221 A.3d 777
Vt.2019Background
- Derby GLC Solar sought a CPG to build a 500 kW group net-metered solar facility in Derby (VEC territory); PUC rescinded conditional waivers and held an evidentiary hearing.
- Project site lies within the Sheffield‑Highgate Export Interface (SHEI), an export‑constrained area where ISO‑NE curtails local generation and lowers market prices.
- Net‑metered output would act as a load reducer and, during export constraints, would increase curtailments of larger generators (notably GMP’s Kingdom Community Wind).
- PUC found the project would cause additional curtailments, increasing ratepayer costs (PUC credited VEC’s ~$250,000 life‑of‑project estimate) and exacerbating SHEI congestion; no transmission upgrades exist to eliminate constraints.
- PUC concluded the project failed 30 V.S.A. § 248(b)(10) (cannot be served economically without undue adverse effect) and (b)(7) (not consistent with Comprehensive Energy Plan) and denied the CPG; Derby appealed.
Issues
| Issue | Applicant's Argument | State/Utilities' Argument | Held |
|---|---|---|---|
| Whether PUC violated 3 V.S.A. § 812(a) / improperly refused to weigh project’s overall economic benefits (§ 248(b)(4)) | PUC failed to rule on proposed economic‑benefit findings and should have balanced benefits (jobs, taxes) against harms | § 248(b) has discrete criteria; PUC may decline to address (b)(4) once other § 248(b) criteria fail | Affirmed: PUC need not decide (b)(4) once (b)(7) and (b)(10) fail; § 812 requirement satisfied by explanation given. |
| Whether PUC improperly relied on GMP expert testimony not in prefiled testimony | PUC relied on late testimony estimating ‘‘several million dollars’’ impact without prior disclosure | Practice rules permit oral examination; PUC did not base decision on that figure and error (if any) was harmless | Affirmed: testimony permissible; no prejudicial error shown. |
| Whether PUC misinterpreted § 248(b)(10) by treating any adverse economic impact as “undue” | Applicant: modest increased costs (~$250k) are not undue when weighed against project benefits | PUC: in context of SHEI, displacement of cheaper existing renewables with no comparative benefits makes additional costs excessive/undue | Affirmed: PUC’s application of “undue” is reasonable; adverse impacts here were excessive given no offsetting benefits. |
| Whether PUC misapplied § 248(b)(7), applied precedent inconsistently, or shifted burden | Applicant: PUC treated similar past projects differently and forced applicant to disprove impacts | State: changed ISO‑NE rules and new facts justify different outcome; applicant retained burden and PUC properly weighed evidence | Affirmed: applicant failed to show inconsistent treatment; PUC permissibly considered changed circumstances and did not shift burden. |
Key Cases Cited
- Auclair v. Vermont Elec. Power Co., 329 A.2d 641 (Vt. 1974) (PUC action is a legislative, policy‑making process; PUC weighs alternatives).
- UPC Vt. Wind, LLC, 969 A.2d 144 (Vt. 2009) (deference to PUC’s exercise of discretion and evidence‑weighing in § 248 proceedings).
- In re New Haven GLC Solar, LLC, 175 A.3d 1211 (Vt. 2017) (appellate review limits and deference to PUC on CPG decisions).
- In re Stowe Cady Hill Solar, LLC, 182 A.3d 53 (Vt. 2018) (PUC findings reviewed for clear error).
- Vermont Elec. Power Co. v. Bandel, 375 A.2d 975 (Vt. 1977) (interpretation of “unduly” and legislative delegation to utility regulator).
- In re Green Mountain Power Corp., 198 A.3d 36 (Vt. 2018) (distinguishing roles of § 248(b)(4) from other § 248 criteria).
- In re Green Mountain Power Corp., 60 A.3d 654 (Vt. 2012) (PUC may consider testimony given at hearing even if it differs from prefiled testimony).
- Sec’y, Agency of Natural Res. v. Upper Valley Reg’l Landfill Corp., 705 A.2d 1001 (Vt. 1997) (contested‑case requirement to rule on proposed findings).
- In re Vermont Gas Sys., Inc., 187 A.3d 1138 (Vt. 2018) (distinguishing ratemaking proceedings where imprudence may be relevant).