2010-121 Appeal of Campaign for Ratepayers’ Rights & a. (New Hampshire Site Evaluation Committee)

No. 2010-121

Site Evaluation Committee

Conservation Law Foundation, Freedom Logistics, LLC, Halifax-American HICKS, J. The appellants, Campaign for Ratepayers’ Rights,

McLane, Graf, Raulerson & Middleton, P.A. ___________________________

Orr & Reno, P.A. Glahn, III on the brief and orally), for the appellee.

LLC; and Jackson Perry, on the joint brief, pro se. brief, for appellants Freedom Logistics, LLC and Halifax-American Energy Co., Conservation Law Foundation; James T. Rodier, of Portsmouth, on the joint Scientists; Melissa Hoffer, of Concord, on the joint brief, for appellant THE SUPREME COURT OF NEW HAMPSHIRE for appellants Campaign for Ratepayers’ Rights and Union of Concerned Northeast, Inc.; Bostock Law, PLLC, of Exeter (Patrick Arnold on the joint brief), on the joint brief, and Mr. Patch orally), for appellant TransCanada Hydro

(New Hampshire Site Evaluation Committee)

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 RSA 162-H:5, I (2002) (amended 2009). “[s]uch certificates are required for sizeable additions to existing facilities.” obtained a certificate pursuant to this chapter,” and further provided that construct any bulk power or energy facility within the state unless it has their motion, that statute provided that “[n]o person shall commence to within the meaning of RSA 162-H:5, I.” At the time the Moving Parties filed modifications would constitute a ‘sizeable addition’ to the existing facility mercury scrubber modifications to Merrimack Station . . . because said seeking a determination whether the committee “ha[d] jurisdiction over Moving Parties), filed a motion for declaratory ruling with the committee Scientists), together with another party not currently before us (collectively, the Energy Co., LLC, TransCanada Hydro Northeast, Inc. and Union of Concerned Conservation Law Foundation, Freedom Logistics, LLC, Halifax-American In March 2009, six of the appellants (Campaign for Ratepayers’ Rights,

RSA 125-O:13, I (Supp. 2010).

body in a timely manner. this section, and with any other applicable regulatory agency or commission, if applicable, within one year of the effective date of initial filings with the department and the public utilities Station is in the public interest. The owner shall make appropriate installation and operation of scrubber technology at Merrimack

to give due consideration to the general court’s finding that the

however, all such regulatory agencies and bodies are encouraged

owned by the appellee, Public Service Company of New Hampshire (PSNH). See “scrubber”) at Merrimack Station, an electricity generating facility in Bow installation of a wet flue gas desulphurization system (also known as a from federal, state, and local regulatory agencies and bodies;

The record supports the following facts. This case involves the contingent upon obtaining all necessary permits and approvals

than July 1, 2013. The achievement of this requirement is jurisdiction. to control mercury emissions at Merrimack Units 1 and 2 no later The owner shall install and have operational scrubber technology

was mandated by the legislature in 2006. See id. RSA 125-O:13, I, provides: scrubber technology at Merrimack Station). The installation of such a system generally Appeal of Stonyfield Farm, 159 N.H. 227, 228-29 (2009) (discussing

judgment. We vacate because the committee lacked subject matter Evaluation Committee (the committee) denying their motion for declaratory Scientists and Jackson Perry, appeal orders of the New Hampshire Site Energy Co., LLC, TransCanada Hydro Northeast, Inc., Union of Concerned vacated except for errors of law, unless the court is satisfied, by a p. 3 and the order or decision appealed from shall not be set aside or before it shall be deemed to be prima facie lawful and reasonable; [A]ll findings of the [committee] upon all questions of fact properly

541:13: RSA 162-H:11 (2002). Accordingly, our standard of review is set forth in RSA Decisions of the committee are “reviewable in accordance with RSA 541.”

addition’” to the facility. their burden of proof to establish that the [s]crubber [p]roject was a ‘sizeable appellants lacked standing to proceed before the committee and “failed to meet imposing upon them the costs of the proceedings. PSNH counters that the addition to Merrimack Station. They also argue that the committee erred in errors leading to an erroneous ruling that the scrubber project is not a sizeable On appeal, the appellants contend that the committee made a number of

The committee denied the motions. 153 individuals was Jackson Perry, an appellant now before us. towns of Pembroke, Hooksett, Hopkinton and Contoocook. Included among the and petition for review was also filed by 153 individuals, primarily from the The moving parties filed a motion for rehearing. A motion for rehearing

secretarial fees,” on the Moving Parties, jointly and severally. the fees of Committee Counsel, the fees for the court reporter, and the and Facility. Finally, the committee imposed “the costs of the action, including addition to the facility, and, therefore, that neither required a Certificate of Site “separate and distinct from each other,” that neither constituted a sizeable [its] consideration in this docket.” They concluded that the two projects were a turbine at Merrimack Station, were “a single project or separate projects for 3 additional project called the “[t]urbine [u]pgrade,” involving the replacement of Parties’ motion. It then considered whether the scrubber project and an The committee determined that it had jurisdiction to consider the Moving

“sizeable addition” . . . . that the modifications to Merrimack Station do not constitute a as required by RSA 162-H:5, I . . . or a request for a determination Committee either an application for approval of the modifications,

Station, [we] believe that PSNH should have submitted to the Given the size, extent, and cost of the modifications to Merrimack

pursuant to New Hampshire Administrative Rule, Site 203.01. They argued: suppliers operating in New Hampshire,” and sought a declaratory ruling environmental organizations, merchant generators, and competitive energy The Moving Parties alleged that they “include[d] non-profit ratepayer and court has granted a motion to add such question.” Sup. Ct. R p. 4 the question previously set forth in the appeal document” unless “the supreme that the questions presented for review in a party’s brief “shall be the same as PSNH failed to raise it in a cross-appeal. Supreme Court Rule 16(3)(b) provides

The appellants assert that this issue should be deemed waived because

subject matter jurisdiction, it may be raised at any time. See Nevertheless, when the question of standing implicates the tribunal’s

injury in fact? 4 not qualify for that status and have not alleged or demonstrated only be brought by certain “Petitioners,” and where Appellants do that only certain persons or entities can invoke an agency’s jurisdiction, the X-a (2009) establish that such a request is a “Petition” that may (Conn. 1996) (quotation omitted). Thus, where the legislature has provided with a “Motion for Declaratory Ruling” when RSA 162-H:2, XI and enabling legislation.” Figueroa v. C and S Ball Bearing Did the Committee err in finding that the Appellants could proceed, 675 A.2d 845, 847 precise circumstances and in the manner particularly prescribed by the statutory jurisdiction is without jurisdiction to act unless it does so under the ellipsis omitted). Furthermore, a tribunal that “exercises a limited and Fullerton v. Administrator, 911 A.2d 736, 742 (Conn. 2006) (quotation and agency] with power and [the agency] cannot confer jurisdiction upon [itself].” omitted). That jurisdiction “is dependent entirely upon the statutes vesting [the Amalgamated Transit Union, 144 N.H. 325, 327 (1999) (quotation and brackets only limited and special subject matter jurisdiction . . . .” Appeal of raised at any point in the proceedings”). “Administrative agencies are granted constitutes a challenge to the court’s subject matter jurisdiction, which may be challenge to a party’s standing on the ground that no actual controversy exists v. Comm’r, N.H. Dep’t of Safety, 145 N.H. 578, 588 (2000) (stating that “a question in its brief:, e.g., Asmussen

unreasonable or unlawful.” Id appeal as waived). committee’s order, bear the burden of proof “to show that the same is clearly 141 N.H. 39, 43 (1996) (treating issue not raised in defendant’s notice of cross- RSA 541:13 (2007). The appellants, as the parties seeking to set aside the normally be deemed waived. See Unit Owners Assoc. of Summit Vista v. Miller, file a cross-appeal. Thus, the additional question presented in its brief would document (including a party who filed a cross-appeal) . . . .” Id. PSNH did not “Motions to add a question may be filed only by a party who filed an appeal

We first address the standing issue. PSNH presented the following

unjust or unreasonable.

clear preponderance of the evidence before it, that such order is project constitutes a sizeable addition to Merrimack Station, which, if so, would p. 5 We agree. The Moving Parties sought a ruling as to whether the scrubber ruling, the Moving Parties’ motion is a petition as defined in RSA 162-H:2, X-a. PSNH argues that despite being captioned as a motion for declaratory

Committee.” ‘Petitioners’ as defined by the statute may bring [a project] before the H:2, VII (2002) (amended 2009). Thus, the appellants assert that “two or more consistent with the findings and purposes set forth in RSA 162-H:1.” RSA 162committee agrees, or which the committee determines requires a certificate, or more petition categories as defined in RSA 162-H:2, XI request and the defined “‘[e]nergy facility’” to include “any other facility which the applicant or 2 requirement applied in this case pursuant to RSA 162-H:2, VII. That provision purposes of this appeal, we assume without deciding, that a further petition RSA 162-H:2, XI (2002) (amended 2009). The appellants contend, and for

(d) A petition filed by the potential applicant.

communities.

community or 2 or more boards of selectmen of abutting (c) A petition endorsed by the board of selectmen of the host

abutting communities.

(b) A petition endorsed by 100 or more registered voters from

host community or host communities. (a) A petition endorsed by 100 or more registered voters in the

a person filing a petition meeting any of the following conditions:

analysis by considering the plain meaning of the words of the statute.” Roberts 162-H “is a matter of statutory construction; accordingly, we must begin our The issue of whether the appellants had standing under RSA chapter

“[p]etitioner” to mean: bulk power supply facility or energy facility.” RSA 162-H:2, XI defined committee to rule on the applicability of this chapter to a particular proposed (repealed 2009), defined the term “[p]etition” to mean “a request to the the time the Moving Parties filed their motion, RSA 162-H:2, X-a (2002) v. General Motors Corp., 138 N.H. 532, 535-36 (1994) (quotation omitted). At

is not waived. invoke the commission’s jurisdiction). Accordingly, the issue of standing here appealing party did not have standing under the workers’ compensation act to compensation review board for lack of subject matter jurisdiction where jurisdiction of the agency. Cf. id. at 850 (affirming dismissal of appeal to question of standing under the applicable statute is an issue of subject matter and 15 copies with the committee.” N.H. Admin. Rules p. 6 the committee on matters within its jurisdiction by filing an original request provides, in part: “Any person may submit a motion for declaratory ruling from Site 203.01 for authority to bring their motion for declaratory ruling. That rule Finally, the appellants rely upon New Hampshire Administrative Rule,

jurisdiction sua motion.” They appear to contend that because the committee can assume before the Committee; or the Committee may assume jurisdiction on its own Committee; two or more “Petitioners” as defined by the statute may bring it the Committee: the builder of the project, or applicant, may bring it before the separate avenues for a given energy facility, or sizeable addition, to come before appellants had standing to bring the action. jurisdiction on its own motion, but, rather, appears to have assumed that the however, because it is counterfactual: the committee did not assume 6

based upon whether they meet the statutory definition of “‘[e]nergy facility’” or itself.” We agree that the committee exercises jurisdiction over certain projects before the Committee, but on the size and/or nature of the proposed project upon “whether a particular procedure was followed for bringing the project The appellants nevertheless argue that “the statute sets forth three The appellants counter that the committee’s jurisdiction does not depend

before the committee was proper. We need not address this argument, committee’s attention and thus their motion bringing the scrubber project

sponte, it does not matter how a project is brought to the

“We reiterate the familiar axiom of statutory construction expressio that may file a petition to those enumerated in the statute. Again, we agree. PSNH further asserts that RSA 162-H:2, XI limits the persons or entities

“[p]etition” can only be filed by a “[p]etitioner.” RSA 162-H:2, X-a, XI. enabling legislation.” Figueroa, 675 A.2d at 847 (quotation omitted). Here, a precise circumstances and in the manner particularly prescribed by the I; however, as noted above, that jurisdiction can only be invoked “under the

of permitted petitioners. PSNH notes, the appellants do not fall within any of the enumerated categories that list “in the absence of a clear showing of legislative intent.” Id. at 12. As possess the right to” file a petition with the committee, and we will not add to (1996) (quotation omitted). “Here, the legislature specified which entities would exclusion of another.” St. Joseph Hosp. of Nashua v. Rizzo, 141 N.H. 9, 11-12 exclusio alterius: Normally the expression of one thing in a statute implies the

RSA 162-H:2, X-a. See RSA 162-H:2, X-a. Thus, the “motion” was, in substance, a petition under committee to rule upon the applicability of that chapter to a particular facility. See RSA 162-H:5, I. In essence, then, the Moving Parties requested the have required PSNH to obtain a certificate pursuant to RSA chapter 162-H. is a separate issue from their standing before the committee. See p. 7 parties.” We agree, noting that the appellants’ standing to appeal to this court Committee’s order imposing the costs of its proceedings on them as moving subsequent Motion for Rehearing only), has standing to challenge the the [committee], any party to the action or proceeding before the that each of the Appellants, except Jackson Perry (who was part of the The appellants assert that “[a]t the outset it is important to remember

Within 30 days after any order or decision has been made by

RSA 541:3 provides: committee’s authority to impose costs upon them. assume, without deciding, that this ruling is not dispositive of the issue of the lacked jurisdiction to decide the merits of the appellants’ petition, we will the committee’s proceedings. Although we have determined that the committee The appellants next challenge the imposition upon them of the costs of 7

who has not been granted standing under the agency’s enabling statute. Cf jurisdiction. It does not empower an agency to confer standing upon a party interest is in zone of interests regulated or protected by the statute). rulings in proceedings over which the agency is already validly exercising under RSA chapter 541 requires only injury in fact, not showing that asserted to authorize the promulgation of rules for entertaining motions for declaratory Hampshire Bankers Ass’n v. Nelson The appellants’ argument is misplaced. We interpret RSA 541-A:16, I(d), 113 N.H. 127, 128-29 (1973) (standing

this provision is in fact mandated the powers and jurisdiction of the Committee far beyond its enabling statute, The appellants nevertheless argue that “[f]ar from improperly expanding

merits. matter jurisdiction. Accordingly, we vacate the committee’s order on the under RSA 162-H:2, XI and, therefore, that the committee lacked subject Figueroa, 675 A.2d at 847. We conclude that the appellants lack standing

A:16, I(d) (2007). filing petitions for declaratory rulings and their prompt disposition.” RSA 541requirements imposed by law, each agency shall . . . [a]dopt rules relating to brackets omitted.) That statute provides that “[i]n addition to other rulemaking

declaratory ruling.” bring the functional equivalent of a “petition” under the name “motion for 162-H:2, XI, the committee could not, by rule, confer standing upon them to 911 A.2d at 742. Therefore, where the appellants lacked standing under RSA 568 (1978). Nor may an agency “confer jurisdiction upon [itself].” Fullerton, way modify statutory law.” Kimball v. N.H. Bd. of Accountancy, 118 N.H. 567, adopted by State boards and agencies may not add to, detract from, or in any that this was error. Although the statute contains no definition of the term, p. 8 did in filing their Motion with the Committee.” We agree with the appellants Collegiate Dictionary, Third Edition, which is precisely what the Moving Parties context of this docket. To ‘apply’ means ‘to ask or seek aid[]’, Websters II New “it can reasonably be found that the Moving Parties are the ‘applicant’ in the In imposing its costs upon the appellants, the committee reasoned that

RSA 162-H:10, V (2002) (amended 2009).

processing of an application under this chapter. applicant for all travel and related expenses associated with the provided for by RSA 162-H:9, are further authorized to assess the

committee, the commission, and counsel for the public, as

case of a bulk power supply facility. The site evaluation

an energy facility, or the committee and the commission in the

such amount as may be approved by the committee in the case of this chapter, the cost of which shall be borne by the applicant in

counsel and other staff in furtherance of the duties imposed by this chapter and may employ a consultant or consultants, legal

they deem necessary or appropriate to carry out the purposes of

shall jointly conduct such reasonable studies and investigations as and, if a bulk power supply facility application, the commission,

The site evaluation committee and counsel for the public

proceedings commenced, RSA 162-H:10, V provided: outside counsel fees on the ‘applicant.’” We agree. At the time these delegates authority to the Committee to impose its proceeding costs and only power to impose fees and costs is enumerated at RSA 162-H:10, V, which impose the costs of [the committee’s] proceedings on Appellants” and that “[t]he They first contend that “RSA [chapter] 162-H contains no express authority to inherent authority to impose its costs, including attorneys’ fees, on [them].” 8 The appellants argue that the committee “had no express, implied or

committee, has standing to appeal to this court. affected” by that order, RSA 541:3, and, having moved for rehearing before the the committee’s order imposing costs on the Moving Parties is “directly court. RSA 541:6 (2007). We conclude that each of the appellants subject to application for rehearing, the applicant may appeal that ruling to the supreme RSA 541:3 (2007) (emphasis added). After the committee rules upon an

stated in the motion. such rehearing if in its opinion good reason for the rehearing is motion all grounds for rehearing, and the [committee] may grant

proceeding, or covered or included in the order, specifying in the a rehearing in respect to any matter determined in the action or [committee], or any person directly affected thereby, may apply for p. 9 We disagree. The committee’s finding is contrary to Appeal of Land

funding of the operations of the Committee. [chapter] 162-H, would have provided a method and means for the

hearings. Otherwise, the Committee’s enabling statute, RSA

conduct hearings is the authority to assess the costs of those . . . The Committee finds that inherent in the authority to

hundred feet downwind from Merrimack Station.” chimney from his home . . . directly across the Merrimack River and just a few directly affects him” because he “can view the Scrubber Project’s new 455 foot Jackson Perry. He argues that “the construction of the Scrubber Project Finally, we address the standing claim of the individual appellant,

. . . .

consider what the legislature might have said or add words that the legislature so.” “We interpret legislative intent from the statute as written and will not how to delegate cost allocation powers to the Committee when it chose to do the appellants that RSA 162-H:10, V “demonstrates that the Legislature knew Nor do we find any such authority implied in the statute. We agree with

the appellants and we vacate that portion of its order. we conclude that the committee lacked authority to impose costs and fees upon

provided for its operation by the state. on an “ad hoc” basis, has no formal staff, and has no budget It is important to note that the Site Evaluation Committee meets

expressly limited by statute.” Id. at 498 (citation omitted). a quasi-judicial administrative body. The remedial authority of such a body is that “[w]hile a court may have such inherent authority, the same is not true for tax and land appeals] has inherent authority to award attorney’s fees,” stating Hardy, 154 N.H. 805 (2007). There, we rejected an “assertion that the board [of Acquisition, 145 N.H. 492 (2000), superseded by statute as stated in Appeal of

The committee also found that it had inherent authority to assess costs:

justification for the imposition of costs. applicants conflicts with Rule p. 10 102.03, that rationale cannot stand as a (quotation omitted). Because the committee’s treatment of the appellants as regulations.” Appeal of Town of Bethlehem, 154 N.H. 314, 327 (2006) settled that an administrative agency must follow its own rules and this state.” N.H. Admin. Rules, Site 102.03. “The law of this State is well and operate any energy, renewable energy or bulk power supply facility within the committee’s rules define “[a]pplicant” as “any person seeking to construct 10

DALIANIS, C.J.