawaii Housing Authority v. Lyman, 68 Haw. 55 (1985).
466. Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 141
(1978) (Blackmun, J., concurring in part and dissenting in
part).
467. "Note: Taking Back Takings: A Coasean Approach to
Regulation," 106 Harv. L. Rev. 914, 923 (Feb. 1993). See
id. at 923-925 for a discussion of the "fiscal illusion"
problem; see also Pennell v. City of San Jose, 485 U.S. 1,
22 (1988) (Scalia, J., concurring in part and dissenting in
part).
468. See Hawaii, Department of the Attorney General, The Attorney
General's 1994 Interim Report on the Investigation of
Gasoline Prices (Honolulu: 1994) at 13.
469. 467 U.S. 229 (1984).
470. Id. at 242, citing, inter alia, Exxon Corp. v. Governor of
Maryland, 437 U.S. 117 (1978) (upholding Maryland's retail
divorcement statute as bearing a reasonable relation to
Maryland's legitimate purpose in controlling the gasoline
market); see also Housing Finance and Development Corp. v.
Castle, 1995 WL 307742 (Hawaii Sup. Ct., May 19, 1995), slip
op. at 12; Nowak, Rotunda, and Young (1986) at 416.
471. AG (1990) at 9.
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Chapter 12
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