Legislative Utility Consumers' Council v. Public Service Co.

DOUGLAS, J.,

concurring: I agree that under the established standard of review we cannot reverse the commission’s decision permitting the inclusion of CWIP in the rate base even though we might have reached a different conclusion had we been the triers of fact initially. In my opinion, the court simply concludes that prior to the recent passage of Laws 1979, ch. 101, the commission could have reached the conclusion that it did relative to CWIP.

What does concern me about the majority opinion is the indication that the “end result” test of Federal Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591, 603 (1944), may be the standard for appellate review of agency ratemaking decisions in this State. The majority in Hope said:

[W]hen the Commission’s order is challenged in the courts, the question is whether that order “viewed in its entirety” meets the requirements of the Act. . . . Under . . . “just and reasonable” it is the result reached not the method employed which is controlling ... If the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end. The fact that the method employed to reach that result may contain infirmities is not then important.

Id. at 602.

I agree with the dissenters in Hope that to so hold encourages “conscious obscurity or confusion in reaching a result, on the assumption that so long as the result appears harmless its basis is irrelevant.” Id. at 627 (Frankfurter, J., dissenting). As Mr. Justice Jackson said in his dissent, “If we are to hold that a given rate is reasonable just because the Commission has said it was reasonable, review becomes a costly, time-consuming pageant of no practical value to anyone.”Id. at 645.

The “end result” test is inconsistent with our previous statement that the commission is not relieved “from the duty to disclose the ‘method employed’ to reach the prescribed rates, so that the validity of its conclusions may be tested upon judicial review.”New England Tel. & Tel. Co. v. State, 95 N.H. 353, 357, 64 A.2d 9, 14 (1949). Our duty is to examine fully the methodology of the commission in arriving at its *356ratemaking order. Although the majority suggests that it is using the “end result” standard, its opinion does nonetheless examine the commission’s methodology and the evidence before the commission in great detail. I therefore concur in the decision.