Davis, Chief Justice, concurring, in part, and dissenting, in part:

        In this proceeding, the Affiliated Construction Trades Foundation (hereinafter referred to as “ACT”) challenged a ruling by the Public Service Commission (hereinafter referred to as “PSC”), which concluded that ACT had no standing to litigate issues involving a certificate of convenience and necessity that was issued to Big Sandy Peaker Plant (hereinafter referred to as “Big Sandy”). The majority opinion determined that granting relief to ACT was impossible because the project complained of had been completed. Therefore, the majority opinion properly affirmed the PSC's dismissal of ACT's complaint. With this part of the majority opinion, I concur.

        Although the majority opinion found that completion of the project by Big Sandy rendered ACT's complaint moot, the majority nevertheless proceeded to address the merits of the issues raised. In so doing, the majority opinion ruled that ACT had standing to file a complaint against Big Sandy. For the reasons set out below, I dissent from the majority opinion's ruling on the standing issue.

        Pursuant to W. Va. Code § 24-2-11(a) (1983) (Repl. Vol. 2001), the PSC is required to provide notice to the public of a request for a certificate of convenience and necessity.   (See footnote 1)  The notice requirement is intended to allow any interested party to attend a scheduled hearing to voice any concerns regarding a third party's request for a certificate of convenience and necessity. The record revealed that the PSC required Big Sandy to make two legal publications advising the public of the pendency of its request for a certificate of convenience and necessity. As a result of the legal publications, two parties intervened and were given an opportunity by the PSC to voice their concerns. ACT did not attempt to intervene while the PSC was considering Big Sandy's request for a certificate of convenience and necessity. Had ACT so intervened and objected to the PSC's ruling, ACT could then have appealed an unfavorable ruling. However, rather than intervening as authorized by W. Va. Code § 24-2-11(a), ACT waited nearly six months after the PSC had granted the certificate of convenience and necessity to raise its objections. At that point, ACT filed a complaint seeking to revoke the certificate of convenience and necessity.

        ACT relied upon W. Va. Code § 24-4-6 (1923) (Repl. Vol. 2001) in order to file its complaint. W. Va. Code § 24-4-6 permits a party to enforce compliance with the statutory, regulatory, and other requirements that are imposed upon an entity that obtains a certificate of convenience and necessity.   (See footnote 2)  This statute, as conceded to by the majority opinion, cannot be used to revoke the issuance of a certificate of convenience and necessity. A party seeking to revoke the issuance of a certificate of convenience and necessity must appeal the order granting such certificate.

        The complaint filed by ACT pursuant to W. Va. Code § 24-4-6 expressly sought the following relief from the PSC:

            i. That the Commission revoke the Certificate of Convenience and Necessity it issued on June 23, 2000 concerning [Big Sandy's] facility and Order all construction and other work to cease.

            ii. That the Commission issue an Order revoking the waiver of the requirement to provide information listed in paragraphs 5 through 9 of Form 5 of the Commission's Tariff Rules and the Information required by Rule 42 of the Tariff and Ordering [Big Sandy] to provide said information.

            iii. That the Commission investigate the circumstances under which [Big Sandy] applied for and obtained said Certificate.

            iv. That the Commission not issue a new Certificate of Convenience and Necessity for said facility unless and until it determines that [Big Sandy] has met its burden and complies with all aspects of West Virginia Code Section 24-2-11 including its burden to demonstrate an improved economy in light of the impact on the economic health of the community and the State through the use of revenue bonds and a PILOT plan.

            v. That the Commission Order [Big Sandy] to meet its obligations to the economic health of the State and the Community through the exclusive hiring of local workers and contractors for the construction and operation of the facility.

    (Emphasis added).

        In its opinion, the majority states that ACT had standing in this case because ACT was not seeking to revoke the certificate of convenience and necessity issued by the PSC to Big Sandy. However, as indicated above in paragraph i, ACT specifically requested “[t]hat the Commission revoke the Certificate of Convenience and Necessity it issued on June 23, 2000 concerning [Big Sandy's] facility[.]” (Emphasis added). Moreover, in paragraph iv, ACT specifically requested “[t]hat the Commission not issue a new Certificate of Convenience and Necessity for said facility unless and until it determines that [Big Sandy] has met its burden and complies with all aspects of West Virginia Code Section 24-2-11[.]” (Emphasis added).

        It is simply illogical for the majority opinion to conclude that ACT was not seeking to revoke the certificate of convenience and necessity issued to Big Sandy. ACT was crystal clear in its complaint. It requested the certificate of convenience and necessity be “revoked,” and that no “new” certificate of convenience and necessity be issued until Big Sandy met the requirements imposed by ACT. I submit that the majority opinion is a calculated distortion of the record and is imposing greater, nonstatutory, duties upon the PSC. These new duties, as outlined by the majority opinion, permit any future entities   (See footnote 3)  to have uncontrollable power in challenging the issuance of a certificate of convenience and necessity. It is unfortunate that the majority opinion has resorted to such legislative authorship rather than staying within the confines of our constitutional role as the judicial branch of government.

        For the reasons stated, I concur, in part, and dissent, in part, from the majority opinion. I am authorized to state that Justice Maynard joins me in this opinion and reserves the right to author a separate opinion.