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Conservation Law Foundation v. Public Utilities Commission

Supreme Court of Maine

June 1, 2017

CONSERVATION LAW FOUNDATION
v.
PUBLIC UTILITIES COMMISSION et al.

          Argued: April 11, 2017

         Reporter of Decisions

          Emily K. Green, Esq. (orally), Sean Mahoney, Esq. and Greg Cunningham, Esq., Conservation Law Foundation, Portland, for appellant Conservation Law Foundation

          Amy B. Mills, Esq. (orally), and Mitchell M. Tannenbaum, Esq., Maine Public Utilities Commission, Augusta, for appellee Public Utilities Commission

          Catherine R. Connors, Esq., and Liam J. Paskvan, Esq., Pierce Atwood, LLP, Portland, and Patrick Taylor, Esq., Unitil Service Corp., Hampton, New Hampshire, for appellee Northern Utilities, Inc.

          Janet T. Mills, Attorney General, and Christopher C. Taub, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Efficiency Maine Trust

          Panel: SAUFLEY, C.J., and, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          MEAD, J.

         [¶1] The Conservation Law Foundation appeals from an order of the Maine Public Utilities Commission approving a stipulation regarding Efficiency Maine Trusts Third Triennial Plan for energy efficiency. CLF contends that the Commissions order and the terms of the stipulation disregard statutory mandates set forth in the Efficiency Maine Trust Act. See 35-A M.R.S. §§ 10101-10123 (2015).[1] With respect to electric energy efficiency programs, CLF argues that the Commission did not "make use of best practices across the region" when calculating avoided energy costs and selecting a discount rate, and that it failed to "consider gross efficiency savings for the purpose of determining savings that are cost-effective, reliable and achievable" as required by 35-A M.R.S. § 10110(4-A). With respect to natural gas efficiency programs, CLF asserts that the Commission failed to identify and fund all cost-effective, reliable, and achievable natural gas energy efficiency measures as required by 35-A M.R.S. §§ 10104(4) and 10111(2). We discern no error in the Commissions interpretation and application of these statutes and affirm its order.

         I. BACKGROUND

         A. Statutory Background

         [¶2] In 2009, the Legislature established the Efficiency Maine Trust "for the purposes of developing, planning, coordinating and implementing energy efficiency and alternative energy resources programs in the State, " to, inter alia, promote investment in energy efficiency measures and reduce the cost of energy for Maine residents. 35-A M.R.S. § 10103(1), (1)(B)(1), (1)(D); see generally 35-A M.R.S. §§ 10101-10123. To help achieve these goals, the Trust develops a detailed energy efficiency plan every three years to identify the maximum achievable cost-effective energy efficiency savings (commonly referred to by the Commission as "MACE") and programs to achieve those savings. See 35-A M.R.S. § 10104(4).

         [¶3] The Commission is tasked with reviewing the plan and opening an adjudicatory proceeding, after which it must issue an order approving the plan or rejecting elements of the plan.[2] 35-A M.R.S. § 10104(4)(D). The Commission "shall approve all elements of the triennial plan it determines to be [MACE]" and adjust gas utility and transmission and distribution (T&D) rates to provide revenue for procurement of the energy efficiency resources identified by the triennial plan. Id.

         [¶4] The Efficiency Maine Trust Act sets forth specific standards for the Commissions review and approval of electric energy and natural gas efficiency programs. With respect to electric energy,

[w]hen determining the amount of cost-effective electric energy efficiency resources to be procured under this subsection, the [C]ommission shall:
A. Consider electric energy efficiency resources that are reasonably foreseeable to be acquired by the trust using all other sources of revenue ...;
B. Ensure that calculations of avoided energy costs and the budget identified by the trust in its triennial plan as needed to capture all cost-effective electric energy efficiency resources are reasonable, based on sound evidence and make use of best practices across the region; and
C. Maximize total electricity savings for all ratepayers.
The [C]ommission shall consider gross efficiency savings for the purpose of determining savings that are cost-effective, reliable and achievable and shall consider both net and gross efficiency savings for the purpose of determining the appropriateness of the amount identified by the trust in its triennial plan as needed to capture all cost-effective electric energy efficiency resources.

35-AM.R.S. §10110(4-A).

         [¶5] With respect to natural gas, the Commission "shall assess each gas utility, in accordance with the triennial plan, an amount necessary to capture all [MACE]." 35-A M.R.S. § 10111(2).

         B. The Third Triennial Plan

         [¶6] On December 17, 2015, the Trust submitted to the Commission its petition for approval of the Triennial Plan for Fiscal Years 2017-2019. For purposes of determining the cost-effectiveness of proposed energy efficiency measures, the Trust relied on the Avoided Energy Supply Costs in New England: 2015 Report ("AESC ...


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