2022-0146, Appeal of Liberty Utilities (EnergyNorth Natural Gas) Corp., D/B/A Liberty

the Gra nite Bridge project. The respondents, the New Hampshire Department development costs related to a proposed natural gas pipeline and tank system, Hampshire Public Utilities Com mission denying Liberty’s request to recover Natural Gas) Corp., d/b/a Liberty (Liberty), appeals an order of the New HANTZ MARCONI, J. The petitioner, Liberty Utilities (EnergyNorth

Consumer Advocate. Donald M. Kreis, consumer advocate, on the brief, for the Office of the

a nd orally), for the New Hampshire Department of Energy. general (Christopher G. A slin, senior assistant attorney general, on the brief John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

on the brief, and Terri L. Pastori orally), for the petitioner. Pastori | Krans, PLLC, of Concord (Terri L. Pastori and Ashley D. Taylor

(New Hampshire Public Utilities Commission)

No. 2022 - 0146 Public Utilities Commission

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

satisfied, by a clear preponderance of the evidence, that it is unjust or the Public Utilities Commission’s order except for errors of law, unless we are decisions. See RSA 378:31 ( p. 2 2009). Under RSA 541:13, we will not set aside RSA chapt er 541 governs our review of Public Utilities Commission

This appeal followed.

for rehearing, which the Public Utilities Commission denied. that was unfinished, and thus barred by RSA 378:30 - a. Liberty filed a motion costs through its rates because they were “as sociated with construction work” Public Utilities Commission determined that Liberty could not recover those $7.5 million in costs through a temporary rate increase to its customers. The After Liberty cancelled Granite Bridge, it sought to recover approx im ately

the n cancelled the Granite Bridge project. rate than the projected cost of Granite Brid ge. Liberty accepted that offer, and Tennessee Gas Pipeline offered Liberty more space on its pipeline at a c heaper would have been years before Liberty broke ground on Granite Bridge. Later, purchase land, among others. D espite those costs, according to Liberty, it environmental assessments, outside consulting services, and options to costs. Liberty executives specified that the costs included preliminary designs, environmental, consulting, internal labor, commission related costs, and land estimated that $7.5 million of that amount consisted of engineering, Liberty spent ap proximately $9.1 million in “development costs.” Liberty Tennessee Gas Pipeline. As part of its effor ts to construct Granite Bridge, however, Liberty continued to assess the viability of increasing its supply with pipeline and tank system, called the Granite Bridge project. During that time, began to explore other options, and eventually dec ided to construct its own Tennessee Gas Pipeline cancelled that arrangement. In response, Libe rty where by Liberty would receive additional gas from a second pipeline, but demand. Liberty and Tennessee Gas Pipeline agreed to an arrangement supply from Tennessee Gas P ipeline because Liberty was fa cing increased central New Hampshire. Liberty executives testified that Liberty sought more Pipeline Co., LLC (Tennessee Gas Pipeline) for its gas supply in southern and of New Hampshire. According to Liberty, it relies solely on Tennessee Gas a utility company t hat provides natural gas to thousands of customers in parts before us. This case arises from an unrealized construction project. Liberty is orders or are drawn from the contents of the documents in the certified record The following facts either were stated in the Public Utiliti es Commission’s

this appeal. We affirm. of Energy and the Office of the Consumer Advocate, appear in opposition to s rate base

N.H. 46, 52 (1984). The second sentence prohibits recovering “any costs because its breadth is broadest. See Appeal of Public Serv. Co. of N.H., 125 costs for Granite Brid ge through its rates. We focus on the second sentence The plain language of RSA p. 3 378:30 - a prohibits Liberty from recovering its

RSA p. 3 378:30 - a.

actually providing service to consumers. until, and not before, said construction project is no r be allowed as an expense for rate making purposes progress, sha ll not be included in a utility’ owning, maintaining or financing construction work in limited to, any costs associated with constructing, construction work in progress, including, but not construc tion work is not completed. All costs of costs associated with construction work if said At no time shall any rates or charges be based upon any be based on the cost of construction work in progress. Public utility rates or charges shall not in any manner

are recoverable: We begin with the text of the statute to determine whether L iberty’s costs

isolation, but rather within the context of the statute as a whole. Id. or unjust result. Id. Moreover, we do not consider words and phrases in parts of a statute together to effe ctuate its overall purpose and avoid an absurd possible, every word of a statute should be given effect. Id. We construe all is not presumed to waste words or enact redundant provisions and, whenever add language that the legislature did not see fit to include. Id. The legislature statute as written and will not consider what the legislature might have said or meaning. Doe v. Attorney General, 175 N.H. p. 3 349, 352 (2022). We interpret the and, if possible, construe that language according to its plain and ordinary interpreting RSA 378:30 - a. W e first look to the language of the statute itself, (2009). Determining whether Liberty’s costs are recoverable requires be cause construction nev er began on Granite Bridge. See RSA 378:30 - a L iberty asserts that its costs are recoverable under RSA 378:30 - a

Pennichuck Water Works, 160 N.H. 18, 26 (2010). Utilities Commission’s rulings on issues of law de novo. See Appeal of record. Se e Appeal of Malo, 169 N.H. 661, 668 (2017). We review the Public determine whether the findings are supported by competent evidence in the would have found differently or to reweigh the evidence, but rather, to Public Utilities Commission’s findings, our task is not to determine whether we of fact are deemed prima facie law ful and reasonable. Id. In reviewing the unreasonable. RSA 5 p. 4 41:1 p. 3 3 (2021). The Public Utilities Commission’s findings 4

Bridge project was “not completed” because it was never constructed. RSA associated with th e construction of the Granite Bridge project.” The Granite were ‘associated with construction,’. . . .” “Here, these costs were plainly Utilities Commission concluded, “[t]he operative question is whether the costs incurred in furtherance of a specific project, Granite Bridge.” As the P ublic routine planning to determine the least - cost course of action, but were costs Consumer Advocate] and [the Department of] Energy, these costs were not The Public Utilities Commission found: “A s pointed out by the [Office of the as the Public Utilities Commission found, are not “least - cost planning costs.” these “costs would be capitalized if the project had been placed in service” and, potential least cost option. A s the Department of Energy pointed out, however, because it incurred them as part of its sta tutory obligation to evaluate its Nevertheless, Liberty contends that its costs should be recoverable

structure. Liberty incurre d costs specifically related to it s plan to build a physical structure was built, Liberty’ s costs remained “associated with” one because a pipeline and tank system, a physical structure. See id. W hile no physical of Public Serv. Co. of N.H., 125 N.H. at 53 - 5 p. 4 4. Granite Bridge was to consist of already interpreted “construction work” to refer to a physical structure. Appeal the Public Utilities Commission ignored a word in its analysis. We have the second sentence still leads to the same conclusion, regardless of whether Appeal of Pennichuck Water Works, 160 N.H. at 26. Interpreti ng the entirety of legal question, we review the Public Utilities Commission’s order de novo. See “construction work” occurred here. Because interpreting RSA 378:30 - a is a bars “costs associated with cons truction work,” and Liberty contends no barred costs without giving effect to the entirety of the statute. The statute statute’s reach. By doing so, Liberty contends, the Public Utilities Commission “work” in the second sentence of RSA 378:30 - a, improperly expanding the Liberty a sserts that the Public Utilities Commi ssion ignored the word

Public Serv. Co. of N.H., 12 p. 5 5 N.H. at 5 p. 4 4. construct its pipel ine and tank system, a physical structure. See Appeal of were associated with Granite Bridge because they were steps in the process to approvals, and options to purchase land and acquire easements. Those costs designs, environmental assessments and compliance, cost analysis, regulatory testified that t he money was spent on, among other things, prelim inary among others, and Liberty itself deemed them development costs. They that t hese costs included engineering, environmental, and consulting costs, related to its plan to construct Grani te Bridge. Executives for Liberty testified Here, Liberty sought to recover approximately $7.5 million in costs specifically unrecoverable. Id.; s ee Appeal of Public Serv. Co. of N.H., 125 N. H. at 54 - 55. need only be “asso ciated with” uncompleted construction work for it to be RSA 378:30 - a. That sentence broadly restricts recovering costs because a cost associated with construction work if said construction work is not completed.” 5

states: are irrelevant to our analysis of the second sentence. T he third s entence Liberty that t he third sentence does not apply, but disagree that its exampl es sentence are irrelevant to interpreting the second sentence. We also agree with progress” must be different from “construction work,” the examples in the third “construction work in progress” occurred here. Because “co nstruction work in inapplicable because it addresses “construction work in progress” and no progress.” Regarding the third sentence, Liberty contends that it is do es not apply, we agree because the “construction work” was not “in Turning to Liberty’s argument that the f irst sentence of RSA 378:30 - a

to costs incurred where actual construction began. See id. at p. 5 54, 55. Co. of New Hampshire did not limit “costs associated with construction work” with construction work.” Without such an occasion, Appeal of Public Ser vice decide in that case whether pre - construction costs alone were costs “associated “associated with construction work.” See id. Thus, we had no occasion to Public Service Co. of New Hampshire held that pre - construction costs were Without a breakdown of the costs, we cannot determine whether Appeal of cost of the “actual construction and the cost of money used to pay for it.” Id. costs sought to be recovered, but assume d that the investment included the case. See id. In particular, we were not provided with a breakdown of t he at 51. The nature and timing of the costs incurred were not issues in that for that part of the p roject that had been completed before abandonment. Id. was whether costs associated with abandoned construction could be recovered The issue in Appeal of Public Service Co. of New Hampshire, however,

work” to projects where actual construction has begun. decision, Liberty contends, limits the meaning of “associated with construction work because the company invested in constructing the facility. Id. at p. 5 54. This W e reasoned that the compa ny’s costs were “associated” with construction ratemaking, we held that RSA 378:30 - a barred it from doing so. Id. at 54 - 55. project. Id. at 48 - 49. When the utility sought to recover these costs through invested $15,926,729 in the construction when the owners cancelled the interest in a project to build a nuclear electri c power generating plant and had of Public Service Co. of N.H., 125 N.H. at 54 - 55. The utility acquired an investment in a plant which was abandoned during construct ion. See Appeal 378:30 - a barred the utility company from recovering, through rates, its Ap peal of Public Service Co. of New Hampshire, we determined that RSA recovery of costs actual construction must have begun. We disagree. In New Hampshire supports its contention that for the second senten ce to bar Next, L iberty argues that our decision in Appeal of Public Serv ice Co. of

N.H., 12 p. 5 5 N.H. at 54 - 55. project and consumers derived no benefit. See id.; Appeal of Public Serv. Co. of 378:30 - a. Accordingly, Liberty cannot recover its costs when it cancelled the r

v. Stone Mill Const. Corp., 124 N.H. 820, 822 (1984); State v. Schachter, 133 its g eneral argument was raised in the first instance. See Chagnon Lumber Co. We have held however, that a party may cite new authorities so long as

it. Utilities Commission deemed this a “new argument []” and declined to address after the Public Utilities Commission October 29, 2021 order. The Public to RSA 1 p. 6 62 - H:2, III by letter dated January 18, 2022, more than thirty days cited RSA 162 - H:5, I. It then drew the Public Utilities Commission’s attention permit, nor undertaken any pre - construction or construction activities, and H:2, III, specifically, but did argue that it had not made application for a siting rehearing.” Id. In its motion for re hearing, Liberty did not mention RSA 162 - ., may apply for a rehearing. . ., specifying in the mo tion all grounds for order or decision has been made by the commission, any party to the action. . Utilities Commission. RSA 541:3 (2021). It states, “[w] ithin 30 days after any rehearing. RSA 541:3 governs the procedure for r ehearing before the Publ ic Liberty waived that argument by failing to include it in Liberty’s motion for “associated with construction work.” The Department of Energy counters that read together with RSA 378: 30 - a to help determine whether Liberty’s costs are sentence of RSA 378:30 - a. Liberty contends that RSA 162 - H:2, III should be H:2, III to determine what constitutes “construction work” in the second Next, we turn to Liberty’s contention that we should look to RSA 162 -

(2010). history of RSA 378:30 - a. See Sutton v. Town of Gilford, 1 p. 6 60 N.H. 43, 55 Because the statute is unambiguous, we decline to look to the legislative also encompass pre - construction activities, such as “owning” and “financing.” sentence informs the nature of the costs “ass ociated with” construction work to to those costs in the third sentence. Thus, construed together, the third sentence, the cos ts in the second sentence necessarily encompass costs similar the second sentence captures costs beyond those “in progress” in the third timing of the costs incurred to while construction is “in progress.” Id. Because sentence also uses the term “any costs associated” but does not delimit the financing construction work in progress.” Id. In comparison, the second include “any costs associated with constructing, owning, mai ntaining or RSA 378:30 - a. The third sentence describes “construction work in progress” to

consumers. construction project is actually providing service to rate making purposes until, and not before, said a utility ’ s rate base nor be allowed as an expense fo construction work in progress, shall not be included in constructing, owning, maintaining or financing but not limited to, any costs associated with A ll costs of construction work in progress, including, p. 7 7

I. RSA 3 p. 7 78:30 - a, however, restricts certain costs from being reco vered through obtained from the Site Evaluation Committee. RSA 162 - H:2, III; RSA 162 - H:5, constitutes “commencement of construction” before which a certificate must be 378:27 (Supp. 2022); RSA 378:28 (2009). RSA 162 - H: 2, III defines what C onversely, RSA chapter 378 governs public utility rate setting. See RSA siting, construction and o peration for projects. RSA ch. 162 - H (2023). RSA 378:30 - a. RSA c hapter 162 - H pertains to the energy facility e valua tion, regulatory regimes dealing with different subjec t matter. See RSA 162 - H:2; RSA 162 - H: 2, III and RSA 378:30 - a are part of separate and distinct

agree with them. RSA 162 - H:2, III and RSA 3 p. 7 78:30 - a differ, and should not be read together. We Department of Energy and the Offi ce of the Consumer Advocate counter that with construction work” because they do not fall under RSA 162 - H:2, III. The RSA 162 - H:2, III (2023). Liberty contends that its cost s cannot be “as sociated

protection of environmental use and values. information related to the suitability of the site or to the preconstruction monitoring to establish background determine foundation conditions, or other public recreational uses, or necessary borings to changes desirable for temporary use of the land for surveying, optioning or acquiring land or rights in land, site of the proposed facility, but does not include land would adversely affect the natural environment of the the land, excavation or other substantial action that “Commencement of construction” means any clearing of

construction.” conjunct ion with RSA 3 p. 7 78:30 - a. RSA 162 - H: 2, III defines “[c] ommencement of are not persuaded. Liberty contends that RSA 162 - H:2, III should be read in On the m erits of Liberty’s additional statutory construction argument, we

already presented by Liberty. raised a new issue; rather, it raised additional legal authority to support issues “construction work.” Thus, we disagree with the Commission tha t the letter specific reference to RS A 162 - H:2, III to define what activities are considered these costs were not related to construction work. In its letter, Liberty added a of siting permit activities pursuant to RSA c hapter 162 - H as further proof that provided lega l support for its costs being recoverable and it pointed to its lack Commission that the dictionary definitions of “construction” and “construct” be favorable to its position.”) Liberty argued before the Public Utilities simply because it cited for the first time on appeal a statute that it believed to recovery” before the trial court, it “will not lose its right to appeal on that theory N.H. 439, 440 (1990) (holding that where a party raised its “general theory of p. 8 8

M AC DONALD, C.J.