Justia Energy, Oil & Gas Law Opinion SummariesArticles Posted in New Hampshire Supreme Court
Appeal of Northern Pass Transmission, LLC & a.
Petitioners Northern Pass Transmission, LLC and Public Service Company of New Hampshire d/b/a Eversource Energy (PSNH), appealed the New Hampshire Site Evaluation Committee’s decision denying their application for a “Certificate of Site and Facility” (certificate) for the siting, construction, and operation of a high voltage transmission line (HVTL) and associated facilities from Pittsburg to Deerfield (the project). A subcommittee of the Evaluation Committee held 70 days of adjudicative hearings between April and December 2017. It received testimony from 154 witnesses and received 2,176 exhibits. At the conclusion of its proceedings, the Subcommittee voted unanimously that petitioners “failed to demonstrate by a preponderance of evidence that the Project will not unduly interfere with the orderly development of the region” and denied the application on February 1, 2018. The New Hampshire Supreme Court reviewed the record and concluded the Subcommittee’s findings were supported by competent evidence and ere not erroneous as a matter of law. Accordingly, the Court held petitioners did not sustain their burden on appeal to show that the Subcommittee’s order was unreasonable or unlawful. View "Appeal of Northern Pass Transmission, LLC & a." on Justia Law
Appeal of Algonquin Gas Transmission, LLC
Appellants, Algonquin Gas Transmission, LLC (Algonquin) and Public Service Company of New Hampshire d/b/a Eversource Energy (Eversource), appealed a New Hampshire Public Utilities Commission (PUC) order dismissing Eversource’s petition for approval of a proposed contract for natural gas capacity, as well as a program to set parameters for the release of capacity and the sale of liquefied natural gas made available to electric generators, and/or an associated tariff. Appellees, NextEra Energy Resources, LLC (NextEra), Conservation Law Foundation (CLF), and the Office of the Consumer Advocate (OCA), appeared in opposition to this appeal. In denying Eversource’s petition, the PUC first ruled “that the overriding purpose of the Restructuring Statute is to introduce competition to the generation of electricity” with the “long-term results [to] be lower prices and a more productive economy.” The PUC then further ruled that “[t]o achieve that purpose, RSA 374-F:3, III directs the restructuring of the industry, separating generation activities from transmission and distribution activities, and unbundling the rates associated with each of the separate services.” Given these rulings, the PUC concluded that “the basic premise of Eversource’s proposal — having an EDC purchase long-term gas capacity to be used by electric generators — runs afoul of the Restructuring Statute’s functional separation requirement.” The NEw Hampshire Supreme Court disagreed. Pursuant to its plain language, and reading the statute as a whole, the Court discerned the primary intent of the legislature in enacting RSA chapter 374- F was to reduce electricity costs to consumers. The Court disagreed with the PUC’s ruling that the legislature’s “overriding purpose” was “to introduce competition to the generation of electricity.” Rather, as the statute provides, the legislature intended to “harness[ ] the power of competitive markets,” as a means to reduce costs to consumers, not as an end in itself. Likewise, the Court disagreed with the PUC’s ruling that RSA 374-F:3, III directed the “functional separation” of generation services from transmission and distribution services and elevates that single policy principle over the others identified in the statute. Therefore, the Supreme Court held the PUC erred in dismissing Eversource’s petition as a matter of law. In light of its decision, the Court did not address the appellant’s remaining arguments. View "Appeal of Algonquin Gas Transmission, LLC" on Justia Law
Appeal of Allen et al.
Petitioners Mary Allen, Fred Ward, and other interested parties, appealed the decision of the New Hampshire Site Evaluation Committee (Committee) authorizing respondent Antrim Wind Energy, LLC (Antrim Wind), to construct and operate nine wind turbines in the town of Antrim. Antrim Wind originally filed an application (Antrim I) with the Committee in 2012, seeking authorization to construct ten wind turbines. Six of the turbines would be equipped with red flashing aviation obstruction lights. The project also included four miles of new gravel surfaced roads, a joint electrical system, an interconnection substation, and a maintenance building. Antrim Wind further proposed to construct a meteorological tower between turbines three and four to obtain wind data, dedicate 800 acres of land to conservation easements, and install a radar activated lighting system. Antrim I was initially denied; a few years later, Antrim II was filed and ultimately approved by the Committee, finding the second application reflected a “substantial change” from the first application, and as such, would not “have an unreasonable adverse effect on the health, safety, or aesthetics of the region. On appeal, petitioners argued the Committee’s ultimate decision was unreasonable, unlawful, and unjust because: (1) the subcommittee was unlawfully constituted; (2) the denial of Antrim I barred Antrim Wind’s Antrim II application under the doctrine of res judicata as well as the subsequent application doctrine as set forth in Fisher v. City of Dover, 120 N.H. 187 (1980); and (3) there was insufficient evidence in the record to support the subcommittee’s finding that the project proposed in Antrim II would not have an unreasonable adverse impact on aesthetics, public health, and safety. After review of the record, the New Hampshire Supreme Court concluded there was competent evidence to support all of the subcommittee’s factual findings. The subcommittee deliberated about each of these assessments and impacts and determined which experts it found to be more credible. The subcommittee also imposed certain mitigation measures and conditions to address remaining concerns and to ensure regulatory compliance. Accordingly, the Court concluded petitioners failed to show reversible error. View "Appeal of Allen et al." on Justia Law
Halifax-American Energy Company, LLC v. Provider Power, LLC
The plaintiffs were four companies with common owners and operators: Halifax-American Energy Company, LLC; PNE Energy Supply, LLC (PNE); Resident Power Natural Gas & Electric Solutions, LLC (Resident Power); and Freedom Logistics, LLC d/b/a Freedom Energy Logistics, LLC (collectively, the “Freedom Companies”). The defendants were three companies and their owners: Provider Power, LLC; Electricity N.H., LLC d/b/a E.N.H. Power; Electricity Maine, LLC; Emile Clavet; and Kevin Dean (collectively, the “Provider Power Companies”). The Freedom Companies and the Provider Power Companies were engaged in the same business, arranging for the supply of electricity and natural gas to commercial and residential customers in New Hampshire and other New England states. The parties’ current dispute centered on a Freedom Company employee whom the defendants hired, without the plaintiffs’ knowledge, allegedly to misappropriate the plaintiffs’ confidential and proprietary information. According to plaintiffs, defendants used the information obtained from the employee to harm the plaintiffs’ business by improperly interfering with their relationships with their customers and the employee. A jury returned verdicts in plaintiffs’ favor on many of their claims, including those for tortious interference with customer contracts, tortious interference with economic relations with customers, tortious interference with the employee’s contract, and misappropriation of trade secrets. The jury awarded compensatory damages to plaintiffs on each of these claims, except the misappropriation of trade secrets claim, and included in the damages award attorney’s fees incurred by plaintiffs in prior litigation against the employee for his wrongful conduct. Subsequently, the trial court awarded attorney’s fees to the plaintiffs under the New Hampshire Uniform Trade Secrets Act (NHUTSA). On appeal, defendants challenged: (1) the jury’s verdicts on plaintiffs’ claims for tortious interference with customer contracts and the employee’s contract; (2) the jury’s award of damages for tortious interference with customer contracts and tortious interference with economic relations, and its inclusion in that award of the attorney’s fees incurred in the plaintiffs’ prior litigation against the employee; and (3) the trial court’s award of attorney’s fees to plaintiffs under the NHUTSA. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "Halifax-American Energy Company, LLC v. Provider Power, LLC" on Justia Law
Aranosian Oil Co., Inc. v. New Hampshire
The Environmental Protection Agency (EPA) required that owners of underground storage tanks demonstrate their ability to pay cleanup costs and compensate third parties for bodily injury and property damage arising out of releases of petroleum products from their tanks. New Hampshire’s Oil Discharge and Disposal Cleanup Fund (ODD Fund) was an EPA-approved program that complied with the federal requirement. In 2003, the State sued several gasoline suppliers, refiners, and chemical manufacturers seeking damages for groundwater contamination allegedly caused by methyl tertiary butyl ether (MTBE). In 2012, petitioners sought a declaratory judgment and equitable relief against the State. Each petitioner was a “distributor” of oil under RSA chapter 146-D and paid fees into the ODD Fund. They alleged that “[t]o date, the costs of MTBE remediation in the State of New Hampshire has been paid for primarily through” the ODD Fund, and that that fund was financed, in part, through fees that they paid. Petitioners sought a declaration that those fees “are unconstitutional as the [State] has recovered and/or will recover funds from the MTBE Lawsuit for the cost of MTBE remediation,” and that those fees should be reimbursed to them from: (1) “the settlement proceeds the [State] has received and will receive through the MTBE Litigation”; (2) “any future recovery the [State] receives through the MTBE Litigation”; and (3) “[a]dditionally, or in the alternative, . . . from the funds recovered, and/or to be recovered in the future in the MTBE Litigation, . . . under principles of equitable subrogation and/or unjust enrichment.” On appeal, the petitioners argue that the trial court erred in ruling that they lacked standing to seek reimbursement of their fees from the settlement funds. They also argued that the trial court erred in ruling that their equitable claims are barred by sovereign immunity. Find View "Aranosian Oil Co., Inc. v. New Hampshire" on Justia Law
EnergyNorth Natural Gas, Inc. v. City of Concord
Respondent City of Concord appealed a superior court order that denied it summary judgment in favor of Petitioner EnergyNorth National Gas (d/b/a National Grid NH, or "National Grid"). The City argued that the trial court erroneously determined that RSA 231:185 (2009) and RSA 236:11 (2009) preempted the City's ordinance authorizing it to charge certain roadway fees. The issue between the parties arose from National Grid's desire to excavate certain streets to install, maintain or replace its underground pipes that delivered natural gas. The fees covered damage for damages arising from the excavation. Upon review, the Supreme Court concluded that granting summary judgment in favor of National Grid was in error. The City argued that its roadway fees are consistent with the pertinent statutes because they "cover[ ] maintenance costs to repair the roadway after it has been initially patched, which [are] used to restore the excavated roadway to the condition that existed prior to the excavation." The Court was not persuaded that when the legislature enacted the statutes at issue, it made any assumption or finding, implied or otherwise, as to whether repaving a paved excavated roadway restored the roadway's original life expectancy. The Court was thus left with a factual dispute whether patching an excavated roadway with new pavement diminished or restored its original life expectancy. Because of that "genuine issue of material fact," the Court remanded the case for further proceedings. View "EnergyNorth Natural Gas, Inc. v. City of Concord" on Justia Law
Appeal of Town of Seabrook
Petitioner Town of Seabrook appealed an order of the New Hampshire Department of Environmental Services (DES) which granted Respondent NextEra Energy Seabrook, LLC (NextEra), several tax exemptions under RSA 72:12-a (Supp. 2011). Upon review of the record, the Supreme Court found that the record supported DES' decisions except for one: the Court found no evidence in the record to support an increase in a percentage allocation allowed under the statute. Accordingly, the Court partly affirmed, partly reversed the DES' decision, and remanded the case for further proceedings. View "Appeal of Town of Seabrook " on Justia Law