CONSERVATION LAW FOUNDATION et al.
PUBLIC UTILITIES COMMISSION
Argued: December 13, 2017
Mahoney, Esq., and Emily K. Green, Esq., Conservation Law
Foundation, Portland, for appellant Conservation Law
Stephen F. Hinchman, Esq., ReVison Energy, LLC, Portland, for
appellant ReVison Energy, LLC
Landry, Esq., and Anthony W. Buxton, Esq. (orally),
PretiFlaherty, Augusta, for appellant Industrial Energy
Catherine B. Johnson, Esq., Natural Resources Council of
Maine, Augusta, for appellant Natural Resources Counsel of
Ewing, Esq., Amy B. Mills, Esq., and Mitchell M. Tannenbaum,
Esq. (orally), Maine Public Utilities Commission, Augusta,
for appellee Maine Public Utilities Commission
SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY,
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. 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.
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).
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).
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. Id. §2(L).
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. ...