Infinite Energy, Inc., et al. v. Marietta Natural Gas, LLC
The Georgia Court of Appeals held that the creation of the Marietta Natural Gas, LLC (MNG) by the Marietta Board of Light and Waterworks (MBLW) and its subsequent application for a natural gas certificate from the Georgia Public Service Commission (PSC) was an ultra vires act under the city's charter. After MNG filed its application with the PSC so that MNG might provide retail natural gas service outside the city limits of the City of Marietta a number of for-profit natural gas marketers intervened and filed a motion to dismiss MNG's application. The Municipal Gas Authority of Georgia (MGAG) also intervened arguing against the motion to dismiss.
The PSC ultimately dismissed MNG's application and MNG and MGAG petitioned the Fulton County Superior Court for review of the PSC order. The superior court reversed the PSC and specifically found that the city was authorized to create MNG and that statutory authority allowed MGAG to contract to supply MNG . The PSC and the for-profit companies, subsequently, appealed the superior court decision . The Georgia Court of Appeals found that the explicit language of the city charter limited creations to non-profit corporations and the LLC was specifically not incorporated under the Georgia Nonprofit Corporation Code. As a result, the court held that the LLC was created in violation of the city charter and was ultra vires.