NextEra Energy Resources, LLC v. Maine Public Utilities Commission , 2020 ME 34 ( 2020 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2020 ME 34Docket: PUC-19-182
Argued: December 6, 2019
Decided: March 17, 2020
Panel: SAUFLEY, C.J., and GORMAN, JABAR, HUMPHREY, and HJELM, JJ.*
NEXTERA ENERGY RESOURCES, LLC
v.
MAINE PUBLIC UTILITIES COMMISSION et al.
JABAR, J.
[¶1] NextEra Energy Resources, LLC, appeals from an order of the Maine
Public Utilities Commission granting Central Maine Power Company’s (CMP)
petition for a certificate of public convenience and necessity (CPCN) for the
construction and operation of the New England Clean Energy Connect (NECEC)
project. The NECEC project is a 145.3-mile transmission line, proposed to run
from the Maine-Qué bec border in Beattie Township to Lewiston, that will
deliver 1,200 megawatts of electricity from Qué bec to the New England Control
*
Justice Hjelm sat at oral argument and participated in the initial conference while he was a
Justice, and, on order of the Chief Justice, was authorized to continue his participation in his capacity
as an Active Retired Justice.
Justice Mead sat at oral argument and participated in the Court’s initial conference regarding this
opinion immediately following the oral argument but did not participate further in the development
of the opinion.
2
Area. We discern no error in the Commission’s determination that the NECEC
project meets the applicable statutory standards for a CPCN or in its decision to
approve the stipulation. We affirm the decision of the Maine Public Utilities
Commission.
I. BACKGROUND
[¶2] Pursuant to an enactment of the Massachusetts Legislature in 2008,
every distribution company within Massachusetts was required to solicit and
enter into cost-effective long-term contracts for clean-energy generation. In
response to the Massachusetts electric distribution companies’ and
Massachusetts Department of Energy Resources’ request for proposals seeking
bids for clean energy, CMP and Hydro Renewable Energy Inc., a U.S. affiliate of
Hydro-Qué bec,1 submitted a joint bid for the NECEC project.
[¶3] On September 27, 2017, in anticipation of Massachusetts’s
January 25, 2018, deadline to select the winning bid, CMP filed a petition with
the Commission for a CPCN for the NECEC project. See 35-A M.R.S. § 3132
(2018); 65-407 C.M.R. ch. 330 (2012). The petition described the NECEC
project as “a high voltage direct current (HVDC) transmission solution capable
1 Hydro-Qué bec subsequently transferred its interest in the project to H.Q. Energy Services (U.S.)
Inc. (HQUS), one of its existing U.S. affiliates. As Hydro Renewable Energy Inc.’s successor, HQUS
serves as the counterparty for contractual arrangements underlying the NECEC project.
3
of delivering 1,200 [megawatts] of electricity from Qué bec to the New England
Control Area.” CMP asserted in its petition that the NECEC would “be
developed, constructed and operated by CMP in Maine at no cost to Maine
electricity customers.”
[¶4] Upon receiving the petition, the Commission’s hearing examiners2
issued a “Notice of Proceeding” to provide all interested persons with the
opportunity to file petitions for intervention by October 13, 2017. The
examiners granted seven timely-filed petitions to intervene, including those
filed by the appellees in this matter, the Office of the Public Advocate and the
Industrial Energy Consumer Group.3
[¶5] In February 2018, after the Commission proceeding was a few
months underway, CMP was notified that the NECEC project had been selected
as the winning bid.4 Shortly thereafter, the Commission received many
2 Hearing examiners are Commission staff assigned to oversee a case. Two examiners were
assigned to this proceeding.
3 The Conservation Law Foundation, Dorothy Kelly, the Maine Renewable Energy Association, the
Natural Resources Council of Maine, and Western Mountains and Rivers Corporation also timely filed
petitions to intervene.
4 The NECEC was originally selected as the alternate winning bid, but became the winning bid
after a necessary siting permit for the original winning bid, an all-hydroelectric bid, was denied in
New Hampshire.
4
late-filed petitions to intervene.5 NextEra filed its petition to intervene in
March 2018, asserting that it may be substantially and directly affected by the
proceeding because it indirectly owns three existing energy stations in Maine,
as well as a number of wind, solar, and storage projects under development in
the state. Notwithstanding NextEra’s late filing, the examiners agreed that
NextEra would be substantially and directly affected by the outcome of the
proceeding and therefore granted NextEra discretionary intervenor status.
[¶6] The volume of data requests and testimony filed by over twenty
intervenors was substantial, leading the examiners to schedule additional
conferences and rebuttal phases to the proceeding. Technical conferences
continued through the summer of 2018 into the fall. CMP and NextEra both
presented expert testimony. Throughout the course of the proceeding, the
Commission held three public witness hearings and received over 1,350 public
comments.6
5In addition to NextEra, the following parties submitted late-filed petitions to intervene: the
Governor’s Energy Office; RENEW Northeast, Inc.; Calpine Corporation, Vistra Energy Corporation,
and Bucksport Generation, LLC (collectively, the generator intervenors); the Acadia Center; Friends
of Maine Mountains; ReEnergy Biomass Operations LLC; International Brotherhood of Electrical
Workers Local Union 104; City of Lewiston; Town of Caratunk; Maine Chamber of Commerce; Town
of Farmington; Greater Franklin Development Council; Trout Unlimited; Former Senator Thomas
Saviello; Darryl Wood; Town of Alna; Town of Wilton; Town of New Sharon; Old Canada Road
National Scenic Byway, Inc.; Town of Jackman; and Terry Brann. All petitions were granted on either
a mandatory or discretionary basis.
Public witness hearings were held in Farmington and the Forks Plantation in September 2018.
6
An additional public witness hearing was held in the Commission’s Hallowell hearing room in
5
[¶7] Six evidentiary hearings were held in October 2018 and
January 2019,7 following which the parties briefed specific questions posed by
the examiners.
[¶8] As the proceeding progressed, a number of the parties—including
CMP—engaged in negotiations and ultimately reached a stipulation.8 See
65-407 C.M.R. ch. 110, § 8(D) (2012). The stipulation was joined by eleven
parties, including CMP, the Office of the Public Advocate, and the Industrial
Energy Consumer Group. See infra ¶ 39. The thirty-eight-page stipulation
required the project to provide myriad benefits to ratepayers and the State as
conditions to the recommended Commission approval of the stipulated
findings and issuance of the CPCN.9 The stipulating parties agreed that a “public
October 2018. The majority of the public comments the Commission received were in opposition to
the NECEC project—largely raising environmental, scenic, and tourism-related concerns.
7 On October 21, 2018, NextEra filed a motion to suspend the hearings due to CMP’s failure to
produce documents as ordered. The examiners granted NextEra’s motion on October 26, thereby
canceling the next three scheduled hearings.
8 In accordance with the Commission’s rules, “[t]he Commission may dispose of all or part of any
adjudicatory proceeding by approving a stipulation of one or more issues entered into between two
or more parties.” 65-407 C.M.R. ch. 110, § 8(D) (2012). A stipulation is an agreement reached by
parties through settlement negotiations in the course of commission proceedings. See generally
65-407 C.M.R. ch. 110, § 8 (2012).
9 In terms of economic benefits, the stipulation provides for more than $140 million in ratepayer
benefits, $50 million in benefits for low income customers, and over $57 million in community and
state-wide benefits—totaling almost $250 million of additional financial benefits for Maine. With the
exception of certain transmission rate credits, education grant funding, and funding for electric
vehicle rebates, these funding commitments are conditioned on the NECEC achieving commercial
operation.
6
need” exists for the NECEC project and that construction of the NECEC project
is in the public interest. A hearing on the stipulation was held on March 7, 2019.
[¶9] On March 29, 2019, the hearing examiners issued a 162-page report
containing their recommendations. The examiners concluded that,
independent of the stipulation, the NECEC meets the applicable statutory
standards for a CPCN, and they recommended approval of CMP’s Petition.
Although not necessary to their finding of public need, the examiners
determined that the beneficial provisions described in the stipulation
augmented the project’s benefits and likewise recommended approval of the
stipulation. A number of parties, including NextEra, filed comments and
exceptions to the hearing examiners’ report.
[¶10] In the 100-page order dated May 3, 2019, the Commission adopted
the recommendations and findings of the examiners’ report and concluded,
inter alia, that (1) the NECEC project meets the statutory public need standard
and is in the public interest; and (2) the stipulation satisfies the approval
criteria set forth in the Commission’s rules. The commissioners unanimously
voted to grant CMP a certificate of public convenience and necessity for the
7
construction and operation—all at no cost to Maine electricity customers—of
the New England Clean Energy Connect Project.10
[¶11] NextEra timely appealed. See 35-A M.R.S. § 1320 (2018); M.R.
App. P. 2B.
II. DISCUSSION
[¶12] In this appeal, NextEra claims that the Commission (1) erred by
failing to require CMP to file the results of an independent investigation
regarding the use of nontransmission alternatives; (2) erred in its construction
and application of 35-A M.R.S. § 3132(6) (2018); and (3) abused its discretion
in approving the stipulation. Before we address these arguments, we address
the preliminary matter of whether NextEra has standing to appeal the
Commission’s order.
A. NextEra’s Standing to Appeal
[¶13] The Industrial Energy Consumer Group contends that NextEra
lacks standing to bring this appeal.11 “The right to appeal from an
administrative decision is governed by statute. Whether a party has standing
10 One of the commissioners filed a separate opinion but joined in the outcome.
NextEra contends that this argument was not preserved. However, standing is “an issue
11
cognizable at any stage of a legal proceeding,” including on appeal. Bank of America, N.A. v. Greenleaf,
2015 ME 127, ¶ 8, 124 A.3d 1122.
8
depends on the wording of the specific statute involved.” Nelson v. Bayroot, LLC,
2008 ME 91, ¶ 9, 953 A.2d 378 (citation omitted).
[¶14] Section 1320 governs this Court’s review of Commission action
and grants statutory standing to appeal to “[a]ny person who has participated
in commission proceedings, and who is adversely affected by the final decision
of the commission.” 35-A M.R.S. § 1320(2) (2018). There is no question that
NextEra participated in the commission proceedings; therefore, the only issue
in dispute is whether NextEra is “adversely affected” by the order granting
CMP’s petition for the NECEC project. See id.
[¶15] NextEra contends that the order adversely affects its Maine-based
wind and solar affiliates in a number of ways. While recognizing that the
Commission found “little merit” to some of these concerns, we are nonetheless
satisfied that NextEra is adversely affected by the Commission’s decision in
other ways and therefore satisfies section 1320’s standing requirements. See
id.
B. Nontransmission Alternatives
[¶16] NextEra contends that the Commission failed to follow the
statutory mandates of 35-A M.R.S. § 3132(2-C)(C) (2016),12 which
The Commission applied 35-A M.R.S. § 3132(2-D) (2018), the provision addressing NTA
12
investigations that was in effect at the time of the order, instead of 35-A M.R.S. § 3132(2-C)(C) (2016),
9
unambiguously mandated that CMP include in its petition the results of an
independent third-party investigation into the use of nontransmission
alternatives (NTAs). NextEra contends that, because the statute does not
expressly authorize the Commission to relieve CMP from that mandatory
requirement, CMP’s failure to submit the results of a third-party NTA
investigation is fatal to its petition.
[¶17] In its order, the Commission concluded that “because there is no
NTA that can feasibly substitute for the NECEC, the statute does not require that
an independent analysis of the costs of potential NTAs be conducted.” The
Commission stated that an NTA could not meet the public need at a lower cost
because there will be no cost to Maine customers for the proposed project. The
Commission, citing Town of Madison v. Public Utilities Commission, 682 A.2d
231, 234 (Me. 1996), concluded that, despite the plain language of the statute
requiring an NTA investigation, strictly adhering to the statute in this case
would lead to “absurd results.”
[¶18] The Commission’s conclusion that requiring an NTA investigation,
apparently mandatory under the statute, would be absurd and illogical does not
repealed by P.L. 2017, ch. 201, § 3 (effective Nov. 1, 2017), which was in effect at the time CMP filed
its petition. We agree with NextEra that § 3132(2-C)(C) (2016) was the appropriate statute for the
Commission to have applied. See Terry v. St. Regis Paper Co., 459 A.2d 1106, 1109 (Me. 1983).
10
constitute error. The plain language of section 3132(2-C)(C) mandates a
comparison of the transmission line’s total projected costs with the total
projected costs of the alternatives. 35-A M.R.S. § 3132(2-C)(C) (2016), repealed
by P.L. 2017, ch. 201, § 3 (effective Nov. 1, 2017). Additionally, 35-A M.R.S.
§ 3132(6) requires an analysis to explore less costly alternatives to the
proposed transmission line. Because this proposed transmission line will be
constructed at no cost to Maine ratepayers, however, there is no logical reason
to undertake such a comparative cost analysis. In Trask v. Public Utilities
Commission, we stated that the plain meaning is only applied “so long as it does
not lead to an absurd, illogical, or inconsistent result.” 1999 ME 93, ¶ 7, 731
A.2d 430 (quotation marks omitted). Here, the Commission reasonably
determined that reading the statute to require the undertaking and
consideration of a futile investigation into lower-cost NTAs would lead to an
absurd and illogical result.
[¶19] The Commission did not commit legal error when it decided that,
in the context of this unique proceeding, CMP was not required to file the results
of a third-party investigation into nontransmission alternatives.
11
C. Public Need Standard
[¶20] Next, NextEra contends that the Commission misconstrued the
plain and unambiguous language of 35-A M.R.S. § 3132 and failed to comply
with the statutory scheme, including the statute’s mandate directing the
Commission to identify a public need for the NECEC project. Because NextEra
is the party challenging the Commission’s decision, it has “the burden of
showing that the [Commission]’s action was arbitrary or based on an error of
law.” Cent. Maine Power Co. v. Pub. Utils. Comm’n, 2014 ME 56, ¶ 19, 90 A.3d
451 (quotation marks omitted).
[¶21] Section 3132(6) requires the Commission to make specific findings
regarding the “public need” for a proposed transmission line, but the statute
does not define “public need.”13
1. Interpreting “Public Need”
[¶22] We apply a two-part inquiry “[w]hen reviewing an agency’s
interpretation of a statute that is both administered by the agency and within
the agency’s expertise.” Competitive Energy Servs. LLC v. Pub. Utils. Comm’n,
NextEra also asserts that the Commission failed to identify a public need for a certain number
13
of megawatts of energy, not contracted for, that the NECEC is capable of delivering. Because the
statute requires a determination of public need only for the transmission line itself, and not for its
particular capacity, we find this argument to be unpersuasive and do not address it further.
12
2003 ME 12, ¶ 15, 818 A.2d 1039. First, we determine de novo whether the
statute is ambiguous. Id. Next, if the statute is unambiguous we apply its plain
meaning, but if it is ambiguous we “review the Commission’s construction of
the ambiguous statute for reasonableness.” Id. “Statutory language is
considered ambiguous if it is reasonably susceptible to different
interpretations.” Scamman v. Shaw’s Supermarkets, Inc., 2017 ME 41, ¶ 14, 157
A.3d 223 (quotation marks omitted).
[¶23] Section 3132 provides, in part, that “a person may not construct
any transmission line . . . unless the commission has issued a certificate of public
convenience and necessity approving construction.” Pursuant to section
3132(6), “the commission shall make specific findings with regard to the public
need for the proposed transmission line. . . . [I]f the commission finds that a
public need exists, after considering whether the need can be economically and
reliably met using nontransmission alternatives, it shall issue a certificate of
public convenience and necessity for the transmission line.” (Emphasis added.)
Although section 3132(6) does not define “public need,” it does at least provide
factors for the Commission to consider to determine public need:
In determining public need, the commission shall, at a minimum,
take into account economics, reliability, public health and safety,
scenic, historic and recreational values, state renewable energy
generation goals, the proximity of the proposed transmission line
13
to inhabited dwellings and alternatives to construction of the
transmission line, including energy conservation, distributed
generation or load management.
[¶24] Furthermore, the Commission rules do define “public need.”
Chapter 330 of those rules establishes filing requirements pursuant to section
3132, and section 9(A) of Chapter 330 sets forth the standards for granting a
CPCN, directing the Commission to make specific findings with regard to the
need for the proposed transmission line in accordance with 3132(6). 65-407
C.M.R. ch. 330, § 9(A). Section 9(B) of Chapter 330 is titled “Public Need
Defined.” It states:
The Commission establishes public need by determining that
ratepayers will benefit by the proposed transmission line. Benefits
are determined based upon the electrical need for the line, taking
into account [the section 3132(6) factors] . . . . Cost is an important
consideration, but public need can be established for a proposed
transmission line that is not the least cost alternative because
aesthetic, environmental or other factors justify a reasonable cost
increase.
Id. § 9(B) (emphasis added).
[¶25] The Commission interpreted the public need standard as
“essentially a general standard of meeting the public interest,” requiring a
careful weighing of the project’s benefits and costs to Maine ratepayers and
residents. The Commission contends that, “[u]nder the circumstances of this
proceeding,” its application of the public need standard was consistent with
14
section 3132(6) and Chapter 330. CMP maintains that the statute does not
plainly compel a contrary result because the Commission’s “comparison of
costs and benefits to Maine and Maine ratepayers is precisely what is required
in the public need analysis, as reflected in section 3132(6), Chapter 330, and
[this] Court’s previous definition of public necessity and convenience.” See
Enhanced Commc’ns of N. New England v. Pub. Utils. Comm’n, 2017 ME 178, ¶ 11
n.4, 169 A.3d 408.
[¶26] Given the breadth of the concept of “public need” combined with
the absence of any legislative definition, we must conclude that the term is
ambiguous, and we cannot say that the Commission erred as matter of law by
concluding that the term “public need” is a general standard of meeting the
public interest. “An agency’s interpretation of an ambiguous statute it
administers is reviewed with great deference and will be upheld unless the
statute plainly compels a contrary result.” Cent. Maine Power Co., 2014 ME 56,
¶ 18, 90 A.3d 451 (quotation marks omitted); see also Enhanced Commc’ns,
2017 ME 178, ¶ 7, 169 A.3d 408. The Commission’s interpretation of its own
rules, regulations and procedures is similarly entitled to considerable
deference. Enhanced Commc’ns, 2017 ME 178, ¶ 7, 169 A.3d 408; Cent. Maine
Power Co., 2014 ME 56, ¶ 18, 90 A.3d 451.
15
[¶27] The Commission’s definition is consistent with its rules, the
legislative intent reflected in the statute, and Maine jurisprudence. See
Enhanced Commc’ns, 2017 ME 178, ¶ 11 n.4, 169 A.3d 408. In this context, the
Commission’s interpretation of the term “public need” and the manner in which
it is to be determined was not error.
2. Application of Section 3132(6)
[¶28] We now consider whether the record supports the Commission’s
finding of a public need. Section 3132(6) requires the Commission to make
specific findings with regard to the public need for a proposed transmission
line. “In determining public need, the Commission shall, at a minimum, take
into account economics, reliability, public health and safety, scenic, historic and
recreational values, state renewable energy generation goals, the proximity of
the proposed transmission line to inhabited dwellings and alternatives to the
construction of the transmission line . . . .” 35-A M.R.S. § 3132(6).
[¶29] In addition to its general objection to the Commission’s finding of
a public need pursuant to section 3132(6), NextEra specifically contends that
the Commission failed to properly address Maine’s renewable energy
generation goals and the NECEC’s adverse impact on scenic and recreational
values.
16
[¶30] In its comprehensive order, the Commission discussed the factors
set out in section 3132(6), including the issues raised by NextEra concerning
scenic and recreational values and Maine’s renewable energy generation goals.
The Commission found that the value to Maine resulting from the NECEC’s
energy price suppression effect would amount to $14 - $44 million annually,14
and capacity market price reduction for Maine residents in the amount of
$19 million annually over the first ten years. It found that there would be
enhancements to transmission reliability and supply reliability and diversity.
The Commission also found that the project would result in a reduction of
greenhouse gas emissions. Further, it found that the project would have a
positive impact on Maine’s gross domestic product, averaging $94-$98 million
during the project’s construction period. All of these findings are supported by
significant record evidence.
The Commission’s order includes a chart containing a summary of the benefits to Maine of the
14
NECEC and the stipulation provisions. See Central Maine Power Company, Request for Approval of
CPCN for the New England Clean Energy Connect Consisting of the Construction of a 1,200 MW HVDC
Transmission Line from the Qué bec-Maine Border to Lewiston (NECEC) and Related Network
Upgrades, No. 2017-232, Order Granting Certificate of Public Convenience and Necessity and
Approving Stipulation at 7 (Me. P.U.C. May 3, 2019). The value to Maine of the wholesale market
effects is estimated at between $200 million and $500 million, the annual macroeconomic effects to
Maine are estimated to be upwards of $125 million, and it is estimated that regional carbon emissions
will be reduced by 3.0-3.6 million metric tons annually. See id.
17
a. Adverse Impact
[¶31] There is no dispute that the Commission found that the
transmission line would have an adverse impact on scenic and recreational
values; tourism; and local economies. However, NextEra contends that the
Commission abused its discretion by deferring to the Department of
Environmental Protection (DEP) and the Land Use Planning Commission
(LUPC) on the issue of mitigation of these adverse impacts. NextEra does not
argue that the Commission failed to consider the impact on scenic and
recreational values—only that it did not properly consider mitigation. This
argument is unpersuasive.
[¶32] In determining public need, the Commission must take scenic and
recreational values into account. See 35-A M.R.S. § 3132(6). Section 3132(6)
also provides that the Commission “shall . . . consider the findings of the
Department of Environmental Protection.” NextEra asserts that “there is no
language in the statutory scheme of [s]ection 3132 that authorizes the
Commission to delegate the consideration of the mitigation measures to
another state agency.” While the Commission recognized that it maintains
coextensive jurisdiction with the DEP and the LUPC with regard to any impact
18
on scenic and recreational values, it did not defer to those agencies its own
consideration pursuant to section 3132(6).
[¶33] Following the mandates of section 3132(6), the Commission
properly considered scenic and recreational values and concluded that they
would be adversely impacted by the NECEC project. That the Commission did
not undertake consideration of any mitigation of those adverse impacts is
immaterial because the statute imposes no such obligation on the Commission.
See id. We reject NextEra’s argument on this point.
b. State Renewable Energy Generation Goals
[¶34] Section 3132(6) also requires the Commission to consider Maine’s
renewable energy generation goals. The Commission found that the NECEC
project would not adversely impact those goals.
[¶35] NextEra posits that the Commission erred as a matter of law in
relegating the consideration of the State’s renewable energy generation goals
to a weighing of benefits and costs. NextEra asserts that the Commission
misinterpreted the relevant statutes and made erroneous factual findings in
light of that misinterpretation.15
15 NextEra also contends that the Commission failed to make findings regarding the NECEC’s
high-voltage direct-current design, as opposed to an alternating-current design, and asserts that the
Commission could have conditioned the CPCN on an alternative NECEC design that would use
alternating current technology. This argument fails for myriad reasons, one of which is that the
19
[¶36] As set forth in the relevant statutory provisions,16 the Commission
determined that the renewable energy generation goals to be considered
include the promotion of adequate, reliable, and diverse sources of electricity
supply, and the reduction in greenhouse gas emissions. The Commission also
concluded that the Maine Solar Energy Act, 35-A M.R.S. §§ 3471-3474 (2018),
and the Maine Wind Energy Act, 35-A M.R.S. §§ 3401-3404 (2018), bear on the
consideration of renewable energy generation goals by implementing a state
policy of encouraging appropriately-sited wind and solar energy development,
and therefore must be considered as part of the analysis of renewable energy
generation goals pursuant to section 3132(6).
[¶37] The Commission considered the goals of renewable energy
generation as part of its section 3132(6) analysis. In doing so, the Commission
found that the NECEC project will result in incremental hydroelectric
NECEC project as proposed with the direct-current design was selected as the winning bid and a
separate proposal using an alternating-current design was not. Additionally, the Commission found
that the NECEC project, as designed with direct current technology, would not hinder Maine’s
renewable energy goals and may even facilitate renewable energy development. These findings are
supported by substantial record evidence.
16 See 35-A M.R.S. § 3210(1) (2018); 38 M.R.S. § 631(1) (2018). The Commission explained that
Maine’s renewable-energy portfolio standards are governed by 35-A M.R.S. § 3210(1), which states:
In order to ensure an adequate and reliable supply of electricity for Maine residents
and to encourage the use of renewable, efficient and indigenous resources, it is the
policy of this State to encourage the generation of electricity from renewable and
efficient sources and to diversify electricity production on which residents of this
State rely in a manner consistent with this section.
20
generation; will reduce greenhouse gas emissions in the region; will not hinder
Maine’s progress towards meeting its statutory renewable energy portfolio
requirements and solar and wind energy goals; may benefit future renewable
energy generation projects as a result of the upgrades that ISO New England
(ISO-NE)17 has already identified as necessary to the interconnection of new
renewable energy generation in western and northern Maine; will have no
impact on any proposed renewable energy generation projects in Maine that
have a better interconnection queue position;18 and has the potential to
facilitate renewable generation in Maine by providing for additional transfer
capacity at no cost to future generation developers. These factual findings are
supported by substantial evidence in the record. See Friedman v. Pub. Utils.
Comm’n, 2016 ME 19, ¶ 10, 132 A.3d 183.
[¶38] Section 3132(6) requires only that the Commission take into
account state renewable energy generation goals—it does not specify how the
ISO-NE is the regional transmission organization authorized by the Federal Energy Regulatory
17
Commission to operate New England’s power grid, administer New England’s wholesale-electricity
markets, and ensure that New England’s electricity needs are met through power-system planning.
See Our Three Critical Roles, ISO New England, https://www.iso-ne.com/about/what-we-do/three-
roles (last visited March 12, 2020).
18 “The ISO New England Interconnection Queue lists the current status of requests for the
interconnection of new or uprated (increased capacity) generating facilities in New England.”
Interconnection Request Queue, ISO New England, https://www.iso-ne.com/system-planning/
transmission-planning/interconnection-request-queue/ (last visited March 12, 2020). Queue
position “determines order for the purposes of interconnection study and cost allocation.” Id.21
Commission is to consider those goals. Here, the Commission made specific
factual findings and considered Maine’s renewable energy generation goals in
light of those findings as part of its overall public need analysis. The
Commission’s conclusions regarding the NECEC project and Maine’s Renewable
Energy Goals were reasonable and consistent with the law. See Pine Tree Tel.
& Tel. Co. v. Pub. Utils. Comm’n, 634 A.2d 1302, 1304 (Me. 1993) (“The
Commission's decision will not be disturbed if it results from a reasonable
exercise of discretion and is supported by substantial evidence in the record.”).
D. The Stipulation
[¶39] During the course of the proceeding, CMP negotiated a stipulation
with a number of the parties, pursuant to Chapter 110, Section 8(D) of the
Commission’s Rules. The stipulation was joined by CMP, the Office of the Public
Advocate, the Industrial Energy Consumer Group, the Governor’s Energy Office,
the Conservation Law Foundation, the Acadia Center, the Western Mountains
and Rivers Corporation, the City of Lewiston, the Maine State Chamber of
Commerce, the International Brotherhood of Electrical Workers Local Union
104, and Friends of Maine Mountains. The thirty-eight-page stipulation
recommended approvals and findings regarding issuance of the CPCN, CPCN
conditions, and nontransmission alternatives. The stipulating parties agreed
22
that a public need exists for the NECEC project and that construction of the
NECEC project is in the public interest.
[¶40] The Commission’s rules set forth four requirements for approval
of a stipulation, including that the stipulating parties represent a “sufficiently
broad spectrum of interests” to ensure that there is no appearance or reality of
disenfranchisement. 65-407 C.M.R. ch. 110, § 8(D)(7). “Sufficiently broad
spectrum of interests” is not defined in the rules, but has been interpreted by
the Commission as prohibiting stipulations where the signing parties represent
only a narrow interest.19 This interpretation is entitled to deference. See
Enhanced Commc’ns, 2017 ME 178, ¶ 7, 169 A.3d 408.
[¶41] We are unpersuaded by NextEra’s assertion that the stipulating
parties did not represent a sufficiently broad spectrum of interests.20 Here, the
19 See Central Maine Power Company and Public Service of New Hampshire, Request for Certificate
of Public Convenience and Necessity for the Maine Power Reliability Program Consisting of the
Construction of Approximately 350 Miles of 345 kV and 115 kV Transmission Lines, No. 2008-255,
Order Approving Stipulation at 20 (Me. P.U.C. June 10, 2010) (“[T]he primary purpose of the
Commission’s first stipulation approval criterion . . . is to ensure that the Commission does not
approve stipulations where the signing parties represent only a narrow interest.”); see also Public
Utilities Commission, Investigation into Verizon Maine’s Alternative Form of Regulation,
No. 2005-155, Order Approving Stipulation (Me. P.U.C. Oct. 3, 2007); Public Utilities Commission,
Investigation Into Regulatory Alternatives for the New England Telephone and Telegraph Company
d/b/a NYNEX, No. 94-123, Order at 5 (Me. P.U.C. March 17, 1998).
20 NextEra also argues the Commission erred by approving the stipulation because certain
provisions relate to obligations of entities outside of the Commission’s jurisdiction. Because the
Commission explicitly found that “even without the additional benefits provided by the CPCN
Conditions set forth in [the] Stipulation . . . the NECEC would meet the statutory public need and
23
Commission found that the signatories “represent a comparably diverse and
broad spectrum of interests,” including the interests of Maine ratepayers, large
industrial customers, members of the environmental community, large and
small businesses, electrical workers, and at least one affected municipality. The
Commission also gave significant weight to the Governor’s participation in the
development of and support for the negotiated stipulation—finding that her
support “enhance[d] the breadth of the spectrum of interests.” Given the
breadth and diversity of the interests of the signatories to the stipulation, the
Commission concluded that there was no appearance or reality of
disenfranchisement. That conclusion is consistent with the Commission’s
precedents interpreting what constitutes a “sufficiently broad spectrum of
interests.” The Commission did not abuse its discretion when it concluded that
the stipulation satisfied the approval criteria contained in its rules. See 65-407
C.M.R. ch. 110, § 8(D).
[¶42] Although the Commission concluded that the provisions included
in the stipulation “augment the benefits that will be realized by Maine
ratepayers, communities and the environment by funding mechanisms and
public interest standards of Title 35-A, Section 3132 and, thus, would be granted a CPCN[,]” we do
not address this argument.
24
programs to provide rate relief to Maine ratepayers, benefits for low-income
customers, and support for a variety of other programs intended to benefit
Maine communities and the environment,” the Commission did not rely upon
the stipulation in arriving at its determination of public need or its decision to
grant the CPCN.21 Thus, any issue regarding the validity of the stipulation
becomes immaterial given that the Commission’s reasoning rested on
independent aspects of the record.
III. CONCLUSION
[¶43] The Commission followed the proper procedure and there is
sufficient evidence in the record to support the findings it made. In short, the
Commission reasonably interpreted and applied the relevant statutory
mandates in arriving at its decision to grant CMP a certificate of public
convenience and necessity for the NECEC Project and in its decision to approve
the stipulation. See 35-A M.R.S. § 3132. NextEra has not shown that the
21 In addition to the economic benefits provided by the stipulation, see supra note 9, the stipulation
conditions granting the CPCN on a preference for Maine workers; a commitment to long-term
planning for decarbonization in the region; mitigation of the NECEC’s impact on transmission system
and existing and future energy resources in Maine; the securitization of certain funds established
through the stipulation; and a support agreement for certain commitments made as part of the
stipulation. Finally, the stipulation provides that CMP will transfer and convey ownership of the
project to NECEC Transmission LLC, a wholly owned subsidiary within the Avangrid Networks family
that is not a subsidiary of CMP. In order to protect ratepayers, the terms of the project’s transfer
include arrangements that will effectively separate CMP from the risks associated with the remaining
development efforts and construction of the Project.
25
Commission’s issuance of the CPCN or approval of the stipulation was arbitrary
or otherwise based on an error of law. See Cent. Maine Power Co., 2014 ME 56,
¶ 25, 90 A.3d 451.
The entry is:
Order of the Public Utilities Commission
affirmed.
Jerrol A. Crouter, Esq. (orally), and Amy K. Olfene, Esq., Drummond Woodsum,
Portland, for appellant NextEra Energy Resources, LLC
Mitchell M. Tannenbaum, Esq. (orally), Jordan D. McColman, Esq., and Amy B.
Mills, Esq., Maine Public Utilities Commission, Augusta, for appellee Maine
Public Utilities Commission
Anthony W. Buxton, Esq., R. Benjamin Borowski, Esq., and Joseph G. Donahue,
Esq., Preti Flaherty Beliveau & Pachios, LLP, Portland, for appellee Industrial
Energy Consumer Group
Catherine R. Connors, Esq., Jared S. de Rosiers, Esq. (orally), and Sarah B. Tracy,
Esq., Pierce Atwood LLP, Portland, for appellee Central Maine Power Company
Barry J. Hobbins, Esq., Office of the Public Advocate, Augusta, for appellee Office
of the Public Advocate
Public Utilities Commission case number 2017-00232
FOR CLERK REFERENCE ONLY