Appeal of Public Service Co.

676 A.2d 101, 141 N.H. 13, 1996 N.H. LEXIS 41
CourtSupreme Court of New Hampshire
DecidedMay 13, 1996
DocketNo. 95-610
StatusPublished
Cited by11 cases

This text of 676 A.2d 101 (Appeal of Public Service Co.) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of Public Service Co., 676 A.2d 101, 141 N.H. 13, 1996 N.H. LEXIS 41 (N.H. 1996).

Opinion

Thayer, J.

Public Service Company of New Hampshire (PSNH) appeals an order of the New Hampshire Public Utilities Commission (PUC or commission) declaring that PSNH’s electric utility franchise is not exclusive as a matter of law. PSNH argues that the PUC erred by failing to adhere to a longstanding pattern of statutes and court decisions favoring exclusivity, by ignoring its own administrative gloss on its statutory authority, and by exceeding the limited scope of its authority to permit competition under Laws 1995, chapter 272. We affirm.

I. Facts and Procedural History

This case was initiated on August 1, 1994, when Freedom Energy Company, LLC (Freedom), through a predecessor company, filed with the PUC a petition for permission and approval to do business on a limited basis as a public utility in New Hampshire (petition). Freedom proposed to “purchase wholesale electric power under the jurisdiction of the Federal Energy Regulatory Commission (FERC) for delivery to the PSNH transmission system and to resell it at retail to certain end-users that are located in proximity to PSNH’s transmission system.” Freedom averred that it could obtain, if necessary, an order from the FERC compelling transmission of the purchased power by PSNH.

The commission docketed the petition and granted requests for full intervention to PSNH; Concord Electric Company, Exeter & Hampton Electric Company, and UNITIL Power Corporation; Connecticut Valley Electric Company; Granite State Electric Company (Granite State); New Hampshire Electric Cooperative, Inc.; Cabletron Systems, Inc. and EnerDev, Inc.; the Business and Industry Association of New Hampshire; Campaign for Ratepayers Rights; the Conservation Law Foundation; and the Public Utility Policy Institute. In addition, the Office of the Consumer Advocate intervened pursuant to RSA 363:28, II (1995).

Following a hearing, the PUC ruled that Freedom’s proposed activities would render it a public utility subject to regulation by the PUC, that PSNH’s franchise rights within its service territory are not exclusive as a matter of law, and that the PUC has the authority and duty under RSA 374:26 (1995) to grant a competing retail [16]*16franchise within PSNH’s service territory if the public good would thereby be served. The PUC denied motions for rehearing by PSNH and Granite State, and this appeal followed.

II. Scope of the Appeal and Standard of Review

This appeal does not require us to reach the question of whether restructuring the electric utility industry is in the public interest. The PUC has yet to rule on whether Freedom’s petition — or, more generally, retail competition in the industry — would serve the public good. More importantly for purposes of our review, PSNH has restricted its appeal to the narrow legal question of whether upon a public good determination the PUC has the statutory authority to permit retail competition within PSNH’s service territories. The scope of our review is correspondingly narrow. See Sup. Ct. R. 16(3)(b); Blair v. Manchester Water Works, 103 N.H. 505, 506, 175 A.2d 525, 526 (1961).

Several parties have urged us to hold, in the interests of judicial economy, that PSNPI has waived its rights to raise certain claims in future proceedings by failing to include them in this appeal. Assuming, without deciding, that these parties could have moved for leave of this court to add this question for decision on appeal, they have not done so. Accordingly, we do not consider this argument. See Appeal of Toczko, 136 N.H. 480, 487, 618 A.2d 800, 804-05 (1992).

RSA 541:13 (1974) sets out the standard of review governing this appeal. A party seeking to set aside or vacate an order of the PUC has the burden of demonstrating that the order is contrary to law or, by a clear preponderance of the evidence, that the order is unjust or unreasonable. In addition, findings of fact by the PUC are presumed lawful and reasonable. RSA 541:13; see Appeal of Richards, 134 N.H. 148, 158, 590 A.2d 586, 592, cert. denied, 502 U.S. 899 (1991).

III. Analysis

A. RSA 371:26

The question presented by this appeal is essentially one of statutory construction. RSA 374:22,1 (1995) requires that any entity seeking to operate as a public utility in New Hampshire must first obtain permission and approval from the commission. RSA 374:26 sets out the standard to be applied by the PUC in granting or withholding such permission:

Permission. The commission shall grant such permission whenever it shall, after due hearing, find that such engaging in business, construction or exercise of right, privilege or franchise would be for the public good, and not other[17]*17wise; and may prescribe such terms and conditions for the exercise of the privilege granted under such permission as it shall consider for the public interest. Such permission may be granted without hearing when all parties are in agreement.

(Emphasis added.)

PSNH argues that this statute is ambiguous because it neither provides nor withholds from the commission authority to grant competing electric utility franchises. According to PSNH, “a pattern of statutes and court decisions developed over a period of more than eighty years” requires that this ambiguity be resolved in favor of exclusivity. Freedom, in contrast, reads the statute as unambiguously authorizing and requiring the PUC to grant a competing franchise when such grant would be for the public good. We hold that under the plain language of RSA 374:26 the PUC is both authorized and obligated to grant a competing electric utility franchise when it determines that such grant would serve the public good.

In construing the meaning of RSA 374:26, “we first examine the language found in the statute, and where possible, we ascribe the plain and ordinary meanings to words used.” Appeal of Astro Spectacular, 138 N.H. 298, 300, 639 A.2d 249, 250 (1994) (citation and quotation omitted). The plain language of RSA 374:26 requires the PUC to grant a public utility franchise when that would be “for the public good, and not otherwise.” We find nothing in the statute to support PSNH’s contention that the PUC may never grant a competing electric utility franchise, regardless of the public good. Such a reading would contradict “the intent of the legislature as expressed in the words of [the] statute,” Nashua Y.W.C.A. v. State, 134 N.H. 681, 682, 597 A.2d 535, 536 (1991) (quotation omitted), by depriving the PUC of authority to grant franchises for the public good.

In effect, PSNH asks us to interpolate words of limitation into RSA 374:26 prohibiting the PUC from granting additional franchises within the service territory of a franchised electric utility. This wTe decline to do. The legislature is presumed to choose the words of a statute advisedly Caswell v. BCI Geonetics, Inc., 121 N.H.

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Bluebook (online)
676 A.2d 101, 141 N.H. 13, 1996 N.H. LEXIS 41, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-public-service-co-nh-1996.