” Bay State Gas Co. v. Department of Pub. Utils., 459 Mass. 807, 813–814, 947 N.E.2d 1077 (2011), quoting DSCI Corp. v. Department of Telecomm. & Energy, 449 Mass. 597, 603, 870 N.E.2d 1096 (2007). 1. Prudence versus reasonableness standard.
Review of the department's decision is governed by G.L. c. 25, § 5. “The burden of proof is on the appealing part[ies] to show that the order appealed from is invalid, and we have observed that this burden is heavy.... Moreover, we give deference to the department's expertise and experience in areas where the Legislature has delegated to it decision-making authority, pursuant to G.L. c. 30A, § 14.” DSCI Corp. v. Department of Telecomm. & Energy, 449 Mass. 597, 603, 870 N.E.2d 1096 (2007), quoting Massachusetts Inst. of Tech. v. Department of Pub. Utils., 425 Mass. 856, 867–868, 684 N.E.2d 585 (1997). We consider separately below each claim raised by the interveners.
Tariffs are documents that set out the terms and conditions of the utility's services and rates. See DSC1 Corp. v. Department of Telecomm. Energy, 449 Mass. 597, 600 n. 5 (2007). See also Fitchburg Gas Elec. Light Co., D.P.U. 07-71 (2008).
The board, as the appealing party, has the "heavy" burden of showing that the agency decision of the HAC is not supported by substantial evidence. DSCI Corp. v. Department of Telecomm. Energy, 449 Mass. 597, 603 (2007). We are required to "give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it" by statute.
When reviewing a decision of the department that does not raise a constitutional question, but is limited to evaluating whether the department committed legal error, "[t]he burden of proof is on the appealing party to show that the order appealed from is invalid, and we have observed that this burden is heavy." Bay State Gas Co . v. Department of Pub. Utils ., 459 Mass. 807, 813, 947 N.E.2d 1077 (2011), quoting DSCI Corp . v. Department of Telecomm. & Energy , 449 Mass. 597, 603, 870 N.E.2d 1096 (2007). We afford the department deference, based on its "expertise and experience in areas where the Legislature has delegated decision-making authority" to the department.
Doe asserts insufficiency of the evidence, claiming that the hearing examiner's decision is 'contrary to common sense' and 'lacks a basis of reasonable expectations.' Doe, 'as the appealing party, has the 'heavy' burden of showing that the agency decision . . . is not supported by substantial evidence.' Zoning Bd. of Appeals of Canton v. Housing Appeals Comm., 76 Mass. App. Ct. 467, 472 (2010), quoting from DSCI Corp. v. Department of Telecomm. & Energy, 449 Mass. 597, 603 (2007). 'Substantial evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion." Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006), quoting from G. L. c. 30A, § 1(6). 'This standard is highly deferential to an agency . . . .' Ten Local Citizen Group v. New England Wind, LLC, 457 Mass. 222, 228 (2010).
" DSCI Corp. v. Department of Telecomm. Energy, 449 Mass. 597, 603 (2007), quoting Massachusetts Inst. of Tech. v. Department of Pub. Utils., 425 Mass. 856, 867-868 (1997). Public utilities may "charge rates which are compensatory with the full cost incurred by efficient management, [but] they may not recover costs which are excessive, unwarranted, or incurred in bad faith."
In determining whether there is substantial evidence to support the department's decision, ‘ we must carefully consider any evidence in the record that detracts from the agency's conclusion, [and] " accord due weight to the ‘ experience, technical competence and specialized knowledge’ of the department." ' " DSCI Corp. v. Department of Telecomm. & Energy, 449 Mass. 597, 606, 870 N.E.2d 1096 (2007), quoting Boston Gas Co. v. Department of Telecomm. & Energy, 436 Mass. 233, 237, 763 N.E.2d 1045 (2002). " A court may not displace an [agency's] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.
"An agency decision will be upheld 'unless it is based on an error of law, unsupported by substantial evidence, unwarranted by facts found on the record as submitted, arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.'" Zoning Bd. of Appeals of Canton v. Housing Appeals Comm., 76 Mass.App.Ct. 467, 473 (2010), quoting DSCI Corp. v. Department of Telecomm. & Energy, 449 Mass. 597, 603 (2007). See G. L. c. 30A, § 14 (7).
On appeal, however, the plaintiff "has the 'heavy' burden of showing that the agency decision . . . is not supported by substantial evidence." Zoning Bd. of Appeals of Canton v. Housing Appeals Comm., 76 Mass. App. Ct. 467, 472-473 (2010), quoting from DSCI Corp. v. Department of Telecommunication & Energy, 449 Mass. 597, 603 (2007). "Substantial evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006) (Doe, No. 10216), quoting from G. L. c. 30A, § 1 (6). "This standard is highly deferential to an agency . . . .