Thomas Melone vs. Department of Public Utilities

462 Mass. 1007

·      Procedural History

 Objector sought to intervene in proceedings before Department of Public Utilities (department) on electric utility’s petition for approval of utility’s plan to purchase electricity from operator of proposed off-shore wind farm. The Department denied objector’s requests to intervene, and objector filed petitions seeking relief from single justices of the Supreme Judicial Court. Single justices of the Supreme Judicial Court denied the petitions, and objector appealed.

·      Issue

 Whether Melone had standing to intervene in a proceeding before the Department of Public Utilities pursuant to St.2008, c. 169, § 83, and then seek judicial review of the department’s approval of an agreement between the Massachusetts Electric Company and Nantucket Electric Company (collectively, National Grid) to purchase power from Cape Wind Associates, LLC.

·      Facts

 Cape Wind plans to construct an offshore wind-powered energy generating facility in Nantucket Sound. The proceeding before the department concerned not the construction of the wind farm, but National Grid’s proposed agreement to purchase power generated there. Those agreements are subject to the department’s review and approval.

Pursuant to St.2008, c. 169, § 83, National Grid filed with the department a petition for review and approval of its power purchase agreements.

A number of individuals (including Melone), groups, and corporations sought to intervene. Melone sought intervention on the ground that the wind farm would have adverse effects on him as the owner of beachfront property on Martha’s Vineyard. In particular, he argued that the wind farm would alter the view from his property, that the wind farm would diminish the value of his property, that oil or other contaminants spilled at the turbines could find their way to his property, and that he had standing as a ratepayer and as an abutter to the proposed project. A hearing officer denied Melone’s request to intervene and Melone appealed to the department.

The department concluded that the claimed effects on Melone’s property were beyond the scope of the § 83 proceeding, that his claimed status as an abutter was irrelevant to the proceeding, that the Attorney General could adequately represent ratepayers’ interests, and that in any event, Melone was not a National Grid ratepayer because National Grid does not serve Martha’s Vineyard.

Melone’s first petition challenged the department’s denial of his request to intervene and the first single justice dismissed the first petition. Melone’s second petition sought judicial review pursuant to G.L. c. 25, § 5 and the second single justice dismissed the second petit for lack of standing.

·      Holding

 After consolidating the appeals, the Supreme Judicial Court held that objector lacked standing to intervene.

·      Reasoning

 The department was well within its broad discretion in denying Melone’s request to intervene in this matter. The § 83 proceeding before the department concerned the cost effectiveness of the power purchase agreements. The environmental and other concerns raised by Melone, even assuming Melone would be “substantially and specifically affected” by them, were beyond the scope of the proceeding.

Nothing in § 83 requires the department to address the environmental and visual effects of a renewable energy generating source. Nor does Melone’s claimed status as a ratepayer (even if he were a National Grid ratepayer) give him any particularized interest entitling him to intervene in this matter, especially where the Attorney General has intervened to represent ratepayers’ interests.

There was no error or abuse of discretion in the department’s denial of Melone’s request to intervene. Moreover, where the department property did not grant Melone’s petition to intervene as a party to the § 83 proceeding, it follows inexorably that he was not an aggrieved party in interest entitled to seek judicial review of the department’s final order approving the power purchase agreements.

·      Disposition

Decision of the department affirmed (EH)