Ed Friedman v. Public Utilities Commission , 2016 Me. LEXIS 20 ( 2016 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 19Docket: PUC-15-20
Argued: November 3, 2015
Decided: January 26, 2016
Panel: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
ED FRIEDMAN et al.
v.
PUBLIC UTILITIES COMMISSION et al.
MEAD, J.
[¶1] Ed Friedman and others (collectively, Friedman) appeal from an order
of the Maine Public Utilities Commission finding that Central Maine Power
Company’s (CMP) advanced metering infrastructure (AMI) system poses no
credible threat to the health and safety of CMP’s customers. On appeal, Friedman
contends that (1) the Commission applied an improper standard and burden of
proof; (2) the determination was not supported by substantial evidence in the
record; and (3) the two Commissioners serving on the panel outlined differing
rationales and therefore did not concur in the decision. We affirm the
Commission’s decision.
I. BACKGROUND
[¶2] The facts of this case were thoroughly discussed in Friedman v. Public
Utilities Commission (Friedman I), 2012 ME 90, ¶ 2, 48 A.3d 794, wherein we
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noted that the genesis of this dispute was the Commission’s approval of CMP’s
AMI proposal in 2010. This project provided CMP customers with “smart meters”
and other related devices that allowed CMP to conduct automated and remote
meter readings and to communicate with customers’ meters. In 2011, the
Commission initiated an investigation pursuant to 35-A M.R.S. § 1302(1) (2015)
after receiving multiple complaints regarding the safety of CMP’s smart meters.
Friedman I, 2012 ME 90, ¶¶ 2-3, 48 A.3d 794. Particularly, customers raised
concerns about the potential health effects of radiofrequency signals (RF) emitted
by smart meters. Id. ¶ 2. On May 19, 2011, and on June 22, 2011, the
Commission issued Parts I and II of its Opt-Out Order, respectively, mandating
that CMP provide alternatives for its customers who want to opt out of the smart
meter program. Id. ¶ 3. The Commission further ordered that customers who
wanted to opt out would be assessed both an initial and a monthly fee to continue
to opt out of the smart meter program. Id. ¶ 3 n.3. The Commission made no
finding regarding the safety of the smart meters. Id. ¶ 11.
[¶3] In July 2011, Friedman, joined by others, filed a complaint pursuant to
35-A M.R.S. § 1302(1), contending that customers should not have to pay opt-out
fees and raising issues regarding the health effects of smart meters, among other
things. Friedman I, 2012 ME 90, ¶ 4, 48 A.3d 794. The Commission dismissed
the complaint because all of the issues raised had been “resolved” by the earlier
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investigation and subsequent Opt-Out Orders. Id. ¶ 5. Friedman filed a motion for
reconsideration. Id. After no decision was rendered on the motion, it was denied
by operation of law. Id. On October 31, 2011, Friedman appealed. See
35-A M.R.S. § 1320 (2015).
[¶4] On July 12, 2012, we vacated the dismissal of Friedman’s initial
complaint because the Commission, in its Opt-Out Orders, explicitly declined to
make findings on the health and safety of CMP’s smart meters, and therefore had
failed to resolve that issue. Friedman I, 2012 ME 90, ¶¶ 9-11, 48 A.3d 794. We
remanded the case for a determination of whether smart meters pose a “credible
threat” to the health and safety of CMP’s customers. Id. ¶ 10.
[¶5] On July 24, 2012, the Commission opened an investigation as a result
of our directive in Friedman I. See 35-A M.R.S. §§ 1302(1), 1303 (2015). Over
the course of the following two and a half years, the Commission conducted a
comprehensive investigation into the safety of smart meters, focusing on RF
emitted by smart meters and other related devices. During the investigation, the
Commission received and reviewed substantial quantities of evidence, including,
but not limited to, expert testimony, thousands of pages of peer-reviewed studies,
and reports and findings by both domestic and foreign regulatory bodies. The
Commission succinctly described its approach in assessing the safety of smart
meters, stating that
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[a] safe utility practice standard should limit both short-term (acute)
and long-term (chronic) risks to those risks that are reasonable in light
of the context and purpose of the service and facility. Regulators
should also consider the magnitude of the risk (the concentrations and
strength of exposure), the probability of harm (certainty based on
science, engineering and medical knowledge), and the availability of
alternatives to the service or facility and mitigation techniques to
reduce the magnitude and likelihood of possible harm. The utility and
Commission need to consider a broad range of reasonable operational
scenarios and exposure scenarios that will be experienced in
considering what utility practices are safe and what risk mitigation is
required to meet the safety mandate.
[¶6] At the conclusion of its investigation, the two Commissioners serving
on the panel found that “AMI, including the use of smart meters, as implemented
and operated by CMP, does not present a credible threat of harm to the health and
safety of CMP’s customers and, based on the record of this proceeding is,
therefore, safe.” Friedman timely appealed. See 35-A M.R.S. § 1320.
II. DISCUSSION
A. Credible Threat Standard
[¶7] “Generally, decisions of the Commission are reviewed only to
determine whether the agency’s conclusions are unreasonable, unjust or unlawful
in light of the record.” Cent. Me. Power Co. v. Pub. Utils. Comm’n, 2014 ME 56,
¶ 18, 90 A.3d 451 (alterations omitted) (quotation marks omitted). The
Commission must “ensure safe, reasonable and adequate service” pursuant to
35-A M.R.S. § 101 (2015). See also 35-A M.R.S. § 301 (2015). Consistent with
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this duty, in Friedman I we mandated that the Commission determine whether
smart meters and their associated RF constitute a “credible threat” to the health and
safety of CMP customers. Friedman I, 2012 ME 90, ¶ 10, 48 A.3d 794. Friedman
argues that “ensure” means that any credible evidence of a risk precludes a finding
that smart meters are safe, and therefore the Commissioners impermissibly relaxed
the standard by allowing some potential for harm “in light of the context and
purpose of the service and facility . . . .”
[¶8] Contrary to Friedman’s contention, and as the Commission noted, “[i]t
is one thing to make a finding that evidence is credible regarding potential harm
and quite another to find there is a legally credible threat of harm—that a credible
threat of harm is in fact credible: likely and probable to result in harm.” (Emphasis
added.) In other words, evidence of a hypothetical future risk is not sufficient to
preclude a finding that CMP satisfied its burden; rather, the threat of harm must be
probable and convincing. The Commission, therefore, properly rejected
Friedman’s approach because it would require an impractically high threshold for
ensuring safety, and as a result would render nearly all utilities unsafe. The
Commission appropriately applied the credible threat standard such that it
evaluated “what threat or hazard constitutes an acceptably safe level of exposure,”
balancing the potential for harm against the usefulness and pervasiveness of the
technology at issue.
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[¶9] Friedman also contends that the Commission improperly shifted the
burden of proof as a result of its interpretation of the standard. We need not reach
this issue because, as discussed infra, we conclude that substantial evidence in the
record supports the Commission’s determination that smart meters pose no
credible threat to the health and safety of CMP customers. See Pine Tree Tel. &
Tel. Co. v. Pub. Utils. Comm’n, 631 A.2d 57, 62 (Me. 1993) (stating that
“[b]ecause we find there is substantial evidence in the record to support the
Commission’s decision, we need not consider” an assertion regarding the
allocation of the burden of proof); Cent. Me. Power Co. v. Pub. Utils. Comm’n,
414 A.2d 1217, 1236 n.10 (Me. 1980) (“Since we decide that the
Commission’s . . . Orders were supported by sufficient evidence affirmatively of
record, we have no occasion to be embroiled in the controversy among the parties
as to who may have borne either the burden of coming forward with evidence or
the ultimate burden of proof.”).
B. Substantial Evidence
[¶10] “We review decisions of the Commission deferentially, and will
disturb a decision only when the Commission abuses the discretion entrusted to it,
or fails to follow the mandate of the legislature, or to be bound by the prohibitions
of the constitution.” Office of the Pub. Advocate v. Pub. Utils. Comm’n,
2015 ME 113, ¶ 15, 122 A.3d 959 (quotation marks omitted). “Our review of the
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Commission’s findings of fact is limited to only a determination whether they are
supported by substantial evidence. If so, there is no legal error and such findings
are final.” New England Tel. & Tel. Co. v. Pub. Utils. Comm’n, 390 A.2d 8, 36
(Me. 1978).
[¶11] Friedman argues that the Commission’s finding that smart meters are
safe is not supported by substantial evidence in the record. Contrary to Friedman’s
contention, the record is replete with evidence supporting the Commission’s
eighty-two-page order finding that smart meters do not pose a credible threat to the
health and safety of CMP’s customers under reasonable operational scenarios.
Over the course of its comprehensive investigation, the Commission admitted and
reviewed over one-hundred peer-reviewed scientific studies, conducted several
technical proceedings where internationally renowned experts testified and were
cross-examined, and took administrative notice of several documents and exposure
regulations in the United States and beyond. As such, the Commission made its
finding based upon a wealth of evidence.
[¶12] The evidence supporting the Commission’s finding includes data that
smart meters comply with RF exposure regulations promulgated by the FCC.
Trilliant, the manufacturer of CMP’s smart meters, had the meters tested pursuant
to FCC standards, and this testing showed that the smart meters complied with
FCC exposure limits even at the unrealistically close distance of twenty
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centimeters from the meter. At average exposure three feet away from a smart
meter, the exposure levels are “five orders of magnitude (roughly 100,000 times)
lower than” the standards set forth by the FCC and the International Commission
on Non-Ionizing Radiation Protection. Trilliant also measured peak exposures at a
distance of three feet and found that the levels were “two orders of magnitude
below” the relevant standards. In addition, in response to concerns about banks of
smart meters—that is, meters grouped together—the FCC indicated that “based on
the practical separation distance and the need for orderly communications among
several devices, even multiple units or ‘banks’ of meters in the same location will
be compliant with the public exposure limits.” In assessing this evidence, the
Commission noted that compliance with FCC standards was not conclusive, but
considered it to be of value in making its safety determination.1
[¶13] The Commission’s determination is also supported by extensive
field-testing of smart meters. The Maine Center for Disease Control and
Prevention, after reviewing studies and evidence submitted to it in 2010, concluded
that “[o]ur review of these agency assessments and studies do[es] not indicate any
consistent or convincing evidence to support a concern for health effects related to
the use of [RF] in the range of frequencies and power used by smart meters.”
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CMP contends that the standards set forth by the FCC preempt the field of radiofrequency exposure.
We do not reach this issue because it is unnecessary in the context and on the record of this case.
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Consistent with this conclusion, later studies by Exponent, on behalf of CMP; the
Office of the Public Advocate; and the Electric Power Research Institute all
suggested that smart meters comply with relevant RF exposure standards.
[¶14] In addition to field-testing, the Commission also considered numerous
peer-reviewed studies, many of which focused on the effects of RF emissions from
cell phones, and concluded that “there have been no studies provided or cited that
even purport to indicate negative health effects from the much lower RF exposure
levels from smart meters.” The Commission acknowledged that there had been
some evidence presented of potential future risk posed generally by RF exposure,
but nonetheless concluded that the current state of the evidence was insufficient to
conclude that smart meters amount to a credible threat of harm. In light of all of
this evidence, along with a host of additional studies and information not discussed
in detail here, we conclude that the Commission’s determination is supported by
substantial evidence in the record.
C. Commissioners’ Concurrence
[¶15] Pursuant to 35-A M.R.S. § 108-A (2015), a majority of the appointed
Commissioners constitutes a quorum, and the decision of a quorum is the decision
of the Commission. It is undisputed that a majority of Commissioners—that is,
two out of three—were present and made a decision in this case. However,
Friedman argues that the two Commissioners did not adequately concur in their
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decision because Commissioner Littell, he alleges, required an opt-out provision as
a necessary part of his safety finding, whereas Commissioner Vannoy did not.
[¶16] Friedman relies on the following two statements in Commissioner
Littell’s Decision to support his assertion that the Commissioner predicated his
safety finding on an opt-out provision for CMP customers: (1) “I find it is not a
reasonable utility practice for CMP to fail to provide sufficient risk mitigation”;
and (2) “[b]ased on the evidence reviewed herein and provided accommodations
are made for those with medical treatment recommendations, CMP and analysis by
other governmental and standards organizations in the record have established the
relative safety of the AMI meters . . . .”
[¶17] Other statements in the record, however, clearly dispel the notion that
Commissioner Littell’s concurrence was contingent on medical accommodations.
For instance, the Commission’s order explicitly states, under the heading
DECISION, which appears prior to the individual opinions of each Commissioner,
that
[t]he concurring opinions below take a slightly different approach
regarding customers with medical treatment recommendations to
avoid the AMI meters. Commissioner Littell would have CMP
provide an AMI meter with [the] transmitter off as part of the safety
determination while Commissioner Vannoy would not impose the
requirement. Both Commissioner Littell and Commissioner Vannoy
concur that this difference in approach does not vitiate their
concurrence regarding the safety of the AMI meters and network in
use in Maine.
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(Emphasis added.) In very similar wording, the Commissioners reiterated that
their concurrence was not affected by the differing approaches. See
Friedman et al., Request for Commission Investigation into Smart Meters and
Smart Meter Opt-Out, Nos. 2011-00262, 2012-00412, Order at 8 n.5 (Me. P.U.C.
December 19, 2014). Consistent with this, in his individual opinion,
Commissioner Littell also states, “In addition to a finding of safety, I would
concurrently adopt the low-cost and limited precautionary measures described
below,” and further states, “I find . . . that low-cost and no-cost risk mitigation
measures are advisable.” (Emphasis added.) Thus, when viewed in the context of
the order as a whole, Commissioner Littell and Commissioner Vannoy
unequivocally concurred in their determination that the CMP smart meters do not
pose a credible threat to the health and safety of CMP customers.
The entry is:
Judgment affirmed.
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On the briefs:
Bruce A. McGlauflin, Esq., Petruccelli, Martin & Haddow,
LLP, Portland, for appellants Ed Friedman et al.
Jordan D. McColman, Esq., Leslie E. Raber, Esq., and Mitchell
M. Tannenbaum, Esq., Maine Public Utilities Commission,
Augusta, for appellee Maine Public Utilities Commission
Kenneth W. Farber, Esq., Central Maine Power Company,
Augusta, for appellee Central Maine Power Company
At oral argument:
Bruce A. McGlauflin, Esq., for appellants Ed Friedman et al.
Jordan D. McColman, Esq., for appellee Maine Public Utilities
Commission
Kenneth W. Farber, Esq., for appellee Central Maine Power
Company
Maine Public Utilities Commission case number 2011-0262
FOR CLERK REFERENCE ONLY