In re EHV-Weidmann Industries, Inc.

In re EHV-Weidmann Industries, Inc. (2001-077); 173 Vt. 581; 795 A.2d 1185

[Filed 19-Feb-2002]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2001-077

                             JANUARY TERM, 2002


In re Petition of	               }	APPEALED FROM:
EHV-Weidmann Industries, Inc.	       }
                                       }
                                       }	Public Service Board
                                       }	
                                       }
                                       }	DOCKET NO. 6333


             In the above-entitled cause, the Clerk will enter:


       Petitioner EHV-Weidmann Industries, Inc. appeals the Vermont Public
  Service Board's ruling  that EHV does not have the right to elect to
  receive electric service from the Village of Lyndonville  Electric
  Department (LED) should it relocate its metering point from a section of
  its property located  within the service territory of Central Vermont
  Public Service Corporation (CVPSC) onto a section  of its property located
  within LED's service territory.  The Board ruled that EHV did not have an 
  ongoing right to change its electric service provider at will, simply by
  relocating its metering point.   We affirm.

       The parties stipulated to the relevant facts.  CVPSC has provided
  electric service to EHV  since 1970 and continues to do so currently.  EHV
  has expanded and contracted its physical premises  over the years, but, at
  all times, EHV's real property has straddled the service territories of
  CVPSC  and LED, which were established by the Board in 1974.  EHV's sole
  metering point, however, is  located in CVPSC's service territory.  EHV has
  not alleged that CVPSC is providing inadequate  service.  In February 2000,
  EHV petitioned the Board for a declaratory ruling that it had a right to 
  relocate its metering point on its premises into LED's service territory
  and thereafter receive its  electric service from LED.  CVPSC and the
  Department of Public Service opposed the petition.   LED did not
  participate in the matter and thus took no position on the petition.

       The Board has jurisdiction to establish service territories for
  companies providing electric  service "and to alter those territories from
  time to time as conditions warrant."  30 V.S.A. § 249(a).   In support of
  its claim that it had a right to change electric service providers, EHV
  relied on 30  V.S.A. § 251(b):

    In the event service is requested for premises in an area which
    two or more  companies distributing electrical energy are
    authorized to serve and have  facilities available for service to
    the property, the public utility company the 

 

    existing service facilities of which are nearest the metering
    point on the  premises to be served shall, subject to the other
    applicable provisions of this  section, be entitled to serve the
    premise.

  EHV maintained that when a customer's premises span the service territories
  of more than one  electric service provider, the customer has the right to
  move its metering point within any of the  service territories and thereby
  elect to receive electric service from the provider assigned to that 
  territory.  According to EHV, because its premises spanned the service
  territories assigned to CVPSC  and LED, it was free to choose LED as its
  service provider simply by relocating its metering point on  its premises
  into LED's service territory.  

       After examining the entire statutory scheme, 30 V.S.A. §§ 249-251, the
  Board adopted the  hearing officer's recommendation and concluded that
  allowing a customer with real property  straddling two service territories
  to exercise unrestricted discretion to choose (and re-choose) its  service
  provider would be contrary both to the specific language within the
  statutory scheme and to  the explicit legislative policy underlying the
  statutory scheme.  The Board noted that switching  electric service
  providers generally requires the new provider to extend and install
  facilities for its  new customer, and that this would be contrary to the
  statute's stated legislative policy to "eliminate or  prevent conditions
  leading to unnecessary duplication of service and economic waste in the 
  distribution of electrical energy."  1969, No. 257 (Adj. Sess.), § 2. 
  According to the Board, if  customers were permitted to change service
  providers at will, twice as many facilities might have to  be installed to
  serve those customers.

       The Board also emphasized that the statutory scheme was consistent
  with this legislative  policy and did not support EHV's petition.  As the
  Board pointed out, §§ 249 and 250 direct it to  establish exclusive
  discrete service territories for each electric utility.  In situations
  where more than  one utility seeks to serve the same area, and the
  distribution facilities of the competing utilities are so  intertwined or
  commingled that establishing an exclusive service territory would be
  impracticable,  the Board may authorize two or more providers to serve the
  contested area, "subject to the provisions  of section 251."  30 V.S.A. §
  250.  Under § 251(a), in an area having two or more authorized  providers,
  a provider may not extend service to any customer "presently served" by
  another provider  unless the other provider consents or the Board
  determines that the present service is inadequate.   Under § 251(b), if
  "service is requested" in an area having two or more authorized providers,
  the  provider with service facilities nearest to the customer's metering
  point is entitled to provide the  service.  Under § 251(c), if service is
  requested for premises that are not within the service territory  of any
  provider, the provider with service facilities nearest to the customer's
  metering point is  entitled to provide the service.  Under § 251(d), no
  provider may extend services to premises within  another provider's service
  territory unless the present provider requests the change or the Board
  finds  that the present service is inadequate.

       Reading § 251(b) in the context of the entire statutory scheme and the
  express legislative  policy underlying the statutory scheme, see Galkin v.
  Town of Chester, 168 Vt. 82, 87, 716 A.2d 25,  29 (1998) (operative
  sections of statutory scheme must be read in relation to one another); In
  re 

 

  Wal*Mart Stores, Inc., 167 Vt. 75, 84, 702 A.2d 397, 403 (1997) (in
  determining legislative intent,  we look to the whole statute, its subject
  matter, its effects and consequences, and reason and spirit of  law), the
  Board concluded that the phrase "in an area which two or more companies
  distributing  electrical energy are authorized to serve" means an area to
  which the Board has assigned more than  one provider the right to serve
  customers.  According to the Board, because EHV's premises are not  within
  a service territory to which multiple companies have been assigned, §
  251(b) does not apply,  and EHV is not entitled to change service providers
  simply by relocating its metering point.

       On appeal, EHV argues that the Board erred as a matter of law in
  concluding that it was not  entitled to change service providers pursuant
  to § 251(b) in the event it moved its metering point  from its current
  location within CVPSC's service territory to a location within LED's
  service  territory.  According to EHV, the Board erred by confusing the
  word "area" in § 251(b) with the term  "service territory."  In EHV's view,
  the Legislature intended the word "area" to refer to the place  where the
  customer's premises are located, not to the provider's service territory.

       In considering these arguments, we apply a deferential standard of
  review.  In re Green  Mountain Power Corp., 162 Vt. 378, 380, 648 A.2d 374,
  376 (1994).  "We accept the Board's  findings and conclusions unless they
  are shown to be clearly erroneous and, in reviewing those  findings and
  conclusions, we defer to the Board's particular expertise and informed
  judgment."  In re  Citizens Utilities Co., 171 Vt. 447, 450, 769 A.2d 19,
  23 (2000); see In re Green Mountain Power  Corp., 162 Vt. at 380, 648 A.2d 
  at 376 (as long as Board's decisions are directed at proper regulatory 
  objectives, they enjoy strong presumption of validity and are entitled to
  great deference).  "Absent  compelling indication of error, we accept the
  construction of a statute by the administrative body  responsible for its
  execution."  In re Petition of Twenty-Four Utilities, 159 Vt. 339, 361, 618 A.2d 1295, 1308 (1992).

       For the reasons stated by the hearing officer and the Board, we reject
  EHV's arguments.   EHV's real property spans two distinct exclusive service
  territories, one designated to CVPS, and the  other designated to LED. 
  There is no part of EHV's real property that is situated in a geographic
  area  where the Board has authorized both CVPS and LED to serve
  simultaneously, and there is no part of  EHV's real property that is
  situated in a geographic area where no electric utility is authorized to 
  serve.  Thus, §§ 251(b) and (c) and the metering point provisions contained
  therein do not apply to  EHV's real property.

       Further, even if we accepted EHV's argument that its buildings are "in
  any area which two or  more companies distributing electrical energy are
  authorized to serve," § 251(a), and not § 251(b),  would govern any change
  in service provider.  Subsection 251(a) pertains to property "presently 
  served" rather than to property "to be served," which is governed by §
  251(b).  Metering point  location is not a factor to be considered when
  applying § 251(a), which precludes a change of service  absent the consent
  of the present provider or approval of the Board based on insufficient
  service.   EHV cannot satisfy either condition.

 

       In sum, EHV urged the Board to conclude that because it happens to own
  property spanning  the service territories of two electric utility
  companies, it has ongoing discretion to choose which of  those two
  companies will be its electric service provider, and it can invoke that
  discretion simply by  relocating its metering point.  By virtue of its
  owning such property, EHV characterized itself as  having premises "in an
  area which two or more companies distributing electrical energy are 
  authorized to serve."  30 V.S.A. § 251(b).  The Board rejected this
  interpretation of § 251(b) after  examining the entire statutory scheme and
  the stated legislative policy underlying that statutory  scheme.  We find
  no basis to disturb the Board's decision.
 
       Affirmed.



                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Theresa S. DiMauro, District Judge  
                                       Specially Assigned