The Plot Thickens

No, Public Utilities Commission, our challenge to your Eversource rate case order is not "moot."

Friday afternoons in my line of work are always fraught. The New Hampshire Public Utilities Commission (PUC) has a habit of unleashing bombshell orders at the end of the work week, late in the day.

Still, I thought this particular Friday afternoon — January 30 — was safe. In fact, it was my turn to let fly a bombshell in the form of a challenge to the PUC’s latest order in last year’s Eversource rate case. The PUC issued its decision on December 31 (itself a favorite date for committing unpleasant and unwelcome regulatory acts) and we, at the Office of the Consumer Advocate (OCA), had exactly 30 days to do something to prevent the regulators’ bad decision from becoming final and unappealable.

So we did something.

Around the middle of the day — in this case, we opted for a civilized hour instead of the customary 4:29 p.m., one minute before the official close of business — we filed a motion for rehearing pursuant to the relevant law, section 3 of Chapter 541 of the New Hampshire Revised Statutes Annotated. Yesterday’s blog post explained what we think was wrong with the PUC’s decision. Basically, the regulators awarded the state’s biggest utility a formidable fountain of free money at a time when everyone else in New Hampshire is freaking out about unaffordable electricity rates.

I guess the PUC did not like what we did, because what happened next really surprised me. And it was not a happy surprise.

Not quite at 4:29 — it was, for the record, 3:37 p.m. — we received a one-paragraph, two-sentence order from the PUC declaring that our rehearing motion, filed less than three hours earlier, had been dismissed as “moot.” Here’s the literal wording: “As Order No. 28,201 (Dec. 31, 2025) was the final order dispositioning the motions for rehearing relating to Order No. 28,170 (July 25, 2025) the OCA pleading filed today is hereby DISMISSED as MOOT.”

Did you get that? It is common for judges, when desiring to invoke the majesty of court authority in the face of lame, misguided, annoying, and/or sneaky litigation tactics from unscrupulous or ineffective lawyers, to start capitalizing words like “DISMISSED” and “MOOT.” And PUC commissioners like to think of themselves as judges, at least when it is convenient to do so.

My fellow New Hampshire ratepayers, pleased rest assured. We are not a bunch of idiots at the Office of the Consumer Advocate. As we explained in our motion that was “DISMISSED” as “MOOT,” because the PUC introduced new grounds in support of its bad determination that was made last July, a follow-up rehearing motion was the legally correct move.

Among other things, this irksome late-Friday development found my scurrying to my dictionary. How could a pleading from our office, submitted to the PUC, be “moot”? What does this word actually mean?

Well, according to Merriam-Webster, “moot” has several meanings, the third of which is surely the one that was intended here: “deprived of practical significance : made abstract or purely academic.”

Much can be said in response to the claim that what we did on Friday afternoon was “moot,” but I will limit myself to two points here. The first is that we respectfully disagree. The second is that the order bore the signature of just one member of the PUC (Interim Chairman Mark Dell’Orfano) — which sets a new bar for irony inasmuch as one of the key points in our “moot” rehearing motion is that because the PUC is a three-member tribunal single commissioners do not have the authority under New Hampshire law to decide cases.¹

There was another Friday afternoon bombshell of note, and this one did hit at 4:29. The New Hampshire Department of Energy, also a party to the Eversource rate case, took the step we opted not to take — appeal to the New Hampshire Supreme Court.

This is a fascinating turn of events. The issues raised by the Department, challenging the PUC’s award of free money to Eversource in the form of a so-called “alternative regulation” plan, have merit. They are similar (but not identical) to the arguments we have been raising (as has another party with ratepayer interests at heart, AARP New Hampshire). But — and here, perhaps, is a point that only a law professor or other administrative law geek can appreciate — I find myself wondering whether the New Hampshire Department of Energy has standing to challenge a decision by another organ of the state’s executive branch. I know the idea of squabbles within the executive branch did not sit well with Representative Robert Lynn, a former chief justice of the New Hampshire Supreme Court, when a disagreement between the Department and the PUC came before the Joint Legislative Committee on Administrative Rules a while ago.

Consider, too, the political implications of all of this. Electricity affordability has become a hot topic as the 2026 election for governor, executive council, state legislature, and of course Congress looms. There was Governor Ayotte’s memorably brusque dispatch last summer of former PUC Chairman Daniel Goldner — clearly the architect of the July decision in the Eversource rate case that nobody but the utility seems to like.² More recently she passed over Dell’Orfano, the PUC’s interim chairman, to fill Goldner’s seat in the gavel-wielding position in favor of Christopher Ellms — who just so happens to be the deputy commissioner of the Department of Energy. Meanwhile all of this occurs against the backdrop of bills pending in both chambers of the General Court to repeal the PUC’s authority to approve alternative regulation plans, and public statements from the governor expressing unabashed dislike of such plans. Across the aisle, Democrats are touting legislation that would double down on alternative regulation. From my standpoint as the state’s ratepayer advocate, they’re all wrong. Alternative regulation is bad when it awards free money, but (potentially) good when it holds utilities accountable for bad performance and rewards them, modestly, for doing right by their customers. Furthermore, the most egregious free-money spigot comes in the form of lavish return on equity awarded to shareholders of utilities like Eversource — and of course the Department can’t appeal that part of the rate case because it is actually won on that issue.³ But I digress.

Only one thing is clear from Friday afternoon’s rate case developments, as we at the OCA mull our next move. At least for now, the PUC is done issuing orders in what seems to have become a never-ending rate case (now likely to celebrate its second birthday late this spring). As Governor Janet Mills of Maine memorably said when a bully unexpectedly tried to paint her into a corner on live TV: “See you in court!”

[Above: a picture I took recently at the Kahlil House in Manchester, designed by Frank Lloyd Wright back when energy efficiency wasn’t a thing.]

1. There are a few minor exceptions, none relevant here.

2. Even the utility didn’t seem to like the July decision at first, given that the PUC essentially rejected Eversource’s alternative regulation plan in favor of one designed by the regulators themselves. Eversource filed its own motion for rehearing of the decision, which apart from one minor adjustment the Commission did not grant. More recently Eversource has praised the outcome of its rate case as “fair” — and that’s what I’d say too if my job were to represent the interests of shareholders who had been awarded such a whopping big pile of free money.

3. Specifically, the Department recommended a 9.5 percent return on equity (vs. the utterly ridiculous 10.3 percent requested by Eversource — an outcome the utility knew from the get-go it could never achieve). Our experts asked the Commission to approve 8.1 percent. Here’s the math: 9.5 - 8.1 = lots of free money, when multiplied by the roughly half of this utility’s rate base that is funded by equity (the rest being funded with money borrowed from banks).