Kleen Energy Systems, LLC v. Commissioner of Energy & Environmental Protection

The issue in this appeal is whether the defendant, the Commissioner of Energy and Environmental Protection, acting through the Public Utilities Regulatory Authority (authority),1 had jurisdiction to resolve a dispute between the parties to a contract relatingtotheprovisionofelectricalcapacity.Pursuant toGeneralStatutes§ 16-243m,2 theauthorityconducted a proceeding to develop a form contract between electric distribution companies and generators of electrical capacity for the purpose of reducing certain federally mandated charges to consumers. The plaintiff, Kleen Energy Systems, LLC, an electric generating facility, entered into such a contract with Connecticut Light and Power Company (power company), an electric distributioncompany.Thereafter,adisputearoseconcerning the proper interpretation of the contract’s pricing provision. Pursuant to the request of Waterside Power, LLC (Waterside), which had entered into a similar contractwiththepowercompany,theauthorityconducted proceedings to resolve the dispute. The plaintiff was a participant in, but not a party to, those proceedings. After the authority issued a decision resolving the dispute, Waterside filed a petition for a declaratory ruling inwhichitchallengedthedecision.Theauthorityissued a declaratory ruling denying the relief sought by Waterside. The plaintiff then filed an administrative appeal from the authority’s ruling in which it claimed, among other things, that it had a contractual right to submit the dispute to arbitration and that the authority lacked jurisdiction to issue a declaratory ruling to resolve the dispute. After a remand to the authority and an additional administrative appeal from the decision on remand, the trial court ultimately concluded that the authority had jurisdiction to issue a declaratory ruling to resolve the dispute and that the plaintiff had waived its contractual right to arbitration. The trial court also determined that the authority had properly resolved the dispute and dismissed the plaintiff’s appeals. This appeal followed.3 We conclude that the trial court improperly determined that the authority had jurisdiction to resolve the pricing dispute. Accordingly, we reverse the judgment of the trial court on that issue. Because this conclusion renders the plaintiff’s appeal from the authority’s decision on remand moot, we affirm the judgment of the trial court dismissing this appeal on this alternative ground. The record reveals the following facts that were found by the trial court or that are undisputed, and procedural history. The authority is required pursuant to § 16-243m (a) to ‘‘identify those measures that can reduce federally mandated congestion charges, as defined in section 16-1,4 and that can be implemented, in whole or in part, on or before January 1, 2006.’’ (Footnote added.) As a general matter, federally man

dated congestion charges arise when there is insufficient electrical capacity to meet demand in a particular area, and they are borne by consumers. Measures to reduce such charges include ‘‘contracts between an electric distribution company . . . and an owner of generation resources for the capacity of such resources.’’ General Statutes § 16-243m (a). For purposes of § 16-243m, ‘‘capacity’’ is not electricity itself, but is the ability to produce electricity when required. Pursuant to the procedures set forth in § 16-243m, the authority was required: (1) to conduct a contested case in order to establish the principles and standards to be used in developing and issuing a request for proposals to potential electrical capacity generation resources (capacity resources); General Statutes § 16243m (b); (2) to conduct a proceeding to develop and issue a request for proposals; General Statutes § 16243m (c); and (3) to evaluate the proposals it received. General Statutes § 16-243m (g). The authority carried outthismultistepprocessinseveralproceedings,twoof whicharerelevanttothisappeal.Inthefirstproceeding, Docket No. 05-07-14PH02, which was an uncontested caseforpurposesoftheUniformAdministrativeProcedure Act (UAPA);5 General Statutes § 4-166 et seq.; the authority approved the final form of the contract to be used between capacity resources and electric distribution companies, known as the master agreement (master agreement proceeding). The master agreement contained a dispute resolution provision that provided for three levels of dispute resolution, culminating in binding arbitration.6 In the second proceeding, Docket No. 07-04-24, which was a contested case for purposes oftheUAPA,theauthorityevaluatedandapprovedfour nearly identical specific capacity contracts, including the master agreement between the plaintiff and the power company (Kleen Energy master agreement) and the master agreement between Waterbury Generation, LLC(WaterburyGeneration),andTheUnitedIlluminating Company (capacity contract proceeding). In addition to the plaintiff and Waterbury Generation, Waterside and Ameresco CT, LLC, also entered into master agreements. The master agreement approved by the authority in the master agreement proceeding contained a financial mechanism known as a ‘‘contract for differences’’ by which the amounts to be paid to or, in some cases, by capacity resources were to be determined.7 In 2010, a dispute arose over the manner in which the contract for differences provision should operate under certain circumstances (capacity clearing price dispute).8 Accordingly, notwithstanding the contractual dispute resolution provision, Waterside submitted a motion to the authority requesting that it open the master agreement proceeding and resolve the dispute in its favor. In the alternative, Waterside requested that the authority amend the master agreement to reflect the

original intent of the parties.9 TheauthoritygrantedWaterside’smotiontoopenthe master agreement proceeding to resolve the capacity clearingpricedispute,and,inDocketNo.05-07-14RE02, it combined the dispute with five other disputes that had arisen from other master agreements (combined proceeding). The authority identified the plaintiff as a participant in the combined proceeding. The authority issued a draft decision on May 4, 2011, in which it rejected the capacity resources’ interpretation of the master agreement with respect to the capacity clearing price dispute. The plaintiff submitted written exceptions to this portion of the draft decision, stating that it had ‘‘an interest in this proceeding to the extent that the[authority’s]rulingaffects[theKleenEnergy][m]aster [a]greement . . . .’’ On May 18, 2011, the authority issued its final decision in the combined proceeding, in which it again rejected the capacity resources’ interpretation of the master agreement. Thereafter, Waterside submitted to the authority a petition for a declaratory ruling, Docket No. 11-08-09, in which it challenged the authority’s decision in the combined proceeding. Although Waterside had asked the authority to amend the master agreement to reflect theintentofthepartiesinitsmotiontoopen,Waterside now argued in its petition for a declaratory ruling that the authority was barred by § 16-243m from modifying the master agreement after its effective date. It further claimed that the decision constituted an unconstitutional taking. The plaintiff filed a motion in support of Waterside’s petition in which it requested that the authority make it a party to the proceedings on the petition.10 The authority issued a draft ruling on Waterside’s petition in which it concluded that its resolution ofthecapacityclearingpricedisputewasaclarification based on the plain language of the master agreement and did not modify the terms and conditions of the agreement. Accordingly, it affirmed its decision in the combined proceeding. The plaintiff submitted a letter totheauthorityinlieuofwrittenexceptionstothedraft ruling in which it stated that it adopted Waterside’s written exceptions in full. Thereafter, the authority issued a final decision on Waterside’s petition for a declaratory ruling that was substantially similar to its draft decision. The plaintiff then appealed from the authority’s declaratory ruling to the trial court. General Statutes § 4-183.TheOfficeofConsumerCounselandthepower companyfiledmotionstointerveneaspartydefendants in the plaintiff’s appeal, which the trial court granted.11 The plaintiff claimed, among other things, that the authority had ‘‘exceeded and abused its authority by failing to require the parties to submit to the dispute resolution provisions of [§ 12.10] of the [m]aster [a]greement.’’12 During a status conference on the

administrative appeal, the trial court requested that the parties submit briefs on the question of whether the matter ‘‘might need to be remanded to the [authority] for further action’’ to determine whether the parties were required to proceed under the dispute resolution procedures set forth in § 12.10 of the Kleen Energy master agreement. Thereafter, the trial court ordered thatthematterberemandedtotheauthorityforconsideration of that issue. The plaintiff then filed a motion to stay the pending administrativeappealpursuanttoGeneralStatutes§ 5240913 and to compel arbitration of the capacity clearing pricedisputepursuanttoGeneralStatutes§ 52-410(a).14 The trial court denied the motion on the ground that, acting in its capacity as an appellate tribunal in an administrative appeal, it did not have the authority to rule on the motion. The trial court also indicated, however, that it would be willing to continue the appellate proceedings in order to provide the plaintiff with an opportunity to file an application pursuant to § 52-410 in a separate proceeding. On November 15, 2012, the authority issued its decision pursuant to the remand order of the trial court in the administrative appeal on the question of whether the parties were required to proceed pursuant to the disputeresolutionproceduresoftheKleenEnergymaster agreement. The authority concluded that the plaintiff had waived its rights under that provision by failing to raise them in a timely manner, by participating in the combined proceeding and the proceeding on the declaratoryruling,andbyfailingtoobjecttothepropriety of those proceedings. Thereafter, on December 28, 2012, the plaintiff appealed from that decision to the trial court, and that appeal was consolidated with the plaintiff’sinitialappealfromtheauthority’sdeclaratory rulingonthecapacityclearingpricedispute.TheOffice of Consumer Counsel and the power company also intervened as party defendants in this second appeal. OnDecember28,2012,theplaintiffalsofiledanapplication to compel arbitration in the Superior Court for thejudicialdistrictofMiddlesex(actiontocompelarbitration). The trial court in the action to compel arbitration ultimately stayed the action, however, pending resolution of the administrative appeal. The court reasoned that allowing the action to compel arbitration to proceed while the administrative appeal was pending would potentially give rise to ‘‘ ‘forum shopping’ ’’ or to inconsistent judgments. The court further reasoned that it was likely that the issues to be raised in the arbitrationproceedingswouldberesolvedintheadministrative appeal, thereby resulting in administrative res judicata. Thereafter, the trial court in the administrative appeals concluded that the authority had jurisdiction both to determine whether the plaintiff had waived its

contractualrighttoarbitratethecapacityclearingprice dispute and to resolve the merits of that dispute in proceedingsonapetitionforadeclaratoryrulingpursuant to General Statutes § 4-176 (a). The court further concluded that the authority properly had determined that the plaintiff had waived its contractual right to arbitrationandthattheauthorityproperlyhadresolved the capacity clearing price dispute. Accordingly, it dismissed the plaintiff’s appeals. This appeal followed. The plaintiff contends on appeal that the trial court improperly determined that: (1) the authority did not violate the plaintiff’s contractual right to arbitrate the capacity clearing price dispute; (2) the plaintiff waived its contractual right to arbitrate the dispute; (3) the authority had jurisdiction to rule on the arbitrability of the dispute; (4) the authority had jurisdiction pursuant to § 4-176 (a) to issue a declaratory ruling resolving the dispute; and (5) the authority did not violate the plaintiff’s constitutional due process rights. We conclude that the authority lacked jurisdiction to resolve thecapacityclearingpricedispute.Becausethisconclusion is dispositive, we need not address the plaintiff’s other claims. We begin our analysis with the standard of review. ‘‘Administrative agencies are tribunals of limited jurisdiction and their jurisdiction is dependent entirely [on] the validity of statutes vesting them with power and they cannot confer jurisdiction [on] themselves. . . . We have recognized that [i]t is clear that an administrativebodymustactstrictlywithinitsstatutoryauthority, withinconstitutionallimitationsandinalawfulmanner. . . . It cannot modify, abridge or otherwise change the statutory provisions, under which it acquires authority unlessthestatutesexpresslygrantitthatpower.’’(Internal quotation marks omitted.) Wheelabrator Lisbon, Inc. v. Dept. of Public Utility Control, 283 Conn. 672, 685, 931 A.2d 159 (2007). ‘‘[A] subject matter jurisdictional defect may not be waived . . . [or jurisdiction] conferred by the parties, explicitly or implicitly. . . . [T]he question of subject matter jurisdiction is a question of law . . . and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case. . . . We have long held that because [a] determination regarding . . . subject matter jurisdiction is a questionoflaw,ourreviewisplenary.’’15(Internalquotation marks omitted.) Id. Section 4-176 (a) provides: ‘‘Any person may petition an agency, or an agency may on its own motion initiate a proceeding, for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency.’’ The defendants contend thattheauthorityhadjurisdictiontoissueadeclaratory

ruling on the capacity clearing price dispute pursuant to § 4-176 because: (1) the ruling required the authority to apply its decision in the master agreement proceeding to the specific circumstances of the capacity clearing price dispute; and (2) the ruling required the authority to apply § 16-243m to those circumstances. We disagree. Wefirstaddressthedefendants’claimthattheauthority had jurisdiction to issue the declaratory ruling because it was applying its decision in the master agreementproceeding,inwhichtheauthorityapproved the form of the master agreement, to the specific circumstances involved in the capacity clearing price dispute. As we have indicated, § 4-176 (a) provides that an agency may issue a declaratory ruling on the ‘‘applicability to specified circumstances of . . . a final decision on a matter within the jurisdiction of the agency.’’ (Emphasis added.)Section 4-166 (5) definesin relevant part a ‘‘ ‘[f]inal decision’ ’’ for purposes of the UAPA as ‘‘(A) the agency determination in a contested case, (B) a declaratory ruling issued by an agency pursuant to section 4-176, or (C) an agency decision made after reconsideration. . . .’’ See also General Statutes § 169 (‘‘[a]ny final decision, order or authorization of the [authority] in a contested case shall constitute a final decision for the purposes of [the UAPA]’’). Because the master agreement proceeding did not involve a contested case, a declaratory ruling or an agency decision made after reconsideration, it did not result in a ‘‘final decision’’ for purposes of § 4-176 (a). Accordingly, we conclude that the authority did not have statutory authority to issue a declaratory ruling applying its decisioninthemasteragreementproceedingtothecapacity clearing price dispute. The authority further contends that, because it approved the Kleen Energy master agreement in a contested case, the capacity contract proceeding, the decision was a ‘‘final decision’’ for purposes of § 4-176 (a) and, therefore, it had jurisdiction to apply that decision in the proceeding on the petition for a declaratory ruling. The authority’s initial decision on the capacity clearing price dispute wasissued, however, in the combinedproceeding,theproceedinginwhichtheauthority had opened the master agreement proceeding, which was not a contested case. Presumably, Waterside had requestedtheauthoritytoopenthatspecificproceeding to resolve the capacity clearing price dispute because thedisputerequiredtheauthoritytointerpretandapply the form master agreement, which was the subject of the master agreement proceeding, not to evaluate whether specific capacity resources were qualified to execute the master agreement, which was the subject of the capacity contract proceeding.16 In turn, the authority’sdeclaratoryrulingrelatedsolelytotheissues thathadbeendecidedinthecombinedproceeding,and the authority expressly reaffirmed its decision in the

combined proceeding in itsdeclaratory ruling. Because the authority did not apply its decision in the capacity contract proceeding to the circumstances of the capacity clearing price dispute when it issued its declaratory ruling, we reject this claim. We next address the defendants’ claim that the authority had jurisdiction to issue a declaratory ruling on the capacity clearing price dispute because it was applying the provisions of a statute within its jurisdiction to the circumstances of the dispute. See General Statutes § 4-176 (a) (agency is authorized to issue ‘‘declaratory ruling as to . . . the applicability to specified circumstances of a provision of the general statutes’’). Specifically, the Office of Consumer Counsel points out in its brief to this court that, pursuant to § 16-243m (e), the master agreement was required to transfer ‘‘all the rights to the installed capacity . . . locational forward reserve capacity and similar rights’’ from capacity resources to electrical distribution companies and, pursuant to § 16-243m (f), ‘‘[e]ach person submitting a proposal pursuant to this section shall agree to forgo or credit reliability must run payments, locational installed capacity payments or payments for similar purposes . . . .’’ In addition, the power company points out in its brief that § 16-243m (i) provides in relevant part that the master agreement must ‘‘(1) result in the lowest reasonable cost of such . . . services,(2)increasereliability,and(3)minimizefederally mandated congestion charges to the state over the life of the contract. . . .’’ The authority did not rely on or even refer to these provisions, however, either in its decision in the combined proceeding or in its declaratory ruling. Rather, the authority relied exclusively on the plain language of the master agreement’s pricing provision, the form of which was not dictated by § 16-243m.17 The defendants further rely on this court’s decision in Wheelabrator Lisbon, Inc. v. Dept. of Public Utility Control, supra, 283 Conn. 672, and a decision of the Superior Court, Minnesota Methane, LLC v. Dept. of Public Utility Control, Superior Court, judicial district ofNewBritain,DocketNo.CV-04-0527217-S(March20, 2006) (unpublished opinion), aff’d, 283 Conn. 700, 931 A.2d 177 (2007), to support their position that the authority has jurisdiction to interpret a contract that it has approved in a decision. We conclude that those cases are distinguishable. In Wheelabrator Lisbon, Inc. v. Dept. of Public Utility Control, supra, 679–81, the plaintiff, Wheelabrator Lisbon, Inc. (Wheelabrator), entered into a contract to sell electricity to the power company, which the Department of Public Utility Control(department)thenapprovedinaproceedingpursuant to GeneralStatutes (Rev. to 1991)§ 16-243a and the department’s implementing regulations. Thereafter, a dispute arose as to whether the electricity that Wheelabrator had agreed to sell included the right to certain

renewable energy certificates. Id., 682–83. Wheelabrator claimed that the department lacked jurisdiction to resolve the dispute pursuant to § 4-176 because the dispute involved ‘‘a question of the intent of the parties under a privately negotiated agreement, and no state statuteconfersjurisdictiononthedepartmenttodecide such an issue.’’ Id., 684. We concluded that the resolution of the issue turned on ‘‘(1) whether the legislature intended that the word ‘electricity’ in the phrase ‘rates forelectricitypurchasedfromaprivatepowerproducer . . . based on the full avoided costs’ in General Statutes [(Rev. to 1991)] § 16-243a (c) . . . include the renewable energy component represented by the certificates or,instead,meantgenericelectricitywithouttherenewable energy component, and (2) whether the electricity thattheutilitypurchasedattheavoidedcostrateshould be applied to its renewable energy portfolio requirementunder[GeneralStatutes]§ 16-245a(a),or,instead, the utility should be required to purchase both the electricity and the certificates to meet the requirement.’’ (Emphasis in original.) Id., 688–89. Because the department was charged with implementing those statutes, we concluded that the department had jurisdiction to resolve the dispute pursuant to § 4-176. Id., 686–87; id., 687(‘‘themeaningoftheagreement’spricingprovisions . . . is more a question of legislative intent and public policy than a question of the intent of the parties’’). In contrast, as we have explained, the resolution of the capacity clearing price dispute in the present case did not require the authority to construe or apply any specific statutory provision.18 Accordingly, the reasoning in Wheelabrator Lisbon, Inc., does not apply here. Minnesota Methane, LLC v. Dept. of Public Utility Control, supra, Superior Court, Docket No. CV-040527217-S, involved the same issue as Wheelabrator Lisbon, Inc. The trial court in that case concluded broadlythatthatthe departmenthadjurisdictionunder § 4-176 to resolve any disputes arising under a contract that the department had approved in a ‘‘decision . . . .’’ Id. On appeal to this court, however, we affirmed the judgment of the trial court on the basis of the same reasoning that we had applied in Wheelabrator Lisbon, Inc. v. Dept. of Public Utility Control, supra, 283 Conn. 688–89, namely, that the department had jurisdiction toissueadeclaratoryrulingpursuantto§ 4-176because it was required to construe and apply General Statutes (Rev. to 2003) § 16-243a and General Statutes (Rev. to 2003) § 16-245a to resolve the dispute. Minnesota Methane, LLC v. Dept. of Public Utility Control, 283 Conn. 700, 712, 931 A.2d 177 (2007). For the reasons that we have explained, to the extent that the trial court’s decision in Minnesota Methane, LLC, suggests thatthedepartmenthasbroadauthoritytoissuedeclaratory rulings pursuant to § 4-176 whenever it is asked to interpret a contract that it was involved in drafting, even if the contract was not approved in a contested

case and the dispute did not require the department to apply a statute to the specific circumstances of the contractualdispute,werejectanysuchinterpretation.19 Finally, the defendants claim that, even if the authoritydidnothavejurisdictiontoissueadeclaratoryruling to resolve the capacity clearing price dispute pursuant to § 4-176, it had jurisdiction to determine whether the master agreement should be modified to reflect the original intent of the parties pursuant to § 16-9. See General Statutes § 16-9 (‘‘authority may, at any time, for cause shown, upon hearing had after notice to all partiesininterest,rescind,reverseoralteranydecision, order or authorization by it made’’). We cannot conclude,however,that§ 16-9wasintendedtoconferjurisdictionontheauthoritytounilaterallyaltera‘‘decision’’ approving the form of a contract after private parties have agreed to its terms, at least not in the absence of any express statutory provision mandating the form of the contract or conferring continuing jurisdiction on theauthoritytomodifyit.Suchaninterpretationwould potentiallyallowtheauthoritytoimpairvestedcontractual rights and, accordingly, must be rejected as constitutionally suspect.20 See U.S. Const., art. I, § 10 (‘‘[n]o State shall . . . pass any . . . Law impairing the Obligation of Contracts’’); Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 359, 977 A.2d 636 (2009) (legitimate claim of entitlement to contractual right constitutes protectable property interest for purposes of constitutional due process provisions); Ramos v. Vernon, 254 Conn. 799, 816, 761 A.2d 705 (2000) (‘‘fundamental principle of statutory interpretation . . . dictates that we read legislation to avoid, rather than raise, constitutional challenges’’); cf. Pineman v. Oechslin, 195 Conn. 405, 414, 488 A.2d 803 (1985) (‘‘permitting unilateral modification of [a] . . . contract by the state . . . defies the basic contract law tenet that modification requires mutual assent’’ [internal quotation marks omitted]). Moreover, nothing in § 16-9 confers jurisdiction on the authority to exercise the equitable power to reform a contract to conform to the true intent of the parties. See Lopinto v. Haines, 185 Conn. 527, 531, 441 A.2d 151 (1981) (‘‘[a] cause of action for reformation of a contract rests on the equitable theory that the instrument sought to be reformed does not conform to the real contract agreed upon and does not express the intention of the parties and that it was executed as the result of mutual mistake, or mistake of one party coupled with actual or constructive fraud, or inequitable conduct on the part of the other’’ [internal quotation marks omitted]). A contract reformation does not ‘‘alter’’ the terms of a contract, as would be required for the authority to have jurisdiction pursuant to § 16-9, but conforms the writing to the actual contractual intent. Id., 532. Indeed,in anattachment toits decisioninthe master agreementproceedingapprovingtheformofthemaster

agreement, the authority stated that, ‘‘in response to bidder calls for having an objective third party serve as an arbiter of these commercial, [nonregulated contracts], [the authority] has removed itself as much as possible from serving . . . in a dispute resolution role.’’ (Emphasis added.) Although the term nonregulated is not defined, it is reasonable to conclude that theauthoritywasacknowledgingthat,afteritapproved the form of the master agreement and specific parties executed specific master agreements, the authority would no longer have any regulatory authority to set the terms of the master agreement.21 Cf. Freehold Cogeneration Associates, L.P. v. Board of Regulatory Commissioners, 44 F.3d 1178, 1192 (3d Cir.) (attempt by Board of Regulatory Commissioners to modify contractthatitpreviouslyhadapprovedconstitutedutilitytype regulation), cert. denied sub nom. Jersey Central Power & Light Co. v. Freehold Cogeneration Associates, L.P., 516 U.S. 815, 116 S. Ct. 68, 133 L. Ed. 2d 29 (1995).Moreover,theauthorityconcludedinitsdeclaratory ruling that it could not ‘‘modify the [master agreement] after the effective date except as provided for in the [master] [a]greement22 or law’’; (footnote added); and it identified no law authorizing it to modify theagreement.Thus,theauthorityeffectivelyconceded that § 16-9 itself did not confer jurisdiction to ‘‘alter’’ the Kleen Energy master agreement if the authority otherwise lacked statutory authority to modify the terms of the contract or implicit authority to conform them to an express statutory mandate.23 In addition, the defendants again rely on this court’s decisionin Wheelabrator Lisbon,Inc. v. Dept. of Public Utility Control, supra, 283 Conn. 689, to support their claim that the authority had jurisdiction to resolve the capacity clearing price dispute pursuant to § 16-9. See id.(‘‘[w]eseenoreasontoconcludethatthedepartment lacked jurisdiction to make these determinations [regarding the ownership of the renewable energy certificates] under §§ 4-176 and 16-9’’). As we have explained, however, the issue under review in Wheelabrator Lisbon, Inc., was ‘‘more a question of legislative intent and public policy than a question of the intent of the parties’’ to the relevant contract; id., 687; and resolutionoftheissuerequiredthedepartmenttointerpret certain specific statutory provisions that it was charged with implementing. In other words, the meaning of the contract provision depended on, and was required to be consistent with, the meaning of specific statutoryprovisions.Thus,ifthedepartmentinWheelabrator Lisbon, Inc., had determined that the contract provisionunderreviewwasinconsistentwiththestatutory provisions, the parties were constructively on notice that the provision must be altered to conform to the statutes.24 See footnote 21 of this opinion. In contrast, in the present case, the contract for differences provision of the master agreement was not dic

tatedbyanyspecificstatutoryprovision,andresolution of the capacity clearing price dispute did not require the authority to interpret or to apply the language of any specific statutory provision. Thus, as we have explained, the meaning and application of the contract for differences provision was not primarily a matter of legislative intent regarding the form of contracts between electric distribution companies and capacity resources. Accordingly, our decision in Wheelabrator Lisbon, Inc., is not controlling here. Becausewehaveconcludedthattheauthoritylacked jurisdiction to issue a declaratory ruling to resolve the capacity clearing price dispute pursuant to § 4-176 or to resolve the dispute pursuant to § 16-9, there is no need to address the plaintiff’s other claims on appeal. Even if we were to assume that the plaintiff’s conduct would have constituted a waiver of its right to arbitrate the capacity clearing price dispute if the authority had had jurisdiction to resolve the dispute, the plaintiff’s conduct could not confer jurisdiction on the authority thatitotherwisewouldlack.Thus,theplaintiff’sclaims that the trial court improperly remanded the case to the authority to resolve the waiver issue and that the authority improperly determined that the plaintiff had waived its right to arbitration are moot.25 Finally, becauseourdecisioneffectivelynullifiestheauthority’s decisioninthecombinedproceedinganditsdeclaratory ruling, we need not address the question of whether those rulings violated the plaintiff’s constitutional right to due process.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment sustaining the plaintiff’s appeal from the authority’s declaratory ruling; the judgment dismissing the plaintiff’s appeal from the authority’s order on remand is affirmed.