MAINE	SUPREME	JUDICIAL	COURT	                                        Reporter	of	Decisions	
Decision:	  2018	ME	120	
Docket:	   	PUC-17-185	
Argued:	    December	13,	2017	
Decided:	   August	16,	2018	
	
Panel:	     SAUFLEY,	C.J.,	and	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                          CONSERVATION	LAW	FOUNDATION	et	al.	
                                           	
                                          v.	
                                           	
                             PUBLIC	UTILITIES	COMMISSION	
	
	
SAUFLEY,	C.J.	

	       [¶1]	 	 The	 Conservation	 Law	 Foundation;	 the	 Industrial	 Energy	

Consumers’	Group;	ReVision	Energy,	LLC;	and	the	Natural	Resources	Council	of	

Maine	 appeal	 from	 the	 promulgation	 of	 a	 final	 rule	 by	 the	 Public	 Utilities	

Commission.1		CLF	argues	that	the	Commission	violated	several	provisions	of	

the	Maine	Administrative	Procedure	Act,	see	5	M.R.S.	§	8058	(2017),	and	that	

the	rule	violates	statutory	bans	on	exit	fees,	see	35-A	M.R.S.	§	3209(3)	(2017),	

and	unjust	discrimination,	see	35-A	M.R.S.	§	702(1)	(2017).		The	Commission	

has	moved	for	dismissal	of	the	appeal,	arguing	that	original	jurisdiction	over	

challenges	to	the	Commission’s	promulgation	of	a	rule	lies	exclusively	with	the	



    1		All	four	appellants	join	the	same	brief	and	argue	the	same	issues	in	this	appeal.		We	refer	to	them	

collectively	as	CLF.			
2	

Superior	Court.		Because	we	do	not	have	original	jurisdiction	over	appeals	from	

administrative	rulemaking	proceedings,	we	dismiss	the	appeal.	

                                  I.		BACKGROUND	

      [¶2]		Net	Energy	Billing	(NEB)	is	a	renewable	energy	incentive	program	

that	is	intended	to	encourage	electricity	generation	from	renewable	resources.		

9	C.M.R.	65	407	313-3	§	1	(2017).		The	Commission	first	implemented	NEB	in	

the	early	1980s	by	promulgating	a	rule	permitting	small	power	generators	to	

sell	back	to	their	utility	any	electricity	that	they	generated	but	did	not	consume	

on	 site.	 	 See	 Re	 Cogeneration	 and	 Small	 Power	 Prod.,	 42	 P.U.R.4th	 536	 (Me.	

1981).		Following	the	industry	deregulation	in	the	late	1990s,	the	Commission	

implemented	a	credit-based	incentive	whereby	NEB	customers	who	generated	

more	electricity	than	they	used	in	a	given	billing	period	were	provided	credits	

to	offset	usage	over	the	following	twelve	months.		See	Me.	Pub.	Util.	Comm’n,	

Report	on	Net	Energy	Billing	5-6	(Jan.	15,	2009).			

	     [¶3]		In	2016,	following	a	review	of	the	NEB	program,	the	Commission	

issued	 a	 notice	 of	 proposed	 rulemaking.	 	 See	 5	 M.R.S.	 §	 8053	 (2017).	 	 After	

holding	 a	 public	 hearing	 and	 receiving	 written	 comments	 on	 the	 proposed	

amendments,	the	Commission	adopted	an	amended	rule	on	March	1,	2017.		See	

5	M.R.S.	§	8052(1)-(3)	(2017).			
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        [¶4]	 	 Pertinent	 to	 this	 appeal,	 the	 Rule	 implemented	 three	 changes,	 all	

applicable	 to	 the	 calculation	 of	 the	 NEB	 incentive	 with	 respect	 to	 the	

transmission	and	distribution	(T&D)	portion	of	the	NEB	customers’	bills,	and	

all	to	be	implemented	over	an	extensive	period	of	time.		First,	the	Rule	created	

an	attenuated	reduction	in	the	credit	available	to	new	NEB	customers,	reducing	

the	credit	by	ten	percent	for	each	of	the	next	ten	years,	applied	according	to	the	

year	in	which	the	customer	enrolls	in	the	NEB	program.		9	C.M.R.	65	407	313-2	

§	3(F)	(2017).		Thus,	for	ratepayers	who	join	the	NEB	program	after	2027,	zero	

percent	of	excess	energy	will	be	available	as	a	credit	against	T&D	charges.		Id.		

Second,	the	Rule	grandfathered	existing	customers	so	that	their	NEB	incentive	

applicable	to	T&D	charges	remains	the	same	for	fifteen	years,	after	which	it	is	

eliminated	altogether.		Id.	§	3(E).		Third,	the	Rule	defined	“nettable	energy”—

that	portion	of	the	customer’s	consumption	from	which	the	incentive	is	to	be	

calculated—so	that	all	of	the	energy	consumed	by	the	customer	is	included.2		Id.	

§	2(L).				

        [¶5]	 	 On	 March	 21,	 2017,	 CLF	 filed	 a	 petition	 for	 reconsideration.	 	 The	

Commission	did	not	respond	to	the	petition,	rendering	it	denied.		See	9	C.M.R.	


   2		The	parties	agree	that	the	result	of	this	definitional	change	is	that,	as	the	incentive	is	eliminated,	

NEB	customers	will	be	issued	a	T&D	charge	reflecting	all	of	the	electricity	they	generate,	including	
electricity	they	generate	and	consume	“behind	the	meter.”			
4	

65-407	110-12	§	11(D)	(2017).		CLF	filed	a	timely	appeal	on	May	1,	2017.		See	

M.R.	App.	P.	2(b)(3)	(Tower	2016).3		In	its	notice	of	appeal,	CLF	asserted:		

             • that	 the	 Rule	 constitutes	 an	 “exit	 fee”	 in	 violation	 of	 35-A	 M.R.S.	
               §	3209(3);	
               	
             • that	 the	 Rule	 unjustly	 discriminates	 against	 NEB	 customers	 in	
               violation	of	35-A	M.R.S.	§	702(1);		
	
             • that	 the	 Commission	 exceeded	 its	 authority	 to	 adopt	 and	 amend	
               rules	governing	NEB,	see	35-A	M.R.S.	§	3209-A	(Supp.	2017);		
	
             • that	 the	 Commission’s	 notice	 of	 proposed	 rulemaking	 failed	 to	
               notify	the	public	of	the	proposed	definitional	change	to	“nettable	
               energy,”	see	5	M.R.S.	§	8052(1),	(5)(B)	(2017);		
	
             • that	 the	 Commission’s	 rulemaking	 was	 procedurally	 flawed	
               because	the	Commission	failed	to	include	either	a	small	business	
               impact	 statement,	 see	 5	 M.R.S.	 §	 8052(5-A)	 (2017),	 or	 a	 fiscal	
               impact	statement,	see	5	M.R.S.	§	8057-A(1)(C)	(2017);	and	
	
            • that	 the	 Commission’s	 finding	 that	 the	 NEB	 program	 results	 in	 a	
                 “cost	shift”	to	non-NEB	ratepayers	is	not	supported	by	substantial	
                 evidence	in	the	record.			
            	
         [¶6]	 	 The	 Commission	 filed	 a	 motion	 to	 dismiss	 the	 appeal,	 see	 M.R.	

App.	P.	4(d),	arguing	that	jurisdiction	over	appeals	from	Commission	rules	lies	

exclusively	 with	 the	 Superior	 Court.	 	 We	 issued	 an	 order	 requesting	 that	 the	




     3		The	Maine	Rules	of	Appellate	Procedure	were	restyled	effective	for	appeals	commenced	on	or	

after	September	1,	2017.		See	M.R.	App.	P.	1.		Because	CLF	filed	this	appeal	before	September	1,	2017,	
the	restyled	Maine	Rules	of	Appellate	Procedure	do	not	apply.			
                                                                                      5	

parties	address	the	jurisdictional	issue	in	their	briefs.		We	now	determine	that	

the	jurisdictional	deficiency	is	dispositive.		

                                    II.		ANALYSIS	

	     [¶7]	 	 The	 Commission	 argues	 that	 35-A	 M.R.S.	 §	1320	 (2017)	 does	 not	

authorize	appeals	to	the	Law	Court	when	the	Commission	acts	pursuant	to	its	

rulemaking	authority.		“Whether	subject	matter	jurisdiction	exists	is	a	question	

of	law	that	we	review	de	novo.”		Tomer	v.	Me.	Human	Rights	Comm’n.,	2008	ME	

190,	¶	9,	962	A.2d	335.		In	doing	so,	we	examine	the	plain	meaning	of	the	statute	

at	issue	and	consider	“the	entire	statutory	scheme”	in	order	to	“discern	and	give	

effect	to	the	Legislature’s	intent.”		Doane	v.	Dep’t	of	Health	&	Human	Servs.,	2017	

ME	 193,	 ¶	 13,	 170	 A.3d	 269	 (quotation	 marks	 omitted).	 	 We	 avoid	

interpretations	 that	 create	 “absurd,	 illogical,	 unreasonable,	 inconsistent,	 or	

anomalous	results	if	an	alternative	interpretation	avoids	such	results.”		Dickau	

v.	Vt.	Mut.	Ins.	Co.,	2014	ME	158,	¶	21,	107	A.3d	621.			

      [¶8]	 	 Here,	 CLF	 asserts	 that	 its	 appeal	 is	 authorized	 by	 35-A	 M.R.S.	

§	1320(1),	which	provides	in	pertinent	part:		

            The	following	procedures	apply	to	an	appeal	of	a	decision	of	
      the	commission.		
      	
            1.	 Final	 decisions.	 	 An	 appeal	 from	 a	 final	 decision	 of	 the	
      commission	may	be	taken	to	the	Law	Court	on	questions	of	law	in	
6	

        the	 same	 manner	 as	 an	 appeal	 taken	 from	 a	 judgment	 of	 the	
        Superior	Court	in	a	civil	action.			
	
(Emphasis	added.)		CLF	contends	that	section	1320(1)	authorizes	its	appeal	to	

the	Law	Court	because	the	Commission	 issued	 a	“final	decision”	and	CLF	has	

raised	“questions	of	law.”		Id.		CLF’s	argument	turns,	in	the	first	place,	on	the	

proper	 interpretation	 of	 the	 phrase	 “final	 decision”	 in	 section	 1320(1)—a	

phrase	that	we	have	not	interpreted	before	in	this	context.4			

        [¶9]	 	 Because	 “final	 decision”	 is	 not	 defined	 anywhere	 in	 title	5,	 we	

examine	the	statutory	scheme	within	which	the	phrase	is	used,	beginning	with	

section	1320(1).		See	Doane,	2017	ME	193,	¶	13,	170	A.3d	269.		This	subsection	

requires	that	appeals	taken	from	the	Commission	shall	be	taken	“in	the	same	

manner	 as	 an	 appeal	 taken	 from	 a	 judgment	 of	 the	 Superior	 Court	 in	 a	 civil	

action.”	 	 35-A	 M.R.S.	 §	 1320(1).	 	 By	 equating	 the	 role	 of	 the	 Commission	 in	

making	 “final	 decisions”	 with	 the	 Superior	 Court,	 section	 1320(1)	 evinces	 a	

legislative	intent	to	define	appellate	review	over	decisions	of	the	Commission	


   4		CLF	contends	that	we	must	have	interpreted	this	phrase	when	we	exercised	jurisdiction	over	an	

appeal	from	the	Commission’s	rulemaking	process	in	Central	Maine	Power	Company	v.	Public	Utilities	
Commission,	1999	ME	119,	¶	1,	734	A.2d	1120.		In	that	case,	we	vacated	on	constitutional	grounds	
part	 of	 a	 Commission	 rule	 requiring	 T&D	 utilities	 to	 submit	 for	 the	 Commission’s	 review	 any	
educational	 materials	 that	 the	 utilities	 planned	 to	 distribute	 to	 the	 public,	 holding	 that	 such	 a	
requirement	amounted	to	an	unconstitutional	prior	restraint	on	speech.		Id.	¶¶	1,	14,	17.		Neither	the	
Commission,	 the	 Public	 Advocate,	 nor	 any	 amici	 challenged	 CMP’s	 assertion	 of	 jurisdiction	 under	
35-A	M.R.S.	§	1320(5),	and		we	did	not	address	jurisdiction	in	the	opinion.		To	the	extent	that	CMP	
can	be	read	to	provide	a	positive	statement	of	law	contradicting	our	holding	herein,	we	overrule	the	
holding	of	CMP	on	jurisdiction.		
                                                                                     7	

when	it	acts	in	its	adjudicatory	role—not	in	its	rulemaking	capacity.		Id.		The	

remainder	 of	 section	 1320	 similarly	 focuses	 on	 the	 Commission	 in	 its	

adjudicatory	role.		For	example,	section	1320(3)	authorizes	the	replacement	of	

the	 terms	 “court,”	 “clerk,”	 and	 “clerk	 of	 courts”	 with	 their	 counterparts	

“commission”	and	“administrative	director	of	the	commission.”		Id.	§	1320(3).		

Furthermore,	the	entirety	of	chapter	13—of	which	1320	is	a	part—focuses	on	

the	Commission’s	adjudicatory	role.		See	35-A	M.R.S.	§§	1301-1323	(2017).			

      [¶10]		The	context	of	these	provisions	demonstrates	that	the	Legislature	

intended,	appropriately,		to	limit	jurisdiction	for	direct	appeals	to	the	Law	Court	

to	 only	 those	 appeals	 from	 the	 Commission’s	 action	 in	 carrying	 out	 its	

adjudicatory	 responsibilities,	 in	 which	 the	 facts	 will	 already	 have	 been	

determined	 and	 a	 full	 record	 of	 the	 adjudicatory	 proceeding	 will	 have	 been	

made.	 	 No	 direct	 appeal	 is	 provided	 when	 the	 Commission	 has	 exercised	 its	

rulemaking	authority.			

      [¶11]	 	 This	 interpretation	 is	 consistent	 with	 the	 language	 of	 section	

1320(6),	which	provides:	

             6.		Law	Court	jurisdiction	is	exclusive.		The	Law	Court	has	
      exclusive	jurisdiction	over	appeals	and	requests	for	judicial	review	
      of	final	decisions	and	of	rulings	and	orders	subject	to	subsections	1	
      and	 5,	 with	 the	 exception	 of	 the	 Superior	 Court’s	 jurisdiction	 to	
      review	rules	under	Title	5,	section	8058.			
	
8	

(Emphasis	added.)		In	turn,	5	M.R.S.	§	8058	authorizes	review	by	the	Superior	

Court	 where	 an	 administrative	 agency	 acts	 pursuant	 to	 its	 rulemaking	

authority.	 	 Thus,	 the	 Legislature	 expressly	 excepted	 from	 the	 Law	 Court’s	

exclusive	jurisdiction	appeals	from	rulemaking	proceedings	that	are	properly	

brought	to	the	Superior	Court.			

      [¶12]		Nevertheless,	CLF	contends	that	the	exception	in	section	1320(6)	

merely	limits	the	exclusive	jurisdiction	of	the	Law	Court	over	final	adjudicatory	

decisions	 of	 the	 Commission.	 	 CLF	 interprets	 the	 exception	 to	 implicitly	

recognize	 that	 the	 Superior	 Court	 and	 the	 Law	 Court	 share	 concurrent	

jurisdiction	 over	 appeals	 challenging	 the	 Commission’s	 exercise	 of	 its	

rulemaking	 authority.	 	 This	 argument,	 however,	 is	 foreclosed	 by	 4	 M.R.S.	

§	105(4)	(2017),	which	provides:		

            4.		No	jurisdiction,	powers,	duties	or	authority	of	the	Law	
      Court.		The	Superior	Court	does	not	have	and	may	not	exercise	the	
      jurisdiction,	powers,	duties	and	authority	of	the	Supreme	Judicial	
      Court	sitting	as	the	Law	Court.			
	
By	its	express	language,	the	Superior	Court’s	enabling	statute	thus	precludes	

any	 inference	 that	 the	 Law	 Court	 and	 the	 Superior	 Court	 share	 concurrent	

jurisdiction.		
                                                                                 9	

	     [¶13]		In	light	of	the	entire	statutory	scheme	of	which	section	1320	is	a	

part,	we	conclude	that	any	appeal	from	Commission	rulemaking	proceedings	

must	be	brought	originally	in	the	Superior	Court.			

      [¶14]		Because	all	of	the	issues	raised	by	CLF	in	this	appeal	are	challenges	

to	the	Commission’s	exercise	of	its	rulemaking	authority,	whether	or	not	they	

are	couched	in	terms	of	“questions	of	law”	related	to	that	appeal,	we	do	not,	and	

should	not,	have	jurisdiction	over	direct	appeals	from	a	rulemaking	proceeding.		

35-A	M.R.S.	§	1320(1).		Accordingly,	we	must	dismiss	the	appeal.			

	     The	entry	is:		

	     	     	      Appeal	dismissed.			

	     	     	      	     	     	
	
	                        	
10	

Sean	 Mahoney,	Esq.,	and	 Emily	K.	Green,	Esq.,	Conservation	 Law	Foundation,	
Portland,	for	appellant	Conservation	Law	Foundation	
	
Stephen	 F.	 Hinchman,	 Esq.,	 ReVison	 Energy,	 LLC,	 Portland,	 for	 appellant	
ReVison	Energy,	LLC	
	
Andrew	 Landry,	 Esq.,	 and	 Anthony	 W.	 Buxton,	 Esq.	 (orally),	 PretiFlaherty,	
Augusta,	for	appellant	Industrial	Energy	Consumers’	Group	
	
Catherine	 B.	 Johnson,	 Esq.,	 Natural	 Resources	 Council	 of	 Maine,	 Augusta,	 for	
appellant	Natural	Resources	Counsel	of	Maine	
	
Lee	L.	Ewing,	Esq.,	Amy	B.	Mills,	Esq.,	and	Mitchell	M.	Tannenbaum,	Esq.	(orally),	
Maine	Public	Utilities	Commission,	Augusta,	for	appellee	Maine	Public	Utilities	
Commission	
	
	
Public	Utilities	Commission	docket	number	2016-00222	
FOR	CLERK	REFERENCE	ONLY	
