Fitchburg Gas and Electric Light Company, et al. v. Department of Public Utilities (Lawyers Weekly No. 10-068-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11397 FITCHBURG GAS AND ELECTRIC LIGHT COMPANY[1] & others[2] vs. DEPARTMENT OF PUBLIC UTILITIES. Suffolk. December 5, 2013. ‑ April 14, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Department of Public Utilities. Public Utilities, Electric company, Rate setting, Costs of service, Rate of return. Constitutional Law, Taking of property. Due Process of Law, Taking of property, Regulatory proceeding. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 17, 2012. The case was reported by Botsford, J. David S. Rosenzweig (Erika J. Hafner with him) for the plaintiffs. Pierce O. Cray, Assistant Attorney General (Rebecca Tepper with him) for the defendant. CORDY, J. This matter comes before us on a reservation and report, without decision, by a single justice of this court of an administrative appeal filed pursuant to G. L. c. 25, § 5. The petitioners, electric companies as defined by G. L. c. 164, § 1, within the jurisdiction of the Department of Public Utilities (department), appeal a final order of the department imposing on the petitioners monetary assessments for the Storm Trust Fund (assessment), pursuant to G. L. c. 25, §§ 12P, 18. In accordance with the language of the fourth sentence of G. L. c. 25, § 18, third par., the order specifically prohibited the petitioners from seeking recovery of the assessment in any rate proceeding. The petitioners claim that this prohibition on recovery, as required by the statute and imposed by the department’s order, is an unconstitutional taking in violation of art. 10 of the Massachusetts Declaration of Rights and the Fifth and Fourteenth Amendments to the United States Constitution. They seek a declaration that the recovery prohibition is unconstitutional, severance of the prohibition from the remainder of the statutory scheme, and reversal of the department’s order. The petitioners essentially assert three grounds on which the recovery prohibition constitutes a taking. First, they claim that the recovery prohibition, as it operates on the assessment, effects a per se taking without just compensation. We conclude that it does not, because a mere obligation to pay such an assessment, regardless of whether recovery is permitted or precluded, does not rise to the level of a compensable per se taking. Second, they assert that it constitutes a taking by way of a confiscatory rate because the recovery […]