Windham Solar, LLC v. Pub. Utilities Regulatory Auth.

196 Conn.App. 287

229 A.3d 1150

WINDHAM SOLAR, LLC

v.PUBLIC UTILITIES REGULATORY AUTHORITY et al.

AC 41918

Appellate Court of Connecticut.

Argued November 19, 2019

Officially released March 3, 2020

Thomas Melone, for the appellant (plaintiff).

Seth A. Hollander, assistant attorney general, with whom was Robert L. Marconi, assistant attorney general, for the appellee (named defendant).

Vincent P. Pace, assistant general counsel, with whom, on the brief, was Jennifer Galiette, senior counsel, for the appellee (defendant Connecticut Light and Power Company, doing business as Eversource Energy).

DiPentima, C.J., and Prescott and Devlin, Js.

DEVLIN, J.

In this administrative appeal seeking regulatory remedies with respect to a proposed contract for the sale of energy, the plaintiff, Windham Solar, LLC, appeals from the judgment of dismissal rendered by the trial court on the ground that it lacked subject matter jurisdiction. The plaintiff claims that the court erred in concluding that it did not have standing to bring this administrative appeal and that, even if it did, its claims were moot. We agree with the plaintiff and reverse the judgment of the trial court.

The record reveals the following undisputed factual and procedural history. On January 22, 2016, the plaintiff offered to sell to Connecticut Light & Power, doing business as Eversource Energy (Eversource),¹ all of the energy and capacity from twenty-six solar electric generating facilities, all of which are qualifying facilities under the Public Utility Regulatory Policies Act of 1978 (PURPA), 16 U.S.C. § 2601 et seq. See 16 U.S.C. § 796 (17) (C) (2012). In response, Eversource acknowledged its obligation under General Statutes § 16-243a (b) (2) to purchase the power offered by the plaintiff,²

but agreed to purchase only the energy, not the capacity, and rejected the plaintiff's offer to sell the energy at the rate equal to the anticipated avoided costs over the life of the proposed thirty year contract.

As a result of Eversource's refusal to accept the terms of its offer, the plaintiff filed a petition with the defendant Public Utilities Regulatory Authority (PURA), alleging that Eversource had failed to "negotiate in good faith to arrive at a contract which fairly reflects the provisions of [ § 16-243a ] and the anticipated avoided costs over the life of the contract," and sought an order from PURA compelling Eversource to enter into a thirty year contract to purchase energy and capacity in accordance with its proposed pricing.³

On August 24, 2016, PURA issued a written decision denying the plaintiff's petition to compel Eversource to enter into a contract on the plaintiff's terms. PURA found, inter alia, that Eversource did not need the capacity offered by the plaintiff and that "the avoided cost of the proffered capacity is zero." PURA further explained that "[the plaintiff's] petition is properly understood as asking whether PURA's long-standing implementation of ... [PURPA], through § 16-243a and various orders of [PURA], is consistent with federal law." PURA thus "interpreted [the plaintiff's] petition as a request for a declaratory ruling pursuant to [General Statutes] § 4-176" and held that it would "open a separate proceeding to consider whether its regulations promulgated pursuant to ... § 16-243a require modification or amendment."

The plaintiff thereafter appealed to the trial court from PURA's August 24, 2016 decision. While that

appeal was pending, the Federal Energy Regulatory Commission (FERC) issued an order construing PURPA to require a real-time price offering and also an option under which avoided costs are forecasted at the time the contract is executed. Consequently, PURA requested, and was granted, a voluntary and unopposed remand from the trial court, while the court retained jurisdiction over the plaintiff's appeal, to consider the effect of the FERC ruling on PURA's August 24, 2016 decision.

As a result of that reconsideration on remand, PURA issued a decision on January 10, 2018, reversing its August 24, 2016 decision, and holding that its earlier decision "incorrectly determined that PURPA's requirements are satisfied by real-time avoided cost offerings only, and that forecasted avoided cost rates are not necessary." PURA further concluded "that its PURPA regulations should be amended to incorporate a forecasted avoided cost rate methodology and other changes necessary as a result of electric restructuring and [the Federal Energy Policy Act of 2005], and [it] will address these issues in the [r]egulations [p]roceeding." PURA explained in a letter to the plaintiff's counsel that it was "not required, as a matter of law, to resolve [the plaintiff's claims] on a case-by-case basis ..." but, rather, that it had " ‘the statutory authority to revisit its implementation of FERC's rules, either through a new rule making, a case-by-case adjudication, or other reasonable method.’ Allco Renewable Energy Ltd. v. Massachusetts Electric Co. , [875 F.3d 64, 74 (1st Cir. 2017) ] .... [PURA] concludes that it should revisit its implementation of FERC's rules through a regulations proceeding." PURA thus determined that the issues presented by the plaintiff's petition "should be addressed generically through PURA's rule-making proceeding."

Dissatisfied with PURA's decision, the plaintiff, on February 1, 2018, filed a motion to restore its case to the trial court docket, asking that its original appeal be permitted to proceed. PURA filed an objection to the plaintiff's motion to restore its appeal to the docket, and a motion to dismiss the plaintiff's appeal on the ground that the court lacked subject matter jurisdiction over the plaintiff's appeal because the plaintiff was not aggrieved by PURA's decisions and the plaintiff's appeal had become moot as a result of PURA's reversal of its August 24, 2016 decision. The plaintiff filed an objection to PURA's motion to dismiss, arguing, inter alia, that, although PURA "overturned much of its [August 24, 2016] decision, it concluded that it would not address the particular circumstances of [the plaintiff's] petition, or address the relief sought by [the plaintiff]."

The trial court agreed with PURA that the plaintiff failed to plead facts sufficient to establish aggrievement and, thus, that the court lacked subject matter jurisdiction over the plaintiff's appeal. The court further determined that the plaintiff's appeal was moot by virtue of PURA's January 10, 2018 decision reversing its earlier determination that "facilities like [the] plaintiff's are not entitled to sell their output to a utility at a forecasted avoided-cost rate. [PURA] has undertaken to develop via regulation a methodology for calculating such a rate." The court thus granted PURA's motion to dismiss, and this appeal followed.

"As a preliminary matter, we set forth the standard of review. A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [O]ur review of the trial court's ultimate legal conclusion and resulting [decision to] grant ... the motion to dismiss will be de novo....

"[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ... clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.... It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.... Because a determination regarding the trial court's subject matter jurisdiction raises a question of law, our review is plenary." (Citations omitted; internal quotation marks omitted.) Wilcox v. Webster Ins., Inc. , 294 Conn. 206, 213–14, 982 A.2d 1053 (2009).

The plaintiff first challenges the trial court's determination that it failed to demonstrate that it was aggrieved by PURA's decisions and was thus without standing to appeal from them. "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [it] has ... some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.... When standing is put in issue, the question is whether the [party] whose standing is challenged is a proper party to request an adjudication of the issue.... Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes ... standing by allegations of injury [that it has suffered or is likely to suffer]. Similarly, standing exists to attempt to vindicate arguably protected interests....

"Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved.... The fundamental test for determining [classical] aggrievement encompasses a [well settled] twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action], as distinguished from a general interest, such as is the concern of all members

of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action].... Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ... has been adversely affected." (Internal quotation marks omitted.) Id., at 214–15, 982 A.2d 1053.

Here, in considering the plaintiff's claim that it was aggrieved by PURA's decisions,⁴ the court concluded that, "[c]onstruing the complaint⁵ in a manner most favorable to [the] plaintiff, it may allege...