Appeal of Seacoast Anti-Pollution League

490 A.2d 1329, 125 N.H. 708, 41 U.C.C. Rep. Serv. (West) 1790, 1984 N.H. LEXIS 382
Supreme Court of New Hampshire·Decided November 27, 1984·No. No. 84-502; No. 84-530·Published·Cited by 10 cases

Opinions

Per curiam.

This is an appeal from an order of the public utilities commission granting the petition of Public Service Company of New Hampshire for authority to issue securities in an amount up to $425 million. We affirm.

Part I (November 27,1984)

RSA 369:1 and 4 empower a public utility to engage in financing by issuing and selling securities with the approval of the commission. That approval must rest on a finding that the issue would be consistent with “the public good.” Id. On June 29, 1984, the company filed its petition for approval of this financing.

The financing will implement the second of a three-step financing plan devised in the spring of 1984 in response to the company’s financial problems. The commission approved the first step of that plan earlier this year by authorizing the sale of $90 million of short-term securities.

The securities to be issued under this second step will be deben[711]*711tures and warrants. The object of this sale is to provide funds to retire the $90 million indebtedness incurred as step one, plus $335 million in new money.

About ten percent of this money is intended for the company’s share of new construction at the Seabrook nuclear power plant. The remainder will be used for debt service on the company’s investment in that plant, for projects unrelated to Seabrook and for expenses of financing.

The anticipated third step in the plan has been given the name of Newbrook. The Newbrook financing would provide the company’s share of money needed to complete the first reactor at Seabrook. The amount of that share has been estimated at $350 million, though a preliminary prospectus issued on September 4, 1984, is said to have put the amount at $730 million. The commission has already opened a docket, DF 84-200, for consideration of the Newbrook financing, though it has not begun hearings on it.

On July 30, 1984, the commission issued a procedural order that recognized the requirement of Appeal of Roger Easton, 125 N.H. 205, 480 A.2d 88 (1984). That case held that RSA 369:1 and 4 obligate the commission to consider the economic justifiability of the object of a financing, in deciding whether the financing would be in the public good.

The company objected to this first procedural order and presented the testimony of two witnesses that there would be a defacto denial of the petition unless the commission reached a decision on this second step financing by August 31, 1984. They gave their opinions that even an approval of the request after that date would come too late for the company to raise the money in time to stave off bankruptcy.

In response to this testimony, the commission issued a second procedural order on August 2, 1984. In that order the commission stated its finding that the company’s financial situation required action on the petition to approve the second step financing before it would be possible to complete any Easton inquiry into the economic justifiability of allowing the company to participate in the completion of the first Seabrook reactor. The commission therefore deferred the Easton inquiry to the time of the anticipated hearing on the third or Newbrook step of the financing plan.

The second procedural order accordingly limited the scope of the inquiry into the public good under the present petition to a consideration of

“1) the terms, conditions and amount of the proposed financing;
[712]*7122) the purpose of the proposed financing; and
3) the short term effect of successful completion of the proposed financing on the company’s capital structure.”

(Emphasis supplied.)

The commission proceeded to take evidence in addition to the testimony from the witnesses mentioned above, and on August 28 it granted the petition to approve the second step of the financing plan. The Seacoast Anti-Pollution League (SAPL) then filed an appeal on two issues and requested an emergency hearing. It appealed the refusal of the commission’s chairman to recuse himself and the limitation provided by the second procedural order on the scope of the inquiry into public good.

We ruled on these issues on September 7, 1984, in Appeal of Seacoast Anti-Pollution League, 125 N.H. 465, 482 A.2d 509 (1984). We held that the chairman should have recused himself, and for that reason we vacated both the order granting the petition and the second procedural order, in which the chairman had participated.

Since it was clear that the scope of the inquiry would be contested on remand as it had been in the first instance, we went on. to consider the merits of the second procedural order, and by a divided court we upheld it on its merits. The majority held that the Easton inquiry into the economic desirability of the company’s continuing participation in construction of the first Seabrook reactor could be deferred until the commission considered the Newbrook step of financing. The majority accepted the commission’s determination that the company’s financial position required action on the financing request before it would be possible to complete an Easton inquiry. Since only ten percent of the second step financing would go for new Seabrook construction, and since the Newbrook hearing would be devoted to a request for substantial funds to complete the first Seabrook reactor, the majority concluded that postponement of the Easton inquiry to the Newbrook step would not render that inquiry academic. Thus the majority concluded that it was not unlawful or clearly unreasonable within the meaning of RSA 541:13 to defer the Easton inquiry, and consequently upheld the merits of the second procedural order.

Following our earlier opinion on September 7, 1984, the chairman of the commission recused himself, and the Governor and Council appointed John N. Nassikas, Esq., as a special commissioner. See RSA 363:20. The intervenor SAPL then moved to expand the scope of the proceeding beyond the limits described above and to reopen the record for further testimony. Before ruling on that motion the commissioners undertook a complete review of the record of evidence previously submitted.

[713]*713On September 21, 1984, the commission issued the order that is the subject of this appeal. It unanimously decided to confine its inquiry to the limits that this court had upheld in Appeal of Seacoast Anti-Pollution League supra, and it was apparently unanimous in refusing to reopen the record. On the basis of that record, compiled before the order of August 28, 1984, a majority of the commission again granted the petition to approve the second step financing, subject to these conditions on the company’s accounting and expenditure of funds: the company must file monthly accounts of the disposition of the proceeds of the financing; the company may not contribute more to the cost of new construction at Seabrook than its share of construction computed at the level of $5 million per week, unless otherwise authorized in the anticipated order on the New-brook financing; the company may continue to service debt and allowance for funds used during Seabrook construction only until the date of the Newbrook order, but not thereafter unless specifically authorized; the company may not declare or pay preferred or common stock dividends without the commission’s specific authority.

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Appeal of Seacoast Anti-Pollution League, 490 A.2d 1329, 125 N.H. 708, 41 U.C.C. Rep. Serv. (West) 1790, 1984 N.H. LEXIS 382 (N.H. 1984).

490 A.2d 1329 (Appeal of Seacoast Anti-Pollution League) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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