Central Maine Power Co. v. Public Utilities Commission

VIOLETTE, Justice,

with whom GOD-FREY, J., joins, dissenting.

This case involves the statutory interpretation of the scope of the fuel cost adjustment set forth in 35 M.R.S.A. § 131(4). The key issue in this case centers on the meaning of the following sentence contained in subsection (4):

Credits received by the utility for fuel or the fuel component of either purchased power or power sold to other utilities, including credits associated with purchased energy received from the savings fund of the New England Power Exchange, shall be considered changes in the cost of fuel for purposes of the fuel cost adjustment, pursuant to regulations promulgated by the commission under this section.

We must determine whether this sentence includes within the scope of the fuel cost adjustment New England Power Exchange (NEPEX) savings shares associated with both purchases and sales or only those associated with purchases. I must respectfully dissent from the majority’s holding that the inclusion of NEPEX sales-related savings shares contravenes the legislative intent of section 131.

*743I begin my analysis by looking to the express language of the sentence in question. Concord General Mutual Insurance Co. v. Patrons-Oxford Mutual Insurance Co., 411 A.2d 1017, 1020 (Me.1980) (where the words of a statute are clear and unambiguous, they should be strictly construed); Ballard v. Edgar, 268 A.2d 884, 885 (Me.1970). The plain language of section 131(4) broadly states that “[c]redits received by the utility for fuel or the fuel component of ... power sold to other utilities” shall be included in the fuel cost adjustment. Because sales handled through NEPEX are sales to other utilities, the credits associated with these sales clearly come within the express language of the statute. CMP does not question the proposition that sales handled by NEPEX are sales to other utilities; rather, CMP argues that this sentence does not contemplate sales-related savings shares because the express reference to purchase-related savings shares immediately following the phrase quoted above is meant to be exclusive and, therefore, we must read the statute to reflect a legislative intent not to include NEPEX sales-related savings shares. I disagree. The statute proceeds from the general premise that credits received for the fuel or fuel component of purchased energy or the sale of energy to other utilities are to be included in the scope of the fuel cost adjustment. The statute then specifically states that these credits include NEPEX purchase-related savings shares. In light of the structure of this sentence, the only logical reading is that the reference to NEPEX purchase-related savings shares is illustrative and not meant to be exclusive.

If the legislature intended to exclude the sales-related shares by specifically referring only to the NEPEX purchase-related shares, the sentence would have been drafted differently. For example, CMP’s argument would be more persuasive if the sentence read as follows:

Credits received by the utility for fuel or the fuel component of either purchased power, including credits associated with purchased energy from the savings fund of the New England Power Exchange, or power sold to other utilities shall be considered charges in the cost of fuel for purposes of the fuel cost adjustment.

The Legislature also could have expressed that intent by using an “or” before the phrase specifically referring to the credits associated with purchases of energy from NEPEX rather than the term “including”. Of course, it could have best expressed that intent by specifically excepting NEPEX sales-related savings shares. Yet, it did none of these things. Because of the structure of the sentence as it was actually drafted, I must conclude that the legislature intended to include within the scope of the fuel cost adjustment credits associated with sales of energy handled through NE-PEX.

On its face, the statute does not distinguish between wholesale sales of power to Maine utilities for use in Maine and sales of power to utilities handled through the NE-PEX system. The majority’s holding, however, is premised on its perception that section 131(2)1 narrowly structures the scope of the fuel cost adjustment, as expressed in subsection (4), to reflect changes only in the cost of fuel used to provide Maine customers with electricity. According to the majority, NEPEX purchase-related savings shares are consistent with that purpose, while NEPEX sales-related savings shares are inconsistent because that electricity is not being produced for use by the consumers in Maine. The following sentence sums up the majority’s reasoning: “Adjusting the fuel cost calculations, for example, to reflect savings the company earns by selling *744surplus electricity to a utility in Connecticut would contradict the emphasis in subsection (2) on ‘use in Maine’.”2 Therefore, the majority refrained from construing the sentence in question as comprehending sales-related savings shares received by CMP for dealing through NEPEX.

First, I disagree with the majority’s premise that subsection (2) sets forth the framework of a statutory scheme that requires us to so narrowly construe the phrase “credits received ... for ... power sold to other utilities.”3 Subsection (2) makes clear that a utility can include as part of its base rates a reasonable cost of fuel to provide its customers with electricity. Subsection (2) contains no language to indicate that its purpose is to structure the scope of the fuel clause adjustment. However, the first sentence in subsection (4) regarding just what items shall be subject to adjustment parallels the sentence in subsection (2) which addresses just what “the cost of fuel” shall include for purposes of a base rate proceeding.4 This parallel structure supports the majority’s position and, if subsection (4) included only this one sentence, then I would tend to agree with the majority that subsection (2) structures the scope of the fuel clause adjustment as provided by subsection (4).

Significantly, subsection (4) goes on to expressly require the inclusion of credits received by a utility for fuel or the fuel component of purchased energy or energy sold to other utilities in the scope of the fuel cost adjustment. The subsection expressly provides that these credits “shall be considered changes in the cost of fuel for purposes of the fuel cost adjustment.” (emphasis added). Therefore, the statute specifically includes the category of “credits” in the scope of the fuel cost adjustment notwithstanding that the credits may not properly be included among the items subject to adjustment as provided by the first sentence of subsection (4). Subsection (2) simply contains no language expressly bearing on how we should construe the sentence involving credits. Furthermore, this additional sentence in subsection (4) undercuts any inference which can be drawn from the parallel structure noted above that the Legislature intended subsection (2) to structure the scope of subsection (4).

Reading section 131 as a whole, I must conclude that subsection (2) does not control the scope of the fuel cost adjustment set forth in subsection (4), but rather its purpose is to broadly set forth why the utility’s customers shall be affected by the fuel adjustment clause. In subsection (4), the Leg*745islature'has separately detailed in the sentence in question just how credits fit into the scheme of the fuel cost adjustment and, therefore, the plain language of this sentence must control. As discussed previously, I conclude that the plain language of the sentence in question clearly contemplates the inclusion of NEPEX sales-related savings shares in the scope of the fuel cost adjustment.

I also perceive the purpose of subsection (4) as being broader than that assigned to it by the majority. By expressly including the category of credits in the fuel cost adjustment as it has, the Legislature has expressed its desire to structure the scope of the fuel cost adjustment as being broad enough to include credits that reduce the overall cost of fuel thereby benefiting the Maine rate payer, even though these credits may accrue from sales of power to out of state utilities. Therefore, the thrust of the fuel clause adjustment is not meant to distinguish whether the credits arise from in state or out of state sales to other utilities, but rather it is meant to include credits or costs which operate to reduce or increase the overall cost of fuel for the Maine customer.

My conclusion that the sentence in question clearly contemplates the inclusion of NEPEX sales-related savings shares is entirely consistent with the underlying purposes of the fuel clause adjustment as I see it. NEPEX is part of the New England Power Pool (NEPOOL) system. NEPOOL is an organization made up of utilities located throughout New England. NEPEX represents a centralized system for sharing power on a basis maximizing the efficiency of New England’s generating facilities. To reflect each utility’s proportionate share of the benefits of pooled power plant dispatching, each NEPOOL utility receives a “savings share” for both energy sold or purchased through NEPEX. Contrary to the artificial distinction created by the majority, NEPEX does not distinguish between purchase and sales-related shares either on the basis of value or terminology. Each share represents a savings and each share is equal in value. Because NEPEX sales-related savings shares reduce the overall costs of fuel in just the same manner as the purchase-related savings shares, I see them both as consistently fitting into the statutory scheme. For this reason, inclusion of NEPEX sales-related savings shares is consistent with the underlying purposes of the scope of the fuel cost adjustment (to adjust the cost of fuel to provide Maine customers with energy), and I would, therefore, construe the express language of section 131(4) as including credits associated with sales handled through NEPEX. On this issue I would affirm the decision of the PUC.

. The majority specifically points to the following passage in subsection (2):

[E]ach electric utility shall include as part of its base rates a reasonable cost for fuel to provide its customers with electricity. The cost of fuel shall include fuel consumed in the electric utility’s generating stations and the cost of power purchased by the electric utility for use in Maine, pursuant to regulations promulgated by the commission under this section and in accordance with the requirements of subsection 4.

. The majority opinion ignores the fact that other Maine generating utilities such as Bangor Hydro Electric Company transact business through NEPEX. Therefore, NEPEX sales by CMP may not necessarily go out of state and some unknown amount of savings shares may be associated with sales to utilities for use in Maine. According to the majority’s reasoning, the statute would contemplate the inclusion of NEPEX sales-related savings shares associated with sales by CMP to utilities such as Bangor Hydro because that power would be used in Maine. I simply do not agree that the statutory scheme treats NEPEX sales-related savings shares differently depending upon whether they are associated with sales to Maine generating utilities or sales to out of state utilities. Furthermore, the record just does not reveal how CMP would account for NEPEX sales to Maine generating utilities or whether it could be done at all.

. The record failed to reveal the existence of credits other than NEPEX savings shares. At oral argument, the PUC claimed that NEPEX savings shares were the only credits of which it was aware. Assuming that NEPEX savings shares are the only credits now in existence, then the majority’s opinion has the effect of rendering meaningless the phrase “[cjredits received by the utility for fuel or the fuel component of ... power sold to other utilities ... shall be considered changes in the cost of fuel for purposes of the fuel cost adjustment .... ”

.Subsection (2) provides that “[t]he cost of fuel shall include fuel consumed in the electric utility’s generating stations and the cost of power purchased by the electric utility for use in Maine.” The first sentence in subsection (4) provides that “[cjhanges in the cost of fuel consumed in the electric utility’s generating stations and changes in the cost of power purchased by the electric utility for use in Maine shall constitute the only items subject to adjustment.”