After Connecticut moved the Public Utilities Regulatory Authority into the Department of Energy and Environmental Protection, can DEEP tell PURA to suspend a contested case it is deciding?

Subject

Whether the Department of Energy and Environmental Protection (DEEP) may direct or improperly influence the Public Utilities Regulatory Authority (PURA) in pending contested case proceedings, including DEEP's September 2011 request that PURA suspend Docket No. 05-10-03RE04, the CL&P smart-meter rate proceeding.

Plain-English summary

Public Act 11-80, the 2011 statute that restructured Connecticut's energy regulation, did two things that sat awkwardly together: it gave the new Department of Energy and Environmental Protection (DEEP) authority to set the state's prospective energy policy, and it placed the Public Utilities Regulatory Authority (PURA), the body that decides actual rate cases and other contested utility proceedings, "within" DEEP. DEEP then asked PURA, in a public filing, to suspend a pending contested case so DEEP could finish its smart-meter policy work. The Office of Consumer Counsel asked the AG whether that crossed a legal line.

The AG concluded it did not. Public Act 11-80 makes the boundary clear in both directions. PURA is the sole final decision-maker in contested cases under the Uniform Administrative Procedure Act (UAPA), and DEEP has "no statutory authority to exert direct oversight over PURA decision-making" in those proceedings. But DEEP, like any other interested participant, may file a request urging PURA to act in a particular way; PURA is free to grant or deny it. DEEP's September 2011 filing was such a request, made openly and on the public docket, and PURA's voluntary decision to suspend the case was its own. The AG also rejected the framing of PURA as a "subordinate" of DEEP for decision-making purposes: the in-DEEP placement is organizational, not hierarchical for contested-case decisions.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Until 2011, Connecticut's Department of Public Utility Control (DPUC) was the standalone utility regulator. Public Act 11-80, the omnibus energy statute that the legislature passed that year, abolished DPUC and split its work between two newly arranged bodies. DEEP, an environmental and energy super-agency created by the same Act, was given prospective policy authority: through two planning proceedings, the Comprehensive Energy Plan (CEP) and the Integrated Resources Plan (IRP), DEEP would set the state's strategic energy direction (P.A. 11-80, §§ 51, 89). PURA, the renamed and slightly reconfigured successor to DPUC's contested-case work, was placed "within" DEEP under § 15, but explicitly preserved as the entity that issues final decisions in contested utility cases (P.A. 11-80, § 22).

That structural choice immediately raised the question Consumer Counsel Healey asked. If PURA is "within" DEEP, can DEEP direct PURA in a pending case? In the smart-meter context, DEEP filed a request on September 1, 2011 asking PURA to suspend Docket No. 05-10-03RE04 (the CL&P smart-meter and time-of-use rate proceeding) so DEEP could finish a public process to set state-wide smart-meter policy. PURA suspended the docket. The Office of Consumer Counsel worried that DEEP's filing was effectively a directive that PURA could not independently refuse, and that the optics of PURA "obeying" DEEP would compromise other parties' due-process rights in future cases.

The AG broke the question into three parts.

First, does P.A. 11-80 give DEEP direct oversight over PURA dockets? The AG's answer was no. The relevant text is § 51(e), which says PURA's decisions "shall be guided by the goals of the Department of Energy and Environmental Protection . . . and by the goals of the comprehensive plan and the integrated resource plan . . . and shall be based on the evidence in the record of each proceeding." That phrasing imposes a substantive obligation on PURA to consider DEEP's policy goals, but it pairs with the directive that PURA's decisions remain "based on the evidence in the record." Combined with § 22, which makes any "final decision, order or authorization of the Public Utility Regulatory Authority in a contested case" a final decision under Chapter 54 (the UAPA), the structure leaves PURA as the contested-case decision-maker. The AG concluded DEEP "has no statutory authority to exert direct oversight over PURA decision-making in contested proceedings."

Second, was DEEP's actual September 1, 2011 request lawful given that PURA sits within DEEP? The AG declined to formally adjudicate that question (an AG opinion is not the right vehicle to second-guess a contested-case decision) but provided guidance on the framework. The AG read § 22 as the clearest possible statement that PURA is the "sole and final decision-making authority" in UAPA proceedings, with PURA Directors who are independently appointed by the Governor with the advice and consent of both legislative chambers under § 15(a). For decision-making purposes, the AG concluded PURA is "not a 'subordinate entity' to the DEEP." DEEP's status, when it files in a PURA case, is the same as any other interested participant. State officials and agencies routinely file in administrative cases urging particular outcomes; that participation, made on the open docket with notice, "better informs the decision-making authority and promotes the fairness and integrity of the administrative process." The AG noted, somewhat unusually, that the AG's own office had filed a letter on August 31, 2011 supporting DEEP's request, on the merits.

Third, was DEEP free to appear and participate as a party or intervenor in PURA dockets? The AG said yes, subject to the standard UAPA procedural protections, including the ex-parte communications rules at Conn. Gen. Stat. § 4-181. PURA Directors are independent under P.A. 11-80, § 15(a). Their formal placement within DEEP for administrative purposes does not collapse that independence, and the UAPA's procedural protections (notice, opportunity to be heard, restrictions on ex-parte contact, on-the-record decision-making) apply equally to DEEP when it participates. In short, DEEP can be a party in a PURA docket on the same terms as any other party.

The AG closed by routing OCC's general due-process concern back into the existing UAPA review process. If a party believes DEEP's filing or participation in a particular case has impinged on due-process rights, the remedy is to raise that issue inside the UAPA proceeding (where PURA can rule on it) or on UAPA appeal, not to obtain an abstract AG opinion declaring DEEP's filings off-limits.

Common questions

Q: So can DEEP tell PURA to suspend a case or decide it a particular way?
A: At the time of the opinion, the AG's view was: no, DEEP cannot direct PURA, but DEEP can request, advocate, or intervene in the same way other parties can. The distinction was substantive: PURA had to actually evaluate any request on the record and could deny it.

Q: Why does P.A. 11-80, § 51(e) require PURA to be "guided by" DEEP's goals if DEEP cannot direct PURA?
A: The opinion reads § 51(e) as a substantive policy-setting tool, not a chain-of-command tool. PURA must take DEEP's CEP and IRP goals into account when deciding cases, but the actual decision must rest on evidence in the case record. This is a soft constraint that influences the merits, not a hard constraint that lets DEEP write the order.

Q: Does this analysis still hold after later amendments to P.A. 11-80?
A: This page is historical. The AG's 2011 reasoning was anchored in the text of P.A. 11-80 as enacted. Connecticut energy law has been amended several times since 2011 (the Take Back Our Grid Act of 2020 is one example). Anyone relying on this opinion's structural conclusions should check the current statute and any later AG opinions or court decisions.

Q: What happens if DEEP files something and PURA grants it without record evidence supporting it?
A: The AG opinion framed that as a UAPA-procedure issue. Aggrieved parties can argue, in the case itself or on appeal, that PURA's decision was not based on the record. UAPA appeals to the Superior Court are the standard route.

Q: What were PURA's predecessor agencies?
A: PURA replaced the Department of Public Utility Control (DPUC) under P.A. 11-80, § 15. Earlier predecessor agencies included the Public Utilities Commission. The opinion treats PURA as functionally continuous with DPUC for contested-case decision-making while sitting in a new structural location.

Citations

• Public Act 11-80, § 15 (PURA placement within DEEP; PURA Directors appointed with advice and consent)
• Public Act 11-80, § 22 (PURA final decisions in contested cases are final decisions for UAPA purposes)
• Public Act 11-80, § 51 (DEEP's Comprehensive Energy Plan; § 51(e) requires PURA to be guided by DEEP goals while basing decisions on the record)
• Public Act 11-80, § 89 (Integrated Resources Plan)
• Conn. Gen. Stat. § 4-166 et seq. (Uniform Administrative Procedure Act)
• Conn. Gen. Stat. § 4-181 (ex-parte communications in administrative proceedings)
• Conn. Gen. Stat. § 16a-3a (CEP and IRP cross-reference)

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Original PDF: https://portal.ct.gov/-/media/ag/opinions/2011/opinionhealeypdf.pdf?rev=6375a999076f4e57ade3a72d228a0f07

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

GEORGE C. JEPSEN
ATTORNEY GENERAL

55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120

Office of The Attorney General
State of Connecticut

September 30, 2011

Mary J. Healey
Consumer Counsel
Office of Consumer Counsel
10 Franklin Square
New Britain, CT 06051

Dear Consumer Counsel Healey:

You have requested a legal opinion concerning the Department of Energy and Environmental Protection's ("DEEP") request that the Public Utilities Regulatory Authority ("PURA") suspend proceedings in a pending contested proceeding, Docket No. 05-10-03RE04, Application of the Connecticut Light and Power Company to Implement Time-of-Use, Interruptible, Load Response, and Seasonal Rates, Review of Smart Meter Study, Deployment and Rate Pilot. Specifically you have asked:

1. Is direct DEEP oversight over PURA dockets permissible under § 89(h) of P.A. 11-80 and the UAPA? If so, to what extent?

2. Was it legal for DEEP to request that PURA not issue a final decision, given that PURA is a subordinate entity within DEEP?

3. Would it be appropriate for DEEP to appear and participate in PURA dockets as a party or intervenor, given the fact that PURA directors report to DEEP?

You further stated that the Office of Consumer Counsel ("OCC") "is concerned that DEEP may seek party or intervenor status in future proceedings before the PURA, which may impinge upon the due process rights of other parties since PURA is a subordinate entity within DEEP."

We conclude that DEEP's actions in this proceeding were entirely consistent with Public Act 11-80 ("P.A. 11-80" or "Act") and the Uniform Administrative Procedures Act ("UAPA"), Conn. Gen. Stat. § 4-166 et seq. We further conclude that your due process concerns are more appropriately raised under the existing procedures set forth in the UAPA.

In response to your first question, in P.A. 11-80, the legislature authorized the Commissioner of the DEEP to set energy policy prospectively through two energy planning proceedings, the Comprehensive Energy Plan ("CEP") and the Integrated Resources Plan ("IRP"). See P.A. 11-80, §§ 51 and 89. These proceedings are not subject to the formal limitations and requirements of the UAPA. The legislature further provided, in Section 51(e) of P.A. 11-80, that:

[t]he decisions of the Public Utilities Regulatory Authority shall be guided by the goals of the Department of Energy and Environmental Protection, as listed in section 1 of this act, and by the goals of the comprehensive plan and the integrated resource plan approved pursuant to section 16a-3a of the general statutes, as amended by this act, and shall be based on the evidence in the record of each proceeding.

The legislature provided PURA, on the other hand, with plenary authority to issue final decisions in contested cases. "Any final decision, order or authorization of the Public Utility Regulatory Authority in a contested case shall constitute a final decision for the purposes of chapter 54." P.A. 11-80, § 22. Thus, the legislature granted DEEP broad authority to set state energy policy going forward, and directed PURA to implement that policy in contested proceedings pursuant to the UAPA. DEEP has no statutory authority to exert direct oversight over PURA decision-making in contested proceedings.

Your second question asks whether it was legal for DEEP to request that PURA not issue a final decision given that PURA is a subordinate entity within DEEP. An Attorney General opinion is not an appropriate vehicle to question a decision rendered in a contested case proceeding under the UAPA. Rather, the UAPA is the proper vehicle to address such a matter providing all parties an opportunity to participate. Nevertheless, I note the following for your information.

PURA is the final decision-maker in contested administrative proceedings. While § 15 of P.A. 11-80 provides that PURA shall be "within the Department of Energy and Environmental Protection," as noted above, the Act is equally clear that PURA is the sole and final decision-making authority in formal UAPA administrative proceedings. P.A. 11-80, § 22. For the purpose of resolving administrative proceedings, PURA is not a "subordinate entity" to the DEEP.

DEEP's statutory status is no different from any other interested participant in contested PURA proceedings. It is of course common and entirely appropriate for interested participants, including state officials and agencies, to state their positions and preferences before appropriate decision-making authorities in contested proceedings. Such participation better informs the decision-making authority and promotes the fairness and integrity of the administrative process.

In its September 1, 2011 filing in Docket No. 05-10-03RE04, DEEP asked PURA to suspend that proceeding "while the Bureau of Energy and Technology Policy conducts an open, public process over the course of the next few months to establish the state's smart meter policy." This request, made in an open and public manner, with notice to all parties involved, and consistent with the UAPA and PURA's established practices and procedures, was not binding on PURA, as PURA alone is the final decision-maker in contested administrative proceedings. DEEP's request was also consistent with the intent of P.A. 11-80, which fundamentally changed the manner in which energy policy is made in Connecticut. The Act created DEEP and charged it with setting energy policy for the entire state prospectively in the CEP and IRP. As a result, DEEP's request that PURA suspend the ongoing CL&P's smart meter proposal, Docket No. 05-06-04, and PURA's independent and voluntary decision to do so, was entirely in keeping with the new legislative requirements. Suspension would allow DEEP the opportunity to set smart meter policy on a state-wide basis and guide PURA decisions in the CL&P case and other subsequent proceedings.

As you know, on August 31, 2011, my Office filed a letter supporting DEEP's request, asking that PURA suspend proceedings in both the CL&P case, Docket No. 05-10-03RE04, and United Illuminating Company's smart meter and time of use rate proposal, Docket No. 05-06-04RE06. I did so because of the stated legislative intent that DEEP set smart meter policy for the state and quite simply because it made good sense to do so. Questions about smart metering and effective time of use rates are complicated. Despite the potential benefits of smart meters, it appears that the majority of jurisdictions are cautiously approaching implementation of this technology. Early leading states such as Texas, California and Colorado now face challenges related to their early implementation of smart metering. The issues are complex, requiring a cohesive, well-developed policy in this area. As a result, I stated in my August 31 letter that:

[t]his suspension will allow the DEEP an opportunity to solicit public comment and formulate its policies concerning the future of smart meters and time-of-use rates in Connecticut consistent with the legislative framework established under Public Act 11-80, "An Act Concerning the Establishment of the Department of Energy and Environmental Protection and Planning for Connecticut's Energy Future."

DEEP's September 1 request similarly sought such time to establish smart meter policy. The request was in my view legally appropriate, and I so advised DEEP before it sent the letter.

Your third question asks whether it "would be appropriate for DEEP to appear and participate as a party or intervenor, given the fact that PURA Directors report to DEEP." Again, under P.A. 11-80, PURA directors are the independent decision-makers in contested administrative proceedings. They do not "report to DEEP" when functioning in this capacity. The placement of PURA within DEEP does not affect the statutorily determined independence of PURA's decision-making authority. All UAPA protections designed to ensure the fairness and integrity of the administrative process (such as, for example, those provisions addressing ex parte communications pursuant to Conn. Gen. Stat. § 4-181) fully apply to PURA proceedings and govern DEEP's participation in such proceedings. As long as UAPA procedures are followed, DEEP may properly participate in a PURA proceeding.

Finally, you raise a concern about the "due process rights" of the parties. Although you do not explain why you believe the due process rights of the parties might have been impacted, we note that neither DEEP's letter nor PURA's decision to suspend the schedule in this matter suggests or imposes any limitations on the continued participation of other parties or intervenors in this proceeding. However, if you or other parties to the proceeding believe that DEEP's letter or the participation of any public official or entity impinges upon due process rights, the appropriate remedy remains the review processes already provided by the UAPA.

Sincerely,

GEORGE JEPSEN
ATTORNEY GENERAL

cc: Commissioner Daniel C. Esty, DEEP
Chairman Kevin M. DelGobbo, PURA
Vice-Chairman John W. Betkoski, PURA
Director Anna M. Ficeto, PURA
Service List, PURA Docket No. 05-10-03RE04