Public Service v. NH Consumer Advocate

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

Nos. 97-1759 97-1780
97-1760 97-1805
97-1761 97-1995
97-1762 97-1996
97-1763 97-1997
97-1773 97-2070

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, ET AL.,

Plaintiffs, Appellees,

v.

DOUGLAS L. PATCH, IN HIS CAPACITY AS A MEMBER OF THE

NEW HAMPSHIRE PUBLIC UTILITIES COMMISSION, ET AL.,

Defendants, Appellees,

CABLETRON SYSTEMS, INC., ET AL.,

Applicants for Intervention, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Ronald R. Lagueux,* U.S. District Judge]

Before

Selya, Circuit Judge,

Campbell, Senior Circuit Judge,

and Tauro,** District Judge.

Steven S. Rosenthal, with whom Jeffery A. Tomasevich,

Morrison & Foerster, LLP, F. Anne Ross, F. Anne Ross, P.C., John

J. Ryan, Casassa and Ryan, Michael W. Holmes, James R.M.

Anderson, Peter H. Grills, David E. Crawford, O'Neill, Grills &

O'Neill, PLLP and Thomas I. Arnold III were on consolidated

brief, for all appellants.
Peter H. Grills, with whom David E. Crawford, O'Neill,

Grills & O'Neill, PLLP and Thomas I. Arnold III, Assistant City

Solicitor, were on brief, for appellant City of Manchester.
Philip T. McLaughlin and Martin P. Honigberg on brief for

the State of New Hampshire, amicus curiae.
Evelyn R. Robinson on brief for Ohio Consumers' Counsel and

National Ass'n of State Consumer Advocates, amici curiae.
Dennis Lane, with whom Michael E. Tucci and Morrison &

Hecker, LLP were on brief, for defendants-appellees.

Allan B. Taylor, with whom John B. Nolan, Gary M. Becker,

and Day, Berry & Howard were on brief, for plaintiffs-appellees.

February 3, 1998

*Of the District of Rhode Island, sitting by designation.
**Of the District of Massachusetts, sitting by designation.

SELYA, Circuit Judge. After the New Hampshire Public
SELYA, Circuit Judge.

Utilities Commission (PUC) formulated a plan to inject retail

competition into the New Hampshire electric power market, Public

Service Company of New Hampshire (PSNH) filed suit against the

PUC's members, seeking to block inauguration of the plan.

Several parties moved to intervene pursuant to Fed. R. Civ. P.

24. Not all succeeded. Six disappointed would-be intervenors

appeal from the denial of intervention.1 Finding no sign that

the district court abused its discretion, we affirm.

I. BACKGROUND
I. BACKGROUND

Two recent opinions of the court below thoroughly

recount the complicated background of this case. See Public

Serv. Co. v. Patch, 173 F.R.D. 17, 22-24 (D.N.H. 1997) (PSNH II);

Public Serv. Co. v. Patch, 962 F. Supp. 222, 225-29 (D.N.H. 1997)

(PSNH I). We draw heavily from those sources as we set the stage

for consideration of the instant appeals.

A. The Night the Lights (Almost) Went Out in New Hampshire.
A. The Night the Lights (Almost) Went Out in New Hampshire.

PSNH is New Hampshire's largest electric public utility

and supplies approximately 70% of the citizenry's power needs.

In the early 1970s, management predicted that rising energy

demands soon would outstrip PSNH's generating capabilities. To

ameliorate this bleak outlook, PSNH undertook to construct a

nuclear power plant in Seabrook, New Hampshire. Because state

law prevented it from factoring the plant's construction costs

1Three of the would-be intervenors also have attempted to
take protective appeals from other orders entered by the district
court. We deal with these additional appeals in Part V, infra.

3

into the rate structure until Seabrook became operational, PSNH

relied primarily on commercial financing to underwrite the

project. Regulatory reform and public opposition hindered

Seabrook's progress to the point where the facility became an

albatross wrapped snugly around PSNH's corporate neck.

Management's forecast that Seabrook would be on line in 1979

proved much too sanguine: construction of the plant's generating

unit was not completed until 1986, and even then, commercial

operation was infeasible.

As delays mounted, so too did PSNH's indebtedness. In

1988, PSNH no longer could service the debt and filed for

bankruptcy protection in the United States Bankruptcy Court for

the District of New Hampshire. The State of New Hampshire,

fearful that its residents might find themselves consigned to an

unusually rustic lifestyle, intervened in the insolvency

proceedings. The State's participation was essential to

resolving the bankruptcy: as a regulated utility, PSNH's value

depends on the rates that it can charge for electricity, and the

State sets those rates based on its calculation of the investment

that PSNH prudently devotes to the provision of electric service

(the so-called rate base).

In the end, PSNH's creditors and equity holders agreed

to place a $2.3 billion value on the utility a value

significantly higher than its pre-bankruptcy rate base.

Northeast Utilities (NU) then acquired all of PSNH's stock at the

capitalized price. As part and parcel of this transaction, the

4

State executed a rate agreement (the Agreement) designed to

permit NU to recoup its investment over time. To mitigate the

impact of this recoupment on ratepayers while still providing

meaningful financial relief to the rehabilitated bankrupt, the

Agreement preserved PSNH's status as an integrated electric

utility (i.e., one that engages in the generation, transmission,

and distribution of electric power) and promised annual 5.5%

electric rate increases for the next seven years.

The Agreement also made provision for the gradual

recovery of PSNH's Seabrook-related costs. It contemplated that

NU would take over the operation of Seabrook via a corporate

affiliate, North Atlantic Energy Corporation (NAEC), subject to a

stipulation, contained in the Agreement, that the State would

permit PSNH to buy Seabrook-generated power from NAEC at prices

sufficient to recover the portion of the rate base attributable

to Seabrook over a reasonable interval. Finally, to ensure the

eventual recovery of PSNH's entire capitalized value, the

Agreement allowed PSNH to designate some $400 million of the rate

base as "regulatory assets." Under this arrangement, these

regulatory assets (which in this case consisted mostly of

governmentally mandated purchase agreements with small power

producers) became eligible for amortization, albeit over a long

number of years (thus cushioning the impact on electric rates).

The bankruptcy court approved the Agreement, see In re

Public Serv. Co., 114 B.R. 820, 843 (Bankr. D.N.H. 1990); the New

Hampshire legislature authorized the PUC to review it, see N.H.

5

Rev. Stat. Ann. 362-C (1995); the PUC furnished its seal of

approval, see In re Northeast Utils./Public Serv. Co., 114

P.U.R.4th 385 (N.H.P.U.C. 1990); the New Hampshire Supreme Court

upheld the PUC's action, see Appeal of Richards, 590 A.2d 586

(N.H. 1991); and PSNH emerged from bankruptcy.

B. The Concord Tea Party.
B. The Concord Tea Party.

Due in part to the annual rate increases mandated by

the Agreement, New Hampshire consumers pay one of the highest

average electric rates in the nation. Predictable discontent

prompted the state legislature to enact the Electric Utility

Restructuring Act, N.H. Rev. Stat. Ann. 374-F:1 to F:6 (Supp.

1997), a statute designed to introduce retail competition into

the marketplace as a means of reducing electric rates. The

statute directed the PUC to develop and put into effect no later

than January 1, 1998, a restructuring plan for New Hampshire's

electric utility industry. See id. 374-F:4.

The PUC conducted hearings apace and issued its

restructuring plan (the Plan) on February 28, 1997. The Plan

provides that the PUC will continue to set all distribution

access rates. However, electric utilities must unbundle their

generation, transmission, and distribution services, as well as

open their distribution networks utility poles and wires to

all consumers on a nondiscriminatory basis. In theory,

unbundling will enable customers to select from a roster of power

generators whose rates will reflect market prices. And although

federal law requires that transmission tariffs remain the

6

province of the Federal Energy Regulatory Commission (FERC), the

Plan seeks to have the PUC exercise a modicum of control in this

area as well by directing utilities to obtain PUC approval of

proposed tariffs prior to effecting FERC filings. Finally, the

Plan imports a market domination deterrent, mandating that each

utility choose whether to operate as a power generator or power

distributor, and precluding utilities from continuing to act,

directly or indirectly, in both capacities. Utilities that

select the distribution pathway must divest all power generation

assets by December 31, 2000, and likewise must sever contractual

and corporate ties with utilities that offer competitive electric

service in the same territory. Similar restrictions apply to

utilities that select the generation pathway.

Two aspects of the PUC's edict are particularly

pertinent for purposes of the pending litigation. First, in

promulgating the Plan, the PUC declined to treat the Agreement as

a contract that constrained its actions. Second, a side effect

of the Plan's divestiture requirement is the creation of

"stranded costs." This phenomenon will occur because, under the

Plan's competitive market paradigm, the costs of certain asset

investments owned by an integrated utility will become

unrecoverable from ratepayers when the utility elects between the

distribution and generation routes. The Plan provides a

palliative in the form of interim and long-term stranded cost

recovery charges (SCRECHs). The PUC will assess each affected

utility's stranded costs and calculate an appropriate SCRECH for

7

inclusion in the rates set for access to the utility's

distribution network. SCRECHs ordinarily will be calculated by

means of a cost-of-service ratemaking methodology, but if the PUC

concludes that a utility's costs and rates exceed a "regional

average rate benchmark," then it may deny the utility full

recovery of its stranded costs. At present, PSNH's rates exceed

the regional average rate benchmark, and the PUC has ruled that

PSNH may not recover completely its stranded costs. Thus, PSNH

insists that introduction of the benchmark will require it to

write off the $400 million in regulatory assets and lead to

another bankruptcy.2

C. The Empire Strikes Back.
C. The Empire Strikes Back.

On March 3, 1997, PSNH, NU, and NAEC (collectively

"PSNH" or "the plaintiffs") filed suit in New Hampshire's federal

district court against the members of the PUC. Their amended

complaint limns a litany of federal preemption claims. These

include a claim premised on section 201(b) of the Federal Power

Act, 16 U.S.C. 824(b) (1994); a claim premised on sections 205

and 206 of the same statute, 16 U.S.C. 824(d), (e); a claim

premised on the filed rate doctrine, see, e.g., Boston Edison Co.

v. FERC, 856 F.2d 361, 369 (1st Cir. 1988) (discussing doctrine);

2On April 7, 1997, the PUC stayed implementation of portions
of the Plan to rehear whether the PSNH will in fact be forced to
write off the regulatory assets. The PUC at the same time
announced its intention to revisit the question of whether the
Plan repudiates an enforceable obligation of the State (i.e., the
Agreement). These developments clearly bear upon certain
contested issues in the underlying case (e.g., ripeness and
abstention), but they do not possess great significance vis- -vis
the question of intervention.

8

a claim premised on section 201 of the Public Utility Regulatory

Policies Act of 1978, Pub. L. No. 95-617, 92 Stat. 3117 (codified

as amended in scattered sections of 15 and 16 U.S.C.); and a

claim premised on the Public Utility Holding Companies Act, 15

U.S.C. 79 to 79z-6 (1994). The complaint also includes

several constitutional claims, including three separate theories

under which the PUC's orders allegedly work an unlawful taking; a

Commerce Clause claim to the effect that the PUC is attempting

impermissibly to regulate interstate commerce; a Contracts Clause

claim to the effect that the Plan unlawfully compromises the

Agreement; and a First Amendment claim that defies ready

comprehension. Lastly, the complaint contains claims that the

Plan transgresses an injunction entered by the bankruptcy court

in 1990 and simultaneously violates 42 U.S.C. 1983 (1994).3

The complaint prays, inter alia, for an injunction against

implementation of the Plan and a declaration that the Plan is

unlawful.

On March 10, 1997, the district court entered a

temporary restraining order (TRO) that enjoined the defendants

from enforcing those sections of the Plan that purported to

restrict PSNH's ability to recover fully its stranded costs.

Four days later, the court heard argument on a gallimaufry of

3In the introductory portions of their amended complaint,
the plaintiffs accuse the PUC of affording them insufficient time
to make their case administratively, failing to enforce discovery
rules, and holding hearings that were a "mere pretense." These
allegations sound like a prelude to a procedural due process
challenge, yet the plaintiffs never make such a claim.

9

intervention motions and took them under advisement pending a

decision on ripeness and abstention (issues which, if determined

adversely to the plaintiffs, would render intervention moot).

The court scheduled a hearing on these issues for March 20 and

granted the would-be intervenors leave to file amicus curiae

briefs. On the appointed date, Judge Lagueux heard arguments and

reserved decision. The next day, he amended the TRO to enjoin

portions of the Plan that, in the plaintiffs' view, repudiated

obligations created by the Agreement. He then continued the TRO

"pending further order of the court."

In due course, Judge Lagueux ruled that the case not

only was ripe, but also an inappropriate candidate for

abstention. See PSNH I, 962 F. Supp. at 229-44. The judge

simultaneously signaled his intent to address the motions to

intervene without further delay, noted that the TRO would remain

in effect pending further order, and directed the clerk of court

to schedule a preliminary injunction hearing in June.4 See id.

at 244.

On June 12, 1997, the district court denied the

4On May 13, the parties to the case (not including the
applicants for intervention) agreed to mediation and stipulated
to a stay of proceedings, thereby obviating the need for a June
preliminary injunction hearing. By its terms, the stay would
expire coincident with the end of the mediation period, which was
originally contemplated to last through the end of June. As
directed by the May 13 stipulation and order, the mediator
periodically reported on the parties' progress. Based on these
reports Judge Lagueux twice extended the period. On September 3,
1997, the mediator reported that efforts had failed and the stay
since has been dissolved. The would-be intervenors did not
participate in the mediation process.

10

appellants' motions to intervene. See PSNH II, 173 F.R.D. at 26.

The court held in substance that the appellants' interest in

securing lower electric rates was too generalized to justify

intervention as of right; that the appellants retained the

ability to protect their interests in the Plan's implementation

regardless of whether they were allowed to participate in the

court case; and that, in all events, the presence of the PUC

members as defendants ensured adequate representation of the

appellants' interests in respect to the issues raised by the

complaint. See id. at 26-27. The court did permit three other

parties, Granite State Electric Company, Unitil Corporation, and

the New Hampshire Electric Cooperative, to intervene on the

plaintiffs' side of the case. See id. at 28. One would-be

intervenor, the City of Manchester, moved for reconsideration,

but to no avail.

II. THE CAST OF CHARACTERS
II. THE CAST OF CHARACTERS

There are six intervention-related appeals before us.

In an effort to put matters into more workable perspective, we

profile the identity and interests of the six appellants.

1. Cabletron Systems, Inc. (Cabletron) is a New
1.

Hampshire corporation with its principal place of business in

Rochester, New Hampshire. It is one of the largest private

electricity consumers in New Hampshire.

2. The Office of the Consumer Advocate of the State of
2.

New Hampshire (OCA) is a state agency statutorily authorized to

"petition for, initiate, appear or intervene in any proceeding

11

concerning rates, charges, tariffs, and consumer services before

any board, commission, agency, court, or regulatory body in which

the interests of residential utility consumers are involved and

to represent the interest of such residential utility consumers."

N.H. Rev. Stat. Ann. 363.28(II) (1995).

3. The City of Manchester is New Hampshire's largest
3.

municipality and serves as the administrator of an electric power

aggregation program that procures electricity for some 260

municipal, residential, and commercial accounts.

4. The Campaign for Ratepayers' Rights (CRR) is a non-
4.

profit citizens' group composed of several hundred New Hampshire

residential and commercial electricity consumers.

5. The Retail Merchants Association of New Hampshire
5.

(RMA) is a non-profit corporation based in Concord, New

Hampshire. RMA boasts a membership of approximately 700

businesses located in the Concord area. It acts as an electric

load aggregator. Under its aegis, members may purchase

electricity at discounted rates.

6. Community Action Programs of New Hampshire (CAPS)
6.

is an alliance of six non-profit organizations. Its constituent

organizations provide assistance programs of various kinds to

low-income families in New Hampshire.

III. THE LEGAL LANDSCAPE
III. THE LEGAL LANDSCAPE

The six principal appeals stand or fall on the

12

appellants' entitlement to intervene as of right.5 That

entitlement depends, in the first instance, on Fed. R. Civ. P.

24(a), which provides in relevant part:

Upon timely application anyone shall be
permitted to intervene in an action: . . .
(2) when the applicant claims an interest
relating to the property or transaction which
is the subject of the action and the
applicant is so situated that the disposition
of the action may as a practical matter
impair or impede the applicant's ability to
protect that interest, unless the applicant's
interest is adequately represented by
existing parties.

A party that desires to intervene in a civil action

under Rule 24(a)(2) must satisfy four conjunctive prerequisites:

(1) a timely application for intervention; (2) a demonstrated

interest relating to the property or transaction that forms the

basis of the ongoing action; (3) a satisfactory showing that the

disposition of the action threatens to create a practical

impairment or impediment to its ability to protect that interest;

and (4) a satisfactory showing that existing parties inadequately

represent its interest. See Conservation Law Found. v.

Mosbacher, 966 F.2d 39, 41 (1st Cir. 1992). An applicant for

intervention as of right must run the table and fulfill all four

of these preconditions. The failure to satisfy any one of them

dooms intervention. See Travelers Indem. Co. v. Dingwell, 884

F.2d 629, 637 (1st Cir. 1989).

5In the court below, the appellants also sought permissive
intervention under Fed. R. Civ. P. 24(b). Judge Lagueux rejected
those initiatives. See PSNH II, 173 F.R.D. at 29. The

appellants have not pressed the point in this venue.

13

The application of this framework to the divers factual

circumstances of individual cases requires a holistic, rather

than reductionist, approach. See International Paper Co. v. Town

of Jay, 887 F.2d 338, 344 (1st Cir. 1989). The inherent

imprecision of Rule 24(a)(2)'s individual elements dictates that

they "be read not discretely, but together," and always in

keeping with a commonsense view of the overall litigation.

United States v. Hooker Chems. & Plastics Corp., 749 F.2d 968,

983 (2d Cir. 1984). Because small differences in fact patterns

can significantly affect the outcome, the very nature of a Rule

24(a)(2) inquiry limits the utility of comparisons between and

among published opinions. See Security Ins. Co. v. Schipporeit,

Inc., 69 F.3d 1377, 1381 (7th Cir. 1995).

The district court's denial of a motion for

intervention as of right lays the foundation for an immediate

appeal. See Flynn v. Hubbard, 782 F.2d 1084, 1086 (1st Cir.

1986). Although we review the district court's intervention

decisions for abuse of discretion, see International Paper, 887

F.2d at 344, that discretion is more circumscribed when Rule

24(a) is in play, see Stringfellow v. Concerned Neighbors in

Action, 480 U.S. 370, 383 (1987) (noting that the nisi prius

court has less discretion in its disposition of motions to

intervene as of right). We will reverse the denial of a motion

to intervene as of right "if the court fails to apply the general

standard provided by the text of Rule 24(a)(2), or if the court

reaches a decision that so fails to comport with that standard as

14

to indicate an abuse of discretion." International Paper, 887

F.2d at 344.

In the case at hand, we can narrow the lens of our

inquiry somewhat. For one thing, none of the appellants have

argued that the district court misapprehended Rule 24(a)(2)'s

analytic framework or failed to appreciate the rule's general

standard. For another thing, the appellees concede the

timeliness of the intervention motions. Thus, our analysis

focuses exclusively on whether the court properly applied the

other three elements of the test: sufficiency of interest;

likelihood of impairment; and adequacy of representation.6

IV. ANALYSIS
IV. ANALYSIS

We first address the common arguments for intervention

pressed by Cabletron, CRR, RMA, and CAPS (collectively, "the

Grouped Appellants"). We then turn to the differentiated

rationales for intervention offered by OCA and the City of

Manchester.

A. The Grouped Appellants.
A. The Grouped Appellants.

6The plaintiffs argue that we should affirm the district
court's denial of the motions to intervene filed by Cabletron,
RMA, CAPS, and OCA because each of those appellants failed to
accompany its motion with "a pleading setting forth the claim or
defense for which intervention is sought." Fed. R. Civ. P.
24(c). We agree that these parties were derelict in their Rule
24(c) duties, and that such dereliction ordinarily would warrant
dismissal of their motions. See Rhode Island Fed'n of Teachers

v. Norberg, 630 F.2d 850, 854-55 (1st Cir. 1980). In this

instance, however, the district court elected to forgive this
oversight. See PSNH II, 173 F.R.D. at 24 n.2. Because we affirm

the lower court's denial of the motions to intervene on more
substantive grounds, we see no reason to revisit that
determination.

15

Although there are modest differences in the

particulars of their respective situations, a common theme

pervades the arguments of all the Grouped Appellants: each

strives to justify intervention as a matter of right by reference

to the same two interests. First, they assert that the

plaintiffs' action asks the district court to strike down the

Plan, and that such relief, if granted, would sunder their shared

interest in obtaining lower electric rates. Second, they assert

that their prior (and anticipated) participation in the PUC's

administrative proceedings itself furnishes an independent basis

for intervention. We find both assertions wanting.

To begin with, the assertion of an economic interest is

procedurally vulnerable. Although the Grouped Appellants

vigorously pressed this line of argument in the district court,

they devote only cursory attention to it on appeal.

Consequently, it is not preserved for appellate review. See Ryan

v. Royal Ins. Co., 916 F.2d 731, 734 (1st Cir. 1990).

Even were the asseveration preserved, it would be

unavailing. While the type of interest sufficient to sustain

intervention as of right is not amenable to precise and

authoritative definition, a putative intervenor must show at a

bare minimum that it has "a significantly protectable interest,"

Donaldson v. United States, 400 U.S. 517, 531 (1971), that is

"direct, not contingent," Travelers Indem., 884 F.2d at 638.

Though these contours are relatively broad, the Grouped

Appellants' interest in the lower electric rates expected to

16

result from restructuring falls well outside the pale.

Potential economic harm to a would-be intervenor is a

factor that warrants serious consideration in the interest

inquiry. See Conservation Law Found., 966 F.2d at 43; but cf.

New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732

F.2d 452, 466 (5th Cir. 1984) (en banc) (holding that an economic

interest alone is insufficient predicate for a Rule 24(a)(2)

intervention). It is settled beyond peradventure, however, that

an undifferentiated, generalized interest in the outcome of an

ongoing action is too porous a foundation on which to premise

intervention as of right. See New Orleans Pub. Serv., 732 F.2d

at 466; Athens Lumber Co. v. Federal Election Comm'n, 690 F.2d

1364, 1366 (11th Cir. 1982); United States v. American Tel. &

Tel. Co., 642 F.2d 1285, 1292 (D.C. Cir. 1980). That principle

is dispositive here for the Grouped Appellants' theory of

economic interest operates at too high a level of generality.

After all, every electricity consumer in New Hampshire and every

person who does business with any electricity consumer yearns for

lower electric rates.

To cinch matters, the Grouped Appellants' interest in

obtaining lower electric rates also has an overly contingent

quality. This is not a case in which ongoing litigation directly

threatens an economic right or benefit presently enjoyed by any

would-be intervenor. See, e.g., City of Stillwell v. Ozarks

Rural Elec. Coop., 79 F.3d 1038, 1042 (10th Cir. 1996). It is,

rather, a case in which these would-be intervenors root their

17

professed economic interest in an as yet unrealized expectancy of

lower electric rates. As the district court perspicaciously

observed, numerous market variables will impact New Hampshire

electric rates even after the PUC implements a restructuring

plan. See PSNH II, 173 F.R.D. at 26. Whether the interaction of

these variables actually will produce lower rates is anybody's

guess, thus demonstrating the fatally contingent nature of the

asserted economic interest. See Travelers Indem., 884 F.2d at

638-39.

The Grouped Appellants also claim a protectable

interest within the purview of Rule 24(a)(2) arising out of their

prior participation, and their anticipated opportunity for future

participation, in the PUC's administrative proceedings. All

profess to fear that the plaintiffs' suit will lay waste to the

efforts that they expended (culminating in the Plan), and that

this threat entitles them to intervention.

We do not dismiss this claim lightly. In certain

circumstances, an administrative-proceeding interest may well

form a sufficient predicate for intervention as of right. Since

this clearly is not true across the board, we must evaluate the

asserted administrative-proceeding interest in light of the

specific claims embodied in the lawsuit pending before the

district court and we must do so in keeping with the pragmatic

cast of Rule 24(a)(2). Furthermore, we must conduct this

assessment with an awareness that Rule 24(a)(2)'s third tine

whether disposition of the extant action may as a practical

18

matter impair or impede the applicant's ability to protect a

cognizable interest often influences resolution of the interest

question. See Conservation Law Found., 966 F.2d at 42.

The plaintiffs' complaint does not frontally attack the

process through which the PUC arrived at the Plan,7 but, rather,

pleads causes of action that will require the district court to

measure the submitted Plan against federal statutory and

constitutional benchmarks. Hence, adjudication of the

plaintiffs' claims will not place the district court in the

position of having to rebalance competing policy views anent

electric utility industry restructuring or otherwise to co-opt

the
administrativeproceedingsinwhichthewould-beintervenorsappeared.

The Grouped Appellants resist this conclusion. In

their estimation, the plaintiffs' challenges do not involve

"pristine" questions of federal law, and they express concern

that the district court will be forced to immerse itself in the

"nitty gritty" of ratemaking. We agree that the district court

will have to understand the Plan in order to resolve the

plaintiffs' challenges, but we are confident that the PUC is

fully capable of explicating the interstices of the Plan to

facilitate this review. More to the point, we deem it of

decretory significance that the types of viewpoint-balancing

issues that merited the inclusion of a wide array of parties in

7Although paragraph 42 of PSNH's amended complaint
attributes arbitrary and capricious procedural maneuvers to the
PUC, the plaintiffs have not based any of their federal claims on
these ostensible procedural defects.

19

the administrative proceedings are not present in this civil

action, and we therefore are hard-pressed to see how the present

litigation will impair or impede the would-be intervenors'

legitimate interests.

The Grouped Appellants' reliance on United States v.

South Fla. Water Mgmt. Dist., 922 F.2d 704 (11th Cir. 1991), for

the proposition that participation in the PUC's administrative

proceedings ipso facto justifies intervention as of right, is

misplaced. There, the federal government brought suit alleging

that a water management district's irrigation and flood control

policies violated a state environmental statute. See id. at 707.

The United States asked the district court, inter alia, to set a

maximum allowable concentration of nitrogen and phosphorous in

farm water runoff. See id. The court denied various farm

groups' motions for intervention as of right. The Eleventh

Circuit reversed. It found that the Florida statute granted the

farm groups a statutory right to participate in the water

district's administrative implementation of runoff standards.

Because the federal litigation essentially bypassed the

administrative framework, denial of intervention would eliminate

the farm groups' role in the decisionmaking process. See id. at

708.

Such is not the case here. The would-be intervenors

heretofore have taken full advantage of their right to

participate in the PUC's proceedings, and their role in any

future administrative decisionmaking process is not in jeopardy.

20

On the one hand, if the plaintiffs lose, then the Plan that

emerged from the administrative proceedings probably will remain

intact unless the PUC, in the course of further administrative

proceedings (in which the applicants for intervention will have

an opportunity to participate), modifies it. On the other hand,

if the plaintiffs prevail, then the Plan likely will fall yet

the district court will not replace it with another of its own

creation. Rather, the PUC will be left to devise a successor

plan, and the Grouped Appellants will be able to participate

fully in any such efforts. In either event, the would-be

intervenors' administrative-proceeding interest remains

unsullied.8

The Grouped Appellants also advance the closely related

claim that the TRO issued by the district court impairs their

right to participate in ongoing or future administrative

proceedings before the PUC. This claim requires scant comment.

It suffices to say that the present litigation has not impeded

this entitlement in any real sense. To the extent that the lower

court has halted administrative proceedings, its orders are of

universal application: it did not bar the Grouped Appellants

selectively from participating in any ongoing proceeding.

8The Grouped Appellants also cite In re Sierra Club, 945

F.2d 776, 779 (4th Cir. 1991) (dictum), in support of their
contention that participation in an administrative proceeding
creates an interest that is per se sufficient to warrant
intervention as of right in any litigation related to the result
of those proceedings. To the extent that the court's broad
language can be read as stating such a rule, we respectfully
decline to follow it.

21

Indeed, the PUC itself has suspended reconsideration of the Plan

pending resolution of this case. While the Grouped Appellants

undoubtedly would prefer that the Plan's implementation proceed

immediately, the current stalemate does not prejudice their

ability to participate prospectively in resumed administrative

proceedings once the litigatory logjam clears.

Any residual doubt that might linger regarding the

Grouped Appellants' right to intervene is assuaged at the final

step of the Rule 24(a)(2) inquiry. We agree with the district

court that the Grouped Appellants simply have not shown that the

defendant commissioners inadequately represent their interests in

upholding the Plan.

To be sure, an applicant for intervention need only

make a minimal showing that the representation afforded by

existing parties likely will prove inadequate. See Trbovich v.

United Mine Workers, 404 U.S. 528, 538 n.10 (1972). Nonetheless,

the adequacy of interest requirement is more than a paper tiger.

A party that seeks to intervene as of right must produce some

tangible basis to support a claim of purported inadequacy. See

Moosehead Sanitary Dist. v. S. G. Phillips Corp., 610 F.2d 49, 54

(1st Cir. 1979). Moreover, the burden of persuasion is ratcheted

upward in this case because the commissioners are defending the

Plan in their capacity as members of a representative

governmental body. Given this fact, the Grouped Appellants must

rebut a presumption that the commissioners adequately represent

their interests. See Mausolf v. Babbitt, 85 F.3d 1295, 1303 (8th

22

Cir. 1996). This rebuttal requires "a strong affirmative

showing" that the agency (or its members) is not fairly

representing the applicants' interests. Hooker Chems. &

Plastics, 749 F.2d at 985.

The Grouped Appellants attempt to roll this presumption

on its side. They maintain that the PUC's status as the

principal protector of the general public interest precludes its

effective representation of their particularized interests. See,

e.g., Mille Lacs Band of Chippewa Indians v. Minnesota, 989 F.2d

994, 1001 (8th Cir. 1993) (finding the presumption of adequate

representation overcome where a suit against the state to enforce

an Indian treaty implicated the intervenors' interest in

preserving fish and game stock on their private lands). On the

facts of the case at bar, however, this resupinate reasoning does

not withstand scrutiny: in respect to the plaintiffs' claims,

the PUC's interests are perfectly aligned with those of the

Grouped Appellants. We explain briefly.

Although the motives that drive any individual

appellant's support for the Plan may diverge slightly from those

of its fellow appellants and also from those of the PUC, all

march in legal lockstep when defending the Plan against the

plaintiffs' federal statutory and constitutional challenges.

None of the Grouped Appellants has propounded any legal argument

that the PUC members are unable or unwilling to make, or that

subverts the PUC's institutional goals. This symmetry of

interest among the Grouped Appellants and the PUC commissioners

23

ensures adequate representation. See American Lung Ass'n v.

Reilly, 962 F.2d 258, 261-62 (2d Cir. 1992); Washington Elec.

Coop. v. Massachusetts Mun. Wholesale Elec. Co., 922 F.2d 92, 98

(2d Cir. 1990); see generally United Nuclear Corp. v. Cannon, 696

F.2d 141, 144 (1st Cir. 1982) (discussing the factors that a

federal court must consider in the adequacy of interest inquiry).

If that were not enough and we firmly believe that it

is we note that the PUC members have launched a full-scale,

uncompromising defense of their Plan. We think the likelihood

that the PUC will capitulate cravenly to the plaintiffs'

onslaught is extremely remote. This circumstance, in itself,

weighs heavily in favor of denying mandatory intervention. See

Washington Elec. Coop., 922 F.2d at 98; Natural Resources Defense

Council, Inc. v. New York State Dep't of Envtl. Conservation, 834

F.2d 60, 62 (2d Cir. 1987); cf. Conservation Law Found., 966 F.2d

at 44 (finding that the Secretary of Commerce inadequately

represented the more parochial interests of putative intervenors

because he agreed, with minimal opposition, to a consent decree

drafted by the plaintiffs).

Finally, the Grouped Appellants maintain that the

courts must accept at face value the PUC's declaration of its

inability to represent their interests, no questions asked. This

is sheer persiflage. Here, as in many other contexts, actions

speak louder than words. In all events, neither the PUC

commissioners' support of and consent to the Grouped Appellants'

desire to intervene, nor the commissioners' insinuations that

24

they, alone, are not up to the task of defending the Plan, can

strip a federal court of the right and power indeed, the duty

to make an independent determination as to whether Rule

24(a)(2)'s prerequisites are met. See International Paper, 887

F.2d at 340-41; Wade v. Goldschmidt, 673 F.2d 182, 184 n.3 (7th

Cir. 1982).

B. OCA.
B. OCA.

We turn next to OCA's quest for intervention. For the

most part, its arguments parallel those championed by the Grouped

Appellants the six would-be intervenors did, after all, elect

to file a consolidated brief and we reject them for the reasons

already stated. We write separately, however, to address one

idiosyncratic feature.

OCA and two amici, the Ohio Consumers' Counsel and the

National Association of State Utility Consumer Advocates, contend

that the district court should have allowed OCA to intervene as

of right because a New Hampshire statute endows it with the

authority to represent residential utility consumers "in any

proceeding concerning rates, charges, tariffs, and consumer

services before any board, commission, agency, court, or

regulatory body." N.H. Rev. Stat. Ann. 363:28(II). This

legislative directive requiring OCA to devote its

representational zeal entirely to the cause of the consumer

contrasts with the PUC's statutory mandate to "be the arbiter

between the interests of the customer and the interests of

regulated utilities." Id. 363:17a. Focusing singlemindedly on

25

these disparate statutory missions, OCA and its amici take the

position that the PUC cannot adequately represent OCA's interests

in this case.

A state statute can inform the Rule 24(a)(2) calculus,

but it cannot displace the requirement that a would-be intervenor

satisfy each of the rule's prerequisites. See Washington Elec.

Coop., 922 F.2d at 96-98. Whatever discrepancies exist in the

enabling statutes of OCA and the PUC, respectively, a federal

court must assess adequacy of representation in light of the

issues at stake in the particular litigation. For the reasons

previously discussed, the differences in the two agencies'

statutory missions are without consequence here; like the Grouped

Appellants, OCA can point neither to any legal argument favorable

to it that the commissioners are unwilling or unable to make in

defense of the Plan, nor to any legal position taken by the

commissioners that compromises OCA's interests in any material

way. In short, there simply is no divergence of interest between

the two bodies in respect to the causes of action pleaded in this

litigation.9

C. The City of Manchester.
C. The City of Manchester.

Like the other five appellants, the City of Manchester

9Our contextualized holding should ease the amici's concern
that failure to allow OCA to intervene will impair the
effectiveness of similar consumer advocacy organizations in other
litigation. If, for example, PSNH had included in its complaint
claims that would necessitate a viewpoint-balancing analysis in
which consumer concerns played a significant role, we would see
OCA's appeal in a vastly different light.

26

advances arguments grounded both in an asserted economic interest

and an asserted administrative-proceeding interest. To the

extent that these arguments replicate those made by the Grouped

Appellants, we reject them for the reasons previously

articulated. Still, the city's position is different in certain

respects.

Manchester administers a municipal electric power

aggregation program under which it procures electricity for

several hundred municipal, residential, and commercial accounts.

The number of accounts that it represents imbues the city with

sufficient market power to acquire substantial rate discounts.

Manchester supports the Plan because it believes that increased

competition in the electric power market will allow it to secure

even lower electric rates for the subscribers to the aggregation

program. Manchester posits that this special interest as an

aggregator justifies intervention as of right.

Notwithstanding this twist, the district court did not

believe that Manchester's interest differed appreciably from the

generalized economic interest asserted by each of the other

appellants. See PSNH II, 173 F.R.D. at 23, 25-26. We discern no

abuse of discretion in that ruling. By like token, we are

unmoved by the city's insistence that, as administrator of the

aggregation program, its interest is not merely in lower rates,

but also in fostering an electric power market open to the

greatest possible number of competitors. This recharacterization

is more froth than brew. When all is said and done, Manchester

27

seeks to promote a competitive market because it surmises that

such a development will have a salutary effect on electric rates.

Manchester also attempts to distinguish its position on

the ground that, due to the aggregation program, it is registered

with the PUC as a supplier of electric power. But this brings us

full circle. Manchester does not assert any interest that stems

from its role as a supplier other than a desire to purchase power

at the lowest possible rates and to pass the resultant savings to

its subscribers. Hence, the claimed distinction fails to set

Manchester apart from the other appellants in any material way.

Manchester has one remaining bullet in its intervention

gun, but it too is a blank. The city notes that PSNH is one of

its largest employers and taxpayers and, consequently, that it

has a vital interest in PSNH's ability to remain a viable

enterprise after market restructuring. While we have serious

doubts that Manchester's paternalistic impulses satisfy Rule

24(a)(2)'s interest requirement at all, we need not decide that

issue for two reasons. First, and most obviously, PSNH is the

party with the singularly greatest interest in preserving its

economic survival and can adequately represent that interest in

this case. Second, Manchester's positions on the issues at stake

in this litigation align perfectly with those of the PUC

commissioners.

Manchester attempts to defuse the suggestion that it

stands shoulder-to-shoulder with the defendants by loudly

proclaiming its disagreement with the PUC's method of calculating

28

PSNH's stranded cost recovery allowance. This is a very red

herring. In the context of the lawsuit, the stranded costs issue

mainly affects PSNH's takings claims. But Manchester, in its

proffered answer to PSNH's complaint, see Fed. R. Civ. P. 24(c),

denies that any of the PUC's actions amount to a confiscatory

taking. At any rate, PSNH itself adequately will represent any

interest that the city may have in contesting the SCRECH

methodology embodied in the Plan.

Refined to bare essence, Manchester's campaign for

intervention as of right reduces to its promise that it "will

offer a different angle on the legal questions in this lawsuit."

This campaign promise, unamplified by any specifics, cannot bear

the weight of a claim that adequate representation is lacking.

See Moosehead Sanitary Dist., 610 F.2d at 54.

V. FLOTSAM AND JETSAM
V. FLOTSAM AND JETSAM

Cabletron, RMA, and the City of Manchester also have

attempted to appeal from orders of the district court not

directly related to intervention. Because we affirm the denial

of their motions to intervene, they lack standing to press any

other issues before this court. See SEC v. Certain Unknown

Purchasers of the Common Stock of and Call Options for the Common

Stock of Santa Fe Int'l Corp., 817 F.2d 1018, 1021-22 (2d Cir.

1987). Hence, we take no view of either their putative appeals

of the district court's May 13 and July 7 orders or their

characterization of those orders as modifications to, or

extensions of, a de facto preliminary injunction.

29

In a closely related initiative, all the appellants,

relying on Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941)

and Burford v. Sun Oil Co., 319 U.S. 315 (1943), invite us to

scrutinize the district court's unwillingness to abstain from

deciding this case. We decline the invitation. A district

court's refusal to abstain under doctrines like Pullman or

Burford is not an immediately appealable event. See Gulfstream

Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 278 (1988).

Thus, acceding to the appellants' request would place this court

in the bizarre situation of deciding a nonappealable order at the

behest of non-parties.

Let us be perfectly clear. We recognize that the

appellants make some strong arguments in support of abstention.

The district court, if it so chooses, is free to revisit the

issue. At this point in the litigation, however, that court is

the only tribunal with authority to address the question.

VI. CONCLUSION
VI. CONCLUSION

We need go no further. The future direction of the

electric utility market in New Hampshire is a matter of utmost

importance, but parties who are merely interested in the outcome

of a case do not automatically qualify for intervention as of

right under Rule 24(a)(2). Under the totality of the

circumstances that obtain here, we discern no abuse of discretion

in the district court's determination that the appellants are

among that number.

In Nos. 97-1762, 97-1763, 97-1773, 97-1780, 97-1805 and
In Nos. 97-1762, 97-1763, 97-1773, 97-1780, 97-1805 and

97-2070, the orders denying intervention are affirmed. The
97-2070, the orders denying intervention are affirmed. The

remaining appeals are dismissed for want of appellate
remaining appeals are dismissed for want of appellate

30

jurisdiction. Costs shall be taxed in favor of plaintiffs
jurisdiction. Costs shall be taxed in favor of plaintiffs

against all appellants.
against all appellants.

31