Clipper Windpower, Inc. v. Sprenger

BELL, Chief Judge. This case arises out of a dispute over the construction of a wind turbine facility in Garrett County, Maryland. On March 26, 2003, the Public Service Commission (the “Commission”), one of the petitioners, entered a final order (Order No. 78354) granting Clipper Windpower, Inc. (“Clipper”), the other petitioner (collectively “the petitioners”), a Certificate of Public Convenience and Necessity (“CPCN”) for the construction of a 101 megawatt (“MW”) wind turbine facility. On April 24, ⁵⁴² 2003, by letter signed by Eric Tribbey, on behalf of, and as its representative, Friends of Backbone Mountain (“Friends”) requested a rehearing. 1 That request was denied (Order No. 78617).

Thereafter, Tribbey, one of the respondents, acting on his own behalf, filed a petition in the Circuit Court for Baltimore City for judicial review 2 of both orders (Case No. 24-C-036366). This action for judicial review was consolidated with the judicial review action initiated by Paul C. Sprenger, Russell W. Bounds, and Troy Gnegy, the other respondents (collectively “the respondents”), who also filed petitions for judicial review (Case No. 24-C-036325). Clipper and the Commission each filed a motion to dismiss, asserting that the respondents’ petitions for judicial review ⁵⁴³ were untimely. 3 The Circuit Court agreed and, therefore, dismissed the actions for judicial review. The respondents noted an appeal to the Court of Special Appeals, which, in an unreported opinion, reversed the judgment of the Circuit Court.

We granted the petitions for writ of certiorari filed by both Clipper and the Commission, Clipper Windpower v. Sprenger, 391 Md. 577 , 894 A.2d 545 (2006), to address: “Whether PUC § 3-114(c) limits the right to request rehearing solely to ‘a party in interest’ that has properly intervened as such in the Commission’s proceedings, and is thus distinguishable from PUC § 3-202(a) which provides a right to judicial review to ‘a party or person in interest ... dissatisfied by a final decision or order of the Commission ’9” [ 4 ] ⁵⁴⁴ While, to be sure, the right to judicial review of orders and decisions of the Commission is available to “a party or person in interest ... dissatisfied by a final decision or order of the Commission ...,” PUC § 3-202(a), 5 we conclude that only a “party in interest” may seek rehearing under PUC § 3-114. To be a “party in interest,” if the requestor was not a party, the requestor must have intervened properly, pursuant to PUC § 3-106, 6 thus becoming a “party” to the proceeding. I. On August 26, 2002, Clipper filed an application with the Commission seeking authorization to build a wind turbine facility for the purpose of generating electricity. As required, Clipper notified the public, by publishing a notice in both The Republican and The Cumberland Times-News, generally circulated newspapers in Garrett County, on the successive weeks of September 26, 2002, September 30, 2002, October 3, 2002, and October 6, 2002, of its application to build the facility, and the date, time, and location of a scheduled prehearing conference. ⁵⁴⁵ The wind turbine facility was to be composed of up to 67 individual turbines.

Each turbine would consist of a freestanding tower approximately 262 feet in height. A rotor, having a diameter not in excess of 262 feet (80m) (39m blades), would be attached to the tower. The maximum combined height would be approximately “394 ft (120 m) with one blade in the vertical position.” Clipper’s executive summary of its proposal for the facility implied that some, but not all, of the turbines would be of that size and stated that all 67 turbines may not need to be built depending upon “factors ... not identified prior to [the] start of construction.” In addition to the tower and the blade, each turbine would consist of a foundation anchoring it to the ground and a transformer that would collect the power from the turbines and transfer it to a substation through an “underground electrical collection system.” All-weather gravel service roads would be built from existing hardtop roads and the cables associated with the electrical collection system were to be buried alongside such service roads. The total project area would cover approximately 10.8 miles and would be constructed on Backbone Mountain extending from “Wild Turkey Rock at an elevation of 3,228 ft (984 m) above sea level southwestward to Allegheny Heights at 3,200 ft (975 m).” Although three other sites were surveyed, Allegheny Heights was selected “because of wind resource potential and favorable site characteristics (primarily contiguous, well-exposed areas and proximity to three transmission lines).” 7 An adjudicatory hearing regarding Clipper’s proposal, at which attendance was high, “standing room only,” was held.

Clipper, the Department of Natural Resources’s Power Plant Research Program, the staff of the Commission, and the Office of People’s Counsel were the named parties to the proceeding. Pursuant to PUC § 3-106, four individual members of the public intervened and were granted party status. 8 Among ⁵⁴⁶ those in attendance were respondents Eric Tribbey and Russell Bounds, who also testified. Although both Tribbey and Bounds submitted citizen comment letters following the conclusion of the hearing, neither they, nor Friends, sought to intervene. The hearing examiner issued a proposed order that contained and recommended settlement conditions to which all of the parties had agreed, which the Commission subsequently adopted.

It issued a final order (Order No. 78354) approving Clipper’s plan. Tribbey, then, writing on behalf of Friends, submitted a letter to the Commission requesting a rehearing. 9 The Commission, by Order No. 78617, denied the request, explaining: “This matter comes before the Public Service Commission (‘Commission’) as a result of a series of filings made by entities that did not appear as parties in the above-captioned proceeding. On April 24, 2003, the Friends of Backbone Mountain (‘Friends’) filed a pro se formal request for rehearing in this case. On April 25, 2003, Citizens for Responsible Wind Power (‘Citizens’) also filed a pro se formal request for rehearing in this case.

A third pro se ⁵⁴⁷ formal request for rehearing in this matter was filed on April 28, 2003, by The Garrett County Historical Society (‘Garrett Historical’).... Friends made an additional filing, by Counsel, on June 27, 2003. This June 27th filing includes two documents: (1) an Application to Intervene, and (2) a Supplement to Request for Rehearing and Application to Reopen for Further Evidence .... On August 5, 2003, Counsel for Paul C. Sprenger filed an Application to Intervene and a Motion for Reconsideration and for Modification of the Order of the Public Service Commission (‘Sprenger Motion’).

This August 5th filing includes four exhibits (‘Sprenger Exhibits A, B, C, and D’). None of the actual parties to the case have raised any objection to the Commission’s Order No. 78354, issued on March 26, 2003. “The Commission denies all four requests. Public Utility Companies (‘PUC’) Article § 3 — 114(c)(1) restricts the right to apply for rehearing to parties: ‘A party in interest may apply to the Commission for rehearing within 30 days after service of a final order on the party.’ [Emphasis added.] Since none of the four entities requesting rehearing were parties to the proceeding, none qualify to request rehearing. Additionally, the filing made on behalf of Friends on June 27, 2003, is not a filing provided for either under PUC § 3-114 or Code of Maryland Regulations (‘COMAR’) § 20.07.02.08, 10 both of which contemplate a single, cómpre ⁵⁴⁸ hensive rehearing application by a party.

Friends’ June 27th filing is also well beyond the thirty-day period during which parties may request rehearing. Sprenger’s filings are still further beyond the thirty-day period during which parties may request rehearing. “Clipper complied with all of the procedural elements of the Certificate of Public Convenience and Necessity (‘CPCN’) process, including the provisions of COMAR § 20.79.01.03, and also complied with the Hearing Examiner’s direction to advertise the pre-hearing conference and the public hearings in local Garrett County newspapers. The four entities requesting rehearing had sufficient notice and opportunity to intervene as parties; since they did not, they do not have standing to request rehearing---- “... as already stated, Clipper properly advertised the prehearing conference and the public hearings in local Garrett County newspapers, thus providing sufficient notice to enable prompt and timely intervention. This is not a question of whether Friends could have intervened ‘sooner in the process,’ but rather an issue of whether Friends attempted to intervene during the process at all.

The Commission finds that the attempted intervention is outside the process, and cannot be granted since the proceeding closed prior to the attempted intervention.” Order No. 78617 (internal footnotes omitted). Thus, the Commission concluded that Friends was not a “party in interest” under PUC § 3-114 because it had not properly intervened under PUC § 3-106. The Commission also determined that it already had fully considered the issues presented for rehearing in the original proceedings and it was not necessary to readdress them or to address them further. 11 ⁵⁴⁹ Thereafter, as we have seen, Tribbey, on his own behalf, and not on behalf of Friends, filed a petition for judicial review of the Commission’s Order No. 78617, and, on the same day, a separate petition for judicial review of the Commission’s Order was filed by the respondents Sprenger, Bounds, and Gnegy. The actions having been consolidated, the petitioners each filed a motion to dismiss the petitions as untimely.

Before the Circuit Court, the respondents did not contend that they were “parties” to the proceeding, just that they were “persons in interest.” 12 Tribbey argued, in addition, that although Friends was not a “party in interest,” its application for rehearing tolled the time for filing a petition for judicial review. The Circuit Court dismissed both actions, ruling that none of the respondents had filed a timely request for rehearing and that their petitions for judicial review were similarly untimely. It explained: “The [respondents] in these cases concede that judicial review is sought only under Section 3-202 of the Public ⁵⁵⁰ Utility Companies] Article. Under that section a ‘party or person in interest’ may seek judicial review of a decision or order of the Commission.

This court assumes without deciding that the [respondents] are ‘persons in interest.’ “The issue then is whether the petitions for judicial review were timely. Pursuant to Maryland Rule 7-203(a)(1), the petitions had to be filed -within 30 days after the date of the order or action for which review is sought. I believe that was March 26th, 2003. In these cases the petitions were not filed until some five months later.

So, unless the time for fifing was stayed, the petitions were untimely. “Neither of the [respondents] filed a timely request for re-hearing before the Commissioner. Mr. Sprenger filed a request, but it was not timely. Even if it had been timely, however, the statute restricts petitions for rehearing before the Commission to parties in interest. That is the plain language of Section 3-114(c).

Accordingly, the time for the [respondents] to seek judicial review pursuant to 3-202, was 30 days from March 26th, 2003. That date was not met. “The [respondents’] attempt to, what I would call, piggyback on the arguably timely filings of others to stay a deadline is of no avail. First, there is no legal support under the Public Utility Companies] A[rticle] for the [respondents’] position that the timely fifing of a petition for re-hearing by one party stays the time for fifing judicial review by another. Moreover, none of the entities that filed a request for re-hearing were parties in interest, so the [respondents’] attempts at re-hearing were— I’m sorry.

Those parties’ attempts, those entities’ attempts at rehearing were like the [respondents’] a nullity.” Although Friends’ request for rehearing may have been timely filed, its request was invalid because Friends was not a “party in interest” and, thus, was not entitled to a rehearing under PUC § 3-114. Thereafter, the respondents appealed to the Court of Special Appeals, which, in an unreported opinion, reversed the judgment of the Circuit Court. In holding that the judicial ⁵⁵¹ review action should not have been dismissed as untimely, the intermediate appellate court reasoned: “As stated above, § 3-114 provides a ‘party in interest’ with the right to apply for a rehearing. We are persuaded that this term was placed into the statute in order to reduce the number of requests for rehearing that the Commission must deal with.

The Court of Appeals has made it clear that ‘one may become a party to an administrative proceeding rather easily.’ Dorsey v. Bethel A.M.E., 375 Md. 59, 72 [, 825 A.2d 388, 395 ] (2003) (quoting Sugarloaf v. Department of Environment, 344 Md. 271, 286 [, 686 A.2d 605, 613 ] (1996)). We conclude that a person who has become a ‘party’ to a Commission proceeding is not entitled to apply for a rehearing unless the order entered as a result of that proceeding has ‘personally and specifically affected [him or her] in a way different from ... the public generally.’ Sugarloaf v. Dept. of Environment, 344 Md. 271, 288 [, 686 A.2d 605, 614 ] (1996) (quoting DuBay v. Crane, 240 Md. 180, 185 [, 213 A.2d 487, 489-90 ] (1965)). As an ‘adjoining landowner,’ Mr. Tribbey was a ‘party in interest’ to the Commission proceeding because (1) his participation in the proceeding made him a ‘party,’ and (2) as an ‘adjoining landowner’ to the property where the turbines will be placed, the Commission’s order has personally and specifically affected him in a way different from the way that order affects the general public,”[ 13 ] and that Tribbey’s request for rehearing was made “in both his individual capacity and in his capacity as a representative of Friends of Backbone Mountain.” The court concluded that “it would be exalting form over substance to hypothesize that Mr. Tribbey made the request for a rehearing ‘solely’ as a representative of the Friends of Backbone Mountain.” On this premise, the court held that, “as a result of the timely ⁵⁵² request for rehearing filed by Mr. Tribbey, all of the appellants had 30 days from August 8, 2003 to file their actions for judicial review of the Commission’s March 26, 2003 order.” II. We review, in this case, a decision by the Commission, an administrative agency. 14 Though couched in terms of a formal judicial review, we do not even actually reach that stage of the proceedings.

Petitions for judicial review were filed by the respondents, but only after the Commission had denied Friends’ application for rehearing. It is the denial of that application, encapsulated in Order No. 78617, upon which the resolution of this case primarily rests. Our scope of judicial review of an action by the Public Service Commission is dictated by PUC § 3-203. 15 Moreover, we shall not overturn a factual decision by the Public Service Commission unless it proves to be unlawful or unreasonable. Town of Easton v. Public Service Comm’n of Maryland, 838 A.2d 1225 , 379 Md. 21 (2003); Office of Peo ⁵⁵³ pie’s Counsel v. Maryland Public Service Comm’n, 733 A.2d 996 , 355 Md. 1 (1999).

Our review in the instant case is of the Commission’s interpretation and application of provisions of the Public Utility Companies Article; thus, our review is de novo.

III

The outcome of this case essentially hinges on the timeliness of the respondents’ petitions for judicial review. That, in turn, depends on whether the respondents were “parties” or persons entitled to seek rehearing and, if so, whether they timely applied for that rehearing. We hold that the respondents were not parties entitled to seek rehearing and, therefore, they did not timely apply for rehearing. It follows, as well, that they did not petition for judicial review timely.

We shall reverse the judgment of the Court of Special Appeals. In addressing the issues this case presents, we are required to construe various provisions of the Public Utility Companies Article. The cardinal rule of statutory interpretation is to ascertain and effectuate the intent of the Legislature. Centre Ins.

Co. v. J.T.W., 397 Md. 71, 79 , 916 A.2d 235, 239 (2007); Chow v. State, 393 Md. 431, 443 , 903 A.2d 388, 395 (2006). Statutory interpretation begins with the plain language of the statute. Id. “[A]nd ordinary, popular understanding of the English language dictates interpretation of its terminology.” Chow, 393 Md. at 443 , 903 A.2d at 395 (quoting Kushell v. Dep’t of Natural Resources, 385 Md. 563, 576 , 870 A.2d 186, 193 (2005) (citing Deville v. State, 383 Md. 217, 223 , 858 A.2d 484, 487 (2004))); see Centre Ins., 397 Md. at 79 , 916 A.2d at 239 . We stated in Kushell that: “In construing the plain language, ‘[a] court may neither add nor delete language so as to reflect an intent not evidenced by the plain and unambiguous language of the statute; nor may it construe the statute with forced or subtle interpretations that limit or extend its application.’ ” Price v. State, 378 Md. 378, 387 , 835 A.2d 1221, 1226 (2003); County Council v. Dutcher, 365 Md. 399, 416-417 , 780 A.2d 1137, 1147 (2001).

Statutory text “ ‘should be read so that ⁵⁵⁴ no word, clause, sentence or phrase is rendered superfluous or nugatory.’ ” Collins [v. State], 383 Md. [684,] 691, 861 A.2d [727,] 732 (quoting James v. Butler, 378 Md. 683, 696 , 838 A.2d 1180, 1187 (2003)). The plain language of a provision is not interpreted in isolation. Rather, we analyze the statutory scheme as a whole and attempt to harmonize provisions dealing with the same subject so that each may be given effect. Deville, 383 Md. at 223 , 858 A.2d at 487 ; Navarro-Monzo v. Washington Adventist, 380 Md. 195, 204 , 844 A.2d 406, 411 (2004). “If statutory language is unambiguous when construed according to its ordinary and everyday meaning, then we give effect to the statute as it is written.

Collins, 383 Md. at 688-89 , 861 A.2d at 730. ‘If there is no ambiguity in that language, either inherently or by reference to other relevant laws or circumstances, the inquiry as to legislative intent ends; we do not need to resort to the various, and sometimes inconsistent, external rules of construction, for “the Legislature is presumed to have meant what it said and said what it meant.” ’ ” Arundel Corp. v. Marie, 383 Md. 489, 502 , 860 A.2d 886, 894 (2004) (quoting Witte v. Azarian, 369 Md. 518, 525 , 801 A.2d 160, 165 (2002)).” Kushell, 385 Md. at 576-77 , 870 A.2d at 193-94 . See Centre Ins., 397 Md. at 79-80 , 916 A.2d at 240 ; Chow, 393 Md. at 443-44 , 903 A.2d at 395 . The Public Utility Companies Article prescribes the procedures and the requirements for a person or entity to participate in proceedings before the Commission. PUC § 3-114 provides for the rehearing of a final order issued by the Commission.

It states that “[a] party in interest may apply to the Commission for rehearing within 30 days after service of a final order on the party.” PUC § 3-114(c) (emphasis added). Inherent in the language of this provision is that one must be a “party” to the proceeding in order to be able to apply for rehearing. An entity must be a “party in interest” and may apply “within 30 days after service of a final order on the party.” PUC § 3-114(c) (emphasis added). PUC § 3-106 prescribes the method by which a person may become a ⁵⁵⁵ “party.” “If a person timely files, the person may apply to intervene in a proceeding before the Commission.” PUC § 3-106(a) (emphasis added).

Furthermore, “[a]n intervenor has all the rights of a party to a proceeding.” PUC § 3-106(c) (emphasis added). PUC § 3-202 addresses judicial review of decisions and orders of the Commission. It states, in pertinent part: “Except for the staff of the Commission, a party or person in interest ... that is dissatisfied by a final decision or order of the Commission may seek judicial review of the decision or order as provided in this subtitle.” PUC § 3-202(a) (emphasis added). Maryland Rule 7-203 16 provides that: “Except as otherwise provided in this Rule or by statute, a petition for judicial review shall be filed within 30 days after the latest of: “(1) the date of the order or action of which review is sought; “(2) the date the administrative agency sent notice of the order or action to the petitioner, if notice was required by law to be sent to the petitioner, or “(3) the date the petitioner received notice of the agency’s order or action, if notice was required by law to be received by the petitioner.” Thus, for a petition for judicial review of an order issued by the Commission to be timely, it must be filed by a “party or person in interest” within 30 days of the date of the final decision or order.

In the case sub judice, that order was Order No. 78354, issued on March 26, 2003, which granted Clipper permission to build the wind turbine facility. Therefore, for the petitions in this case to have been timely filed, they would have had to have been filed by April 25, 2003. Applying for rehearing under PUC § 3-114(c) is separate and distinct from seeking judicial review under PUC § 3- ⁵⁵⁶ 202(a). To apply for rehearing, an entity must be a “party in interest,” PUC § 3-114(c), whereas, either a “party or person in interest ” may seek judicial review of a final order under PUC § 3-202(a).

(Emphasis added). The respondents contend that a “person in interest” is the same as a “party in interest.” We do not agree and believe, in fact, that this is clearly not the case. The language in all of the relevant sections of the Public Utility Companies Article is unambiguous. Construing “party in interest” and “person in interest” as having the same meaning renders one or the other superfluous or nugatory.

See Chow, 393 Md. at 443 , 903 A.2d at 395 (holding that when analyzing a statute, we look at the statutory scheme as a whole and harmonize the provisions so that each may be given effect.); Kushell, 385 Md. at 577 , 870 A.2d at 193 (holding that “[statutory text ‘ “should be read so that no word, clause, sentence or phrase is rendered superfluous or nugatory.” ’ ”) (citing Collins, 383 Md. at 691, 861 A.2d at 732 (quoting Butler, 378 Md. at 696 , 838 A.2d at 1187 )). The respondents in addition assert that the legislative history of the Public Utility Companies Article lends credence to their argument. We need not, however, look beyond the plain and unambiguous language of the statute as written. Kushell, 385 Md. at 577 , 870 A.2d at 194 (citing Collins, 383 Md. at 688-89, 861 A.2d at 730).

We are satisfied that the current version is plainly and unambiguously written. Thus, we shall not delve into an analysis and interpretation of the prior versions of the Public Utility Companies Article, which the Legislature has amended and repealed over the years. A. The Commission’s initial Order No. 78354 was issued on March 26, 2003. Friends applied, through Tribbey, for rehearing on April 24, 2003.

The application was made within 30 days, as required by PUC § 3-114(c). Because, as indicated, Friends never intervened, 17 and, so, never became a party ⁵⁵⁷ pursuant to PUC § 3-106, its application for rehearing was neither effective nor proper, as only a “party in interest” may apply to the Commission for rehearing. The Commission, in its August 8, 2003, Order No. 78617, denied Friends’ request for rehearing. The Commission correctly interpreted PUC § 3 — 114(c)(1) as “restricting] the right to apply for rehearing to parties .... ” The order further stated that, “Since none of the ... entities requesting rehearing were parties to the proceeding, none qualify to request rehearing.” The Circuit Court concurred with this finding, stating that “none of the entities that filed a request for re-hearing were parties in interest.” We agree with the Commission and Circuit Court.

An entity must be a “party in interest” in order to be entitled to apply for rehearing. PUC § 3 — 114(c)(1) (emphasis added). To be a “party in interest,” the entity must first have acquired the status of “party” by having timely sought, and been granted, the right to intervene. PUC § 3-106(a).

A “party in interest,” in context and as used in PUC § 3-114(c)(1), actually is a more restrictive term than “party.” The Court of Special Appeals held that Friends was not a party in interest because it “was [not] personally and specifically affected in a way different from the public generally.” Under the circumstances of this case, as we explain infra, that was the wrong standard. Friends was never a party to the proceedings. It simply never sought to intervene in a timely manner. That should have concluded the matter.

The intermediate appellate court nevertheless determined that the respondent Tribbey, although purporting to act on behalf of Friends as the organization’s representative, also, and at the same time, personally filed for rehearing. The court stated that the request for rehearing was made “in both his individual capacity and in his capacity as a representative of Friends.” Thus, despite the ⁵⁵⁸ absence of any indication that Tribbey intended that result, that court, refusing to “exalt[ ] form over substance to hypothesize that Mr. Tribbey made the request for a rehearing ‘solely’ as a representative of the Friends of Backbone Mountain,” attributed the “timeliness” of Friends’ application— which the court had determined did not itself satisfy the requirements of PUC § 3-114 — to Tribbey, which it also recognized to be filing in his individual capacity. It followed from this interpretation that Tribbey had timely requested rehearing and, because he had, all of the respondents were beneficiaries; they “had 30 days from August 8, 2003 to file their actions for