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Conservation Law Foundation v. Public Utilities Commission

Supreme Court of Maine

August 16, 2018

CONSERVATION LAW FOUNDATION et al.
v.
PUBLIC UTILITIES COMMISSION

          Argued: December 13, 2017

          Sean Mahoney, Esq., and Emily K. Green, Esq., Conservation Law Foundation, Portland, for appellant Conservation Law Foundation

          Stephen F. Hinchman, Esq., ReVison Energy, LLC, Portland, for appellant ReVison Energy, LLC

          Andrew Landry, Esq., and Anthony W. Buxton, Esq. (orally), PretiFlaherty, Augusta, for appellant Industrial Energy Consumers' Group

          Catherine B. Johnson, Esq., Natural Resources Council of Maine, Augusta, for appellant Natural Resources Counsel of Maine

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

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

          SAUFLEY, C.J.

         [¶1] The Conservation Law Foundation; the Industrial Energy Consumers' Group; Revision Energy, LLC; and the Natural Resources Council of Maine appeal from the promulgation of a final rule by the Public Utilities Commission.[1] CLF argues that the Commission violated several provisions of the Maine Administrative Procedure Act, see 5 M.R.S. § 8058 (2017), and that the rule violates statutory bans on exit fees, see 35-A M.R.S. § 3209(3) (2017), and unjust discrimination, see 35-A M.R.S. § 702(1) (2017). The Commission has moved for dismissal of the appeal, arguing that original jurisdiction over challenges to the Commission's promulgation of a rule lies exclusively with the Superior Court. Because we do not have original jurisdiction over appeals from administrative rulemaking proceedings, we dismiss the appeal.

         I. BACKGROUND

         [¶2] Net Energy Billing (NEB) is a renewable energy incentive program that is intended to encourage electricity generation from renewable resources. 9 C.M.R. 65 407 313-3 § 1 (2017). The Commission first implemented NEB in the early 1980s by promulgating a rule permitting small power generators to sell back to their utility any electricity that they generated but did not consume on site. See Re Cogeneration and Small Power Prod., 42 P.U.R.4th 536 (Me. 1981). Following the industry deregulation in the late 1990s, the Commission implemented a credit-based incentive whereby NEB customers who generated more electricity than they used in a given billing period were provided credits to offset usage over the following twelve months. See Me. Pub. Util. Comm'n, Report on Net Energy Billing 5-6 (Jan. 15, 2009).

         [¶3] In 2016, following a review of the NEB program, the Commission issued a notice of proposed rulemaking. See 5 M.R.S. § 8053 (2017). After holding a public hearing and receiving written comments on the proposed amendments, the Commission adopted an amended rule on March 1, 2017. See 5 M.R.S. § 8052(1)-(3) (2017).

         [¶4] Pertinent to this appeal, the Rule implemented three changes, all applicable to the calculation of the NEB incentive with respect to the transmission and distribution (T&D) portion of the NEB customers' bills, and all to be implemented over an extensive period of time. First, the Rule created an attenuated reduction in the credit available to new NEB customers, reducing the credit by ten percent for each of the next ten years, applied according to the year in which the customer enrolls in the NEB program. 9 C.M.R. 65 407 313-2 § 3(F) (2017). Thus, for ratepayers who join the NEB program after 2027, zero percent of excess energy will be available as a credit against T&D charges. Id. Second, the Rule grandfathered existing customers so that their NEB incentive applicable to T&D charges remains the same for fifteen years, after which it is eliminated altogether. Id. § 3(E). Third, the Rule defined "nettable energy"- that portion of the customer's consumption from which the incentive is to be calculated-so that all of the energy consumed by the customer is included.[2] Id. §2(L).

         [¶5] On March 21, 2017, CLF filed a petition for reconsideration. The Commission did not respond to the petition, rendering it denied. See 9 C.M.R. 65-407 110-12 § 11(D) (2017). CLF filed a timely appeal on May 1, 2017. See M.R. ...


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