Commentary

The “And” Case: Why a Three-Letter Word Is Worth $36 Million

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On Wednesday, the Maine Public Utilities Commission decided not to reconsider their decision regarding an interpretation of a statute provision regarding funding for Efficiency Maine, which caps the funding for Efficiency Maine at roughly $23 million.

Efficiency Maine argues that their funding cap should actually be somewhere around $59 million, and it is all thanks to the word “and”.

What’s becoming known as the “and” case, the Maine Legislature passed a bill that instructed the Maine Public Utilities Commission (Maine PUC) to create a budget for Efficiency Maine, a sub-agency charged with lowering the State’s energy costs using any measures they can.  However, the Legislature set a cap for the budget, and the statute states that the budget can be no more than four percent of “total retail electricity transmission and distribution sales.”

So what’s the issue?  Efficiency Maine argues that this should also include the cost of electricity itself, but the Maine PUC decided that this statute did not want it to include the cost of electricity when determining the budget.  Efficiency Maine relies on previous drafting of this statute that included the word “and” to make the statute say “total retail electricity and transmission and distribution sales.”

However, when the final draft came through, the crucial “and” disappeared, and there is no record as to why it disappeared.  It also relies on reports in the Legislature that a $60 million budget should be expected, and the Legislature went along with it.  The Maine PUC argues that this wording is clear, and it does not include the cost of electricity. The Maine PUC decided to stick with its original interpretation when asked to reconsider, which takes away an anticipated $36 million from Efficiency Maine’s funding.

How should this issue be resolved? Efficiency Maine argues that it is the clear intention of the Legislature to include the cost of electricity, so why has the Legislature not revised the statute? Legislatures revise statutes all the time, so if this is a clear violation of the Legislative intent, the Legislature should clarify this by revising the statute.  As for what happened to the missing “and”, Efficiency Maine should not base its case on speculation that the “and” was forgotten in the final bill.

Normally, when language appears in a statute, and then disappears, it is a good indicator that the Legislature took it out because it did not like outcome the previous language would create.  Other times, it could mean that they thought the previous language was redundant.  In favor of the Maine PUC’s interpretation, it does appear that the Legislature wanted to cap Efficiency Maine’s budget at some rock-solid number, and not give Efficiency Maine a blank check.  In other words, the Legislature seems to want Efficiency Maine to do the best under certain parameters.  Setting the cap at the lower amount speaks to the Legislature wanting to minimize spending while still preserving energy costs.

Either way, this seems like the Legislature made a mistake, and should not force the Maine PUC to fix its mistakes and take action itself.  The Maine PUC reasonably interpreted the statute to not include the cost of electricity, and if the Legislature does not like that interpretation, it has the power to change the statute and it should.  Until it does, the Maine PUC should interpret the statute as it is written, and if it thinks this does not include the cost of electricity, so be it.

Efficiency Maine is allowed to file an appeal to the Maine Supreme Judicial Court regarding this decision, and has until mid-June to do so.

About Nathan Hitchcock

Nathan Hitchcock is currently a law student at the University of Maine School of Law and volunteers as a researcher for the Maine Heritage Policy Center. Prior to law school, he attended Hillsdale College in Michigan, where he earned a B.A. in Political Economy.

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