ENGIE Gas & LNG LLC v. Department of Public Utilities (and another case) (Lawyers Weekly No. 10-128-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12051 SJC-12052 ENGIE GAS & LNG LLC[1] vs. DEPARTMENT OF PUBLIC UTILITIES (and another case[2]). Suffolk. May 5, 2016. – August 17, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[3] Department of Public Utilities. Practice, Civil, Review of order of Department of Public Utilities. Electric Company. Public Utilities, Electric company, Judicial review. Gas. Administrative Law, Judicial review, Rulemaking, Agency’s authority, Rate regulation. Statute, Construction. Civil actions commenced in the Supreme Judicial Court for the county of Suffolk on October 26 and November 2, 2015. The cases were reported by Cordy, J. Thaddeus A. Heuer (Adam P. Kahn & Jesse Harlan Alderman with him) for ENGIE Gas & LNG LLC. David K. Ismay for Conservation Law Foundation. Seth Schofield, Assistant Attorney General, for the Attorney General. Thomas H. Hayman, Special Assistant Attorney General (Francis R. Powell, Special Assistant Attorney General, with him) for the Department of Public Utilities. Cheryl M. Kimball & Matthew A. Sanders, for NSTAR Electric Company & others, amici curae, submitted a brief. CORDY, J. These consolidated appeals are before us on a single justice’s reservation and report of challenges made to an order of the Department of Public Utilities (department). Those challenges raise the question of the department’s authority to review and approve ratepayer-backed, long-term contracts entered into by electric distribution companies for additional natural gas pipeline capacity in the Commonwealth pursuant to G. L. c. 164, § 94A, which requires gas and electric companies to receive departmental approval for any contract for the purchase of gas or electricity lasting longer than one year. The plaintiffs, ENGIE Gas & LNG LLC and Conservation Law Foundation, contend that the order amounted to improper rulemaking in violation of the Administrative Procedure Act, G. L. c. 30A. They also argue that the department’s determination that it has authority pursuant to G. L. c. 164, § 94A, to approve such contracts constitutes an error of law because it contravenes G. L. c. 164, § 94A, as amended through St. 1997, c. 164 (restructuring act).[4] We disagree that the order of the department is an improperly promulgated rule or regulation. We nevertheless reach the statutory question presented by the plaintiffs, and conclude that the order is invalid in light of the statutory language and purpose of G. L. c. 164, § 94A, as amended by the restructuring […]
DeFelice Corporation v. Department of Public Utilities (Lawyers Weekly No. 11-164-15)
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 14-P-1056 Appeals Court DeFELICE CORPORATION vs. DEPARTMENT OF PUBLIC UTILITIES. No. 14-P-1056. Suffolk. May 6, 2015. – October 19, 2015. Present: Berry, Kafker, & Cohen, JJ. Department of Public Utilities. “Dig Safe” Statute. Penalty. Administrative Law, Adjudicatory proceeding, Findings, Agency’s interpretation of statute, Evidence, Substantial evidence. Evidence, Prima facie evidence. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on June 18, 2013. The case was reported by Gants, J., and the appeal was transferred by him to the Appeals Court. Ben N. Dunlap (Patrick E. McDonough with him) for the plaintiff. Bryan F. Bertram, Assistant Attorney General, for the defendant. COHEN, J. On November 3, 2010, DeFelice Corporation (DeFelice), a contractor engaged in removing and reinstalling water mains, struck an underground natural gas service line while excavating on Danny Road in the Hyde Park neighborhood of Boston. The ensuing explosion and fire destroyed a single family home at 17 Danny Road, and badly damaged other nearby residences.[1] The pipeline and engineering safety division (division) of the Department of Public Utilities (department) investigated DeFelice’s operations on Danny Road, as well as its operations at a nearby site on Como Road. As a result of the division’s investigation, it issued notices of probable violations (NOPVs) of the “dig safe” law, G. L. c. 82, §§ 40-40E,[2] and associated regulations, for each of the two sites. DeFelice contested the NOPVs and, after receiving adverse informal review decisions as to both matters, requested a formal adjudicatory hearing. The cases were consolidated, and a hearing was held before a three-member panel of department commissioners. In a thirty-nine page decision and order, the department found DeFelice responsible for four violations of the dig safe law and imposed the maximum statutory penalty allowed for each violation, resulting in a total fine of $ 31,000. As to both the Como Road and Danny Road excavations, the department determined that DeFelice had violated G. L. c. 82, § 40A, which requires an excavator to provide proper advance notice of its planned work to the telephone call center of Dig Safe System, Inc. (call center), an information clearinghouse and communications system statutorily required to be maintained by various utility companies. See G. L. c. 164, § 76D. Specifically, the department found that DeFelice’s notification to the call center failed to provide information needed to “accurately […]
Categories: News Tags: 1116415, Corporation, DeFelice, department, Lawyers, Public, Utilities, Weekly
Massachusetts Electric Company, et al. v. Department of Public Utilities (Lawyers Weekly No. 10-153-14)
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-11526 SJC-11527 SJC-11528 MASSACHUSETTS ELECTRIC COMPANY[1] & another[2] vs. DEPARTMENT OF PUBLIC UTILITIES. NSTAR ELECTRIC COMPANY vs. DEPARTMENT OF PUBLIC UTILITIES. WESTERN MASSACHUSETTS ELECTRIC COMPANY vs. DEPARTMENT OF PUBLIC UTILITIES. Suffolk. April 7, 2014. – September 4, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[3] Electric Company. Public Utilities, Electric company. Department of Public Utilities. Penalty. Administrative Law, Substantial evidence, Findings. Civil actions commenced in the Supreme Judicial Court for the county of Suffolk on December 28, 2012. The cases were reported by Spina, J. Robert J. Keegan (Cheryl M. Kimball with him) for NSTAR Electric Company & another. David S. Rosenzweig (Erika J. Hafner & Michael J. Koehler with him) for Massachusetts Electric Company & another. Christopher K. Barry-Smith, Assistant Attorney General, for Department of Public Utilities. GANTS, J. Three utility companies (utilities) challenge orders entered against them by the Department of Public Utilities (department) that impose monetary penalties for failing to “restore service to [their] customers in a safe and reasonably prompt manner,” in violation of 220 Code Mass. Regs. § 19.03(3) (2010), after electrical outages arising from Tropical Storm Irene (Irene) on August 28, 2011, and a snowstorm two months later on October 29 (October snowstorm). The utilities — Massachusetts Electric Company and Nantucket Electric Company, each doing business as National Grid (collectively, National Grid); NSTAR Electric Company (NSTAR); and Western Massachusetts Electric Company (WMEC) — claim on appeal that (1) the department made an error of law in failing to apply the prudence standard when assessing the utilities’ storm performances; (2) the department’s findings were not supported by substantial evidence; and (3) the department’s penalty calculations lacked the necessary subsidiary findings and constituted an abuse of discretion. We affirm in part and reverse in part. We conclude that the department applied the appropriate reasonableness standard in finding that the utilities violated their duty to restore service in a safe and reasonably prompt manner. We also conclude that the department’s over-all findings regarding National Grid and WMEC were supported by substantial evidence, as were its findings regarding the deficiencies of NSTAR’s communication with municipal officials and the general public, but that its finding that NSTAR failed timely to respond to priority two and three wires-down calls was not supported by […]
Categories: News Tags: 1015314, Company, department, Electric, Lawyers, massachusetts, Public, Utilities, Weekly
Nautical Tours, Inc. v. Department of Public Utilities (Lawyers Weekly No. 10-147-14)
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-11455 NAUTICAL TOURS, INC. vs. DEPARTMENT OF PUBLIC UTILITIES. August 20, 2014. Department of Public Utilities. License. Public Utilities, Sight-seeing vehicle. Carrier, Sight-seeing vehicle. Motor Vehicle, Sight-seeing vehicle. Nautical Tours, Inc. (Nautical Tours), appeals from a judgment of a single justice of this court affirming a decision of the Department of Public Utilities (department) that it did not have jurisdiction to issue the type of license needed by Nautical Tours to operate its business in the city of Boston. Nautical Tours seeks to operate amphibious motor vehicles for sightseeing and charter purposes on the streets of Cambridge and Boston and the waters of the Charles River and Boston Harbor. The parties disagree about the appropriate license needed to operate in Boston. Nautical Tours contends that it must obtain a municipal street license pursuant to G. L. c. 159A, § 1. The department ruled that Nautical Tours was required to obtain a sightseeing license, which the Boston police commissioner has the exclusive authority to issue, pursuant to St. 1931, c. 399. We agree with the department that the Legislature established two different licensing schemes. Although a municipal street license is needed to carry passengers for hire on the public ways of cities and towns in the Commonwealth under G. L. c. 159A, § 1, a sightseeing automobile operating in the city of Boston must obtain a separate sightseeing license under St. 1931, c. 399. Because we further agree with the department that it did not have jurisdiction to issue Nautical Tours a municipal street license to operate its amphibious motor vehicles in Boston, we affirm. Background. In 2010, Nautical Tours filed a petition with the department concerning its proposed operation of amphibious motor vehicles over certain public ways in Boston. Nautical Tours asked the department (1) to exercise its licensing authority to issue a municipal street license under G. L. c. 159A, § 1; and (2) to amend the certificate of public convenience and necessity that it had issued in a proceeding in 2007, under G. L. c. 159A, § 7. In its 2007 order, the department concluded that Nautical Tours had not met its burden of demonstrating that it was able to operate its proposed plan, because it could not demonstrate that it had secured adequate financing. See Deacon Transp., Inc. v. Department of Pub. Utils., 388 Mass. 390, 394 (1983). To facilitate Nautical Tour’s ability to […]
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 […]