Office of the Public Advocate v. Public Utilities Commission et al.

MAINE SUPREME JUDICIAL COURT                                           Reporter of Decisions
Decision: 

Docket:   PUC-23-65
Argued:   September 14, 2023
Decided:  December 28, 2023

Panel:       STANFILL, C.J., and MEAD, JABAR, CONNORS, LAWRENCE, and DOUGLAS, JJ.



                         OFFICE OF THE PUBLIC ADVOCATE

                                            v.

                        PUBLIC UTILITIES COMMISSION et al.


JABAR, J.

         [¶1] The Office of the Public Advocate appeals from an order of the Public

Utilities Commission approving an amended special rate contract between

Bangor Natural Gas Company (Bangor Gas) and Bucksport Generation LLC. See

35-A M.R.S. § 1320 (2023); M.R. App. P. 22. The Public Advocate argues that the

Commission reviewed the proposed contract under the wrong standard, and

that its decision resulted in “unjust or unreasonable” rates, in violation of

35-A M.R.S. § 301(3) (2023), and “undue or unreasonable preference” of

Bucksport Generation over other Bangor Gas customers, in violation of

35-A M.R.S. § 702(1) (2023).           The Public Advocate also argues that the

Commission’s order should be vacated because the Commission relied on

information not included in the evidentiary record. We disagree with the Public
2

Advocate’s first argument, find the second argument waived, and affirm the

Commission’s order.

                                     I. BACKGROUND

        [¶2] The following background is drawn from the administrative record

and the Commission’s order dated January 27, 2023. See Bangor Nat. Gas Co.,

Request for Approval of Special Rate Agreement, No. 2022-333, Order

(Me. P.U.C. Jan. 27, 2023).

        [¶3] On November 9, 2022, pursuant to 35-A M.R.S. § 703(3-A) (2023),

Bangor Gas petitioned the Commission for approval of an amendment to its

existing special rate contract with Bucksport Generation.                     The proposed

amendment extended the terms of the existing contract, which was set to expire

on January 31, 2023. On November 16, 2022, the hearing examiners1 issued a

notice of proceeding and opportunity to intervene. The Public Advocate,

Bucksport Generation, and ND OTM LLC (ND Paper) all filed timely petitions to

intervene, and at a preliminary case conference on November 29, the hearing

examiners permitted the Public Advocate and Bucksport Generation to

participate as parties to the proceeding. See 65-407 C.M.R. ch. 110, § 8(B)(1),

(3) (effective Nov. 26, 2012). The hearing examiners then issued a written


    A “hearing examiner” is a presiding officer in an adjudicatory proceeding at the Commission.
    1

65-407 C.M.R. ch. 110, § 2(N) (effective Nov. 26, 2012).
                                                                                                    3

order granting ND Paper discretionary intervenor status, but limiting its role to

commenting on, briefing, and filing exceptions or objections relating to issues

of law and policy relevant to special rate contracts in general. See id. § 8(B)(2).

       [¶4] On December 6, the hearing examiners issued a procedural order

establishing a schedule that allowed for discovery, intervenor comments or

testimony in response to Bangor Gas’s petition, a response by Bangor Gas, and

briefing from the parties. On December 9, the Public Advocate filed comments

on the proposed amendment, and Bucksport Generation filed direct testimony

that same day. Soon after, Commission staff, the Public Advocate, and Bangor

Gas each served data requests2 on Bucksport Generation. On December 22, the

hearing examiners held a technical conference, at which the parties and

Commission staff posed questions to Bucksport Generation and followed up on

data requests.        On December 28, Bangor Gas filed rebuttal testimony in

response to the Public Advocate’s comments and Bucksport Generation’s direct

testimony.

       [¶5] The parties submitted briefing and, on January 13, 2023, the hearing

examiners issued a report recommending that the Commission approve the

amended special rate contract. On January 17, Bucksport Generation filed


   2  “In addition to the discovery rights provided by the Maine Rules of Civil Procedure, all parties
shall have the right to serve data requests upon any other party.” 65-407 C.M.R. ch. 110, § 9(B)(2).
4

comments in support of the hearing examiners’ report, and the next day Bangor

Gas and the Public Advocate filed exceptions. On January 27, the Commission

issued a written order adopting the hearing examiners’ report.

      [¶6] In its order, the Commission found that the “annual revenue from

[the special rate contract] would exceed the annual marginal costs of service at

recent usage levels.”   It also found that, under the special rate contract,

Bucksport Generation would make “a positive revenue contribution when

compared to the costs of operating” the pipeline serving Bucksport Generation.

Based on these findings, the Commission concluded that the proposed special

rate contract was “beneficial to Bangor Gas’s other ratepayers” and ordered

that it be approved. The Public Advocate timely appealed the Commission’s

order. M.R. App. P. 2B(c)(1), 22.

                               II. DISCUSSION

A.    Standard of Review

      [¶7]   Generally, we review the Commission’s decisions with great

deference, looking “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, 

, 

 (alteration and quotation

marks omitted). More specifically, we “will disturb a decision only when the
                                                                              5

Commission abuses the discretion entrusted to it, or fails to follow the mandate

of the [L]egislature, or to be bound by the prohibitions of the [C]onstitution.”

Off. of the Pub. Advoc. v. Pub. Utils. Comm’n, 

, 

(quotation marks omitted). It is the appellant’s burden to establish that the

Commission’s action violates one or more of these standards. Cent. Me. Power

Co., 

, 

.

      [¶8] We particularly defer to the Commission’s “expert judgment in

choosing among various ratemaking techniques or methodologies.”            New

England Telephone & Telegraph Co. v. Pub. Utils. Comm’n, 

(Me. 1982); see New England Telephone & Telegraph Co. v. Pub. Utils. Comm’n,

 (Me. 1984) (“The Commission has broad discretion in

selecting among various rate-making methodologies, provided that they are

reasonably accurate.    The Commission is not required to manipulate its

methodologies to eliminate every shred of suggested inaccuracy.” (citation

omitted)); Indus. Energy Consumer Grp. v. Pub. Utils. Comm’n, 

,

; see also Pub. Advoc. v. Pub. Utils. Comm’n, 

, 

; Quirion v. Pub. Utils. Comm’n, 

 (Me. 1996); Am.

Ass’n of Retired Persons v. Pub. Utils. Comm’n, 

 (Me. 1996);

City of Portland v. Pub. Utils. Comm’n, 

 (Me. 1995);
6

Pub. Advoc. v. Pub. Utils. Comm’n, 

 (Me. 1995); Millinocket

Water Co. v. Me. Pub. Utils. Comm’n, 

 (Me. 1986); Mech. Falls

Water Co. v. Pub. Utils. Comm’n, 

 (Me. 1977); Cent. Me.

Power Co. v. Pub. Utils. Comm’n, 

, 

 (1957).

      [¶9] We also apply a deferential approach when reviewing an agency’s

interpretation of a statute it administers, in recognition of the agency’s “greater

expertise in matters of [relevant] concern and greater experience

administering and interpreting those particular statutes.” S.D. Warren Co. v. Bd.

of Env’t Prot., 

, 

. Therefore, “[w]hen reviewing [the

Commission’s] interpretation of a statute that is both administered by the

[Commission] and within [its] expertise,” we first determine de novo whether

the statute is ambiguous, i.e., “reasonably susceptible of different

interpretations.” Cent. Me. Power Co., 

, 

 (quotation

marks omitted). We then “either review the Commission’s construction of the

ambiguous statute for reasonableness or plainly construe the unambiguous

statute.”   

 (quotation marks omitted).        “Although the Commission’s

interpretation of a statute that it administers is not conclusive or binding on us,

such an interpretation . . . should be upheld unless the statute plainly compels

a contrary result.” Off. of the Pub. Advoc., 

, 

             7

(quotation marks omitted).         The same standard also applies to the

Commission’s interpretation of its own technical regulations, provided those

regulations comport with the relevant statutes. Cent. Me. Power Co., 

, 

.

      [¶10] With these principles in mind, we turn to the merits.

B.    Whether the Commission reviewed the amendment to the special
      rate contract under the proper standard.

      [¶11]   The Public Advocate argues that the Commission erred by

reviewing the proposed amendment to the special rate contract under the

wrong standard.      Appellees counter that the standard applied by the

Commission comports with precedent, the relevant statutes, and the

Commission’s prior decisions. We agree with the appellees.

      [¶12] The rates charged for utility service in Maine are established in

accordance with Title 35-A. Under section 309 of that title, utility rates

generally must be charged uniformly, according to schedules, or “tariffs,”

published by the utility:

      Except as otherwise provided in section 703, it is unlawful for any
      public utility to charge, demand, collect or receive, for any service
      performed by it within the State or for any service in connection
      with that performance, a greater or lesser compensation than is
      specified in such printed schedules as may at the time be in force,
      or to demand, collect or receive any rate, toll or charge not specified
      in the schedules. The rates, tolls and charges named in the schedule
8

      are the lawful rates, tolls and charges until they are changed as
      provided in this Title.

35-A M.R.S. § 309(1) (2023); see Harwood, Maine Regulation of Public Utilities

104 (2d ed., 2018); see also 35-A M.R.S. § 703(1) (echoing section 309’s tariff

rate requirement). However, section 703 provides an exception to the tariff

rate requirement for special rate contracts:

      A public utility, subject to the commission’s approval, may make a
      contract for a definite term for its product or service, but the
      published rates for the product or service may not be changed
      during the term of the contract without the commission’s consent.

35-A M.R.S. § 703(3-A); Taylor v. Pub. Utils. Comm’n, 

, 

. We have previously recognized that Title 35-A and the Commission’s

regulations “provide no guidance regarding by what standard a special [rate]

contract is reviewed or approved and are therefore ambiguous on that basis.”

Taylor, 

, 

 (alterations and quotation marks

omitted).

      [¶13] In the absence of a strict legislative or regulatory mandate, the

Commission has reviewed special rate contracts under several different

standards, depending on the type of utility service at issue. When reviewing a

special rate contract for electric transmission and distribution (T&D) service,

the Commission typically asks three questions:
                                                                                   9

   1.     Is the rate discount in fact necessary?

   2.     If so, is the rate above the marginal cost of service to the customer?

   3.     Is the contribution above marginal costs substantial and is the
          contribution maximized?

Cent. Me. Power Co., Request for Approval of Special Rate Contract with

Newpage Corporation (Formerly Mead Oxford Corp.), No. 2005-451, Order Part

II at 3 (Me. P.U.C. Feb. 17, 2006). The requirement that the customer’s

contribution above marginal costs be “maximized” essentially means that the

discount below the normal tariff rate must be as small as possible. Id. at 3-4.

        [¶14] However, when the Commission reviews a special rate contract for

natural gas service—like the contract at issue in this case—it asks whether a

proposed special rate contract will provide certain discrete benefits to the

utility and its customers, such as encouraging large-volume customers to use

gas provided by the utility instead of other fuels, and whether the “revenue

produced by the contract rates would exceed the marginal cost of providing

service.” Bangor Nat. Gas Co., Request for Approval of Special Rate Agreement,

No. 2022-333, Order at 10 (Me. P.U.C. Jan. 27, 2023); see, e.g., N. Utils., Inc.,

Request for Approval of a Firm Gas Transportation Agreement, No. 2000-848,

Order at 2 (Me. P.U.C. Dec. 7, 2000). Thus, in contrast to special rate contracts

for T&D service, the Commission does not require that special rate contracts
10

for natural gas service maximize revenues above the marginal cost of service.

The Public Advocate takes issue with this approach, arguing that the

Commission must consider whether a special rate contract for natural gas

service maximizes revenues above the marginal cost of service.

      [¶15] However, neither Title 35-A nor the Commission’s regulations

mandate a particular standard of review for special rate contracts. See Taylor,

, 

. Furthermore, the Commission’s decision to

apply a different standard of review depending upon whether it is reviewing a

special rate contract for natural gas service or for T&D service is a rational one,

because natural gas utilities are subject to market forces that do not apply to

T&D utilities. See Pub. Utils. Comm’n, Investigation of Request to Order Natural

Gas Companies to Make Available Commercial Customer Lists, No. 2006-83,

Order at 6 (Me. P.U.C. June 29, 2006) (“The nature of competition in the gas and

electric industries is distinctly different. Unlike for electricity, other fuels can

be substituted for natural gas for virtually all natural gas end uses.”); Harwood,

supra at 189. As the Commission noted in its order, the standard it used to

review this special rate contract

      recognizes the reality of the competitive nature of the natural gas
      market in Maine, where large customers like Bucksport
      [Generation] often have viable options in choosing fuels and
      suppliers, and natural gas utilities compete for customers with one
                                                                               11

      another. The market realities of [the] natural gas industry do not
      allow utilities the leverage that electric utilities have over their
      large customers for a utility to “maximize” its revenue in
      negotiating [a special rate contract].

Bangor Nat. Gas Co., Request for Approval of Special Rate Agreement,

No. 2022-333, Order at 12 (Me. P.U.C. Jan. 27, 2023). These are relevant

considerations that fall within the Commission’s expertise and discretion.

      [¶16] We therefore hold that, barring an express prohibition under

Title 35-A or the Commission’s regulations, it was not “unreasonable, unjust or

unlawful” for the Commission to apply different standards of review to special

rate contracts arising under different market conditions. Cent. Me. Power Co.,

, 

.

C.    Whether the Commission’s approval of the amended special rate
      contract resulted in an unjust, unreasonable, or discriminatory rate.

      [¶17] The Public Advocate also urges us to vacate the Commission’s

order because, the Public Advocate claims, it resulted in unjust and

unreasonable rates that are prohibited by section 301, and discriminatory rates

that are prohibited by section 702.

      [¶18] Section 301 requires that rates charged for utility service in Maine

be “just and reasonable.” 35-A M.R.S. § 301(2). We have previously explained

that this requirement encompasses “a range” rather than “a particular single

rate” and held that “[i]t is within the sound discretion of the Commission” to fix
12

rates within that range. Cent. Me. Power Co. v. Pub. Utils. Comm'n, 

 (Me. 1978). Generally, we will not hold that a rate approved by the

Commission violates section 301 unless it is “so low as to constitute an

unconstitutional confiscation of private property” or “so high as to constitute

an unreasonable burden on ratepayers.” New England Telephone & Telegraph

Co. v. Pub. Utils. Comm'n, 

 (Me. 1978).

      [¶19] Section 702 provides in relevant part that it is “unlawful for a

public utility to give any undue or unreasonable preference, advantage,

prejudice or disadvantage to a particular person.” 35-A M.R.S. § 702(1). This

means that, in general, the starting point for setting rates should ensure that

each member of a class of ratepayers pays the same rate, tied to the cost of

serving that class. See Holmquist v. New England Telephone & Telegraph Co., 

 (Me. 1994); Me. Water Co. v. Pub. Utils. Comm’n, 

 (Me. 1984).

      [¶20] As noted above, however, section 703 expressly allows individual

customers to enter into special rate contracts. This allowance is based on the

economic theory that a ratepayer contributing something greater than the

marginal cost of serving that customer benefits the other ratepayers if the

alternative to the special rate would be that the individual customer would exit
                                                                              13

the system, contributing nothing to the payment of the utility’s fixed costs. See

Harwood, supra at 134. “Mere differences” in the rates charged for utility

service “are not unjust discrimination.” Holmquist, 

. Rather,

“[o]nly differences which cannot be justified on a legitimate basis” violate

section 702. 

      [¶21] As also noted above, the Commission is given broad discretion in

establishing the appropriate test and applying it to determine whether a

particular special rate contract will sufficiently benefit other ratepayers.

Applying the Commission’s test, we see nothing in the record suggesting that

the Commission’s approval of the amendment to the special rate contract here

will result in unjust or unreasonable rates for other Bangor Gas customers. To

the contrary, the Commission found that the special rate contract not only

allows Bangor Gas to cover any marginal costs associated with serving

Bucksport Generation, but also allows Bangor Gas to defray some of its fixed

costs. The Public Advocate concedes this point but argues that Bucksport

Generation should be on the hook for a larger portion of the fixed costs.

However, as the Commission noted in its order, Bucksport Generation’s status

as a Bangor Gas customer is not a given. If the cost of taking service from

Bangor Gas is too high, Bucksport Generation can use other fuels. If it did so,
14

Bucksport Generation would not defray any of Bangor Gas’s fixed costs.

Instead, those costs would fall to other Bangor Gas ratepayers.

      [¶22] Given these specific circumstances, we cannot conclude that the

amended special rate contract resulted in a discount for Bucksport Generation

that was “so high as to constitute an unreasonable burden on” other ratepayers

served by Bangor Gas. New England Telephone & Telegraph Co., 

.

The value of incentivizing continued financial contributions from Bucksport

Generation to Bangor Gas’s fixed costs also justifies disparate rate treatment,

where the alternative would be no contribution.

      [¶23] To the extent that the Public Advocate is arguing that a general

cost-of-service study is needed to determine whether the terms of this special

rate contract are reasonable or nondiscriminatory, the Commission disagreed,

which was a reasonable conclusion.

      [¶24] Requiring a general cost-of-service study makes sense when

setting general rates. “Establishing cost of service for rate design is a complex

process,” Cent. Me. Power Co. v. Pub. Utils. Comm’n, 

(Me. 1979), and a comprehensive study may be needed to set general rates. If

the Public Advocate believes that such a general review is necessary, it can
                                                                             15

petition the Commission to initiate proceedings to review Bangor Gas’s general

rates pursuant to 35-A M.R.S. § 1702(3) (2023).

      [¶25] As the Commission indicated in its order, it may sometimes be

necessary to perform a cost-of-service study to determine the cost of serving a

customer seeking a special rate contract and ensure that other ratepayers

would not be subsidizing service to that customer. But the Commission

reasoned that such a costly and time-consuming study was not required in this

case, given that Bucksport Generation is connected directly to the transmission

network and uses no distribution services. As the Commission also noted, the

Public Advocate did not articulate what additional information it believed was

needed to determine the size of any discount being given to Bucksport

Generation. Nor has the Public Advocate articulated before us on appeal what

additional information may be necessary.

      [¶26] In summary, because the Commission did not apply an improper

standard of review, and its approval of the special rate contract did not result

in unjust, unreasonable, or discriminatory rates, we decline to disturb its

decision.
16

D.    Whether the Commission created an evidentiary record.

      [¶27] The Public Advocate next argues that the Commission failed to

create an evidentiary record in this proceeding and that the Commission’s

order is therefore unsupported by the record. While appellees argue that the

evidentiary record includes everything in the administrative record, the Public

Advocate argues that this cannot be the case because the Commission did not

make any rulings on the admissibility of evidence in the record.

      [¶28] Appellees also contend that because the Public Advocate failed to

raise the issue to the Commission, its argument is waived on appeal. On this

point, we agree. The Public Advocate could have raised this issue to the

Commission at the preliminary case conference, in its comments submitted in

response to Bangor Gas’s petition, in the technical conference, in its briefing

prior to the Examiners’ report, or in its exceptions to the Examiners’ report. See

65-407 C.M.R. ch. 110, § 11(D). Because it failed to do so, the Public Advocate’s

argument is waived on appeal. See Forest Ecology Network v. Land Use Regul.

Comm'n, 

, 

 (“Issues not raised at the administrative

level are deemed unpreserved for appellate review.”).

      [¶29] We acknowledge, however, that the Public Advocate may have a

point when it suggests that not every item generated in the course of a
                                                                               17

Commission proceeding is a part of the evidentiary record. The Commission’s

regulations are not clear on this point.

      [¶30] Bangor Gas initiated this proceeding by seeking approval of its

special rate contract with Bucksport.       This was followed by the Public

Advocate’s intervention and discovery was taken through responses to data

requests and at a technical conference. The Commission did not then hold an

evidentiary hearing before issuing its approval. It appears fairly clear that this

approval process constituted an “[a]djudicatory [p]roceeding” as that term is

defined by 65-407 C.M.R. ch. 110, § 2(A), which means that Bangor Gas was

entitled to a hearing if it had wanted one. It also seems fairly clear that when

an evidentiary hearing is held, discovery materials are not considered to be a

part of the evidentiary record upon which the Commission will make its

decision in the absence of a specific procedural order or submission of the

discovery material to the hearing examiner, who may admit it into the record.

See 65-497 C.M.R. ch. 110, §§ 8(F)(1)(b), 9, 10. Confusing this issue is 65-497

C.M.R. ch. 110, § 8(F)(1)(b), which provides that the presiding officer may “rule

on the admissibility of evidence, and admit into the record material relied upon

by the Commission pursuant to section 8(I)4, provided that the presiding
18

officer is either authorized to practice before the Maine Supreme Judicial Court

or a Commissioner.” There is no section 8(I)4.

      [¶31] It is unclear what materials are considered to be a part of the

evidentiary record upon which the Commission may make its determination

when an evidentiary hearing is not held. Taking the position that everything

submitted by the parties is included in the record upon which it can make its

determination (in the absence of an evidentiary hearing that apparently culls

that record), the Commission points to 65-407 C.M.R. ch. 110, § 8(H),

identifying the contents of the “record,” and providing that “[i]n an adjudicatory

proceeding, the Administrative Director shall maintain and preserve a record

which shall consistent of . . . (b) evidence received or considered.” The

Commission argues that whatever the administrative director includes in the

administrative record constitutes the evidence on which the Commission may

rely. But this argument conflates the administrative record—a record of

anything filed with the Commission—with evidence admitted upon which the

Commission may make its determination. Under the framework outlined in the

rules, it is the hearing examiner who decides what material is included as a part

of that evidentiary record, not the administrative director. Section 8(F)(b) also

indicates that a hearing examiner must be a lawyer or commissioner with the
                                                                               19

ability to review the admissibility of evidence, consistent with 65-407 C.M.R.

ch. 110, § 10(B), which provides that the Maine Rules of Evidence “shall be

followed in Commission adjudicatory proceedings,” with limited enumerated

exceptions.

      [¶32] Parties before the Commission are entitled to adequate notice of

what materials are evidence upon which the Commission will make its decision.

We presume that the Commission will clarify its regulations. For purposes of

this appeal, however, we need not address whether this lack of clarity violated

any procedural due process right of the Public Advocate, because, as noted, the

Public Advocate has waived this argument.

      The entry is:
                  Judgment affirmed.



William S. Harwood, Esq. (orally), Richard P. Hevey, Esq., and Kristina R.
Winther, Esq., Office of the Public Advocate, Augusta, for appellant Office of the
Public Advocate

Robert A. Creamer, Esq. (orally), Carol MacLennan, Esq., and Jordan McColman,
Esq., Maine Public Utilities Commission, Augusta, for appellee Maine Public
Utilities Commission

Benjamin James Smith, Esq., Smith Legal LLC, Augusta, for appellee Bangor
Natural Gas Company

Joseph G. Donahue, Esq., and Steven A. Hudson, Esq., Preti Flaherty Beliveau &
Pachios, LLP, Augusta, for appellee ND OTM LLC
20


David P. Littell, Esq., and Eben M. Albert, Esq., Bernstein Shur, Portland, for
appellee Bucksport Generation, LLC


Public Utilities Commission docket number 2022-00333
FOR CLERK REFERENCE ONLY