2022-0690, Appeal of New Hampshire Department of Environmental Services; 2022-0691, Appeal of North Country Environmental Services, Inc.

North Country Environmental Services, Inc. Arroyo, and Morgan G. Tanafon on the brief, and Bryan K. Gould orally), for Cleveland, Waters and Bass, P.A., of Concord (Bryan K. Gould, Cooley A.

for the New Hampshire Department of Environmental Services. Harrison, assistant attorney general, on the brief, and K. Alle n Brooks orally), genera l (K. Allen Brooks, senior assistant attorney general, and Joshua C. John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

(New Hampshire Waste Management Council)

(New Hampshire Waste Management Council)

202 2 - 0691 No s. 2022 - 0690 Waste Management Council

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, 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 p. 2 22 as 2

capacity within the planning period.” See RSA 149 - M:11, V(d). wo uld operate through p. 2 2026, “the proposed facility satisfies a need for disposal of Stage VI, meaning that the shortfall would occur in 2026, and Stage VI DES found that because “a capacity shortfall exists during the planning period” total quantity of New Hampshire waste projected to be generated statewide.” projected shortfall in existing permitted disposal capac ity to accommodate the required by RSA 149 - M:11, V(d), DES determined that in 2026, “there is a the gran t of the permit. RSA 149 - M:11, V; see also RSA 149 - M:11, III(a). As Hampshire’s “solid waste cap acity need” for the twenty - year period following to NCES. As part of its decision to grant the permit, DES considered New In October 2020, DES approved NCES’s application and issued a permit

the facility’s operating period from p. 2 2021 to 2026. submitted a new application for Stage VI. Th is time, NCES proposed to extend Consequently, NCES withdrew its application. In March 2020, NCES capacity need requirement set forth in RSA 149 - M:11, III(a) and V. that it was contemplating denying the application for failure to satisfy the VI, for approximately 2.3 years, from 2021 to 2023. DES indicated to NCES landfill in Bethlehem. NCES proposed operating the project, known as Stage undisputed. In January 2019, NCES applied to DES for a permit to expand its The following facts are supported by the record or are otherwise

Officer erred in his interpretation of RSA 149 - M:11, V. Accor dingly, we reverse. that CLF had standing to appeal the permit to the Council but that the Hearing dormant C ommerce C lause of the United States Constitution. We conclude RSA 149 - M:11, V renders th e statute unconstitutional pursuant to the consider administrative gloss; and (3) the Hearing Officer’s interpretation of Hearing Officer erred in his interpretation of RSA 149 - M:11, V and by failing to argues that: (1) CLF lacked standing to appeal the permit to the Council; ( p. 2 2) the capacity need; and (2) incorrectly interpreted RSA 149 - M:11, V (2021). NCES under RSA 149 - M:11, III(a) (2021) that NCES’s proposed facility sat isfies a incorrectly reviewed, as a question of law rather than fact, DES’s determination owned by NCES. DES argues that the Hearing Officer erred because he: (1) (CLF) appeal of a permit that DES issued authorizing th e expansion of a landfill Waste Management Council (Council) granting Conservation Law Foundat ion’s Environmental Services, Inc. (NCES) appeal an order of the New Hampshire Departm ent of Environmental Services (DES) and North Country DONOVAN, J. In this consolidated appeal, the New Hampshire

Law Foundation. Thomas F. Irwin on the brief, and Heidi H. Trima r co orally), for Conservation Conservation Law Foundation, of Concord (Heidi H. Trimarco and p. 3 3

question of law set forth in the Council’s order. 2022). Thus, we are reviewing the Hearing Officer’s legal determinations when we review any appeal within 100 days of the conclusion of the hearing on the merits.” RSA 21 - M: p. 3 3, IX(f) (Supp. the merits” and “[p]repare and issue written decisions on all motions and on the merits of the with a proposed written decision on the merits within 45 days of the conclusion of the h earing on appeal.” RSA 21 - M:3, IX(c), (e) (Supp. 2022). The hearing officer shall also “provide the council support in the record” and “[d]ecide all questions of law presented during the pendency of the all findings of fact made by the council except to the extent any such finding is without evidentiary 21 - M:3, VIII (Supp. 2022); RSA 21 - O:9 (2020). Once appointed, the hearing officer shall “[a]dopt By statute, the attorney general shall appoint hearing officers for appeals to the Council. RSA 1

operation would occur during a period without any shortfall. The Hearing was proposed to operate for six years, but the first five years of the facility’s the Hearing Officer, DES erred in granting NCES a permit because Stage VI If there is no shortfall, there can be no capacity need.” Therefore, according to capacity need to only instances where a proposed facility will satisfy a shortfall. Officer concluded that RSA 149 - M:11, V(d) “explicitly limits a finding of determine the state’s solid waste capacity need.” Ultimately, th e Hearing explained, RSA 149 - M:11, V(d) “details the method by which [DES] must Hampshire waste.” See RSA 149 - M:11, III(a). In turn, the Hearing Officer also and long - term need for the propo sed facility to provide capacity for New proposed facility provides a substantial public benefit based upon the short - V(d) and explained that, to grant a permit, DES must “determine whether a I n reaching this decision, the Hearing Officer interpreted RSA 149 - M:11,

RSA 149 - M:11, III (a) and V. in finding the NCES Facility provided a substantial public benefit” pursuant to remand ed the decision to grant the permit, ruling that DES “acted unlawfully an order signed by the Heari ng Officer that granted CLF’s appeal in part and capacity needs during the life of the [permit].” In May 2022, the Council issued permit]”; and ( p. 3 3) “DES acted reasonably in issuing a permit to help address the permit”; (2) “DE S was lawful in finding the capacity need during the life [o f the and long - term capacity needs required by [RSA 149 - M:11, III(a)] in issuing the findings, including that: (1) “DES acted reasonably in its measuring the short second day, the Council members deliberated and issued several unanimous a Hearing Officer presided. See RSA 21 - M:3, IX(a) (Supp. 2022). On the In February 2022, the Council held a two - day merits hearing, over which

hearing, as well as NCES ’s subsequent motion for reconsideration. 1 Officer denied NCES’s motion to dismiss and requ e st for an evidentiary created in conflicting affidavits that CLF and NCES submitted. T he Hearing evidentiary hearing before the Council to adjudicate the alleg ed issues of fact insufficient to esta blish standing. In the alternative, NCES sought an reliance upon predicted harms to “a minute fraction of its membership” was filed a motion to dismiss the appeal for lack of standing, arguing that CLF’s to have the permit issued to NCES deemed unlawful and unreasonable. NCES In November 2020, CLF appealed DES’ s decision to the Council, seeking p. 4 4

members. NCES argues that “a membership association or organization has DES’s decision to the Council based up on alleged harm to only two CLF We first consider NCES’s argument that CLF lacked standing to appeal

hearing, as well as NCES’s subsequent motion for reconsideration. Officer denied NCES’s motion to dismiss and request for an evidentiary discrepancies between CLF’s affidavits and NCES’s affidavit. The Hearing an evidentiary hearing before the Council to adjudicate the alleged factual sworn affidavit from the manager of its Bethlehem landfill. N CES also sought Stage VI is approved. NCES filed a reply to CLF’s objection and included a provided sworn affidavits from two of its members alleging anticipated harm if Included with its subsequent obje ction to NCES’s motion to dismiss, CLF predicted harms to “a minute fraction of its membership” to establish standing. standing in a motion to dismiss based upon the fact that CLF relied upon Following CLF’s initial appeal to the Council, NCES challenged CLF’s

with CLF. and are adversely affected by, the landfill at issue in this appeal. We agree that CLF established standing upon the basis of two members who live close to, of future harm. CLF contends that the Hearing Officer correctly determined insufficient to establish standing because they were premised upon predictions conflicting affidavits; and (3) the two affidavits that CLF submitted were NCES was entit led to an evidentiary hearing to resolve issues of fact created in decision to the Council based up on alleged harm to only two CLF members; (2) appeal for lack of standing because: (1) CLF lacked standing to appeal DES’s that the Hearing Officer erred in denying NCES’s motion to dismiss CLF’s appeal DES’s permitting decision to the Council. Specificall y, NCES argues As a preliminary matter, NCES argues that CLF lacked standing to

A. Standing

and DES appealed to this court, and their a ppeals were consolidated. Hearing Officer denied both DES’s and NCES’s motions to reconsider. NCES it proposed an alternative interpretation to the one that NCES presented. T he the Hearing Officer erred in his interpretation of RSA 1 p. 4 49 - M:11 (2021), though administrative gloss that DES had given the provision. DES also argued tha t interpretation of RSA 149 - M:11, V(d) was erroneous and contrary to the raised it s prior standing argument and argued that the Hearing Officer’s Both DES and NCES filed motion s to reconsider. In its motion, NCES

1 p. 4 49 - M:11, III(a). [RSA 149 - M:11, III(a)] when determining substantial public benefit.” See RSA capacity need,” it could not determine that Stage VI met “the requirement of Officer reasoned that because DES could not “lawfully find there to be a p. 5 5

We note that, since CLF’s appeal to the Council and the Hearing Officer’s decision, the Wetlands 2

203.02(b) (replaced 2021). Thus, given that neither the statutory scheme nor 2 N.H. Admin. R., Env - AC 204.02(b)( p. 5 5) (replaced 2023); N.H. Admin. R., Env - WtC members could establish standing. See N.H. Admin. R., Env - WC 203.02 (a)(6); — expressly provide d for organizational standing when at least one of its DES — the Water Council, the Air Resources Council, and the Wetlands Council decision, the regulations in effect in three other environmental councils within Admin. R., Env - WMC 204. We observe that, when the Hearing Officer issued his establish standing. See RSA 149 - M:8; RSA 21 - O:9, V; RSA 21 - O:14, I - a(a); N.H. of an organization must possess standing in order for the organization to these regulations governing appeals to the Council address how many members N.H. Admin. R., Env - WMC 204.02(b). Notably, neither the statutory scheme nor

is more than any impact of the decision on the general public. adverse affect [sic] as a result of the decision being appealed in a way that bring the appeal, for example, why the appellant will suffer a direct and ( p. 5 5) A clear and concise statement as to why the appellant has standing to

. . .

A notice of appeal shall include the following:

and the Hearing Officer’s decision — provided that: Specifically, the regulations in effect at the time of CLF’s appeal to the Council — requirements. See N.H. Admin. R., Env - WMC 204.02(b)( p. 5 5) (replaced 2023). The regulations governing Council proceedings also address standing

(quotation omitted). Golf Course Investors of NH v. Town of Jaffrey, 161 N.H. 67 p. 5 5, 680 (2011) the community who might feel that they are hurt by the administrative action.” (quotations omitted). Standing, however, “wi ll not be extended to all persons in proceeding.” Goldstein v. Town of Bedford, 154 N.H. 393, 395 (2006) person who can show some “direct definite interest in the outcome of the worde d statutes, we have explained that a “person aggrieved” includes any provided by law, appeal” such decision to the C ouncil. In construing similarly aggrieved by a department decision may, in addition to any other remedy 21 - O:14, I - a(a) (2020). RSA 21 - O:14, I - a(a) provides that “[a]ny person is established by statute. See RSA 149 - M:8 (2021); RSA 21 - O:9, V (2020); RSA Standing to appeal DES’s decision to grant NCES a permit to the Council

harm.” any specified quantity or proportion of an organization’s members, must suffer standing, there is no requirement “that all of an organization’s members, or challenged action.” CLF counters that for an organization to establish standing where all its members have sustained the requisite injury from the p. 6 6

organization to establish standing. See N.H. Admin. R., Ec - Wet 200; N.H. Admin. R., Ec - Air 200. Resources Council no longer address how many members must demonstrate standing for an Admin. R., Ec - Wst 203.03(c)(4)(b). Notably, the regulations for the Wetlands Council and the Air appeal.” N.H. Admin. R., Ec - Wet 203.03(c)(4)(b); N.H. Admin. R., Ec - Air 203.03(c)(4)(b); N.H. stating that the appealing party must “[e]stablish that the appellant has standing to bring the Air 200; N.H. Admin. R., Ec - Wst 200. Each of these three councils has adopted identical language governing each council’s procedural rules. See N.H. Admin. R., Ec - Wet 200; N.H. Admin. R., Ec - Council, Air Resources Council, and Waste Management Council have a dopted new regulations

when “the appellant has suf fered or will suffer an injury in fact.” Appeal of provide a basis for standing. We agree with CLF. A party can establish standing predictions of future harm.” CLF counters that future harm is sufficient to were insufficient to establish standing because “they rely exclusively on Next, we consider NCES’s argument that the affidavits that CLF presented

dispute”). standi ng may be subject to de novo review when the underlying facts are not in Golf Course Investors of NH, 1 p. 6 61 N.H. at 680 (explaining that a “decision on veracity of the sworn statements of CLF’s affiants. See RSA 21 - M:3, IX(c), (e); cf. affidavit “does not provide a basis for conducting an evidentiary hearing” on the impermissible fact finding and did not err in ruling that the landfill mana ger’s statements from CL F ’s affiants, the Hearing Officer did not engage in Accordingly, we conclude that, in relying on the uncontroverted sworn however, directly contradicts the personal experiences of CLF’s affiants. maximum extent practicable.” Nothing in the landfill manager’s affidavit, sensitivity to sound,” and that NCES is controlling “off - site odors to the from the la ndfill is “very low” and “would not disturb any person with an ordinary landfill. Additionally, third - party studies acquired by NCES found that the noise CLF’s affiants ’ neighbors have experienced neither noise nor odor from the made numerous, unverified complaints over the years about the landfill, and that the manager of the Bethlehem landfill, averred that both of CLF’s affiants have interference with views, and negative impact on property values. NCES’s affiant, cause d them to experience noise and odor — both inside and outside the home, close to the Bethlehem landfill. Specifically, they stated that the landfill has statements describing the adverse effects that they experience as a result of living request for an evidentiary hearing. Here, CLF’s two affiants provided sworn We next consider whether the Hearing Officer erred in denying NCES’s

established standing based on harm to only two of its members. Accordingly, we conclude that the Hearing Officer did not err in ruling that CLF Management Council than be fore any of the other environmental councils.” no substantive basis for reaching a different result in an appeal before the Waste a certain number of its members, we agree with the Hearing Officer that “there is that, for an orga nization to establish standing, it must demonstrate standing for the regulations governing appeals to the Waste Management Council require p. 7 7

standing. question, and we do not conside r whether the facts themselves are sufficient to establish because they are based upon “predictions of future harm.” Thus, we limit our analysis to this On appeal, NCES argues that the affiants’ statements are insufficient to establish standing solely 3

(2004); see also RSA 149 - M:6 (Supp. 2022). plan.” N. Country Env t l. Servs. v. Town of Bethlehem, 150 N.H. 606, 612 administering a S tate permit system, and prepare a statewide solid waste management policies and goals, regulate private and public facili ties by management responsibilities, DES must establish State solid waste RSA 149 - M:4, V (Supp. 2022); RSA 149 - M:5 (2021). “Among other solid waste legislature has designated DES responsible for enforcing RSA chapter 149 - M. which governs the management of solid waste. See RSA 149 - M:1 (2021). The operations. This appeal implicates RSA chapter 149 - M (2021 & Supp. 2022), that DES acted unlawfully when it granted NCES a permit to expand its landfill On appeal, DES and NCES challenge the Hearing Officer’s determination

Found., 1 p. 7 74 N.H. at 63; RSA 541:13. before it to be prima facie lawful and reasonable. Appe al of Conservation Law RSA 541:13. We deem the Council’s findings on questions of fact properly unjust or unreasonable. Appeal of Conservation Law Found., 174 N.H. at 63; by a clear preponderance of the evidence, that the Council’s decision was Council’s decision unless it contains an error of law, or NCES or DES establish, (2021); see RSA 21 - O:14, III (2020). We will not set aside or vacate the Appeal of Conservation Law Foun d., 174 N.H. 59, 63 (2021); RSA 541:13 demonstrating that the Council’s decision is clearly unlawful or unreasonable. As the appealing parties, NCES and DES bear the burden of

B. Statutory Interpretation

ruling that CLF had standing to appeal DES’s issuance of a permit to NCES. For the foregoing reasons, we conclude that the H earing Officer did not err in (2013) (explaining that, to establish standing, an injury cannot be speculative). written.” See Hannaford Bros. Co. v. Town of Bedford, 164 N.H. p. 7 764, 769 3 expand the scope and exten d the life of the landfill is implemented as now close proximity to the landfill “will continue in the future if the Permit to speculation” that the affiants’ current, negative experiences caused by their with view s. Thus, we agree with the Hearing Officer that it is not “mere affects them for numerous reasons, including noise, odor, and interference Here, CLF’s two affiants state that the landfill, in its current state, adversely would occur if the planning board approved the contested development plans). whether residents could establish standing based upon i njuries they alleged added); see also Golf Course Investors of NH, 161 N.H. at 6 p. 8 83 - 84 (considering Londonderry Neighborhood Coalition, 145 N.H. 201, 203 (2000) (emphasis 8

what the legi slature might have said or add language the legislature did not see ordinary meaning. Id. We interpret the statute as written and will not consider itself, and, if possible, construe that language according to its plain and Pinault, 16 p. 8 8 N.H. 28, 31 (2015). We first look to the language of the statute expressed in the words of the statute considered as a whole. See Sta te v. at 379. In matters of statutory interpretation, the intent of the legislature is statute presents a question of law that we review de novo. In re J.S., 174 N.H. 149 - M: 11, V(d) and the meaning of “capacity need.” The interpretation of a We next turn to the primary issue on appeal: the interpretation of RSA

M:3, IX(e). that the H earing Officer did not exceed his statutor y authority. See RSA 21 statutory interpretation” and the application of undisputed facts and, therefore, that the Hearing Officer’s “capacity need determination was premised purely on and concluded that the permit was unlawful. Accordingly, we agree with CLF and V, the Hearing Officer then applied undisputed facts to his interpretation pursuant to RSA 149 - M:11, III(a) and V. After interpreting RSA 149 - M:11, III(a) NCES was ba sed on a pure question of law — the meaning of “capacity n eed” 379 (2021). H ere, the Hearing Officer’s decision to invalidate DES’s permit to interpretation of a statute presents a question of law. In re J.S., 174 N.H. 375, the record” and to “[d]ecide all questions of law.” RSA 21 - M:3, IX(c), (e). Th e council except to the extent any such finding is without evidentiary support in A Hearing Officer is required to “[a]dopt all findings of fact made by the

determine.” RSA 149 - M:11 . . . which the Hearing Officer was fully authorized to “premised on a pure question of law — the plain and unamb iguous meaning of fact. CLF counters that the Hearing Officer’s invalidation of the permit was pursuant to RSA 149 - M:11, III (a) as a question of law rather than a question of incorrectly reviewed DES’s determination that Stage VI satisfies a capacity need We begin by addressing DES ’s argument that the Hearing Officer

capacity need.” provides the method by which DES shall “determine the state’s solid waste as provided in paragraph V.” RSA 14 p. 9 9 - M:11, III(a). In turn, RSA 149 - M:11, V within the borders of New Hampshire, which capacity need shall be identified size, and location to provide capacity to accommodate solid waste generated “[t]he short - and long - term need for a solid waste facility of the proposed type, “a substantial public benefit,” DES must consider, as relevant to this appeal, also RSA 149 - M:11, IX. When determining whether a proposed facility provides benefit.’” Town of Bethlehem, 150 N.H. at 612 (quoting RSA 149 - M:11, III); see determines that the proposed solid waste facility provides ‘a substantial public of Bethlehem, 150 N.H. at 612. “DES may not issue a permit unless it solid waste management facility. RSA 149 - M:9, I (Supp. 2022); see also Town A s tate permit is required to “construct, operate, or initiate closure” of a 9

shortfall and capacity, it also reflects a purposeful ambiguity that allows the although p aragraph V(d) “may embody some kind of relationship between operation does not overlap with the shortfall. In contrast, DES argues that, the proposed facility necessarily satisfies “capacity need” — even if the facility’s and provide disposal capacity equal to or less than the projected shortfall, then planning period, and if the facility will operate within the twenty - year period NCES argues that if there is a projected s hortfall within the twenty - year though, each party proposes a different interpretation of RSA 14 p. 9 9 - M:11, V(d). Both NCES and DES disagree with this i nterpretation of p aragraph V(d);

correct. exists. On appeal, CLF argues that this interpretation of RSA 14 p. 9 9 - M:11, V(d) is until 2026, the Hearing Officer ruled that, as a matter of law, no capacity need anticipated operating Stage VI from 2021 to 2026, without a shortfall occurring exists during the entire operating life of the facility. Therefore, because NCES concluded tha t a capacity need for a proposed facility exists only if a shortfall lawfully find there to be a capacity need.” I n other words, the Hearing Officer proposed facility operates for a period without any shortfall, then [DES] cannot The Hearing Office r interpreted RSA 149 - M: 11, V(d) to mean that “if a

sentence of RSA 14 p. 9 9 - M:11, V(d) that is co ntested. RSA 149 - M:11, V(d) (emphasis added). It is the meaning of the second

that need. shall be deemed to exist to the extent that the proposed facility satisfies shortfall is iden tified, a capacity need for the proposed type of facility from the date a determination is made under this section. If such a the type of solid waste to be received at the proposed facility for 20 years Identify any shortfall in the capacity of existing facilities to accommodate

comprises the primary issue on appeal, requires t hat DES shall: under this section.” RSA 14 p. 9 9 - M:11, V(c). Finally, t he fourth inquiry, which permitted facilities operating in the state on the date a determination is made V(b). Third, DES shall “[i]dentify, according to type of solid waste received, all which such types will be received by the proposed facility.” RSA 149 - M:11, according to each of the methods listed under RSA 149 - M:3 and determine Second, DES shall “[i]dentify the types of solid waste which can be managed borders of New Hampshire for a 20 - year planning period.” RSA 149 - M:11, V(a). necessary, the amount of solid waste which will be generated within the identified as provided in paragraph V”). First, DES shall “[p]roject, as inquiries. See RSA 149 - M:11, III(a) (stating that “capacity need shall be the state’s solid waste capacity need, the department shall” conduct a series of As stated above, RSA 149 - M:11, V provides that “[i]n order to deter mine

scheme and not in isolation. Id. fit to include. Id. We interpret statutes in the context of the overall statutory p. 10 10

that RSA 149 - M:11, V(d) requires that a proposed facility satisfy a “capacity need/shortfall.” Hearing Officer conflates the term “shortfall” with “capacity need” as indicated by its statement facility and said facility’s ability to ‘satisfy’ a capacity need/shortfall.” (Emphases added.) The ‘satisfy’ a capacity need/shortfall: the statute creates a direct link between granting a proposed RSA 149 - M:11, V(d) “uses the word ‘satisfies,’ creating the requirement that a proposed fac ility For example, in the order denying DES’s motion to reconsider, the Hearing Officer stated that 4 “shortfall” and “capacity need” as used in RSA 149 - M:11, V(d). A “shortfall,” as Given this conclusion, we next consider the separate meanings of

shortfall allows DES to engage in the capacity need analysis. it does not c ompel a finding o f a capacity need. R ather, the existence of a a capacity need — indeed, a capacity need can exist only if a shortfall exists — shor tfall exists. A lthough the existence of a shortfall relates to the existence of capacity need, requires an inquiry that is separate and distinct from whether a need exists, based upon the extent to which a proposed facility satisfies said need.” RSA 149 - M:11, V(d) (emphases added). De termining w hether a capacity differentiating the existence of a “shortfall” from the existence of a “capacity exist to the extent that the proposed facility satisfies that need,” thus identified, a c apacity need for the proposed type of facility shall be deemed to given effect.” (quotation omitted)). Paragraph V(d) provides that i f “a shortfall is N.H. 136, 141 (2009) (“[W]henever possible, every wo rd of a statute should be words, it generally means two different things.”); Garand v. Town of Exeter, 159 Bakunczyk, 164 N.H. 77, 79 (2012) (“[W]hen the legislature uses two different statutory construction and the p lain meaning of the statute. See State v. 4 “capacity need” and “shortfall” as synonymous, contrary to our principles of “capacity need.” Id. The Hearing Officer and CLF mistakenly treat the terms W e note that paragraph V(d) uses two different terms: “shortfall” and

proposed facility satisfies that need.” Id. capacity need exists. Id. A capacity need exists “to the extent that the permit is expected to be granted; and (2) if there is a shortfall, whether a facilities over a twenty - year planning period, starting from the date that the determine whether: (1) there will be a shortfall in the capacity of existing need.” RSA 149 - M:11, V(d). In effec t, pursuant to paragraph V(d), DES must shall be deemed to exist to the extent that the proposed facility satisfies that made under this section,” then “a capacity need for the proposed type of facility if a shortfall is ident ified within “20 years from the date a determination is whether a proposed facility satisfies a capacity need. The statute provides that language of RSA 149 - M:11, V(d), which instructs DES how to determine We begin our interpretation, as we must, by considering the plain

“a capacity need for the proposed type of facility” exists. We ag ree with DES. 149 - M: p. 11 11, V(d) provides the agency with discretion when determining whether facility ‘satisfies’ a ‘need.’” In other words, DES essentially argues that RSA “indicates that [DES] should use its expert ise to determine if the proposed Department to operate within constitu tional and factual constraints” and 11

periods of shortfall. This interpretation is problemati c for two reasons. F irst, facility,” and, as a result, the proposed facility must operate exclusively during action relationship must exist between the capacity need and the proposed the statute’s use of the present tense “satisfies” mandates that a “present - CLF also argue s that the Hearing Officer was correct in concluding that

capacity need. RSA 149 - M: p. 11 11, V(d). shortfall, rather than “the extent that the proposed facilit y satisfies” the i mproperly focused on “the extent that the proposed facility satisfies” the that “capacity need” is synonymous with “shortfall.” Thus, his analysis terms “to the extent” and “satisfies” was premised on an incorrect assumption We agree with DES. The Hearing Officer’s application of his definitions of the

relationship to “shortfall.” satisfy ing a capacity “need” includes more than a simpl e mathematical stating it in this manner, the Legislature left open the possibility that more qualitative concept of “need,” which they then relate to itself. By “wa ste generated in New Hampshire.” Instead, these terms refer to t he to mathematica lly quantifiable subjects like “shortfall” or the amount of [T] he terms “to the extent” and “satisfies” in paragraph V(d) do not refer

during a period of shortfall. DES responds that: proposed facility can satisfy a capacity need only if it operates exclusively extent” and “satisfies” in RSA 149 - M: p. 11 11, V(d) to support its position that a CLF agrees with t he Hearing Officer ’s interpretation of the terms “to the

planning period. make if it projects that a s hortfall will occur within the twenty - year statutory need” for a proposed facility is a discretionary determination that DES must conclude that, pursuant to RSA 149 - M: p. 11 11, V(d), the existence of a “capacity satisfies that need.” RSA 149 - M:11, V (emphasis added). Accordingly, we shall” deem a capacity need to exist “to the extent that the proposed facility “[i] n order to determine the state’s solid waste capacity need, the department resolution of this question s quarely within DES’s discretion by providing that extent that the proposed facility satisfies that need. Id. Paragraph V places capacity need for the proposed facility exists, which (2) is dependent on the (emphases added)). This determination raises a question of fact: (1) whether a deemed to exist to the extent that the proposed facility satisfies that need.” 149 - M:11, V(d) (“[A] capacity need for the proposed type of facility shall be “Capacity need,” on the other hand, is defined in relation to itself. RSA

shortfall will occur in 2 026. not appear to dispute the meaning of “shortfall” or DES’s projection that a proposed facility than existing facilities can accommodate. Here, the parties do period, the s tate generates more waste of the type to be received at the described in RSA 149 - M: p. 11 11, V, exists when, during the twenty - year planning p. 12 12

location.” T he Hearing Officer corre ctly stated that whether DES “acted and long - term need for a solid waste facility of the proposed type, size, and M:11 as a whole. RSA 149 - M:11, III(a) requires DES to determine the “short determin e whether a capacity need exists is further supported by RSA 149 - Our interpretation that RSA 149 - M:11, V(d) grants DES discretion to

determines that t he proposed facility will not satisfy the capacity need. twe nty - year planning period, DES may nevertheless deny a permit if it such a conclusion. Therefore, even if DES projects a shortfall within the facility will satisfy a capacity need, a shortfall does not compel DES to reach shortfall within the statutory period allows DES to determine that the proposed exists solely because there is a projected shortfa ll. Although t he existence of a in the language of paragraph V(d) requires DES to find that a capacity need shortfall is identified,” to determine the existence of a capacity need. Nothing V(d) instructs DES to “identify any shortf all in capacity,” and “if such a DES must determine that a capacity need exists. We disagree. RSA 149 - M:11, identifies a shortfall at any point within the statutory twenty - year period, then NC ES argues wha t is essentially th e inverse of CLF ’s argument: if DES

facility does not need to operate exclusively during periods of capacity need. Accordingly, for DES to determine that a capacity need exists, a proposed provision [of an insurance policy] as having ‘no temporal reference’”). 148 (2022) (interpreting “the present tense language in the exclusionary Cincinnati Specialty Underwriters Ins. Co. v. Best Way Homes, 175 N.H. 142, conditions but also prospectively to future things and conditions.”); cf. present or future tense normally will be applied not o nly to existing things and exists. See 82 C.J.S. Statutes § 4 p. 12 12, at 558 (2022) (“A statute written in the strict temporal relationship that the Hearing Officer found and CLF argue s of the present tense “satisfies,” in and of itself, is insufficient to mandate the identified at some point during the twenty - year planning period. Thus, t he use is that, for DES to consider whether a capacity need exists, a shortfall must be exists. Indeed, the only temporal requirement set forth in RSA 149 - M:11, V(d) maintains discretion to determine that a capacity need for the proposed facility facility “satisfies” the capacity need in some manner and at some time, DES facility’s operation and the period of capacity need. As long as the proposed provision does not impart any temporal relationship between the proposed exists “to the extent that the proposed facility satisfies that need.” The periods of “capacity need.” RSA 149 - M:11, V(d) provides t hat a “capacity need” 149 - M:11, V(d) requires the proposed facility to operate exclusive ly during S econd, we disagree that the present tense of “satisfies” as used in RSA

shortfall. See RSA 149 - M:11, V(d). proposed facility operate during periods of capacity need — not periods of temporal requirement, such a requirement would only necessitate that th e “shortfall.” Therefore, even if t he use of present tense “satisfies” indicates a as we have observed, it incorrectly conflates t he term “capacity need” w ith p. 13 13

BASSETT and HANTZ MARCONI, JJ., concurred.

in issuing the permit and reverse. affirmance is deemed moot. Ac cordingly, we conclude that D E S acted lawfully motion for an extension of time to object to CLF’s motion for summary that supports NCES’s administrative gloss argument. NCES’s outstanding have no occasion to address CLF’s motion to strike evidence from the record Commerce C lause of the Federal Constitution. In light of our ruling, we also argument that the Hearing Officer’s inter pretation violates the dormant that we reject the Hearing Officer’s interpretation, we need not address NCES’s the language of the statute to discern legislativ e intent.”). Additionally, given Bedford, 171 N.H. 89, 93 (2018) (“Absent an ambiguity, we will not look beyond history or NCES’s administrative gloss argument. See Polonsky v. Town of the statute is unambi guous, we need not consider the statute’s legislative and, therefore, how to address a projected shortfall. Given our conclusion that DES with flexibility and discretion to determine the existence of a capacity need For the foregoing reasons, we conclude that RSA 149 - M:11, V(d) provides

RSA 149 - M:11, I(a), (b). state to accommodate the solid waste generated” within New Hampshire. See the state and its citizens” and “ensure that adequate capacity exists within the DES to meet its obligation to “provide for t he solid waste management needs of determining the existence of a capacity need. This conclusion best enables RSA 149 - M:11, V(d) require s DES to “[i]dentify any shortfall” prior to amount necessary to meet the needs of that consumer.” Our interpretation of adequate supply of a resource for a consumer and limiting that supply to th e that “[t]here is a substantial difference between ensuring that there is an accommodate the solid waste generated” within the s tate. We agree with NCES citizens” and to “ensure that adequate capacity exists within the state to inter alia, to “provide for the solid waste management need of the state and its RSA 149 - M:11, I, states that the purpose of the public benefit requirement is, O ur interpretation also comports with the purpose of RSA 149 - M:11.

can occur only when a facility operates exclusively during a shortfall. need for a proposed facility would be unnecessary if a finding of capacity need fort h in paragraph III(a) that DES evaluate the short - and long - term capacity essentially eliminated. RSA 149 - M:11, III(a). Moreover, the requirement set has to identify the “short - and long - term need” for the proposed facility is facility’s exclusive operation during said shortfall, then any discretion that DES however, capacity need is tied solely to the existence of a shor tfall and the NCES Facility required under [RSA 149 - M:11, III(a)] is a question of fact.” If, reasonably in determining the ‘short - and long - term’ capacity need for the