In re Green Mountain Power Corp., Vermont Electric Cooperative, Vermont Electric Power Co.
60 A.3d 654
Vt.2012Background
- LMG and two towns challenged several VT Public Service Board orders approving a wind facility on Lowell Mountain; project contemplated up to 21 turbines with 400+ ft tall towers and associated transmission lines; Board issued a 179-page final CPG order on May 31, 2011 with 45 conditions asserting public good from renewable energy and economic benefits.
- Board conditioned approval on GMP complying with a Memorandum of Understanding with ANR to mitigate habitat fragmentation, including conservation easements on four parcels adjacent to the project.
- Board imposed noise limits ( exterior 45 dBA Leq 1 hr; interior 30 dBA Leq 1 hr) and required a noise-monitoring plan and potential operational adjustments.
- GMP, VEC, GMP-related entities filed motions for reconsideration; Board extended the deadline for securing conservation easements; Towns and LMG appealed the order.
- GMP later proposed using 21 Vestas V112 turbines (64.575 MW) vs the cited 63 MW limit; Board treated any technical error as modifiable and ultimately defended the project’s compliance under § 248.
- After initial appeal, separate post-certification issues arose regarding habitat mitigation (easements) and preconstruction deadlines; the Board extended deadlines and approved supplemental mitigation; Towns challenged post-certification procedures and due process for Condition 15(a); the case includes an active dissent concerning hearing rights on Condition 15(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether noise findings meet health standards | Towns contend GMP’s noise modeling shows noncompliance with 45 dBA exterior | Board found absolute standards ensure no undue health impact and approved monitoring | No error; Board’s absolute standards and monitoring plan support finding of no undue noise impact |
| Whether turbine count/model changes violated CPG | Towns argue 21 turbines (V112-3.0 MW) exceed approved 63 MW | Board treated 63 MW as a technical error; approved up to 21 turbines and specific turbine model | Board acted within discretion; no substantial change requiring amendment; project remains within approval |
| Habitat mitigation and MOU effectiveness | ANR testimony showed four parcels’ mitigation may not offset fragmentation | Board found MOU and supplemental 172 acres provide adequate mitigation | Board’s conclusion supported by record; supplemental easements offset temporary fragmentation; due process not violated on post-certification review |
| Easement timing and Rule 59(e) reconsideration authority | Towns contend Board abused discretion by altering easement deadline under economic considerations | Board properly used Rule 59(e) to address unforeseen consequences and promote the public good | Board acted within discretion; remand unnecessary; decision affirmed on preserved grounds |
| Due process and hearing rights for Condition 15(a) | Townships claim denial of hearing violated due process and APA | Record showed no significant issue warranting a hearing; expert unqualified; post-certification process adequate | Majority: no due process violation; dissent would require cross-examination; the court affirms, but concurrence/dissent discuss need for more process in certain facts |
Key Cases Cited
- In re SP Land Co., 2011 VT 104 (Vt. 2011) (Rule 59(e) allows reconsideration of matters properly before the court; broad discretionary power to amend judgments)
- In re UPC Vt. Wind, LLC, 2009 VT 19 (Vt. 2009) (Board may use post-certification proceedings to evaluate compliance with conditions)
- Vermont Elec. Power Co. v. UPC Vt. Wind, 131 Vt. 427, 306 A.2d 687 (Vt. 1973) (Post-certification comments and hearing may be allowed to address compliance)
- In re New England Tel. & Tel. Co., 116 Vt. 480, 80 A.2d 671 (Vt. 1951) (Abuse of discretion in not reopening a hearing to receive new expenses evidence)