1. Administrative Law — Judicial Review — Procedure
The right to appeal under the statute authorizing an immediate appeal from a preliminary, procedural, or intermediate agency action or ruling in a contested case is limited to those cases where review of the final decision will not provide an adequate remedy, and that limitation places upon appellants the burden of demonstrating that an appeal from a final order will not provide such a remedy. 3 V.S.A. § 815(a).
2. Public Utilities — Judicial Review — Interlocutory Review
The supreme court is reluctant to treat issues raised by utility rate cases outside the regular appeal mechanism, and will subject to careful scrutiny those reasons offered as justification for appeals under the statute authorizing an immediate appeal from a preliminary, procedural, or intermediate agency action or ruling in a contested case. 3 V.S.A. § 815(a).
3. Administrative Law — Judicial Review — Procedure
In order to justify an appeal under the statute authorizing an immediate appeal from a preliminary, procedural, or intermediate agency action or ruling in a contested case it must at least be shown that appeal of the ultimate order will not provide an adequate remedy or that the nature of the claimed defect in the order is such that harm is greatly aggravated by delay; it is not every theoretically possible harm the imagination can conceive which will satisfy the test. 3 V.S.A. § 815(a).
4. Public Utilities — Judicial Review — Interlocutory Review
In an appeal by the Public Service Department from an order of the Public Service Board granting a public utility a temporary rate increase pending a final order of the Board, the public utility's motion to dismiss the appeal was granted where the Public Service Department failed to meet the burden of demonstrating that an appeal from a final order would not provide an adequate remedy since the reasons offered by the Department as justification for appeal under the statute authorizing an immediate appeal from a preliminary, procedural or intermediate agency action or ruling were speculative, remote, and de minimis at best. 3 V.S.A. § 815(a).
Per Curiam.
This is an appeal by the State Public Service Department from an order of the Public Service Board granting appellee Central Vermont Public Service Corporation, a Vermont utility, a temporary rate increase pending a final order of the Board in response to the utility's petition for a twenty-five percent permanent rate increase.
It is unnecessary to reach the merits of this appeal. We are confronted at the threshold with a motion by the utility to dismiss which raises for consideration the issue of finality. Neither party here questions the fact that the Board has not yet issued a final order; consequently, the proceedings presently before us resemble an interlocutory appeal instituted without permission. There is, nevertheless, a statute contained in the Administrative Procedure Act, 3 V.S.A., Chapter 25, which authorizes an immediate appeal from "a preliminary, procedural, or intermediate agency action or ruling" in a contested case. 3 V.S.A. § 815(a). See In re Green Mountain Power Corp., 133 Vt. 107, 109, 329 A.2d 372, 373 (1974).
This right, however, is limited to those cases where, in the language of § 815(a), "review of the final decision would not provide an adequate remedy." This limitation places upon appellants the burden of demonstrating that an appeal from a final order will not provide such a remedy. In Green Mountain Power, supra, as well as in In re New England Tel. Tel. Co., 131 Vt. 310, 305 A.2d 598 (1973), the appellants met their burden. In the case at bar the Department has failed to do so.
We have noted earlier our reluctance to "treat issues raised by utility rate cases outside the regular appeal mechanism." In re Green Mountain Power Corp., supra, 133 Vt. at 109, 329 A.2d at 373. We reiterate that reluctance here with the additional caveat that we will subject to careful scrutiny those reasons offered as justification for appeals under § 815(a). It is not every theoretically possible harm the imagination can conceive which will satisfy the test. It must at least be shown that appeal of the ultimate order will not provide an adequate remedy or that the nature of the claimed defect in the order is such that the harm is greatly aggravated by delay. The reasons offered here by appellant are speculative, remote and de minimis at best. We hold they are insufficient; accordingly, the motion of the utility to dismiss the appeal must be granted.
Appeal of the Public Service Department is dismissed.