Direct Energy Services, LLC v. Public Utilities Regulatory Authority

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 DIRECT ENERGY SERVICES, LLC, ET AL.
v. PUBLIC UTILITIES REGULATORY
AUTHORITY
(SC 20643)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Ecker and Alexander, Js.

Syllabus

The plaintiff electric suppliers appealed to the trial court from the final
decision of the defendant, the Public Utilities Regulatory Authority
(PURA), which imposed certain geographic and marketing restrictions
on a renewable energy product known as a voluntary renewable offer
(VRO). Electric suppliers serving Connecticut must demonstrate that a
minimum percentage of the electricity that they supply is generated
by specific types of renewable energy sources. To comply with these
minimum standards, electric suppliers can purchase renewable energy
credits (RECs), which represent renewable energy produced by third-
party generators. PURA had previously established a program allowing
customers to support the development of renewable energy sources
beyond the minimum standards required. Pursuant to that program,
electric suppliers began to offer their customers VROs, whereby the
supplier would sell electric generation to the customer and promise to
obtain more RECs than are needed to meet the minimum standards,
thus allowing the supplier to market its product as more environmentally
sound and to command higher prices. Thereafter, in 2020, PURA issued
a final decision, establishing the geographic and marketing restrictions
on VROs at issue in the present case. The geographic restriction prohib-
ited VROs from containing RECs sourced outside of a particular, permit-
ted control area, which was comprised of all or part of twenty states
in and to the south and west of New England, as well as the District
of Columbia. This restriction was based on PURA’s finding that air
quality in Connecticut is significantly and adversely affected by fossil
fuel production to the southwest of the New England airshed and that
displacing demand for fossil fuel plants in the permitted control area
would provide environmental benefits to Connecticut, whereas displac-
ing such demand outside of that area would not. The marketing restric-
tion required electric suppliers to provide clear language informing
consumers that a VRO is backed by RECs but is not itself renewable
energy. The trial court upheld PURA’s final decision. In doing so, it
rejected the plaintiffs’ claim that the geographic and marketing restric-
tions violated the dormant commerce clause of the United States consti-
tution. The trial court relied on a recent case, Allco Finance Ltd. v. Klee
(861 F.3d 82), in which the United States Court of Appeals for the Second
Circuit rejected a dormant commerce clause challenge to PURA’s geo-
graphic restriction on the RECs used to satisfy the minimum standards,
and reasoned that the challenge to that marketing restriction failed
because the plaintiffs had not established a common regulatory scheme
sufficient to create a dormant commerce clause issue or that the inciden-
tal burdens imposed by the restriction clearly exceeded the local gains.
The trial court further concluded that the plaintiffs had waived their
claims that the marketing restriction violated their constitutional right
to free speech and that PURA’s final decision violated their constitutional
right to freely contract, insofar as the restrictions would disrupt the
expectations and obligations of Connecticut customers and suppliers
who had entered into contracts containing automatic renewal provi-
sions, because the plaintiffs had not raised those claims before PURA
during the administrative proceedings. Finally, the court rejected the
plaintiffs’ claim that PURA had violated the procedural requirements of
the Uniform Administrative Procedure Act (§ 4-166 et seq.) by improperly
relying on certain comments from the Office of Consumer Counsel
and the Department of Energy and Environmental Protection that were
‘‘nonevidence’’ to support its findings and conclusions and by failing to
make the parties aware of the information on which it would rely to
 support its final decision. On the plaintiffs’ appeal from the trial court’s
judgment, held:

1. The trial court correctly concluded that the challenged geographic and
marketing restrictions did not violate the dormant commerce clause:

a. The plaintiffs could not prevail on their claim that the geographic
restriction impermissibly discriminated against interstate commerce,
insofar as the restriction burdened renewable generating facilities
located outside of the permitted control area by denying them access
to Connecticut’s voluntary renewable market, while allowing generating
facilities located within that area access to that market:

This court concluded that the standard applicable to the plaintiffs’ claim
was not strict scrutiny but, rather, the deferential balancing test articu-
lated by the United States Supreme Court in Pike v. Bruce Church,
Inc. (397 U.S. 137), for laws that are nondiscriminatory but nonetheless
adversely and incidentally affect interstate commerce, and, under that
test, a law will be sustained unless the burden imposed on interstate
commerce is clearly excessive in relation to the putative local benefits.

In concluding that the Pike balancing test applied, this court utilized the
framework set forth in the Second Circuit’s decision in Allco Finance
Ltd., and this court determined that the geographic restriction did not
facially discriminate against electric generators outside of the permitted
control area because those generators and generators within the permit-
ted control area were not similarly situated for purposes of the commerce
clause, and that the Connecticut market should be given controlling
significance because Connecticut has an important and legitimate inter-
est in promoting increased production of renewable power generation
in the region, which would further the state’s interest in improving the
natural environment and, in turn, would serve to protect the health and
safety of Connecticut residents, whereas RECs generated outside of the
permitted control area would have little to no effect on Connecticut’s
environment.

Moreover, the RECs generated outside of the permitted control area
could still be sold to any Connecticut entity wishing to purchase them
at whatever price the market would bear, contrary to the plaintiffs’
arguments, RECs for the voluntary renewable program could not be
generated anywhere if such credits were to further this state’s clean
energy goals, the voluntary nature of the VRO program did not render
the RECs generated in the permitted control area, which helped to
advance this state’s environmental goals, the same as those generated
outside of that area, which have little to no environmental benefit to
Connecticut, and the determination of whether the geographic restriction
actually advanced the state’s environmental goals was a consideration
better suited for PURA or the legislature than for this court.

b. The plaintiffs could not prevail on their claim that the marketing
restriction imposed a disproportionate burden on interstate commerce
by creating marketing requirements that substantially conflicted with a
common regulatory scheme:

Under Pike, which, as the parties agreed, governed the plaintiffs’ chal-
lenge to the marketing restriction, a nondiscriminatory state regulation
might impose a disproportionate burden on interstate commerce, in
violation of the dormant commerce clause, if the regulation is in substan-
tial conflict with a common regulatory scheme in place in other states,
but there must be an actual conflict between the challenged regulation
and those in place in other states, and pointing to a risk of conflicting
regulatory regimes in multiple states, or increased compliance costs for
firms doing business in more than one state, is not enough.

In the present case, even if it was assumed that there existed a common
regulatory scheme comprised of federal and sister state law and that
the marketing restriction differed from the marketing requirements in
other states, as the plaintiffs argued, such a regulatory scheme was not
in substantial conflict with the marketing restriction at issue because,
to the extent necessary, the plaintiffs could comply with both PURA’s
marketing restriction and the relevant federal guidelines, and, even if
PURA’s marketing restriction differed from those of other states, it had
no impact on, and did not actually conflict with the implementation of,
such other marketing restrictions.
 Moreover, the plaintiffs did not clearly articulate the purported burden
that the marketing restriction imposed on interstate commerce, they did
not claim that the marketing restriction would prohibit them from doing
business in other states, and the only burden that this court could con-
ceive, namely, that there would be increased costs resulting from the
need to market VROs differently in Connecticut, was not clearly excessive
in relation to the putative local benefits of improving consumer transpar-
ency and furthering this state’s clean energy goals.

2. This court declined to consider the merits of the plaintiffs’ claims involving
their constitutional rights to free speech and to freely contract because
they were not raised before PURA during the administrative proceedings
and, accordingly, were not adequately preserved for review:

The exhaustion of administrative remedies doctrine, which implicates
the court’s subject matter jurisdiction, typically applies when a party
has completely bypassed an available administrative process, whereas,
when a party has availed itself of the administrative proceeding but seeks
to raise new claims for the first time on appeal, this court generally applies
the nonjurisdictional, prudential principle that an appellate tribunal is
not required to consider a claim unless it was distinctly raised during
the administrative proceeding.

In the present case, the plaintiffs did not entirely bypass the available
administrative proceedings but, rather, failed to raise their free speech
and contract clause claims before PURA during those proceedings, and,
accordingly, such a failure did not constitute a failure to exhaust adminis-
trative remedies.

Nevertheless, the plaintiffs’ failure to raise their claims during the admin-
istrative proceeding deprived PURA of the opportunity to consider them
while PURA was developing its final decision and prevented the parties
from developing a record regarding those claims, particularly insofar as
the plaintiffs never introduced any of the contracts between energy
suppliers and consumers that purportedly were infringed by the restric-
tions, and, thus, those claims were not adequately preserved for appel-
late review.

Moreover, to the extent the plaintiffs argued that it would have been
futile to raise their claims before PURA because they were constitutional
in nature and PURA did not have the authority to decide such claims,
this court disagreed, concluding that it is not futile to raise a constitu-
tional claim when, as in the present case, the claim challenges the action
of the administrative agency, as the agency has the authority to cure
any potential constitutional defect with its proposed regulations or may
abandon its proposed regulatory changes altogether if those changes
cannot be modified in a manner that would address any potential consti-
tutional defect.

3. The plaintiffs could not prevail on their claims that PURA violated their
procedural rights under the Uniform Administrative Procedure Act and
that their substantial rights were prejudiced:

With respect to the plaintiffs’ contention that PURA violated the Uniform
Administrative Procedure Act by relying on nonevidence to support its
findings and conclusions, namely, the comments from the Office of
Consumer Counsel and the Department of Energy and Environmental
Protection, each comment was submitted prior to the hearing, the plain-
tiffs failed to raise any objection to the comments at the hearing, and
the plaintiffs could have asked, but did not ask, that those statements
be offered by a witness and could have provided, but did not provide,
evidence to rebut the comments.

With respect to the plaintiffs’ contention that they were not aware of
certain information on which PURA would rely in issuing its final deci-
sion, although this court emphasized that PURA should have disclosed
that it intended to take notice of certain scientific facts within its special-
ized knowledge, this court could not conclude that the plaintiffs satisfied
their burden of demonstrating that PURA had violated their procedural
rights under the Uniform Administrative Procedure Act or that any viola-
tion prejudiced their substantial rights, insofar as the plaintiffs had the
opportunity to respond to the testimony of, and to cross-examine, a
witness who testified regarding airflow into Connecticut, and to respond
 to PURA’s final decision, which included the challenged factual finding
and which referenced PURA’s earlier decisions in which it reached the
same conclusion.
Argued December 15, 2022—officially released July 4, 2023

Procedural History

Appeal from the decision of the defendant establish-
ing a regulatory framework for a certain renewable
energy product, brought to the Superior Court in the
judicial district of New Britain, where the court, Klau,
J., granted the motions to intervene filed by the Office
of Consumer Counsel et al.; thereafter, the case was
tried to the court, Klau, J.; judgment for the defendant,
from which the plaintiffs appealed. Affirmed.
Linda L. Morkan, with whom were Joey Lee Miranda
and, on the brief, Benjamin C. Jensen, for the appel-
lants (plaintiffs).
Michael K. Skold, deputy solicitor general, with whom
were Seth Hollander, assistant attorney general, and,
on the brief, William Tong, attorney general, and Clare
Kindall, former solicitor general, for the appellee
(defendant).
William E. Dornbos, legal director, with whom, on
the brief, were Andrew W. Minikowski, staff attorney,
and Claire E. Coleman, consumer counsel, for the
appellee (intervenor Office of Consumer Counsel).
Erick M. Sandler, Alexander Judd, Sophia Browning
and Hannah Kalichman filed a brief for Vistra Corpora-
tion as amicus curiae.
 Opinion

McDONALD, J. This case requires us to decide,
among other things, whether certain regulations
imposed by the defendant, Public Utilities Regulatory
Authority (PURA), on energy suppliers within this state
violate the dormant commerce clause of the United
States constitution.1 In October, 2020, PURA imposed
a series of restrictions on retail electric suppliers who
offer customers of this state voluntary products con-
sisting of renewable energy credits (RECs) bundled
with electric supply. These products are known as vol-
untary renewable offers (VROs). The two restrictions
relevant to this appeal are the geographic restriction
and the marketing restriction. The geographic restric-
tion prohibits VROs from containing RECs sourced out-
side of particular geographic regions. The marketing
restriction requires that suppliers provide clear lan-
guage informing consumers that a VRO backed by RECs
is not ‘‘renewable energy’’ itself but, rather, an energy
product backed by RECs.
The plaintiffs, which are all companies that desire to
market and sell VROs to Connecticut electric custom-
ers,2 contend that the geographic restriction impermis-
sibly discriminates against RECs created outside of the
permitted geographic regions. The plaintiffs further
contend that the marketing restriction impedes com-
merce in the national marketplace because it imposes a
regulatory requirement inconsistent with those of other
states. The plaintiffs also raise a number of other consti-
tutional and procedural claims. For its part, PURA con-
tends that the trial court correctly concluded that neither
the geographic restriction nor the marketing restriction
violates the dormant commerce clause because, among
other things, the restrictions help advance this state’s
legitimate environmental policy goals and improve con-
sumer transparency.3 As to the plaintiffs’ remaining
claims, PURA contends that the trial court correctly
concluded that they are either unreviewable or without
merit. We agree with PURA and, accordingly, affirm
the judgment of the trial court.
Before we set forth the relevant facts and procedural
history of this case, we begin with an overview of this
state’s policies and statutes governing the electric sup-
ply industry, which is crucial to our understanding of
the plaintiffs’ claims. ‘‘Until relatively recently, most
state energy markets were vertically integrated monop-
olies—i.e., one entity, often a state utility, controlled
electricity generation, transmission, and sale to retail
consumers. . . . Over the past few decades, however,
many states, including Connecticut, have deregulated
their energy markets. . . . In deregulated markets,
[load-serving entities] purchase electricity at wholesale
from independent power generators. . . . In order [t]o
ensure reliable transmission of electricity from indepen-
dent generators to [load-serving entities], [the Federal
Energy Regulatory Commission (FERC)] has charged
nonprofit entities, called Regional Transmission Organi-
zations (RTOs) and Independent System Operators
(ISOs), with managing certain segments of the electric-
ity grid. . . . The New England ISO (ISO-NE), [one of]
the transmitter[s] involved in this case, manages the
grid in most of New England, including all of Connecti-
cut.’’ (Citations omitted; internal quotation marks omit-
ted.) Allco Finance Ltd. v. Klee, 861 F.3d 82, 88 (2d Cir.
2017) (Allco), cert. denied, U.S. , 138 S. Ct. 926,
200 L. Ed. 2d 203 (2018).
In deregulating this state’s energy market, the legisla-
ture created new entities called electric suppliers,
which provide electric energy ‘‘to end use customers
in the state using the transmission or distribution facili-
ties of an electric distribution company . . . .’’ General
Statutes § 16-1 (a) (24); see also General Statutes (Rev.
to 2019) § 16-245. Electric suppliers generally do not
themselves generate the power that they sell to consum-
ers. See, e.g., Richards v. Direct Energy Services, LLC,
246 F. Supp. 3d 538, 543 (D. Conn. 2017), aff’d, 915 F.3d
(2d Cir. 2019). Rather, they function as a ‘‘ ‘middleman’ ’’
in the electricity market by purchasing energy from
wholesalers and then selling it to consumers under con-
tract. Id. Suppliers that receive the proper licensing may
serve residential, commercial, and industrial customers
throughout the state and are active participants in the
retail competitive markets for electricity. The activities
of electric suppliers are heavily regulated. PURA hears
customer complaints regarding electric suppliers, moni-
tors and takes action to prevent unfair and deceptive
practices, and monitors the state of competition in the
marketplace. See General Statutes §§ 16-245t, 16-245u
and 16-245x.
Among the governing regulations, electric suppliers
must satisfy this state’s mandatory renewable portfolio
standards (RPS). The RPS require electric suppliers to
demonstrate that certain percentages of the electricity
that they supply have been generated by specific types
or classes of renewable energy sources (i.e., solar, wind,
hydroelectric, etc.). See General Statutes §§ 16-243q and
16-245a;4 see also General Statutes § 16-1 (a) (20), (21)
and (38). The policy embodied in the RPS obligations
‘‘creates a financial incentive for [the] development of
renewable energy projects by ensuring a market and
steady stream of revenue for renewable generators.’’
Public Utilities Regulatory Authority, Connecticut Renew-
able Portfolio Standard (last modified November, 2022),
available at https://portal.ct.gov/PURA/RPS/Renew-
able-Portfolio-Standards-Overview (last visited June 26,
2023); see General Statutes §§ 16-243q and 16-245a.
Electric suppliers can achieve compliance with these
minimum standards by purchasing RECs. See General
Statutes § 16-245a (b) (1) (A). ‘‘RECs are inventions
of state property law whereby the renewable energy
attributes are unbundled from the energy itself and
sold separately.’’ (Internal quotation marks omitted.)
Wheelabrator Lisbon, Inc. v. Dept. of Public Utility
Control, 531 F.3d 183, 186 (2d Cir. 2008). Each REC
represents one megawatt-hour of renewable energy pro-
duced by a third-party generator. See, e.g., United States
Environmental Protection Agency, Renewable Energy
Certificate Monetization (last modified February 15, 2023),
available at https://www.epa.gov/greenpower/renewable-
energy-certificate-monetization (last visited June 26,
2023). As the trial court in this case aptly explained,
‘‘RECs are necessary because of a fundamental reality
about the generation and distribution of electricity:
electrons cannot be traced from their generation source
to the end user unless the source is behind the custom-
er’s electricity meter. In all other instances, energy pro-
duced at a renewable source, and all other sources,
flows to the grid and its use is untraceable. . . . Thus,
when customers enter into a contract to purchase
renewable energy, they are actually agreeing to pur-
chase [RECs] reflecting the [renewable] attributes for
that energy.’’ (Citation omitted; internal quotation
marks omitted.) Because of the way the power grid
is structured in this country, the only power that can
physically reach Connecticut consumers is energy gen-
erated in either the control area covered by ISO-NE
or in an immediately adjacent control area. However,
because RECs can be purchased from renewable energy
generated anywhere in the country, the energy that
suppliers sell to end use consumers in this state is not
necessarily the same energy on which the REC itself
is based.
Electric suppliers must file an annual report with
PURA to demonstrate compliance with the RPS obliga-
tions. See Regs., Conn. State Agencies § 16-245a-1 (a)
(2020). These annual reports are based on RECs issued
exclusively by the New England Power Pool Generation
Information System (NEPOOL GIS).5 See General Stat-
utes § 16-245a (b); Regs., Conn. State Agencies § 16-
245a-1 (c) (2020). The geographic footprint of NEPOOL
GIS corresponds to the geographic footprint of ISO-NE.
Two other regional systems are relevant to this appeal:
the New York Generation Attribute Tracking System
(NYGATS), which corresponds to the geographic foot-
print of the New York Independent System Operator
(NYISO), and the PJM Generation Attribute Tracking
System (PJM-GATS), which corresponds to the geo-
graphic footprint of PJM Interconnection—the RTO of
the mid-Atlantic.
Although the RPS are mandatory and set minimum
renewable energy standards for most energy sold in
this state, in 2005, PURA established the Clean Energy
Options Program to enable consumers to support the
development of renewable energy sources above and
beyond the state’s mandatory minimum renewable
energy requirements. Electric suppliers responded by
developing the VRO. A VRO is a bundled product in
which the supplier offers to sell electric generation to
a retail end user and promises to obtain additional RECs
above and beyond what the supplier needs to meet the
state’s minimum mandatory renewable energy requirements
of the RPS. In other words, the difference between the
RPS and the VRO products is that the VRO is backed
by more RECs than the supplier uses to meet the manda-
tory RPS, enabling the supplier to market its product
to consumers as a more environmentally sound product
that often commands higher prices. As with energy sold
under the RPS, the energy delivered under a VRO
backed by RECs is not necessarily the same renewable
energy that created the REC, and it may not have been
generated from renewable sources at all. For years after
it established the Clean Energy Options Program, PURA
did little to monitor the developing VRO market.
With this background in mind, we turn to the facts
and procedural history specific to this case. In the
decade after the launch of the Clean Energy Options
Program, the VRO market grew significantly. As a result,
in December, 2016, PURA decided to review the Clean
Energy Options Program and to develop new options
regarding VROs. Specifically, PURA opened Docket No.
16-12-29, ‘‘PURA Development of Voluntary Renewable
Options Program.’’ The following month, PURA issued
a notice of proceeding, stating that it had initiated the
proceeding ‘‘to develop options for Connecticut rate-
payers to purchase voluntary renewable products and
to establish a new program to replace [the Clean Energy
Options Program].’’ (Internal quotation marks omitted.)
PURA subsequently clarified that the proceeding ‘‘would
establish rules that will govern all [VROs], create new
rules for [the Clean Energy Options Program], and mod-
ify a disclosure label [for all general supply and REC
offers].’’ (Internal quotation marks omitted.) PURA
issued formal requests for written comments and then
held a virtual hearing in June, 2020, to discuss the billing
and other clean energy options issues raised by the
electric distribution companies and electric suppliers
in their written comments and responses to interrogato-
ries and any other relevant issues. The parties subse-
quently submitted briefs and reply briefs.
In September, 2020, PURA issued a proposed decision
and a notice of written exceptions and oral argument.
The plaintiffs and other electric suppliers filed written
exceptions ‘‘identifying several serious errors of law
and fact in the proposed decision.’’ (Internal quotation
marks omitted.) PURA held oral argument and there-
after issued its final decision in October, 2020. In its
decision, PURA, among other things, (1) established a
geographic restriction for RECs used in VROs, and (2)
imposed a marketing restriction for VROs.6
The geographic restriction prohibits VROs from con-
taining RECs sourced outside of particular geographic
regions, specifically the NEPOOL GIS, NYGATS, and
PJM-GATS systems (permitted control area). The per-
mitted control area collectively includes all or part of
twenty states, namely, Connecticut, Delaware, Illinois,
Indiana, Kentucky, Maine, Maryland, Massachusetts,
Michigan, New Hampshire, New Jersey, New York,
North Carolina, Ohio, Pennsylvania, Rhode Island, Ten-
nessee, Vermont, Virginia, and West Virginia, as well as
the District of Columbia. The reason for the geographic
restriction lies in the regionalized nature of the adverse
environmental concerns. ‘‘As the VRO market devel-
oped [initially], between 2005 and 2016, companies
offering VROs relied on RECs sourced from anywhere
in the country and . . . Canada.’’ Over time, PURA
determined that restricting the geographic regions from
which RECs can be sourced would ‘‘bring Connecticut’s
VROs in line with Connecticut’s goals of reducing local
greenhouse gas emissions and supporting sustainable
local renewable energy sources.’’ (Internal quotation
marks omitted.) This is because ‘‘Connecticut air quality
is significantly and adversely affected by fossil fuel pro-
duction to the southwest of the New England airshed.
Demand for renewable resources that displaces demand
for fossil fuel plants to the south and west of New
England will provide environmental benefits to Con-
necticut.’’ (Internal quotation marks omitted.) By con-
trast, displacement of fossil fuel resources in more
distant states, such as Texas and California, provides
little to no environmental benefits to this state. PURA
also explained that ‘‘[m]any more customers are partici-
pating in . . . VROs now than were fifteen years ago.
These customers not only need to fully understand the
products for which they . . . may be paying a pre-
mium, but [PURA] must also ensure that these products
are furthering Connecticut’s clean energy goals. [PURA]
notes that current VROs contribute minimally, at best,
to Connecticut’s environmental betterment. . . . [I]n
2016, few VRO products included New England regional
RECs. Instead, the majority of these [VROs] relied on
nationally sourced [RECs] with no demonstrable bene-
fit to Connecticut or New England; further, claims
related to certain nationally sourced RECs may conflict
with the goals that consumers likely intend to achieve
through their premium.’’ (Citation omitted.)
The marketing restriction imposed by the final deci-
sion requires that electric suppliers provide clear lan-
guage informing consumers that a VRO backed by RECs
is not ‘‘renewable energy’’ itself but, rather, is an energy
product backed by RECs. A bit of background informa-
tion is necessary to understand this marketing restric-
tion. ‘‘In 2008, acting pursuant to its statutory obligation
to provide consumers with certain information’’; see
General Statutes (Rev. to 2007) § 16-245p (b) (3); ‘‘PURA
developed a disclosure label applicable to suppliers
marketing electric generation to Connecticut custom-
ers.’’ During the underlying proceeding, PURA learned
that one supplier had provided a disclosure label indi-
cating a renewable energy content of 121 percent. Cus-
tomers had also expressed confusion about VROs. As
a result, PURA determined that the development of the
VRO market required changes to the disclosure label
requirements. PURA’s decision thus prohibits suppliers
that market VROs from referring to them as containing
renewable energy rather than being backed by RECs.
Specifically, PURA explained: ‘‘Suppliers may not mar-
ket [REC-based] VROs to mislead consumers [into]
believe[ing] they are purchasing renewable energy
rather than RECs. As noted herein, there is a clear
distinction between certificates and the ownership
interest in, or a [power purchase agreement]7 to provide
energy from, a renewable source. It is reasonable to
display information as representing a renewable source
for an offer if the supplier owns, or has a [power purchase
agreement to provide energy from], these resources
and is using them to supply the electricity for the offer.
It is unreasonable to display this information if the
supplier is merely buying the certificates associated
with the renewable attributes.’’ (Emphasis in original;
footnote added.)
The plaintiffs timely appealed from PURA’s final deci-
sion to the Superior Court pursuant to General Statutes
§ 4-183 (a), challenging the decision on ‘‘virtually every
. . . possible ground under . . . § 4-183 (j).’’ The trial
court ultimately affirmed PURA’s final decision. Rele-
vant to this appeal, the trial court concluded that the
geographic and marketing restrictions do not violate
the dormant commerce clause. Specifically, the trial
court concluded that the geographic restriction passed
the same test used by the United States Court of Appeals
for the Second Circuit in a recent decision in which the
plaintiff claimed that this state’s geographic restriction
on RECs eligible for the RPS program violated the dor-
mant commerce clause. See Allco Finance Ltd. v. Klee,
supra, 861 F.3d 103, 105–107; see also Pike v. Bruce
Church, Inc., 397 U.S. 137, 142, 90 S. Ct. 844, 25 L. Ed.
2d 174 (1970). The trial court also rejected the plaintiffs’
dormant commerce clause challenge to the marketing
restriction, reasoning that (1) the plaintiffs failed to
establish that a common regulatory scheme sufficient
to create a dormant commerce clause issue existed, and
(2) the plaintiffs failed to establish that the incidental
burdens imposed by the restriction clearly exceeded the
local gains. The court also concluded that the plaintiffs
waived their free speech and contract clause claims
because they failed to raise those claims before the
agency at any point during the contested case. Finally,
the trial court concluded that the administrative pro-
ceedings did not violate the Uniform Administrative
Procedure Act (UAPA), General Statutes § 4-166 et seq.
This appeal followed.
On appeal, the plaintiffs contend that (1) the geo-
graphic and marketing restrictions contained in PURA’s
final decision violate the dormant commerce clause,
(2) PURA’s final decision violates energy suppliers’ right
to free speech under the state and federal constitutions,
(3) PURA’s final decision violates their right under the
federal constitution to freely contract, and (4) PURA
failed to abide by the procedural requirements of the
UAPA. We address each claim in turn.
At the outset, we set forth the standard of review
applicable to the plaintiffs’ claims. The plaintiffs’ claims
regarding violations of their constitutional rights pres-
ent questions of law. See, e.g., Tele Tech of Connecticut
Corp. v. Dept. of Public Utility Control, 270 Conn. 778,
787–88, 855 A.2d 174 (2004). Whether the proceedings
before PURA complied with the procedural require-
ments of the UAPA also presents a question of law.
See, e.g., FairwindCT, Inc. v. Connecticut Siting Coun-
cil, 313 Conn. 669, 711, 99 A.3d 1038 (2014). Thus, our
review of each of the plaintiffs’ claims is plenary. See,
e.g., Meriden v. Freedom of Information Commission,
338 Conn. 310, 319, 258 A.3d 1 (2021) (‘‘[c]ases that
present pure questions of law . . . invoke a broader
standard of review than is . . . involved in deciding
whether, in light of the evidence, the agency has acted
unreasonably, arbitrarily, illegally or in abuse of its dis-
cretion’’ (internal quotation marks omitted)).
I
DORMANT COMMERCE CLAUSE CLAIMS
The plaintiffs contend that the geographic restriction
impermissibly discriminates against RECs created out-
side of the permitted control area of the NEPOOL GIS,
NYGATS, and PJM-GATS systems. Similarly, the plaintiffs
contend that the marketing restriction impedes com-
merce in the national marketplace because it imposes a
regulatory requirement inconsistent with those of other
states.8 We conclude that the geographic and marketing
restrictions do not violate the dormant commerce
clause.
The commerce clause provides that ‘‘Congress shall
have Power . . . [t]o regulate Commerce with foreign
Nations, and among the Several States . . . .’’ U.S.
Const., art. I, § 8, cl. 3. The United States Supreme Court
‘‘has adhered strictly to the principle that the right to
engage in interstate commerce is not the gift of a state,
and that a state cannot regulate or restrain it.’’ (Internal
quotation marks omitted.) Hughes v. Alexandria Scrap
Corp., 426 U.S. 794, 808, 96 S. Ct. 2488, 49 L. Ed. 2d
220 (1976). ‘‘This express grant of power to Congress
contains a further, negative command, known as the
dormant [c]ommerce [c]lause . . . which limits the
power of [state and] local governments to enact laws
affecting interstate commerce. . . . The fundamental
objective of the dormant [c]ommerce [c]lause is to pre-
serv[e] a national market for competition undisturbed
by preferential advantages conferred by a [s]tate [on] its
residents or resident competitors.’’ (Citations omitted;
internal quotation marks omitted.) Southold v. East
Hampton, 477 F.3d 38, 47 (2d Cir. 2007). ‘‘[T]he negative
or dormant implication of the [c]ommerce [c]lause pro-
hibits state taxation or regulation that discriminates
against or unduly burdens interstate commerce and
thereby impedes free private trade in the national mar-
ketplace.’’ (Internal quotation marks omitted.) Allco
Finance Ltd. v. Klee, supra, 861 F.3d 102. Recently, the
United States Supreme Court reiterated that, at its ‘‘very
core,’’ the dormant commerce clause prohibits ‘‘the
enforcement of state laws driven by . . . economic
protectionism—that is, regulatory measures designed
to benefit in-state economic interests by burdening out-
of-state competitors.’’ (Internal quotation marks omit-
ted.) National Pork Producers Council v. Ross, U.S.
, 143 S. Ct. 1142, 1153, 215 L. Ed. 2d 336 (2023).
‘‘In analyzing a challenged [state or] local law under
the dormant [c]ommerce [c]lause, we first determine
whether it clearly discriminates against interstate com-
merce in favor of intrastate commerce, or whether it
regulates evenhandedly with only incidental effects on
interstate commerce.’’ Southold v. East Hampton, supra,
477 F.3d 47.
‘‘We then apply the appropriate level of scrutiny. A
law that clearly discriminates against interstate com-
merce in favor of intrastate commerce is virtually
invalid per se and will survive only if it is demonstrably
justified by a valid factor unrelated to economic protec-
tionism.’’ (Internal quotation marks omitted.) Id., quot-
ing Wyoming v. Oklahoma, 502 U.S. 437, 454, 112 S.
Ct. 789, 117 L. Ed. 2d 1 (1992). In other words, such a
law is valid ‘‘only if it advances a legitimate local pur-
pose that cannot be adequately served by reasonable
nondiscriminatory alternatives . . . .’’ (Citations omit-
ted; internal quotation marks omitted.) Dept. of Revenue
v. Davis, 553 U.S. 328, 338, 128 S. Ct. 1801, 170 L. Ed.
2d 685 (2008).
If the law is nondiscriminatory, but nonetheless
adversely affects interstate commerce ‘‘incidental[ly],’’
we employ a deferential balancing test known as the
Pike balancing test. See Pike v. Bruce Church, Inc.,
supra, 397 U.S. 142. Such a law will be sustained unless
‘‘the burden imposed on [interstate] commerce is
clearly excessive in relation to the putative local bene-
fits.’’ Id.
In short, relevant to this appeal, the dormant com-
merce clause prohibits laws that (1) ‘‘clearly [discrimi-
nate] against interstate commerce in favor of intrastate
commerce,’’ or (2) violate the Pike balancing test by
‘‘impos[ing] a burden on interstate commerce incom-
mensurate with the local benefits secured.’’ (Internal
quotation marks omitted.) Freedom Holdings, Inc. v.
Spitzer, 357 F.3d 205, 216 (2d Cir. 2004).
A
 Geographic Restriction
The plaintiffs contend that the geographic restriction
violates the dormant commerce clause because ‘‘VROs
will be required to use only RECs sourced from the
designated local permitted control [area] and, therefore,
will be unable to access the largest and most commonly
accessed sources of RECs in North America.’’
We must first determine what level of scrutiny applies
to the plaintiffs’ claim. The plaintiffs contend that the
geographic restriction facially discriminates against
interstate commerce because it imposes commercial
barriers on renewable generating facilities located out-
side of the permitted control area and ‘‘denies genera-
tors located outside [of the permitted control area]
access to Connecticut’s voluntary renewable market,
while allowing access to generating facilities located
in those areas, [thus] favoring the local generators.’’
(Emphasis in original.) PURA contends, among other
things, that the trial court correctly concluded that the
plaintiffs’ challenge to the geographic restriction should
be reviewed under the more permissive Pike balancing
test following the framework set forth in the recent
decision of the United States Court of Appeals for the
Second Circuit in Allco Finance Ltd. v. Klee, supra, 861
F.3d 105–106.9
Allco involved issues similar to those of the present
case and arose under similar facts. In Allco, a Georgia
energy generator claimed that Connecticut’s geographic
restriction on RECs used to satisfy the mandatory RPS
requirements treated in-state and out-of-state genera-
tors differently and therefore discriminated against
interstate commerce. See id., 102–103. Under this state’s
RPS program, utilities providing electricity in Connecti-
cut can apply only RECs purchased from ISO-NE and
directly adjacent control areas to satisfy their RPS
requirements. See id., 93; see also General Statutes § 16-
245a (b). These adjacent control areas included NYISO,
the Northern Maine Independent System Administrator,
Inc., and the provinces of Quebec and New Brunswick
in Canada. Allco Finance Ltd. v. Klee, supra, 861 F.3d
93. The court explained that, ‘‘[a]lthough Connecticut
utilities are free to purchase RECs that do not meet
these requirements—for example, RECs from genera-
tors [that] cannot transmit their energy into the ISO-
NE grid pursuant to [NEPOOL GIS] Rule 2.7 (c)—such
RECs will not count [toward] their requirements under
the RPS.’’ Id.
The court in Allco noted that ‘‘Connecticut has articulated
several reasons for incorporating these geographic limi-
tations into its RPS program. Central among these is
the [s]tate’s interest in encouraging the development
of new renewable energy generation facilities that are
able to transmit their electricity into the ISO-NE grid.
. . . Connecticut argues that increased in-region
renewable energy production would improve air quality
for its citizens and protect them from price and supply
shocks that could result if, for example, there was a
natural gas shortage or a nuclear power plant were to go
[offline]. . . . The state contends that placing regional
limitations on RECs, if they are to satisfy the RPS
requirement, is necessary if the [RPS] program is to
help increase the development of renewable generation
facilities that are capable of effectuating these and simi-
lar goals.’’ (Citations omitted.) Id.
Allco owned a solar power facility in Georgia and
could not use RECs associated with that facility to
satisfy this state’s RPS requirements because the facility
was not located in ISO-NE or a directly adjacent control
area. See id., 93–94. Allco argued that the RPS program’s
geographic restriction violated the dormant commerce
clause because the program ‘‘facially discriminate[d]
. . . [and] ha[d] the purpose or the effect of discrimi-
nating against Allco’s facility in Georgia . . . .’’ (Inter-
nal quotation marks omitted.) Id., 102. The Second
Circuit rejected this claim and noted at the outset of
its analysis that ‘‘any notion of discrimination assumes a
comparison of substantially similar entities’’ and, ‘‘when
the allegedly competing entities provide different prod-
ucts . . . there is a threshold question whether the
companies are indeed similarly situated for constitu-
tional purposes.’’ (Internal quotation marks omitted.)
Id., 103.
To resolve this question and to determine the appro-
priate level of scrutiny to apply—strict scrutiny or the
Pike balancing test—the court in Allco applied the three
part framework established by the United States
Supreme Court in General Motors Corp. v. Tracy, 519
U.S. 278, 117 S. Ct. 811, 136 L. Ed. 2d 761 (1997), to
determine whether the entities were similarly situated.
See Allco Finance Ltd. v. Klee, supra, 861 F.3d 105–106.
Applying that framework, the Second Circuit first asked
‘‘whether the allegedly competing entities—Allco’s
Georgia generator, on the one hand, and generators
located in ISO-NE and adjacent control areas, on the
other—provide different products, i.e., different RECs.’’
Id., 105. The court concluded that the competing entities
did provide different products, reasoning that ‘‘RECs
are inventions of state property law . . . and Connecti-
cut has invented a class of RECs that differs from [the]
Georgia facility’s RECs . . . . The two products can,
therefore, be treated as different, even though they—
like the unbundled and bundled gas products in Tracy—
also have some underlying similarities.’’ (Citations omit-
ted; internal quotation marks omitted.) Id.
Second, the court in Allco asked ‘‘whether there is a
market that only one of the two entities serves, and
in which competition would not be increased if the
differential treatment of the two entities were removed.’’
Id. The court concluded that there was. Id. The court
noted that ‘‘Connecticut consumers’ need for a more
diversified and renewable energy supply, accessible to
them directly through their regional grid or indirectly
through adjacent control areas, would not be served
by RECs produced by Allco’s facility in Georgia—which
is unable to transmit its electricity into ISO-NE. Further,
this market’s characteristics—most importantly, the bound-
aries of the electrical grid to which Connecticut has
direct or indirect access—appear to be independent of
any effect attributable to the [s]tate’s RPS program.’’
(Internal quotation marks omitted.) Id. Thus, the court
explained, ‘‘there is good reason to assume that any
pricing changes that could result from eliminating the
[differential treatment of Allco’s Georgia generator]
. . . would be inadequate to serve the goals that Con-
necticut properly is pursuing. . . . This suggests that
competition would not be served by treating the differ-
ent types of REC producers similarly.’’ (Citation omit-
ted; internal quotation marks omitted.) Id., 106.
Finally, the court in Allco asked ‘‘whether there is
also a separate market in which these two types of
producers compete, and in which competition poten-
tially would be served if Connecticut were prohibited
from treating them disparately.’’ Id. The court answered
this question in the affirmative. Id. The court explained
that PURA conceded that ‘‘there is a national market
for RECs that does not distinguish between RECs on
the basis of their geographic origin. In this market, the
respective sellers . . . apparently do compete and may
compete further. . . . Eliminating Connecticut’s RPS
program’s differential treatment might well intensify
competition . . . for customers in this [national] mar-
ket. . . . This, of course, cuts in favor of treating the
products as alike.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) Id.
As a result of the dilemma created by the existence
of both a market that only one of the two entities serves
and also a separate market in which these two types
of producers compete, the court in Allco—following
the United States Supreme Court’s analysis in Tracy—
asked ‘‘whether the opportunity for increased competi-
tion between REC producers in the national market
necessitates treating [REC producers] in Georgia and
New England alike for dormant [c]ommerce [c]lause
purposes, or whether the needs of Connecticut’s local
energy market permits treating the two types of REC
producers differently.’’ Id. This inquiry asks whether a
court should give ‘‘ ‘controlling significance’ ’’ to the
market in which the two types of REC producers compete,
or to the market served only by REC producers that
can connect to Connecticut’s power grid. Id. Applying
this ‘‘controlling significance’’ principle, the court con-
cluded that ‘‘a number of reasons support[ed] a decision
to give greater weight’’ to the generators that satisfy
Connecticut’s RPS requirements for RECs and, there-
fore, to treat those generators and Allco’s Georgia gener-
ator as dissimilar for purposes of the dormant commerce
clause. (Internal quotation marks omitted.) Id.
Significantly, the court held that the reasons justi-
fying the differential treatment included the environ-
mental, public health and safety similarities between
the claim raised in Allco and the claim raised in Tracy:
‘‘Just as the [court in Tracy] recognized the importance
of Ohio’s interest in protecting the captive natural gas
market from the effects of competition in order to pro-
mote public health and safety . . . so must we here
recognize the importance of Connecticut’s interest in
protecting the market for RECs produced within the
ISO-NE or in adjacent areas. Connecticut’s RPS program
serves its legitimate interest in promoting increased
production of renewable power generation in the
region, thereby protecting its citizens’ health, safety,
and reliable access to power.’’ (Citation omitted.) Id.
On this point, the court in Allco reiterated the Supreme
Court’s conclusion in Tracy that ‘‘health and safety
considerations [may] be weighed in the process of
deciding the threshold question whether the conditions
entailing application of the dormant [c]ommerce
[c]lause are present . . . .’’ (Citation omitted; internal
quotation marks omitted.) Id., 107. The court also noted
that ‘‘[t]hese means and ends are well within the scope
of what Congress and FERC have traditionally allowed
the [s]tates to do in the realm of energy regulation.’’
Id., 106.
Moreover, the court in Allco found it significant that
the ‘‘FERC itself . . . has instituted a sort of regional-
ization of the national electricity market [through the
geographic lines drawn by ISOs and RTOs]. And neither
FERC nor Congress has given any indication that this
structure is unduly harmful to interstate commerce.’’
Id., 107. The court reasoned that FERC and Congress
are better equipped to ‘‘determine the economic wis-
dom and the health and safety effects of these geo-
graphic boundaries that Connecticut has incorporated
into its RPS program. It is they that, in this setting, are
best suited to decide which products ought to be treated
similarly, and which should not.’’ Id.
The court in Allco concluded that ‘‘Connecticut’s reg-
ulatory response to the needs of the local energy market
has resulted in a noncompetitive REC product that is
capable of being produced only by in-region generators,
and that this distinguishes such generators from Allco’s
Georgia generator to the point that the enterprises should
not be considered similarly situated for purposes of a
claim of facial discrimination under the [c]ommerce
[c]lause.’’ (Internal quotation marks omitted.) Id. Accord-
ingly, the court applied the Pike balancing test; see
Pike v. Bruce Church, Inc., supra, 397 U.S. 142; and
concluded, ‘‘for the same reasons’’ discussed in the
Tracy analysis, that ‘‘Connecticut’s RPS program is
. . . not clearly excessive in relation to the putative
local benefits, and therefore passes the more permissive
Pike test.’’ (Internal quotation marks omitted.) Allco
Finance Ltd. v. Klee, supra, 861 F.3d 107.
We find the Allco analysis and rationale persuasive
for purposes of analyzing whether PURA’s geographic
restriction on the RECs eligible to back the VRO pro-
gram violates the dormant commerce clause.10 Accord-
ingly, to determine what level of scrutiny to apply to
the plaintiffs’ claim, we begin our analysis in the present
case by asking whether the allegedly competing enti-
ties—renewable energy generating facilities located
outside of the permitted control area, on the one hand,
and renewable energy generating facilities located
within the permitted control area, on the other—pro-
vide different products.11 We conclude that they do. As
in the RPS program, RECs used to support the VRO
program are ‘‘inventions of state property law . . . .’’
Wheelabrator Lisbon, Inc. v. Dept. of Public Utility
Control, supra, 531 F.3d 186. PURA has decided to cre-
ate restrictions on the class of RECs used to satisfy a
VRO product that are distinct from RECs produced
outside of the permitted control area. From the state’s
perspective, RECs created in the permitted control area
differ from RECs created outside of this area because
they displace fossil fuel generation with a more direct
impact on this state’s environment. Although there are
undoubtedly similarities between the two different classes
of RECs, the two classes can be treated differently for
dormant commerce clause purposes.
Second, we must determine whether there is a market
that only one of the two entities serves and in which
competition would not be increased if the differential
treatment of the two entities were removed. We agree
with the trial court that eliminating the differential treat-
ment of RECs based on their geographic source would
be inadequate to serve this state’s VRO program goals.
This is because ‘‘eliminating different treatment of far-
flung RECs would do little to improve Connecticut’s
chances of reaching its ambitious environmental and
energy goals.’’12 (Internal quotation marks omitted.) The
geographic restriction ‘‘further[s] Connecticut’s energy
policies by reducing local greenhouse gas emissions and
[by] supporting local, sustainable, renewable energy
sources . . . .’’ Balancing the various interests at stake,
PURA determined that the geographic restriction would
‘‘provide environmental benefits to New England, given
prevailing wind patterns, and [the permitted control
area] is large enough to obtain RECs from affordable
clean resources.’’ (Internal quotation marks omitted.)
This militates against treating the different types of REC
producers similarly.
Third, we conclude, as the court did in Allco, that
there is a national market for RECs that does not distin-
guish between RECs on the basis of their geographic
origin. PURA does not contend otherwise. Eliminating
the VRO program’s differential treatment may intensify
competition between REC generators for customers in
the national market. This militates in favor of treating
the products alike.
Given that there is both a market that only one of
the two entities serves, Connecticut, and also a separate
national market in which these two types of producers
compete, we must decide which market should have
‘‘ ‘controlling significance’ . . . .’’ Allco Finance Ltd.
v. Klee, supra, 861 F.3d 106. For many of the reasons
articulated in Allco, we conclude that controlling signifi-
cance should be given to the Connecticut market. Spe-
cifically, Connecticut has an important and legitimate
interest in promoting increased production of renew-
able power generation in the region. This interest fur-
thers the state’s interest in improving the natural
environment, which, in turn, will help protect the health
and safety of this state’s residents. RECs generated
outside of the permitted control area have little to no
effect on this state’s environment. Indeed, the adminis-
trative record includes testimony from Robert A. Mad-
dox, Jr., a representative of one of the suppliers under
the Clean Energy Options Program, that ‘‘the airflow
into Connecticut tends to come . . . from the west
[toward] Connecticut. We know we’re a tailpipe state,
and most of the pollution coming in the state comes
from downwind. So, when we can support the develop-
ment of a renewable energy project in Pennsylvania,
that helps clean up Connecticut’s air. I don’t necessarily
know if the development of a renewable energy project
north of Montreal [in Canada] does a lot for Connecticut’s
air.’’ As both the United States Supreme Court and the
Second Circuit have explained, ‘‘health and safety con-
siderations [may] be weighed in the process of deciding
the threshold question whether the conditions entailing
application of the dormant [c]ommerce [c]lause are
present.’’ General Motors Corp. v. Tracy, supra, 519
U.S. 307; accord Allco Finance Ltd. v. Klee, supra, 107.
At least one case has recognized that environmental
goals have health and safety implications for purposes
of a dormant commerce clause claim. See United Haul-
ers Assn., Inc. v. Oneida-Herkimer Solid Waste Man-
agement Authority, 550 U.S. 330, 346–47, 127 S. Ct.
1786, 167 L. Ed. 2d 655 (2007) (plurality opinion)
(county ‘‘flow control’’ ordinances benefited public by
increasing recycling, which confers ‘‘significant health
and environmental benefits’’); see also Huron Portland
Cement Co. v. Detroit, 362 U.S. 440, 442, 80 S. Ct. 813,
4 L. Ed. 2d 852 (1960) (‘‘The ordinance was enacted
for the manifest purpose of promoting the health and
welfare of the city’s inhabitants. Legislation designed
to free from pollution the very air that people breathe
clearly falls within the exercise of even the most tradi-
tional concept of what is compendiously known as the
police power.’’). The commerce clause ‘‘does not ele-
vate free trade above all other values’’; (internal quota-
tion marks omitted) United Haulers Assn., Inc. v.
Oneida-Herkimer Solid Waste Management Authority,
supra, 344; and it is not an ‘‘[invitation for courts] to
rigorously scrutinize’’ state regulations designed to pro-
tect public health and safety. Id., 347 (plurality opinion).
Moreover, the United States Supreme Court has
emphasized the significant role that states have in regu-
lating the electric utility industry within its borders.
See, e.g., New York v. Federal Energy Regulatory Com-
mission, 535 U.S. 1, 24, 122 S. Ct. 1012, 152 L. Ed. 2d
47 (2002) (‘‘FERC has recognized that the [s]tates retain
significant control over local matters even when retail
transmissions are unbundled’’); Arkansas Electric
Cooperative Corp. v. Arkansas Public Service Commis-
sion, 461 U.S. 375, 377, 103 S. Ct. 1905, 76 L. Ed. 2d 1
(1983) (‘‘the regulation of utilities is one of the most
important of the functions traditionally associated with
the police power of the [s]tates’’); see also Entergy
Nuclear Vermont Yankee, LLC v. Shumlin, 733 F.3d
393, 417 (2d Cir. 2013) (‘‘[S]tates have broad powers
under state law to direct the planning and resource
decisions of utilities under their jurisdiction. States
may, for example, order utilities to build renewable
generators themselves, or . . . order utilities to pur-
chase renewable generation.’’ (Internal quotation marks
omitted.)). We find it significant that, in addition to
the important role states play in regulating the electric
utility industry within their borders, the specific restric-
tion at issue is within the scope of what Congress and
FERC have traditionally allowed the states to do in the
area of energy regulation. Similar to the geographic
restriction for the RPS program, the geographic lines
drawn by the restriction in the present case mirror the
geographic lines drawn by FERC.13 See Allco Finance
Ltd. v. Klee, supra, 861 F.3d 107 (‘‘FERC itself . . .
has instituted a sort of regionalization of the national
electricity market [through the geographic lines drawn
by ISOs and RTOs]. And neither FERC nor Congress
has given any indication that this structure is unduly
harmful to interstate commerce.’’). ‘‘It is FERC that has
created the geographic distinctions on which Connecti-
cut’s program is predicated by organizing owners of
transmission lines into [ISOs], such as ISO-NE, and
[RTOs] in order to help manage the grid, ensure system
reliability, and guard against discrimination and the
exercise of market power in the provision of transmis-
sion services.’’ (Internal quotation marks omitted.) Id.,
quoting Entergy Nuclear Vermont Yankee, LLC v.
Shumlin, supra, 413. Furthermore, NEPOOL GIS, which
issues and tracks RECs produced in the ISO-NE control
area and imported from adjacent control areas, is gov-
erned through a FERC approved committee structure.
See In re New England Power Pool, 88 FERC ¶ 61079,
¶ 61181 (1999).
Connecticut’s VRO program has resulted in a REC
product that is capable of being produced only by gener-
ators located in the permitted control area because only
RECs produced in this area help advance this state’s
environmental policy goals. This distinguishes such
generators from generators located outside of the per-
mitted control area to the point that the entities should
not be considered similarly situated for purposes of
a claim of facial discrimination under the commerce
clause. It bears emphasizing, however, that the geo-
graphic restriction in the present case does not entirely
ban RECs generated outside of the permitted control
area. RECs generated outside of this area can still be
sold to any Connecticut entity wishing to buy them, at
whatever price the market will bear. Such RECs could,
for example, be purchased in this state by a company
wishing to ‘‘ ‘green its image.’ ’’ Allco Finance Ltd. v.
Klee, supra, 861 F.3d 106 n.17. Accordingly, we conclude
that the Pike balancing test is the appropriate test to
apply to the plaintiffs’ claim. See Pike v. Bruce Church,
Inc., supra, 397 U.S. 142. For the same reasons pre-
viously discussed, we concluded that Connecticut’s
geographic restriction in the VRO program is not clearly
excessive in relation to the putative local benefits and,
therefore, passes the more permissive Pike test.
The plaintiffs nevertheless contend that the analysis
in Allco is not dispositive in the present case because
Allco dealt with a challenge to this state’s mandatory
RPS program and the plaintiffs challenge the voluntary
VRO program. As we understand it, the plaintiffs argue
that, unlike the mandatory RPS program—in which RPS
compliant RECs can be produced only in certain control
areas; see General Statutes § 16-245a (b)—RECs for the
voluntary, competitive REC market do not need to be
generated from any particular area. Although we agree
that there are differences between this state’s RPS pro-
gram and this state’s VRO program, we disagree that
this fact mandates a different outcome than in Allco.
PURA’s rationale for imposing a geographic restriction
on VRO RECs is the same that underlies the geographic
restriction for RPS RECs—environmental, health, and
safety considerations. Just as the RECs used in this
state’s RPS program are distinct from other RECs
because they support this state’s clean energy and envi-
ronmental priorities, so, too, do the RECs that may be
used to back a VRO product. Indeed, in its final decision,
PURA recognized that there were concerns regarding
the geographic restriction: ‘‘[PURA] acknowledges con-
cerns about narrowing the eligible regions for VRO and
REC only products; however, ensuring environmental
benefits support Connecticut’s energy policies contin-
ues to be a guiding principle for [PURA’s] actions. In
its first notice of written comments, [PURA] stated that
the purpose of this docket was to ‘bring Connecticut’s
VROs in line with Connecticut’s goals of reducing local
greenhouse gas emissions and supporting sustainable
local renewable energy sources. As illustrated in [PURA’s]
RPS compliance dockets, few current VROs meet these
goals.’ ’’ Thus, contrary to the plaintiffs’ argument, RECs
for the VRO program cannot be generated anywhere
because such RECs would not further this state’s clean
energy goals.
We fail to see, and the plaintiffs do not adequately
explain, how the voluntary nature of the VRO program
renders the RECs generated in the permitted control
area the same as RECs generated outside of the permit-
ted control area, which have little to no environmental
benefit to this state. PURA’s geographic restriction is
a goal designed to improve the state’s environment and,
in turn, the health and safety of Connecticut residents.
Because renewable energy generated from distant
southern and western states has little environmental
benefits to Connecticut, the legislature chose to rely
exclusively on RECs issued by NEPOOL GIS for compli-
ance with the RPS program. General Statutes § 16-245a
(b) (1) (A). A similar rationale supports PURA’s final
decision implementing the geographic restriction for VRO
RECs. We cannot conclude that any burden imposed
by this geographic restriction on interstate commerce,
in furtherance of this legitimate state interest, is ‘‘clearly
excessive in relation to the putative local benefits.’’ Pike
v. Bruce Church, Inc., supra, 397 U.S. 142; see also
United Haulers Assn., Inc. v. Oneida-Herkimer Solid
Waste Management Authority, supra, 550 U.S. 346–47
(plurality opinion) (any incidental burden on interstate
commerce that resulted from application of county
‘‘flow control’’ ordinances was not clearly excessive
in relation to public benefits provided by ordinances,
which increased recycling and conferred ‘‘significant
health and environmental benefits’’). The commerce
clause was ‘‘never intended to cut the [s]tates off from
legislating on all subjects relating to the health, life,
and safety of their citizens, though the legislation might
indirectly affect the commerce of the country.’’ (Inter-
nal quotation marks omitted.) General Motors Corp. v.
Tracy, supra, 519 U.S. 306.
Finally, aside from their argument that the geographic
restriction burdens renewable generating facilities out-
side of the permitted control area, the plaintiffs’
remaining arguments primarily center on whether the
geographic restriction actually advances the state’s
environmental goals and the restriction’s financial
impact on electric suppliers operating in this state. We
note at the outset that United States Supreme Court
Justice Neil M. Gorsuch, writing for himself and two
other members of the court, recently rejected the notion
that the Pike balancing test authorizes ‘‘judges to strike
down duly enacted state laws regulating the in-state
sale of ordinary consumer goods . . . based on noth-
ing more than [a petitioner’s] own assessment of the
relevant law’s costs and benefits.’’ (Internal quotation
marks omitted.) National Pork Producers Council v.
Ross, supra, 143 S. Ct. 1159 (opinion announcing judg-
ment). Moreover, these arguments do not address dispa-
rate burdens because they apply to in-state and out-of-
state suppliers alike. See, e.g., Martorelli v. Dept. of
Transportation, 316 Conn. 538, 555–56, 114 A.3d 912
(2015) (in dormant commerce clause context, ‘‘discrimi-
nation simply means differential treatment of in-state
and out-of-state economic interests that benefits the
former and burdens the latter’’ (internal quotation
marks omitted)). These arguments also do not address
a burden on interstate commerce. In fact, the plaintiffs
contend that ‘‘the evidence established that the geo-
graphic restriction will . . . reduce consumer interest
in VROs’’ sold in this state and ‘‘cause prices for [VROs
in this state] to significantly rise to levels [at which]
customers simply will not buy them.’’ These burdens
fall squarely on commerce and consumers within this
state. In other words, these burdens are on intrastate
commerce and not interstate commerce. This is not
what the dormant commerce clause prohibits. See, e.g.,
New Energy Co. of Indiana v. Limbach, 486 U.S. 269,
273–74, 108 S. Ct. 1803, 100 L. Ed. 2d 302 (1988) (dor-
mant commerce clause ‘‘prohibits economic protection-
ism—that is, regulatory measures designed to benefit
in-state economic interests by burdening out-of-state
competitors’’ (emphasis added)). ‘‘The party challeng-
ing a law as either clearly discriminatory or violative
of Pike bears the threshold burden of demonstrating
that it has a disparate impact on interstate commerce—
[t]he fact that it may otherwise affect commerce is not
sufficient.’’ (Emphasis added; internal quotation marks
omitted.) Southold v. East Hampton, supra, 477 F.3d
47; see also United Haulers Assn., Inc. v. Oneida-Her-
kimer Solid Waste Management Authority, supra, 550
U.S. 345 (‘‘[United States Supreme Court] dormant
[c]ommerce [c]lause cases often find discrimination
when a [s]tate shifts the costs of regulation to other
[s]tates, because when the burden of state regulation
falls on interests outside the state, it is unlikely to be
alleviated by the operation of those political restraints
normally exerted when interests within the state are
affected’’ (internal quotation marks omitted)). Whether
the geographic restriction actually advances the state’s
environmental goals or reduces consumer interests in
VROs, moreover, is a consideration most appropriately
suited for PURA or the legislature, not this court. See,
e.g., Exxon Corp. v. Governor, 437 U.S. 117, 128, 98 S.
Ct. 2207, 57 L. Ed. 2d 91 (1978) (‘‘[i]t may be true that
the consuming public will be injured by [the effect of
the challenged regulation], but . . . that argument
relates to the wisdom of the statute, not to its burden
on commerce’’).
B
Marketing Restriction
The plaintiffs next contend that the marketing restric-
tion violates the dormant commerce clause because it
imposes a disproportionate burden on interstate com-
merce by creating marketing requirements that substan-
tially conflict with a common regulatory scheme. The
plaintiffs correctly note that the marketing restriction
prohibits electric suppliers from marketing VROs as
‘‘ ‘renewable energy’ unless the offer is supported by
an ownership interest in or [a power purchase agree-
ment] for a renewable resource used to serve the con-
tract.’’ A VRO not supported by an ownership interest
in or a power purchase agreement for renewable
resources must be marketed as a product backed REC.
The plaintiffs contend that this blanket prohibition on
a commonly used industry term—renewable energy—
is inconsistent with both federal law and the law of
many sister states, which together comprise a common
regulatory scheme. For its part, PURA contends that,
because the marketing restriction applies equally to
in-state and out-of-state suppliers alike, the plaintiffs
cannot demonstrate that the marketing restriction has
a disparate burden on interstate commerce compared
to intrastate commerce. PURA also argues that any
purported disparate treatment is not a burden on inter-
state markets because the marketing restriction does
not actually conflict with other states’ regulatory pro-
grams such that businesses are prevented from comply-
ing with both regulatory schemes. PURA notes that
there is no cognizable burden on interstate commerce
when, as here, the burden is limited to increased compli-
ance costs for firms doing business in more than one
state. Finally, PURA contends that, even if the market-
ing restriction disparately impacted interstate com-
merce, like the geographic restriction, it, too, has
benefits that are not illusory.
The parties agree that the Pike balancing test is the
applicable standard to evaluate the plaintiffs’ challenge
to the marketing restriction. As we previously explained,
we employ the Pike balancing test if a law is nondiscrim-
inatory but, nonetheless, adversely, ‘‘incidental[ly]’’
affects interstate commerce. Pike v. Bruce Church, Inc.,
supra, 397 U.S. 142. When ‘‘the statute regulates [even-
handedly] to effectuate a legitimate local public inter-
est, and its effects on interstate commerce are only
incidental, it will be upheld unless the burden imposed
on such commerce is clearly excessive in relation to
the putative local benefits. . . . If a legitimate local
purpose is found, then the question becomes one of
degree. And the extent of the burden that will be toler-
ated will of course depend on the nature of the local
interest involved, and on whether it could be promoted
as well with a lesser impact on interstate activities.’’
(Citation omitted.) Id. ‘‘For a state statute to run afoul
of the Pike standard, the statute, at a minimum, must
impose a burden on interstate commerce that is qualita-
tively or quantitatively different from that imposed on
intrastate commerce. . . . Under Pike, if no such
unequal burden [was] shown, a reviewing court need not
proceed further.’’ (Citations omitted.) National Electrical
Manufacturers Assn. v. Sorrell, 272 F.3d 104, 109 (2d
Cir. 2001), cert. denied, 536 U.S. 905, 122 S. Ct. 2358,
153 L. Ed. 2d 180 (2002).
Although several types of burdens on interstate com-
merce may qualify as ‘‘disparate’’ so as to trigger the
Pike balancing test, the plaintiffs’ dormant commerce
clause claim regarding the marketing restriction centers
around the fact that, according to the plaintiffs, PURA
has imposed regulatory requirements that are inconsis-
tent with those of other states and the federal govern-
ment. Regulations that fall within this category may be
said to create interstate regulatory conflicts. ‘‘A state
regulation might impose a disproportionate burden on
interstate commerce if the regulation is in substantial
conflict with a common regulatory scheme in place in
other states.’’ Id., 112; see also, e.g., Raymond Motor
Transportation, Inc. v. Rice, 434 U.S. 429, 445, 98 S.
Ct. 787, 54 L. Ed. 2d 664 (1978); Bibb v. Navajo Freight
Lines, Inc., 359 U.S. 520, 529–30, 79 S. Ct. 962, 3 L. Ed.
2d 1003 (1959). ‘‘It is not enough to point to a risk of
conflicting regulatory regimes in multiple states; there
must be an actual conflict between the challenged regu-
lation and those in place in other states.’’ National
Electrical Manufacturers Assn. v. Sorrell, supra, 272
F.3d 112; see also, e.g., Procter & Gamble Co. v. Chicago,
509 F.2d 69, 77 (7th Cir.) (‘‘[t]he [United States] Supreme
Court has indicated that in a case involving environmen-
tal legislation it is actual conflict, not potential conflict,
that is relevant’’), cert. denied, 421 U.S. 978, 95 S. Ct.
1980, 44 L. Ed. 2d 470 (1975). On the other hand, there
is generally no burden on interstate commerce suffi-
cient to trigger a violation of the dormant commerce
clause when the burden is limited to increased compli-
ance costs for firms doing business in more than one
state. See, e.g., Procter & Gamble Co. v. Chicago, supra,
76–77; see also National Pork Producers Council v.
Ross, supra, 143 S. Ct. 1169 (Roberts, C. J., concurring
in part and dissenting in part) (‘‘[o]ur precedents have
long distinguished the costs of complying with a given
state regulation from other economic harms to the inter-
state market’’). This is because the commerce clause
is concerned with a law’s impact on markets and ‘‘the
interstate flow of goods’’ and not its impact on individ-
ual interstate firms or their profits. See Pharmaceutical
Research & Manufacturers of America v. Alameda, 768
F.3d 1037, 1044–45 (9th Cir. 2014), cert. denied, 575 U.S.
1034, 135 S. Ct. 2348, 192 L. Ed. 2d 160 (2015).
Here, assuming there is a common regulatory scheme,14
to the extent that the marketing restriction results in
disparate treatment, we conclude that the restriction
is not in ‘‘substantial conflict’’ with the common regula-
tory scheme. To establish this common regulatory
scheme, the plaintiffs point to a Federal Trade Commis-
sion guideline, which provides in relevant part that ‘‘[a]
marketer should not make unqualified renewable
energy claims, directly or by implication, if fossil fuel,
or electricity derived from fossil fuel, is used to manu-
facture any part of the advertised item or is used to
power any part of the advertised service, unless the
marketer has matched such non-renewable energy use
with renewable energy certificates.’’ (Emphasis added.)
16 C.F.R. § 260.15 (a) (2022); see also United States
Environmental Protection Agency, supra. Although not
referenced by the plaintiffs, the first sentence of subsec-
tion (a) of 16 C.F.R. § 260.15 provides that ‘‘[i]t is decep-
tive to misrepresent, directly or by implication, that a
product or package is made with renewable energy or
that a service uses renewable energy.’’ Thus, although
it is deceptive to misrepresent that a product contains
renewable energy and that RECs may be used to support
a claim that a product contains ‘‘renewable energy,’’
there is nothing in this guidance that would prohibit a
state from requiring more stringent marketing guide-
lines on what constitutes ‘‘renewable energy.’’ Requir-
ing that a VRO product be supported by an ownership
interest in or a power purchase agreement for a renew-
able resource to qualify as ‘‘renewable energy’’ does
not substantially conflict with 16 C.F.R. § 260.15 (a)
because nothing in that section forbids a state from
enacting more rigorous marketing requirements. In
other words, to the extent necessary, the plaintiffs can
comply with both the Federal Trade Commission’s
guideline and the marketing restriction. Thus, there is
no ‘‘actual conflict’’ with this guideline. National Elec-
trical Manufacturers Assn. v. Sorrell, supra, 272 F.3d
112.
The plaintiffs also rely on Vermont regulatory guid-
ance that provides that RECs are ‘‘what make solar a
green or renewable energy resource—they are . . . the
legal attribute of renewable energy. . . . The system
of tracking attributes via RECs is the only legal way of
characterizing the renewability of different sources of
electricity. . . . Whoever buys the RECs has paid an
extra cost to bring renewable energy to the grid and
has the only legal claim that their energy is renewable.’’15
(Internal quotation marks omitted.) Office of the Attor-
ney General, State of Vermont, Guidance for Third-Party
Solar Projects, p. 1, available at https://ago.vermont.gov/
sites/ago/files/wp-content/uploads/2018/01/Guidance-
on-Solar-Marketing.pdf (last visited June 26, 2023). This
guidance, however, applies only to third-party solar
project installers. There is nothing to indicate a similar
guidance for electric suppliers. See id., pp. 1–5. Indeed,
because Vermont is the only New England state that
did not restructure its electricity market, it does not
allow retail competition. See United States Energy
Information Administration, Vermont State Profile and
Energy Estimates (last modified October 20, 2022),
available at https://www.eia.gov/state/analysis.php?sid=VT
(last visited June 26, 2023). As a result, Vermont does
not even have a retail energy market or electric suppli-
ers, and the guidance provided to third-party solar proj-
ect installers cannot conflict with PURA’s marketing
restriction for electric suppliers. Moreover, even if
PURA’s marketing restriction differs from this guid-
ance, the plaintiffs are still able to conduct business in
Connecticut and Vermont. The plaintiffs concede as
much. PURA’s marketing restriction applies only to
marketing material within this state; electric suppliers
are free to market their REC backed VRO products as
‘‘renewable energy’’ to the extent permitted in Vermont,
or any other jurisdiction. Thus, as with the Federal
Trade Commission’s guideline, we conclude that there
is no ‘‘actual conflict’’ with this guidance. See National
Electrical Manufacturers Assn. v. Sorrell, supra, 272
F.3d 112.
In sum, even if the marketing restriction differs from
marketing requirements in other states, it does not vio-
late the Pike balancing test because it has no impact
on other states’ marketing regulations and does not
actually conflict with the implementation of other
states’ regulations. The dormant aspect of the com-
merce clause does not require that all states treat regula-
tions uniformly, even when there is a common
regulatory scheme. Cf. id., 113 (‘‘[t]he idea that there
is a general interest in [regulatory] uniformity is incon-
sistent with our [society’s] decision to have separate
states with separate legislative competencies, including
separate competences to regulate commerce’’ (internal
quotation marks omitted)).
We also conclude that any burden imposed by the
marketing restriction on interstate commerce is not
‘‘clearly excessive in relation to the putative local bene-
fits.’’ Pike v. Bruce Church, Inc., supra, 397 U.S. 142.
In its final decision, PURA explained the marketing
restriction’s local benefits—namely, to improve con-
sumer transparency and further this state’s clean energy
goals. Specifically, PURA explained: ‘‘[PURA] is well
aware from its years of customer education and interac-
tions that customers do not understand the concept of
a REC. When customers are told they are purchasing
renewable energy, they think they are purchasing
renewable energy. They are not. They are purchasing
a certificate, which purchase provides additional reve-
nue to facilities providing renewable generation, both
incentivizing more construction of renewable sources
and providing financial assistance to those sources.
This is a complex transaction that is being oversimpli-
fied by stating that the customer is purchasing renew-
able energy. . . . It is inconceivable to [PURA] that
the [electric suppliers] are arguing that they should
continue perpetuating the inaccuracy. The suppliers’
arguments equate to saying, if [PURA] explains the pro-
cess to customers, then customers will not understand
it. [PURA] does not believe this is true. Customers not
only can understand what they are purchasing, but they
must. If Connecticut is going to meet its clean energy
goals, then customers have the right to understand that
their purchase[s] of local RECs now subsidize those
renewable generation sources and support Connecti-
cut’s clean energy goals.’’ These goals are similar to
those that animated PURA’s initial development of the
disclosure label in 2008. See General Statutes (Rev. to
2019) § 16-245o; General Statutes § 16-245p. The Office
of Consumer Counsel shares PURA’s position on the
need for the marketing restriction. Namely, it argues
that ‘‘Connecticut has a substantial interest in ensuring
that consumers understand RECs and how locally
sourced RECs foment forward momentum in achieving
the state’s goals related to renewable energy deploy-
ment and carbon reduction.’’
Apart from asserting that the marketing restriction
is inconsistent with the aforementioned regulations, the
plaintiffs do not clearly articulate the purported burden
it imposes on interstate commerce. Rather, they assert
that ‘‘[t]here is no genuine dispute that the burden is
high.’’ Without explication from the plaintiffs on this
point, the only burden this court can conceive of is an
increased financial burden to market their VRO prod-
ucts differently in Connecticut.16 This was the plaintiffs’
argument before the trial court—that the marketing
restriction would require them to ‘‘bear some additional
costs when they market their VRO products in Connecti-
cut because their marketing materials will have to be
modified relative to what other New England states
require.’’ The plaintiffs do not claim that the marketing
restriction would prohibit them from doing business in
other states. We cannot conclude that whatever inciden-
tal expense electric suppliers may incur as a result of
the need for different marketing materials outweighs
the putative benefits of increased consumer transpar-
ency and furthering this state’s clean energy goals. See,
e.g., National Pork Producers Council v. Ross, supra,
143 S. Ct. 1154 (rejecting argument that California’s
Proposition 12 is per se violation of dormant commerce
clause because law ‘‘will impose substantial new costs
on out-of-state pork producers who wish to sell their
products in California’’); Procter & Gamble Co. v. Chi-
cago, supra, 509 F.2d 77 (noting that ordinance was
‘‘not a burden on interstate commerce . . . but [was]
merely a ‘burden’ on a company [that] happens to have
interstate distribution facilities’’). Accordingly, we con-
clude that the marketing restriction passes constitu-
tional muster under the more permissive Pike balancing
test. See National Electrical Manufacturers Assn. v.
Sorrell, supra, 272 F.3d 112 (rejecting argument that
state’s labeling requirement unduly burdened ‘‘inter-
state commerce by exposing [certain manufacturers]
to the possibility of multiple, inconsistent labeling require-
ments imposed by other states’’ because ‘‘[i]t is not
enough to point to a risk of conflicting regulatory
regimes in multiple states; there must be an actual con-
flict between the challenged regulation and those in
place in other states’’).
 II
FREE SPEECH AND CONTRACT CLAUSE CLAIMS
The plaintiffs raise two additional constitutional claims.
First, they contend that the marketing restriction, which
prohibits electric suppliers from marketing REC only
VROs as containing ‘‘renewable energy,’’ violates their
right to free speech under the United States constitution
and the Connecticut constitution. Second, they claim
that the final decision violates their right to freely con-
tract as guaranteed by the United States constitution
because some of the contracts they have with Connecti-
cut consumers include automatic renewal provisions
and the restrictions will disrupt the current expecta-
tions and obligations of both customers and suppliers
under these contracts. PURA contends that the plain-
tiffs both waived and failed to exhaust their administra-
tive remedies with respect to their free speech and
contract clause claims. Specifically, PURA contends
that, because the plaintiffs had every opportunity to
participate in the contested case and chose not to raise
these claims at that time, the plaintiffs failed to exhaust
their administrative remedies, and the trial court thus
lacked jurisdiction over the claims. Alternatively, PURA
contends that the trial court correctly concluded that
the plaintiffs waived their free speech and contract
clause claims for the same reason. Finally, PURA con-
tends that the plaintiffs’ claims would fail on the merits.
The trial court correctly noted that the plaintiffs did
not raise their free speech or contract clause claims
during the administrative proceedings before PURA.
The court went on to consider whether the plaintiffs’
failure to raise a particular argument before PURA con-
stituted a failure to exhaust administrative remedies or
was more akin to a failure to preserve an issue for
appellate review. The former is jurisdictional, whereas
the latter is prudential. The trial court surveyed various
cases from this court and the Appellate Court and con-
cluded that, although no case squarely addressed the
question, the cases ‘‘strongly imply that a failure to
assert a particular argument before an administrative
tribunal implicates the waiver doctrine, not the exhaus-
tion of administrative remedies doctrine.’’17 The court
next considered whether it would have been futile for
the plaintiffs to raise their claims before PURA. If so, it
would follow that they did not waive their constitutional
claims by failing to assert them during the administra-
tive proceeding. The court ultimately concluded that it
would not have been futile for the plaintiffs to raise
their free speech and contract clause claims before
PURA, and, thus, the plaintiffs waived these claims.
Because the exhaustion of administrative remedies
doctrine implicates this court’s subject matter jurisdic-
tion, we must first decide whether the failure to raise
a claim before an administrative agency implicates the
exhaustion doctrine. See, e.g., Stepney, LLC v. Fair-
field, 263 Conn. 558, 563, 821 A.2d 725 (2003). ‘‘The
doctrine of exhaustion of administrative remedies is
well established in the jurisprudence of administrative
law. . . . Under that doctrine, a trial court lacks sub-
ject matter jurisdiction over an action that seeks a rem-
edy that could be provided through an administrative
proceeding, unless and until that remedy has been
sought in the administrative forum. . . . In the absence
of exhaustion of that remedy, the action must be dis-
missed.’’ (Citation omitted; internal quotation marks
omitted.) Piteau v. Board of Education, 300 Conn. 667,
678, 15 A.3d 1067 (2011).
‘‘A primary purpose of the doctrine is to foster an
orderly process of administrative adjudication and judi-
cial review, offering a reviewing court the benefit of
the agency’s findings and conclusions. It relieves courts
of the burden of prematurely deciding questions that,
entrusted to an agency, may receive a satisfactory
administrative disposition and avoid the need for judi-
cial review. . . . Moreover, the exhaustion doctrine
recognizes the notion, grounded in deference to [the
legislature’s] delegation of authority to coordinate branches
of [g]overnment, that agencies, not the courts, ought
to have primary responsibility for the programs that
[the legislature] has charged them to administer. . . .
Therefore, exhaustion of remedies serves dual func-
tions: it protects the courts from becoming unnecessar-
ily burdened with administrative appeals and it ensures
the integrity of the agency’s role in administering its
statutory responsibilities.’’ (Citations omitted; internal
quotation marks omitted.) Stepney, LLC v. Fairfield,
supra, 263 Conn. 564–65.
Typically, courts apply the exhaustion of administra-
tive remedies doctrine when a party has completely
bypassed an available administrative process. See, e.g.,
id., 559, 561–63 (direct action against town challenging
enforcement of health ordinance was dismissed because
plaintiff failed to exhaust administrative remedy before
state board of health). On the other hand, when a party
has availed itself of the administrative proceeding but
seeks to raise new claims for the first time on appeal,
this court generally applies the nonjurisdictional princi-
ple that an appellate tribunal is not required to consider
a claim unless it was distinctly raised during the admin-
istrative proceeding. See, e.g., Ferraro v. Ridgefield
European Motors, Inc., 313 Conn. 735, 759, 99 A.3d
1114 (2014); Dragan v. Connecticut Medical Examin-
ing Board, 223 Conn. 618, 632, 613 A.2d 739 (1992). We
recently explained the distinction between the exhaus-
tion doctrine and the failure to preserve in the context
of an administrative appeal. In Board of Education v.
Commission on Human Rights & Opportunities, 344
Conn. 603, 280 A.3d 424 (2022), we explained that ‘‘there
is a difference between bypassing an administrative
procedure on the ground that the agency has no jurisdic-
tion over the matter, which raises an exhaustion issue,
and failing, within the context of an administrative pro-
ceeding, to preserve for review a claim that the agency
has no jurisdiction. When a party has failed to preserve
a claim before an administrative agency, the exhaus-
tion doctrine does not apply; instead, we apply the
ordinary rules governing appellate review of unpre-
served claims.’’ (Emphasis added.) Id., 622–23.
Here, the plaintiffs did not entirely bypass the admin-
istrative proceedings before PURA; rather, they failed
to raise their free speech and contract clause claims
before the agency. Accordingly, we conclude that the
plaintiffs’ failure to raise these claims during the admin-
istrative proceedings before PURA does not constitute
a failure to exhaust administrative remedies. Neverthe-
less, we must determine, as a prudential consideration,
whether we should decline to address these claims on
the merits because they were not adequately preserved
for appellate review.
Practice Book § 60-5 provides in relevant part that
‘‘[t]he court shall not be bound to consider a claim
unless it was distinctly raised at the trial or arose subse-
quent to the trial.’’ ‘‘Indeed, it is the appellant’s responsi-
bility to present such a claim clearly to the trial court
so that the trial court may consider it and, if it is merito-
rious, take appropriate action. That is the basis for the
requirement that ordinarily [the appellant] must raise
in the trial court the issues that he intends to raise on
appeal. . . . This rule applies to appeals from adminis-
trative proceedings as well.’’ (Citation omitted; internal
quotation marks omitted.) Ferraro v. Ridgefield Euro-
pean Motors, Inc., supra, 313 Conn. 759. ‘‘A party to an
administrative proceeding cannot be allowed to partici-
pate fully at hearings and then, on appeal, raise claims
that were not asserted before the board [or agency].’’
Dragan v. Connecticut Medical Examining Board,
supra, 223 Conn. 632. ‘‘[T]o allow a court to set aside
an agency’s determination [on] a ground not theretofore
presented . . . deprives the [agency] of an opportunity
to consider the matter, make its ruling, and state the
reasons for its action.’’ (Internal quotation marks omit-
ted.) Burnham v. Administrator, Unemployment Com-
pensation Act, 184 Conn. 317, 323, 439 A.2d 1008 (1981).
Although the plaintiffs raised their dormant com-
merce clause claims before PURA, they failed to raise
their free speech and contract clause claims before the
agency. The plaintiffs’ failure deprived PURA of the
opportunity to consider the claims while developing its
final decision. PURA is a sophisticated state agency
with technical expertise in energy regulations. Had the
plaintiffs raised these claims before PURA, the agency
may have decided not to adopt the proposed rules or
to change the proposed rules to account for any objec-
tion it concluded was meritorious. It may not have. But
PURA was not afforded the opportunity to consider its
proposed final decision in light of these claims. More-
over, because these claims were not raised during the
administrative proceedings, the parties were unable to
develop a record regarding these claims. In particular,
there is no record regarding the contracts between the
energy suppliers and customers, which the plaintiffs
contend were infringed by the restrictions. No such
contracts were entered into the record. Accordingly,
we decline to consider the merits of these claims.
The plaintiffs argue, however, that we should review
their claims because they are constitutional in nature
and PURA did not have the authority to decide the
claims.18 We are not persuaded. Although, as we pre-
viously explained, the plaintiffs’ failure to raise these
claims before PURA does not implicate the exhaustion
of administrative remedies doctrine, we find the case
law surrounding an exception to the exhaustion doc-
trine instructive in this context. Relevant to this case,
there is an exception to the requirement that a party
exhaust its administrative remedies when ‘‘recourse to
the administrative remedy would be futile or inade-
quate.’’ (Internal quotation marks omitted.) Stepney,
LLC v. Fairfield, supra, 263 Conn. 565. The plaintiffs
essentially argue that it would have been futile to raise
these claims before PURA because they are constitu-
tional in nature. We have explained that ‘‘[t]he mere
allegation of a constitutional violation’’ is not enough to
excuse a plaintiff from raising the alleged constitutional
violation before an administrative agency. (Internal
quotation marks omitted.) Id., 570. Litigants are excused
from raising constitutional claims when it ‘‘would be
futile because the administrative agency . . . lacks the
authority to grant adequate relief.’’ Id.; see also, e.g.,
Payne v. Fairfield Hills Hospital, 215 Conn. 675, 680
n.3, 578 A.2d 1025 (1990). If the agency can afford ade-
quate relief, ‘‘constitutional and statutory rights . . .
can be waived if not asserted in a timely fashion’’ before
the agency in the administrative proceeding. Dragan
v. Connecticut Medical Examining Board, supra, 223
Conn. 629. The futility exception is typically satisfied
when the case ‘‘involves a challenge to the constitution-
ality of the statute or regulation under which an agency
operates,’’ because administrative agencies do not have
the authority to declare statutes unconstitutional. (Internal
quotation marks omitted.) Stepney, LLC v. Fairfield,
supra, 570. It is not futile to raise a constitutional claim,
however, when, as here, the case challenges ‘‘the
actions of the board or agency.’’ (Internal quotation
marks omitted.) Id. This is because the agency has the
authority to cure any potential constitutional defect
with its proposed regulations or, in response to those
claims, to abandon the proposed regulatory changes
altogether if they cannot be modified to address the
potential constitutional defect. Thus, we are not per-
suaded that it would have been futile for the plaintiffs
to raise these claims before PURA.
 III
UAPA CLAIM
Finally, we turn to the plaintiffs’ contention that
PURA failed to satisfy the procedural requirements of
the UAPA. More specifically, the plaintiffs contend that
PURA violated the UAPA by (1) relying on ‘‘nonevi-
dence’’ to support its findings and conclusions, and (2)
failing to make the parties aware of the information on
which it would rely to support its final decision. As to
the first asserted violation, the plaintiffs argue that
PURA improperly relied on comments from the Office
of Consumer Counsel, which stated that its ‘‘past inter-
action with consumers reveals that many have ex-
pressed confusion about the VRO program,’’ and on
comments submitted by the Department of Energy and
Environmental Protection (DEEP), which stated that
‘‘the majority of VRO RECs offered in Connecticut are
sourced from outside New England, and their purchase
by Connecticut customers does not effectively further
Connecticut’s public policy goals and may not align
with customers’ intent when choosing electric supply
options beyond the RPS.’’ (Internal quotation marks
omitted.) The plaintiffs argue that it was improper for
PURA to have relied on these comments because no
witness testified in support of these comments, and,
therefore, the electric suppliers had no opportunity to
cross-examine their veracity and accuracy, as required
by the UAPA. As to the second asserted violation, the
plaintiffs argue that PURA based its geographic restric-
tion on information about prevailing wind patterns and
a University of Connecticut climate overview. The plain-
tiffs argue that this information was not admitted into
the evidentiary record and, as with the unsworn com-
ments, therefore was not subject to challenge.
PURA disagrees and contends that the plaintiffs
received full due process under the UAPA. Specifically,
PURA emphasizes that it issued three notices requesting
written comment, admitted sixty-five entities as parties
to the proceeding, gathered data by way of interrogato-
ries to the electric distribution companies and electric
suppliers, held both a technical meeting and an eviden-
tiary hearing that the plaintiffs did not attend, received
written exceptions, and conducted oral argument. As
to the plaintiffs’ specific claims, PURA contends that
the geographic restriction did not arise from DEEP’s
comments or the University of Connecticut climate
overview. Rather, it was initially proposed by three
parties to the contested case in response to PURA’s
first request for written comments. PURA thereafter
incorporated the joint proposal into a straw man pro-
posal in its second notice of request for written com-
ments. At a subsequent hearing, a witness on behalf of
two of the entities who proposed the restriction testified
in support of the proposal. The witness testified that
Connecticut is a tailpipe state, that Connecticut is sub-
ject to pollution coming downwind from the west, and
that supporting renewable projects in Pennsylvania
does more to clean up Connecticut’s air than far-flung
renewable projects such as those in Canada. As a result,
PURA contends that the geographic restriction ‘‘devel-
oped in plain sight.’’ PURA also notes that Connecticut’s
status as a tailpipe state was not newly established in
this proceeding; rather, PURA had previously reached
this conclusion one decade earlier in a separate, con-
tested case. PURA contends that it may properly rely
on facts known to it even if they are not presented at the
hearing. Finally, PURA rejects the plaintiffs’ argument
regarding the comments from the Office of Consumer
Counsel because (1) PURA did not have to establish
that consumer confusion existed in order to modify
the disclosure label, (2) even if evidence of consumer
confusion was required, it existed in the record on the
basis of PURA’s review of the disclosure labels used
by electric suppliers, and (3) the plaintiffs cannot argue
that they were unable to cross-examine a witness at the
hearing because the plaintiffs did not attend the hearing.
Relevant to this appeal, the UAPA provides: ‘‘(a) In
a contested case, each party and the agency conducting
the proceeding shall be afforded the opportunity (1) to
inspect and copy relevant and material records, papers
and documents not in the possession of the party or
such agency, except as otherwise provided by federal
law or any other provision of the general statutes, and
(2) at a hearing, to respond, to cross-examine other
parties, intervenors, and witnesses, and to present evi-
dence and argument on all issues involved.
‘‘(b) Persons not named as parties or intervenors
may, in the discretion of the presiding officer, be given
an opportunity to present oral or written statements.
The presiding officer may require any such statement
to be given under oath or affirmation.’’ General Statutes
§ 4-177c.
Additionally, we have explained that the conduct of
an administrative hearing ‘‘shall not violate the funda-
mentals of natural justice. . . . Fundamentals of natu-
ral justice require that there . . . be due notice of the
hearing, and at the hearing no one may be deprived
of the right to produce relevant evidence or to cross-
examine witnesses produced by his adversary . . . .
Put differently, [d]ue process of law requires that the
parties involved have an opportunity to know the facts
on which the commission is asked to act . . . and to
offer rebuttal evidence. . . . The purpose of adminis-
trative notice requirements is to allow parties to prepare
intelligently for the hearing.’’ (Citations omitted; inter-
nal quotation marks omitted.) Grimes v. Conservation
Commission, 243 Conn. 266, 273–74, 703 A.2d 101
(1997). ‘‘[Section 4-183 (j)] permits modification or
reversal of an agency’s decision if substantial rights of
the appellant have been prejudiced because the admin-
istrative findings, inferences, conclusions, or decisions
are: (1) [i]n violation of constitutional or statutory provi-
sions; (2) in excess of the statutory authority of the
agency; (3) made upon unlawful procedure; (4) affected
by other error or law; (5) clearly erroneous in view of
the reliable, probative, and substantial evidence on the
whole record; or (6) arbitrary or capricious or charac-
terized by abuse of discretion or clearly unwarranted
exercise of discretion.’’ (Internal quotation marks omit-
ted.) Tele Tech of Connecticut Corp. v. Dept. of Public
Utility Control, supra, 270 Conn. 787; accord General
Statutes § 4-183 (j). We have stated, however, that ‘‘not
all procedural irregularities require a reviewing court
to set aside an administrative decision . . . .’’ (Internal
quotation marks omitted.) Jutkowitz v. Dept. of Health
Services, 220 Conn. 86, 97, 596 A.2d 374 (1991). ‘‘The
complaining party has the burden of demonstrating that
its substantial rights were prejudiced by the error.’’ Tele
Tech of Connecticut Corp. v. Dept. of Public Utility
Control, supra, 788.
On the basis of our examination of the record and
the briefs, and our consideration of the arguments of the
parties, we conclude that the plaintiffs cannot prevail
on their procedural claims. Specifically, as to the com-
ments from the Office of Consumer Counsel and DEEP,
we agree with the trial court that, given that each state-
ment was submitted prior to the hearing, the plaintiffs
could have asked, but did not ask, that those statements
be offered by a witness at the hearing. The plaintiffs
also failed to raise any objection regarding these com-
ments at the hearing. Additionally, the plaintiffs could
have provided evidence to rebut these statements at
the hearing but did not do so. As to the plaintiffs’ con-
tention that they were not aware of certain information
on which PURA would rely, we emphasize that PURA
should have disclosed that it intended to take notice
of scientific facts within the agency’s specialized knowl-
edge. See General Statutes § 4-178 (7). However, we
agree with the trial court that, in addition to the Univer-
sity of Connecticut climate overview, PURA also relied
on the testimony of Maddox, who testified that Connect-
icut is a tailpipe state and as to the implications of that
fact. PURA also relied on its own decisions in prior
cases, which also established that Connecticut is a tail-
pipe state. We find it significant that the plaintiffs had
the opportunity to respond to Maddox’ testimony and
to cross-examine him. We also find it significant that
the plaintiffs had the opportunity to respond to PURA’s
final decision, which included the challenged factual
finding and which referenced PURA’s earlier decisions
in which it reached the same conclusion. Accordingly,
we agree with the trial court that, under these circum-
stances, we ‘‘cannot conclude that the plaintiffs have
satisfied their burden of showing that PURA violated
their procedural rights under the UAPA or the common
law. Nor can [we] conclude that any violation caused
. . . prejudice [to the plaintiffs’ substantial rights].’’
CONCLUSION
The trial court correctly determined that the geo-
graphic and marketing restrictions do not violate the
dormant commerce clause. Specifically, as to the geo-
graphic restriction, analyzed under the framework set
forth in the Second Circuit’s Allco decision, we conclude
that the Connecticut market should be given controlling
significance. We also conclude that any burden imposed
by either the geographic restriction or the marketing
restriction is not ‘‘clearly excessive in relation to the
putative local benefits’’ and, therefore, passes the more
permissive Pike test. See Pike v. Bruce Church, Inc.,
supra, 397 U.S. 142. We also decline to consider the
plaintiffs’ free speech and contract clause claims be-
cause they were not raised before PURA during the
administrative proceedings. Finally, we conclude that
the plaintiffs failed to satisfy their burden of showing
that PURA violated their procedural rights under the
UAPA or that any violation caused prejudice to their
substantial rights.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The Office of Consumer Counsel and the Department of Energy and
Environmental Protection each filed a motion to intervene as a defendant,
which the trial court granted.
2
Specifically, the plaintiffs consist of several retail electric suppliers cur-
rently licensed to do business in this state: Direct Energy Services, LLC;
Direct Energy Business, LLC; Direct Energy Business Marketing, LLC; and
CleanChoice Energy, Inc. An electric supplier trade group, the Retail Energy
Supply Association, also participated in the administrative appeal but did
not participate in this appeal.
3
The Office of Consumer Counsel filed a brief in this appeal and largely
makes the same arguments and takes the same position as PURA. The Office
of Consumer Counsel is an independent government agency designated by
statute as the advocate for all consumers of the state’s regulated electric,
natural gas, water, and telecommunications utilities, as well as the customers
of electric suppliers. See General Statutes § 16-2a (a). The Office of Con-
sumer Counsel is an automatically designated statutory party to any con-
tested case initiated by PURA, and it participates in contested cases to
advocate for the interests of Connecticut consumers. See General Statutes
§ 16-2a (a).
4
Although § 16-245a has been amended since the events at issue in this
appeal; see Public Acts 2022, No. 22-118, § 163; those amendments have no
bearing on the merits of this appeal. In the interest of simplicity, we refer
to the current revision of § 16-245a.
5
NEPOOL GIS ‘‘issues and tracks [RECs] for all [megawatt-hours] of
generation and load produced in the [ISO-NE] control area, as well as
imported [megawatt-hours] from adjacent control areas. In addition to the
generation, the NEPOOL GIS provides emissions labeling for the New
England load-serving entities by tracking the emissions attributes for genera-
tors in the region. In recent years the NEPOOL GIS has adapted to the
various state RPS laws to track combined heat and power, demand response
and conservation and load management certificates.’’ NEPOOL Generation
Information System, available at https://nepoolgis.com (last visited June
26, 2023).
6
In its decision, PURA also imposed other requirements for VRO products,
including a resource type restriction, which imposed restrictions on the
types of renewable energy sources that suppliers could rely on when selling
VROs in this state. These other requirements, however, are not at issue in
this appeal.
7
‘‘A power purchase agreement is a long-term agreement to buy power
from a company that produces electricity.’’ (Internal quotation marks omit-
ted.) E. Rietmann, Comment, ‘‘Alternative Solutions to Power Oversupply
in the Pacific Northwest,’’ 45 Envtl. L. 207, 228 n.191 (2015).
8
Vistra Corporation, the parent company for certain Connecticut licensed
electric suppliers, filed an amicus curiae brief in support of the plaintiffs’
dormant commerce clause claims. It generally agrees with the arguments
raised by the plaintiffs and emphasizes that ‘‘the marketing restriction and
geographic restriction will harm Connecticut customers and the state’s
renewable energy goals by driving up prices, increasing customer confusion,
and lowering demand without incentivizing new development.’’
9
PURA also contends that the plaintiffs’ dormant commerce clause claims
fail as a facial challenge because the plaintiffs have not identified any in-
state suppliers with which they compete, the geographic restriction does
not treat out-of-state suppliers differently, and the geographic restriction
does not reflect economic protectionism. Because we conclude that the Pike
balancing test is the proper analysis, we need not address these contentions.
10
The trial court similarly concluded that the Allco analysis ‘‘point[ed] the
court in the direction of the Pike test.’’ Exhibiting commendable candor,
the court acknowledged ‘‘that it . . . reached that conclusion without the
highest level of confidence’’ given that ‘‘[t]he answer is hardly obvious, the
relevant case law is less than a model of clarity, and the deeply technical
nature of this case adds its own challenges.’’ The trial court’s uncertainty
in this area reflects the fact that ‘‘the United States Supreme Court’s dormant
commerce clause jurisprudence is less than a model of clarity . . . .’’ MER-
SCORP Holdings, Inc. v. Malloy, 320 Conn. 448, 472, 131 A.3d 220, cert.
denied, 580 U.S. 959, 137 S. Ct. 372, 196 L. Ed. 2d 291 (2016); see also
Comptroller of the Treasury v. Wynne, 575 U.S. 542, 574, 135 S. Ct. 1787,
191 L. Ed. 2d 813 (2015) (Scalia, J., dissenting) (‘‘One glaring defect of the
negative [c]ommerce [c]lause is its lack of governing principle. Neither the
[c]onstitution nor our legal traditions offer guidance about how to separate
improper state interference with commerce from permissible state taxation
or regulation of commerce. So we must make the rules up as we go along.
That is how we ended up with the bestiary of ad hoc tests and ad hoc
exceptions that we apply nowadays . . . .’’ (Citations omitted.)). Indeed,
the United States Supreme Court’s recent case addressing the dormant
commerce clause—which is comprised of five separate opinions—only adds
to the murky state of the law. See National Pork Producers Council v. Ross,
supra, 143 S. Ct. 1142.
11
PURA contends that the plaintiffs have not identified any in-state suppli-
ers with which they compete, and, therefore, their dormant commerce clause
claim fails. The plaintiffs contend that the geographic restriction constitutes
facial discrimination because electric suppliers are denied access to RECs
from generators outside of the permitted control area to serve their Connecti-
cut customers. As we explained, because we conclude that the plaintiffs’
claim fails even applying the Pike balancing test, we need not address this
contention. See footnote 9 of this opinion.
12
PURA noted in its final decision that ‘‘[General Statutes] § 22a-200a
requires Connecticut to reduce statewide greenhouse gas emissions to 80
percent below 2001 levels by 2050. Additionally, in Executive Order No.
3, Governor [Ned] Lamont has directed [the Department of Energy and
Environmental Protection], in consultation with PURA, to analyze and rec-
ommend strategies for achieving a 100 [percent] zero carbon target for the
electric sector by 2040. . . . These are ambitious goals and meeting them
requires [PURA] to revisit its policies surrounding . . . VROs to ensure
these offerings contribute to the goals.’’ (Citation omitted; internal quotation
marks omitted.)
13
We note that the geographic restriction for the RPS is more restrictive
than the geographic restriction for the VRO program. RECs for the RPS
must be sourced from either ISO-NE or an immediately adjacent control
area; see Allco Finance Ltd. v. Klee, supra, 861 F.3d 93; accord General
Statutes § 16-245a (b); whereas RECs for the VRO program may be sourced
from ISO-NE, NYISO, or PJM.
14
The trial court concluded that there was no such common regulatory
scheme sufficient to create a dormant commerce clause issue. The court
reasoned that to accept the plaintiffs’ argument ‘‘would mean that, if just
a few states adopt a particular marketing requirement for a product, any
state that subsequently decides to adopt a different marketing requirement
for the product may not do so lest it violate the dormant commerce clause.’’
The Office of Consumer Counsel agrees that the plaintiffs failed to demon-
strate that a common regulatory scheme exists.
15
The plaintiffs also point to Maine and New Hampshire as allowing RECs
to be used to substantiate renewable energy marketing claims. See N.H.
Rev. Stat. Ann. § 374-F:3 (V) (f) (4) (Cum. Supp. 2019); 65-407-305 Me. Code
R. § 4 (A) (7) (2022). It is true that these states allow for the use of RECs
to satisfy renewable energy backed programs. The New Hampshire statute,
however, does not relate to the marketing of such products. Moreover, to
the extent PURA’s marketing restriction differs from those of Maine and New
Hampshire, the plaintiffs are still able to conduct business in Connecticut
and Maine and New Hampshire. That the suppliers may incur some marginal
additional cost in creating different marketing materials does not rise to
the level of a dormant commerce clause violation. See, e.g., Procter &
Gamble Co. v. Chicago, supra, 509 F.2d 77.
16
The amicus argues that the marketing restriction will burden electric
suppliers because they will be forced to ‘‘either own or enter into a [power
purchase agreement] with a renewable generator to be allowed to market
a ‘renewable energy’ product.’’ The amicus argues that power purchase
agreements are not suitable in the supplier context because ‘‘hedges and
internal efficiencies allow suppliers to gain a competitive edge over utilities
as they serve . . . customer contracts [that are much shorter in duration,
typically six to twenty-four months]. . . . A supplier entering into a [power
purchase agreement] would need to raise its prices to hedge against the
risks of a long-term contract.’’ There is nothing in the record, and the amicus
does not explain, precisely what increased financial burden this would place
on electric suppliers. Moreover, electric suppliers do not necessarily have
to enter into a power purchase agreement; they may choose to market their
[REC only] VRO products in conformity with the marketing restriction.
Accordingly, we cannot conclude that this burden is ‘‘clearly excessive in
relation to the putative local benefits.’’ Pike v. Bruce Church, Inc., supra,
397 U.S. 142.
17
The trial court noted that two Superior Court decisions have addressed
this issue and that one determined that the waiver rule applied and the other
determined that the exhaustion doctrine applied. See Aronow v. Freedom
of Information Commission, Docket No. HHB-CV-XX-XXXXXXX-S, 2018 WL
650381, *3 (Conn. Super. January 5, 2018) (party’s failure to raise particular
claim before Freedom of Information Commission constituted failure to
exhaust administrative remedy, requiring dismissal of that claim), rev’d in
part on other grounds, 189 Conn. App. 842, 209 A.3d 695 (2019), cert. denied,
332 Conn. 910, 210 A.3d 566 (2019); Gerlt v. South Windsor Planning &
Zoning Commission, Superior Court, judicial district of New Britain, Com-
plex Litigation Docket, Docket No. X03-HHB-CV-XX-XXXXXXX-S (April 6, 2005)
(39 Conn. L. Rptr. 61, 63) (rejecting argument that failure to raise claim
before planning and zoning commission constituted failure to exhaust admin-
istrative remedies).
18
We note that the plaintiffs did, however, raise their constitutional dor-
mant commerce clause claims before PURA.