Windham Solar, LLC v. Public Utilities Regulatory Authority ( 2020 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
WINDHAM SOLAR, LLC v. PUBLIC UTILITIES
REGULATORY AUTHORITY ET AL.
(AC 41918)
DiPentima, C. J., and Prescott and Devlin, Js.
Syllabus
The plaintiff, W Co., sought to sell to the defendant E Co. the energy and
capacity from twenty-six solar electric generating facilities. E Co. agreed
to purchase the energy, but not the capacity, and rejected W Co.’s offer
to sell the energy at a rate equal to the anticipated avoided costs over
the life of the proposed thirty year contract. W Co. then filed a petition
with the defendant Public Utilities Regulatory Authority, pursuant to
statute (§ 16-243a), seeking an order to compel E Co. to enter into the
contract to purchase the energy and the capacity in accordance with
W Co.’s proposed pricing. W Co. claimed that E Co. had failed to negotiate
in good faith to arrive at a contract that fairly reflected the requirements
of § 16-243a and the anticipated avoided costs over the life of the con-
tract. The authority denied W Co.’s petition, concluding that E Co. did
not need the capacity offered by W Co. and that the avoided cost of
the proffered capacity was zero. The authority further determined that
W Co.’s petition sought a declaratory judgment and held that it would
open a separate proceeding to consider whether its regulations required
modification or amendment. After W Co. appealed to the trial court,
that court granted an unopposed request from the authority to remand
the matter to the authority to consider the effect of recent rulings by
the Federal Energy Regulatory Commission on the authority’s denial of
W Co.’s petition. The court retained jurisdiction over W Co.’s appeal.
The authority thereafter reversed its initial decision denying W Co.’s
petition, concluding that W Co.’s claims should be addressed through
the authority’s rule-making proceeding. The authority then filed a motion
to dismiss W Co.’s appeal on the ground that the court lacked subject
matter jurisdiction because W Co. was not aggrieved by the authority’s
two decisions and that the appeal had become moot as a result of
the authority’s reversal of its initial decision. The court granted the
authority’s motion to dismiss, concluding that it lacked subject matter
jurisdiction because W Co. had failed to plead facts sufficient to establish
aggrievement and that W Co.’s appeal was moot as a result of the
authority’s reversal of its initial decision. The court thereafter rendered
judgment for the authority, and W Co. appealed to this court, claiming
that the trial court improperly concluded that it did not have standing
and that its claims were moot. Held that the trial court improperly
granted the authority’s motion to dismiss W Co.’s petition, as W Co. had
standing to appeal, having satisfied the requirements of the test for
classical aggrievement, and its claims were not moot because there was
practical relief that it could have been afforded by the trial court: W
Co. had a specific, personal and legal interest in the issue at hand in
that it sought an order from the authority to approve and to compel the
execution of the power purchase agreement and alleged that it had been
specially and injuriously affected by the authority’s refusal to compel
E Co. to execute the contract, and, in determining that W Co.’s claims
were moot as a result of the authority’s second decision, the trial court
conflated notions of relief that may be afforded to W Co. with relief to
which W Co. was entitled when it improperly addressed the merits of
W Co.’s claims and discussed the authority’s options to address those
claims directly or generically through the authority’s regulatory proceed-
ing; moreover, the court could have afforded W Co. practical relief by
reversing the authority’s decision to address the petition through its
rule-making proceeding and remanding the matter with direction to
consider the issues presented by the petition, or the court could have
addressed issues the authority decided in its initial decision that it did
not reverse or left unresolved in its subsequent decision.
Argued November 19, 2019—officially released March 3, 2020
Procedural History
Appeal from the decision by the named defendant
denying the plaintiff’s petition to compel the defendant
Connecticut Light and Power Company, doing business
as Eversource Energy, to enter into a certain contract
for the sale of energy, brought to the Superior Court
in the judicial district of New Britain, where the court,
Huddleston, J., granted the motion to intervene as a
defendant filed by the Office of Consumer Counsel;
thereafter, the court granted the named defendant’s
motion to remand the matter to the named defendant
for further proceedings; subsequently, the court, Hon.
Joseph M. Shortall, judge trial referee, granted the
named defendant’s motion to dismiss and rendered
judgment thereon, from which the plaintiff appealed to
this court. Reversed; further proceedings.
Thomas Melone, for the appellant (plaintiff).
Seth A. Hollander, assistant attorney general, with
whom was Robert L. Marconi, assistant attorney gen-
eral, for the appellee (named defendant).
Vincent P. Pace, assistant general counsel, with
whom, on the brief, was Jennifer Galiette, senior coun-
sel, for the appellee (defendant Connecticut Light and
Power Company, doing business as Eversource
Energy).
Opinion
DEVLIN, J. In this administrative appeal seeking regu-
latory remedies with respect to a proposed contract for
the sale of energy, the plaintiff, Windham Solar, LLC,
appeals from the judgment of dismissal rendered by
the trial court on the ground that it lacked subject
matter jurisdiction. The plaintiff claims that the court
erred in concluding that it did not have standing to
bring this administrative appeal and that, even if it did,
its claims were moot. We agree with the plaintiff and
reverse the judgment of the trial court.
The record reveals the following undisputed factual
and procedural history. On January 22, 2016, the plain-
tiff offered to sell to Connecticut Light & Power, doing
business as Eversource Energy (Eversource),1 all of
the energy and capacity from twenty-six solar electric
generating facilities, all of which are qualifying facilities
under the Public Utility Regulatory Policies Act of 1978
(PURPA), 16 U.S.C. § 2601 et seq. See 16 U.S.C. § 796
(17) (C) (2012). In response, Eversource acknowledged
its obligation under General Statutes § 16-243a (b) (2)
to purchase the power offered by the plaintiff,2 but
agreed to purchase only the energy, not the capacity,
and rejected the plaintiff’s offer to sell the energy at
the rate equal to the anticipated avoided costs over the
life of the proposed thirty year contract.
As a result of Eversource’s refusal to accept the terms
of its offer, the plaintiff filed a petition with the defen-
dant Public Utilities Regulatory Authority (PURA),
alleging that Eversource had failed to ‘‘negotiate in good
faith to arrive at a contract which fairly reflects the
provisions of [§ 16-243a] and the anticipated avoided
costs over the life of the contract,’’ and sought an order
from PURA compelling Eversource to enter into a thirty
year contract to purchase energy and capacity in accor-
dance with its proposed pricing.3
On August 24, 2016, PURA issued a written decision
denying the plaintiff’s petition to compel Eversource
to enter into a contract on the plaintiff’s terms. PURA
found, inter alia, that Eversource did not need the
capacity offered by the plaintiff and that ‘‘the avoided
cost of the proffered capacity is zero.’’ PURA further
explained that ‘‘[the plaintiff’s] petition is properly
understood as asking whether PURA’s long-standing
implementation of . . . [PURPA], through § 16-243a
and various orders of [PURA], is consistent with federal
law.’’ PURA thus ‘‘interpreted [the plaintiff’s] petition as
a request for a declaratory ruling pursuant to [General
Statutes] § 4-176’’ and held that it would ‘‘open a sepa-
rate proceeding to consider whether its regulations
promulgated pursuant to . . . § 16-243a require modi-
fication or amendment.’’
The plaintiff thereafter appealed to the trial court
from PURA’s August 24, 2016 decision. While that
appeal was pending, the Federal Energy Regulatory
Commission (FERC) issued an order construing PURPA
to require a real-time price offering and also an option
under which avoided costs are forecasted at the time
the contract is executed. Consequently, PURA
requested, and was granted, a voluntary and unopposed
remand from the trial court, while the court retained
jurisdiction over the plaintiff’s appeal, to consider the
effect of the FERC ruling on PURA’s August 24, 2016
decision.
As a result of that reconsideration on remand, PURA
issued a decision on January 10, 2018, reversing its
August 24, 2016 decision, and holding that its earlier
decision ‘‘incorrectly determined that PURPA’s require-
ments are satisfied by real-time avoided cost offerings
only, and that forecasted avoided cost rates are not
necessary.’’ PURA further concluded ‘‘that its PURPA
regulations should be amended to incorporate a fore-
casted avoided cost rate methodology and other
changes necessary as a result of electric restructuring
and [the Federal Energy Policy Act of 2005], and [it] will
address these issues in the [r]egulations [p]roceeding.’’
PURA explained in a letter to the plaintiff’s counsel
that it was ‘‘not required, as a matter of law, to resolve
[the plaintiff’s claims] on a case-by-case basis . . .’’ but,
rather, that it had ‘‘ ‘the statutory authority to revisit
its implementation of FERC’s rules, either through a
new rule making, a case-by-case adjudication, or other
reasonable method.’ Allco Renewable Energy Ltd. v.
Massachusetts Electric Co., [875 F.3d 64, 74 (1st Cir.
2017)] . . . . [PURA] concludes that it should revisit
its implementation of FERC’s rules through a regula-
tions proceeding.’’ PURA thus determined that the
issues presented by the plaintiff’s petition ‘‘should be
addressed generically through PURA’s rule-making pro-
ceeding.’’
Dissatisfied with PURA’s decision, the plaintiff, on
February 1, 2018, filed a motion to restore its case to
the trial court docket, asking that its original appeal be
permitted to proceed. PURA filed an objection to the
plaintiff’s motion to restore its appeal to the docket,
and a motion to dismiss the plaintiff’s appeal on the
ground that the court lacked subject matter jurisdiction
over the plaintiff’s appeal because the plaintiff was not
aggrieved by PURA’s decisions and the plaintiff’s appeal
had become moot as a result of PURA’s reversal of its
August 24, 2016 decision. The plaintiff filed an objection
to PURA’s motion to dismiss, arguing, inter alia, that,
although PURA ‘‘overturned much of its [August 24,
2016] decision, it concluded that it would not address
the particular circumstances of [the plaintiff’s] petition,
or address the relief sought by [the plaintiff].’’
The trial court agreed with PURA that the plaintiff
failed to plead facts sufficient to establish aggrievement
and, thus, that the court lacked subject matter jurisdic-
tion over the plaintiff’s appeal. The court further deter-
mined that the plaintiff’s appeal was moot by virtue of
PURA’s January 10, 2018 decision reversing its earlier
determination that ‘‘facilities like [the] plaintiff’s are
not entitled to sell their output to a utility at a forecasted
avoided-cost rate. [PURA] has undertaken to develop
via regulation a methodology for calculating such a
rate.’’ The court thus granted PURA’s motion to dismiss,
and this appeal followed.
‘‘As a preliminary matter, we set forth the standard
of review. A motion to dismiss . . . properly attacks
the jurisdiction of the court, essentially asserting that
the plaintiff cannot as a matter of law and fact state a
cause of action that should be heard by the court. . . .
A motion to dismiss tests, inter alia, whether, on the
face of the record, the court is without jurisdiction.
. . . [O]ur review of the trial court’s ultimate legal con-
clusion and resulting [decision to] grant . . . the
motion to dismiss will be de novo. . . .
‘‘[I]t is the burden of the party who seeks the exercise
of jurisdiction in his favor . . . clearly to allege facts
demonstrating that he is a proper party to invoke judi-
cial resolution of the dispute. . . . It is well established
that, in determining whether a court has subject matter
jurisdiction, every presumption favoring jurisdiction
should be indulged. . . . Because a determination
regarding the trial court’s subject matter jurisdiction
raises a question of law, our review is plenary.’’ (Cita-
tions omitted; internal quotation marks omitted.) Wil-
cox v. Webster Ins., Inc., 294 Conn. 206, 213–14, 982
A.2d 1053 (2009).
The plaintiff first challenges the trial court’s determi-
nation that it failed to demonstrate that it was aggrieved
by PURA’s decisions and was thus without standing to
appeal from them. ‘‘Standing is the legal right to set
judicial machinery in motion. One cannot rightfully
invoke the jurisdiction of the court unless [it] has . . .
some real interest in the cause of action, or a legal or
equitable right, title or interest in the subject matter of
the controversy. . . . When standing is put in issue,
the question is whether the [party] whose standing is
challenged is a proper party to request an adjudication
of the issue. . . . Standing requires no more than a
colorable claim of injury; a [party] ordinarily establishes
. . . standing by allegations of injury [that it has suf-
fered or is likely to suffer]. Similarly, standing exists to
attempt to vindicate arguably protected interests. . . .
‘‘Standing is established by showing that the party
claiming it is authorized by statute to bring suit or is
classically aggrieved. . . . The fundamental test for
determining [classical] aggrievement encompasses a
[well settled] twofold determination: first, the party
claiming aggrievement must successfully demonstrate
a specific, personal and legal interest in [the subject
matter of the challenged action], as distinguished from
a general interest, such as is the concern of all members
of the community as a whole. Second, the party claiming
aggrievement must successfully establish that this spe-
cific personal and legal interest has been specially and
injuriously affected by the [challenged action]. . . .
Aggrievement is established if there is a possibility, as
distinguished from a certainty, that some legally pro-
tected interest . . . has been adversely affected.’’
(Internal quotation marks omitted.) Id., 214–15.
Here, in considering the plaintiff’s claim that it was
aggrieved by PURA’s decisions,4 the court concluded
that, ‘‘[c]onstruing the complaint5 in a manner most
favorable to [the] plaintiff, it may allege the ‘specific,
personal and legal interest in the subject matter of the
controversy,’ which is the first element necessary to
make out classical aggrievement: ‘[The plaintiff] filed
a petition . . . with [PURA] under . . . § 16-243a to
compel and approve the execution of the power pur-
chase agreement offered by [the plaintiff] to Ever-
source. [PURA’s] final decision rejected [the plaintiff]’s
petition.’ . . . No matter how generously construed,
however, the complaint fails to allege facts supporting
the second essential element of classical aggrievement,
i.e., how that interest has been ‘specially and injuriously
affected’ by [PURA’s] decision.’’ (Citation omitted; foot-
note added.)
On the basis of our review of the plaintiff’s pleadings,
we conclude that the plaintiff satisfies the requirements
of classical aggrievement and, therefore, has standing
to appeal from the decisions of PURA. First, it cannot
reasonably be disputed that the plaintiff has a specific,
personal and legal interest in the issue at hand because
its petition to PURA sought an order to approve and
compel the execution of the power purchase agreement
under which the plaintiff offered to sell to Eversource
all of the energy and capacity from twenty-six solar
electric generating facilities to Eversource but which
Eversource rejected in part. The plaintiff likewise has
alleged that its specific legal interest in the petition to
compel the execution of the contract has been specially
and injuriously affected by PURA’s refusal to compel
Eversource to execute the contract. Because we con-
clude that the plaintiff has satisfied the requirements
of the test for demonstrating classical aggrievement, it
has standing to appeal from PURA’s decisions.
The plaintiff also challenges the trial court’s dismissal
of its claims as moot. ‘‘[I]t is not the province of [the]
courts to decide moot questions, disconnected from the
granting of actual relief or from the determination of
which no practical relief can follow. . . . When . . .
events have occurred that preclude [the] court from
granting any practical relief through its disposition of
the merits, a case has become moot.’’ (Internal quota-
tion marks omitted.) Abel v. Johnson, 194 Conn. App.
120, 149–50, 220 A.3d 843 (2019), cert. granted on other
grounds, 334 Conn. 917, A.3d (2020). Our review
of the trial court’s conclusion that the plaintiff’s claims
are moot is plenary. Id., 150.
Here, PURA argues, and the trial court agreed, that
the plaintiff’s appeal was rendered moot as a result of
PURA’s January 10, 2018 reversal of its August 24, 2016
decision rejecting the pricing and terms of the plaintiff’s
offer to Eversource. We disagree.
In ruling on the plaintiff’s petition on August 24, 2016,
PURA explained that the petition ‘‘is properly under-
stood as asking whether PURA’s long-standing imple-
mentation of . . . [PURPA], through . . . § 16-243a
and various orders of [PURA], is consistent with federal
law. Upon review of the entire record of this proceeding,
[PURA] interpreted [the plaintiff’s] petition as a request
for a declaratory ruling pursuant to § 4-176.’’ Thus, when
PURA reversed its August 24, 2016 decision, it did so in
the limited context of its having ‘‘treated [the plaintiff’s]
petition as asking whether PURA’s long-standing imple-
mentation of PURPA was consistent with federal law.’’
Although that is certainly one aspect of the plaintiff’s
petition, PURA did not address the substance of the
plaintiff’s petition per se, as it did not contemplate the
entirety of the plaintiff’s requested relief. PURA articu-
lated that it was ‘‘not required, as a matter of law, to
resolve [the] issues [raised by the plaintiff’s petition]
on a case-by-case basis’’ but that it was within its rights
to address the plaintiff’s petition ‘‘generically though
PURA’s rule-making proceeding.’’ PURA’s articulation
underscores the fact that PURA’s reversal of its August
24, 2016 decision did not render the plaintiff’s appeal
from that decision moot.
In concluding that the plaintiff’s claims became moot
as a result of PURA’s January 10, 2018 decision, the
trial court specifically discussed PURA’s authority to
address the plaintiff’s claims either generically through
the regulatory proceeding or directly. In so doing, the
trial court was addressing the propriety of PURA’s deci-
sion and, thus, the merits of the plaintiff’s claims. The
analysis that the trial court conducted to determine
whether the plaintiff’s claims were moot was improper,
however, because, ‘‘[i]n determining mootness, the dis-
positive question is whether a successful appeal would
benefit the plaintiff or defendant in any way.’’ (Internal
quotation marks omitted.) Estela v. Bristol Hospital,
Inc., 165 Conn. App. 100, 107, 138 A.3d 1042, cert.
denied, 323 Conn. 904, 150 A.3d 681 (2016). The avail-
ability of practical relief to a party for his or her claims
is a question separate from whether the court will ulti-
mately determine that it is appropriate to provide that
party with any relief that is available to him or her. See
Iacurci v. Wells, 108 Conn. App. 274, 276, 947 A.2d 1034
(2008) (court must determine whether case is moot
before addressing merits of defendants’ appeal). Indeed,
determining whether practical relief is available to a
party necessarily precedes a court’s assessing the mer-
its of that party’s claims because ‘‘[i]f a case has become
moot, [the court] lack[s] subject matter jurisdiction to
address its merits.’’ (Emphasis added.) State v. Walc-
zyk, 76 Conn. App. 169, 172, 818 A.2d 868 (2003). Thus,
in the present case, the trial court improperly conflated
the notions of relief that may afforded to the plaintiff
and relief to which the plaintiff is entitled.
Although the plaintiff may not be entitled to the relief
that it seeks, there is practical relief that the trial court
may afford to it. For instance, the court may reverse
PURA’s decision to address the plaintiff’s petition
generically through its rule-making proceeding and
remand the matter with direction to consider specifi-
cally the issues presented by the plaintiff’s petition. The
court may also address issues decided by PURA in its
August 24, 2016 decision that it did not reverse in its
January 10, 2018 decision. In its appeal to the trial court,
the plaintiff claimed that PURA improperly made fac-
tual findings, such as the finding that Eversource did
not have a capacity obligation, without affording the
plaintiff either the opportunity to conduct discovery or
an evidentiary hearing. PURA’s January 10, 2018 deci-
sion did not address those findings, leaving the plain-
tiff’s claims regarding them unresolved. Likewise,
PURA’s January 10, 2018 decision did not address the
plaintiff’s claim that Eversource violated its obligation
under § 16-243a (d) to negotiate in good faith and its
argument that such obligation was ‘‘independent of
whatever schedules have been, or should have been,
published under § 16-243a (c).’’
It is not the role of this court, at this juncture, to
determine the merits of the plaintiff’s claims for relief.
The limited issue with which we are faced is whether
the trial court properly concluded that it did not have
subject matter jurisdiction over the plaintiff’s claims.
Because there was practical relief that the trial court
could have afforded, we conclude that the plaintiff’s
claims were not moot and, thus, that the court has
subject matter jurisdiction over them. Accordingly, the
trial court erred in granting PURA’s motion to dismiss.
The judgment is reversed and the case is remanded
with direction to deny PURA’s motion to dismiss and
for further proceedings according to law.
In this opinion the other judges concurred.
1
Eversource and the Office of Consumer Counsel also are defendants in
this proceeding.
2
To implement the provisions of PURPA, the Connecticut legislature
enacted § 16-243a. Section 16-243a (b) provides in relevant part: ‘‘Each elec-
tric public service company, municipal electric energy cooperative and
municipal electric utility shall: (1) Purchase any electrical energy and capac-
ity made available, directly by a private power producer or indirectly under
subdivision (4) of this subsection . . . .’’
Subsection (d) of § 16-243a provides: ‘‘When any person, firm or corpora-
tion proposes to enter into a contract to sell energy and capacity as a private
power producer, an electric public service company, municipal electric
energy cooperative or municipal electric utility shall respond promptly to
all requests and offers and negotiate in good faith to arrive at a contract
which fairly reflects the provisions of this section and the anticipated avoided
costs over the life of the contract. Upon application by a private power
producer, the authority may approve a contract which provides for payment
of less than the anticipated avoided costs if, considering all of the provisions,
the contract is at least as favorable to the private power producer as a
contract providing for the full avoided costs. The contract may extend for
a period of not more than thirty years at the option of the private power
producer if it has a generating facility with a capacity of at least one hun-
dred kilowatts.’’
3
The plaintiff sought a thirty year rate in order to attract investors to
the project.
4
The trial court concluded that ‘‘it is clear from a careful reading that
the complaint makes no claim that [the] plaintiff is statutorily aggrieved by
[PURA’s] decision.’’ The plaintiff now challenges that conclusion. Because
we conclude that the plaintiff is classically aggrieved by PURA’s decisions,
we need not address the plaintiff’s claim that it also is statutorily aggrieved.
5
To be sure, the abnormal and convoluted format of the plaintiff’s com-
plaint presented difficulty in identifying the factual allegations upon which
it was relying in asserting aggrievement.