Eastern Maine Elec. Co-op., Inc. v. Maine Yankee Atomic Power Co.

• Decision Date: 16 January 1967
• Citation: 225 A.2d 414
• Parties: EASTERN MAINE ELECTRIC COOPERATIVE, INC. and Citizens for Maine Power Authority v. MAINE YANKEE ATOMIC POWER COMPANY.
• Court: Maine Supreme Court

Page 414

225 A.2d 414

EASTERN MAINE ELECTRIC COOPERATIVE, INC. and Citizens for Maine Power Authority v. MAINE YANKEE ATOMIC POWER COMPANY.

Supreme Judicial Court of Maine.

Jan. 16, 1967.

George J. Mitchell, Portland, Malcolm S. Stevenson, Bangor, Richard B. Sanborn, Augusta, for plaintiff.

Vincent L. McKusick and Gerald M. Amero, Portland, for defendants.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, RUDMAN and DUFRESNE, JJ.

WEBBER, Justice.

Pursuant to 35 M.R.S.A. Sec. 171 Maine Yankee Atomic Power Company filed with the Public Utilities Commission an 'Application for Approval of the Issue and Sale of $10 Million of Common Stock.' Yankee is a Maine corporation and its corporate purposes are, inter alia, 'to make and generate electricity, including electricity generated from nuclear or atomic energy' and to 'supply and sell electricity to other electric utilities doing business within or outside of the State of Maine and which are stockholders of the corporation.' Yankee was organized on behalf of eleven New England utility companies, three of them located in Maine, which propose to purchase its stock and become the customers for its power. The proposed atomic power plant, if and when built at a location in Maine, is expected to cost between $106,000,000 and $120,000,000. The initial $10,000,000 involved in this proceeding is required to defray the expense of planning engineering and the securing of regulatory approval from a number of agencies.

Sec. 171 provides in pertinent part: 'Any public utility * * * may issue stocks * * * for the acquisition of property to be used for the purpose of carrying out its corporate powers, the construction * * * of its facilities, for the discharge * * * of its obligations * * * or for any other lawful purposes, provided and not otherwise, * * * in the opinion of the commission the sum of the capital to be secured by the issue of said stocks * * * is required in good faith for purposes enumerated in this section.' (Emphasis ours.) It is apparent that a stock issue is a matter primarily for managerial judgment and discretion and that the supervisory responsibility of the Commission is discharged when it has satisfied itself that the proposed stock offering is 'required in good faith for purposes enumerated in (Sec. 171).' After hearing, the Commission so found in the instant case on the basis of evidence which abundantly supported its decision.

Eastern Maine Electric Cooperative, Inc. and Citizens for Maine Power Authority now seek to appeal from the Commission's decision pursuant to 35 M.R.S.A. Sec. 303. Yankee challenges their standing as appellants. At the public hearing held by order of the Commission, Eastern and Citizens both sought to intervene. After some colloquy and over the objection of Yankee, the Commission granted a qualified or conditional right to intervene and to participate, especially by means of cross-examination, in the manner ordinarily employed by intervening parties.

Rule 16 of the Commission Rules of Practice and Procedure deals with 'Intervention' and provides in part:

'Under applicable statutes any person, firm, or corporation; * * * shall have the right to intervene but such intervention shall be considered only under the following conditions:-

'16.1 Leave to Intervene Necessary

'Persons, other than the original parties to the proceeding, who are directly and substantially affected by the proceeding, shall file a petition of intervention with the Commission * * *.

'16.2 Form and Contents

'Petitions for leave to intervene must be in writing * * *, making a clear and concise statement of the direct and substantial interest of the petitioner, in such proceeding, stating the manner in which such petitioner will be affected by such proceeding, * * *.' (Emphasis ours.)

This rule was promulgated pursuant to the provisions of 35 M.R.S.A. Sec. 3 and was binding upon the Commission and the parties unless waived. There was no waiver of the requirement that intervening parties be persons who are 'directly and substantially affected by the proceeding' and have a 'direct and substantial interest' therein, and in fact Yankee opposed intervention precisely upon these grounds. Rule 16 provides a reasonable and in fact a necessary requirement if the Commission is to hear and determine the cases before it promptly and effectively. One who seeks standing as an appellant in the Law Court from a decision of the Commission must satisfy the same requirement. Appeals attempted by parties who demonstrate no such interest must be deemed frivolous.

The record discloses that Eastern is a customer of two of the public utility companies which are potential stockholders of Yankee. Eastern asserted no other interest in the proceeding and took no position on the pending application. Its counsel stated in part: 'I want to make it clear that we take no position at the present time on the Maine Yankee project or on the applications pending before the Commission. We neither support nor oppose them now.' The same counsel continued by requesting that the Commission 'hold in abeyance its consideration and decision on this matter' pending a study by a special legislative committee then in progress.

With respect to Citizens, their counsel informed the Commission that he represented a 'committee' of named individuals which 'is now in the process of incorporating.' Although the precise interest of these individuals is nowhere specifically stated, it seems fair to conclude that the 'committee' is interested in the development in this state of public power developed from atomic energy. It is not suggested that the individuals comprising the 'committee' themselves own or contemplate ownership of such a plant but rather that they believe in and support the concept of public ownership and control through a state agency or authority. Such an understanding of their position accords with the statement of their counsel when he expressed their interest in these terms: 'I thought I mentioned the...