Appellate Law

CA1: PURPA case barred by SOL (and Steel Co issue)

By S. COTUS

Greenwood v. NH Public Utilities, No. 07-2322.  This case begins with ?This case was brought by the owner of a small renewable hydroelectricity producing company.? So, he loses.

Before getting to the energy nerdery, the First has to explain how it will jump over the jurisdictional issues It writes:

While we would ordinarily reach the jurisdictional question first, we choose to resolve this case on other grounds. Although the Supreme Court in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998), generally barred the practice of "hypothetical jurisdiction," this circuit has treated Steel Co.'s admonition as having limits. See McBee v. Delica Co., 417 F.3d 107, 127 (1st Cir. 2005) [our coverage here]; Parella v. Ret. Bd. of the R.I. Employees' Ret. Sys., 173 F.3d 46, 53-56 (1st Cir. 1999). This court has consistently interpreted the Steel Co. rule as applying in its strict form only to issues going to Article III requirements.

Got it?  Steel Co. v. Citizens for a Better Environment only applies when the First Circuit says it does.

Anyway, this is a Public Utility Regulatory Policies Act ("PURPA" or "the Act") of 1978, 16 U.S.C. § 824a-3 case.  The New Hampshire Public Utilities Commission rescinded a 30-year rate agreement because ? It concluded that it had made a mistake in the 1985 order, and that it had not, as PURPA and the FERC rules required, treated Greenwood's three [qualifying cogeneration and small power production facilities] in a manner ?consistent . . . for facilities that are similarly circumstanced.?? Rather than appealing to the state Supreme Court or petition FERC for an enforcement proceedings, seventeen years later, the plaintiff asked the District Court to enjoin the commission from enforcing the change, effectively reinstating the old rates.  The District Court issued the injunction.  The First reverses, on statute of limitations grounds and notes that the plaintiff is the ?of a small renewable hydroelectricity producing company.?

This case was brought under 28 U.S.C. § 1331, there isn?t a Federal Statute of limitations, so the First chose N.H. Rev. Stat. § 508:4, because the First says that this claim is akin to ?New Hampshire law claim of tortious interference with contractual relations.?  But, the accrual date isn?t a matter of federal law.  It also rejects the idea that these claims are analogous to breach of contract claims.  Arguments about equity fail, because tolling the statute of limitations, apparently, would adversely impact third parties.

Full post as published by Appellate Law and Practice on May 15, 2008 (boomark / email).