2008-897, APPEAL OF STONYFIELD FARM, INC. & a.

Consumer Advocate, as amicus curiae. Meredith A. Hatfield, consumer advocate, on the brief, for the Office of

attorney general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (K. Allen Brooks, senior assistant

Linda T. Landis, of Manchester, on the brief, for the respondent. Glahn, III & a. on the brief, and Mr. Glahn orally), and Robert A. Bersak and McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Wilbur A.

on the brief and orally), for the petitioners. to press. Errors may be reported by E-mail at the following address: Sheehan Phinney Bass & Green, P.A., of Manchester (Edward A. Haffer

(New Hampshire Public Utilities Commission)

No. 2008-897 editorial errors in order that corrections may be made before the opinion goes Public Utilities Commission Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as to produce electricity, is one of PSNH’s fossil fuel generation assets.

p. 2 reduce the facility’s mercury emissions. Merrimack Station, which burns coal

Hampshire residents. 2

interest.

commonly known as “scrubber technology,” at Merrimack Station in Bow to

generation, transmission and distribution services to a majority of New

see RSA 125-O:11-:18 (Supp. 2008), to reduce “mercury emissions at the coal- In June 2006, the legislature enacted the Mercury Emissions Program,

369-B:3-a. respondent, Public Service Company of New Hampshire (PSNH), is in the public See RSA whether installing certain technology at the Merrimack Station belonging to the Public Utilities Commission (PUC) ruling that it lacks authority to determine instant matter concerns installing a wet flue gas desulphurization system,

PSNH, the state’s largest public utility, has historically provided electric

I. Background

See RSA 369-B:3-a (Supp. 2008). We dismiss the appeal.

LLC, and Great American Dining, Inc., appeal a decision of the New Hampshire DALIANIS, J. The petitioners, Stonyfield Farm, Inc., H & L Instruments,

TransCanada Hydro Northeast, Inc., as amicus curiae. Orr & Reno, PA, of Concord (Douglas L. Patch on the brief), for

amicus curiae. joint brief), for Resident’s Environmental Action Committee for Health, as Wadleigh, Starr & Peters, PLLC, of Manchester (Ronald J. Lajoie on the

brief, for Conservation Law Foundation, as amicus curiae. Melissa A. Hoffer and Kristine E. Kraushaar, of Concord, on the joint

amici curiae. Action, New Hampshire Sierra Club and Union of Concerned Scientists, as Arthur B. Cunningham, of Hopkinton, on the joint brief, for Clean Water

joint brief), for Campaign of Ratepayers’ Rights, as amicus curiae. Backus, Myer and Solomon, of Manchester (Robert A. Backus on the operated in New Hampshire.”

p. 3 rates if Merrimack Station were not in the mix of fossil and hydro facilities

project on energy service rates, and an analysis of the effect on energy service detailed cost estimate for the project, an analysis of the anticipated effect of the file “a comprehensive status report on its installation plans,” including “a

be . . . via . . . [PSNH’s] default service charge.” RSA 125-O:18.

risen from $250 million to $457 million. Thereafter, the PUC directed PSNH to

technology “in a manner approved by the [PUC].” Recovery of these costs “shall O:18, PSNH “shall recover all prudent costs” of installing the scrubber including “any updated cost information.” RSA 125-O:13, IX. Under RSA 125economic performance incentives administered by DES. RSA 125-O:11, IV; constructed and installed, the legislature has provided PSNH with certain

filed by PSNH’s parent company that the cost of installing this technology had

and the customers of [PSNH].” RSA 125-O:11, VI;

legislature annually regarding its installation of the scrubber technology,

significant mercury reductions” even before the scrubber technology is

In August 2008, the PUC learned from a securities and exchange report

scrubber technology “is in the public interest of the citizens of New Hampshire “as an integrated strategy of non-severable components.” RSA 125-O:11, VIII. balancing of cost, benefits, and technological feasibility” that should be viewed

pertinent regulatory agencies. RSA 125-O:13, I. PSNH must report to the contingent upon obtaining all necessary permits and approvals” from the implement practicable technological or operational solutions to achieve 2013. See RSA 125-O:11, I. Meeting “this requirement,” however, “is scrubber technology and have it operational at Merrimack Station by July 1, To comply with the Mercury Emissions Program, PSNH must install the

[Station].” RSA 125-O:11, II. According to the legislature, installing the in mercury and other pollutants from the flue gas streams of Merrimack requirements set forth in RSA 125-O:11-:18 “represent a careful, thoughtful installation, operation and plant efficiency costs with the projected reductions RSA 125-O:16. The legislature has stated that the mercury emission reduction

To ensure that PSNH makes “an ongoing and steadfast effort . . . to

emitted into the air by no later than the year 2013.” see RSA 125-O:12, I. aggregated mercury content of the coal burned at these plants from being

has determined that this technology “best balances the procurement, (DES) has determined is the scrubber technology. Id.; RSA 125-O:11, II. DES Station,” which the New Hampshire Department of Environmental Services install “the best known commercially available technology . . . at Merrimack To accomplish this objective, the legislation specifically requires PSNH to

I. The program is intended to “prevent, at a minimum, 80 percent of the burning electric power plants in the state as soon as possible.” RSA 125-O:11, increase. p. 4 default service rate increases, competitive offerings may also

rate is the backstop for all other competitive offerings. If PSNH’s

prudent costs.”

commercial ratepayers. PSNH objected. The PUC ruled, however, that the

the evidence, that the order is unjust or unreasonable. RSA 541:13 (2007);

territory is influenced by PSNH’s default service rate because that

with the requirements of RSA 125-O:11-18 and the manner of recovery for

over the scrubber project, moved for a rehearing, asserting standing as Appeal of Verizon New England, 153 N.H. 50, 56 (2005). Findings of fact by the

demonstrating that the order is contrary to law or, by a clear preponderance of A party seeking to set aside an order of the PUC has the burden of electric suppliers. The electric supply market in PSNH’s service A. Standard of Review taking default energy service, or as customers of competitive “limited to determining at a later time the prudence of the costs of complying modification is in the public interest.” The PUC ruled that its authority was II. Discussion determination pursuant to RSA 369-B:3-a as to whether this particular The PUC denied the motion.

neither directed nor invited to participate in its effort to determine its authority

changes in PSNH’s default energy service rate either as customers The Commercial Ratepayers . . . may be affected financially by

in the public interest . . . , the [PUC] lacks the authority to make a

After the PUC issued its order, the petitioners, whom the PUC had same. The PUC invited the New Hampshire Office of the Consumer Advocate to do the See RSA 125-O:18. about the extent of the PUC’s authority with respect to the scrubber project.

assets B:3-a, which provides that PSNH may modify its fossil and hydro generation Hampshire and the customers of [PSNH],” RSA 125-O:11, VI, and RSA 369certain, and its finding pursuant to RSA 125-O:11 that such installation . . . is Legislature’s mandate that [PSNH] . . . install scrubber technology by a date In September 2008, the PUC decided “that, as a result of the

of PSNH to do so,” the PUC also directed PSNH to file a legal memorandum only if the PUC finds that it is “in the public interest of retail customers

technology at Merrimack Station is “in the public interest of the citizens of New conflict between the legislature’s express finding that installing scrubber p. 5 PSNH and certain industrial customers. 5

ratesetting proceeding.”

standing to appeal the PUC’s decision to approve special contracts between

interpretation of statutes that are unrelated to a rate plan. Here, as in Appeal Ratepayers Rights, is not an appeal of a rate plan. It concerns the PUC’s decisions and, thus, have standing to challenge them.” The appeal in this case, like the appeal in Appeal of Campaign for in fact.” to confer standing upon the ratepayers. Id. injury would arise only through increased rates imposed during a subsequent injury in fact,” they had standing to appeal the PUC’s decision. because they did not suffer any immediate or direct injury. Id. “[A]ny potential Rights, 142 N.H. at 632. We concluded that the ratepayers lacked standing

not concern a rate plan. In that case, we held that the ratepayers lacked In contrast, the appeal in Appeal of Campaign for Ratepayers Rights did

other jurisdictions have held that ratepayers are directly affected by rate by the decision, or in other words, that he has suffered or will suffer an injury Id. at 156-57. We stated: “Courts in (quotation omitted). We agreed that this “direct economic injury” was sufficient

upon them as a result of the PUC’s approval of the rate plan constitute[d] an N.H. at 151. They argued that because “the rate increases that will be imposed challenged the PUC’s decision to approve a rate plan. Appeal of Richards, 134 and by the [PUC’s] Order.” appeal a PUC decision. In that case, the petitioners were ratepayers, who increased costs of installation of scrubber technology at Merrimack Station, In Appeal of Richards, we addressed in depth the issue of standing to electricity generated by [PSNH], [they] will be directly affected by the materially omitted), cert. denied, 502 U.S. 899 (1991); see RSA 541:3 (2007).

Appeal of Richards, 134 N.H. 148, 154 (quotations and citations

to this court, a party must demonstrate that his rights “may be directly affected 194, 195 (2008). To have standing to appeal an administrative agency decision be addressed at any time. Libertarian Party of N.H. v. Sec’y of State, 158 N.H. A party’s standing is a question of subject matter jurisdiction, which may

(1998). The petitioners counter that they have standing: “As ratepayers for direct. See Appeal of Campaign for Ratepayers Rights, 142 N.H. 629, 632 electrical costs as a result of the scrubber project, is neither immediate nor lack standing to bring it because the injury they allege, future increased PSNH argues that we should dismiss this appeal because the petitioners

B. Standing

Verizon, 153 N.H. at 5 p. 6 6. PUC are presumed prima facie lawful and reasonable. RSA 541:13; see 6

appeal. the petitioners to appeal the PUC’s decision. Accordingly, we dismiss the

Such future harm is insufficient, as a matter of law, to confer standing upon

BRODERICK, C.J.