In re Petition of GMPSolar-Richmond, LLC (Allco Renewable Energy Limited, Appellant)
179 A.3d 1232
Vt.2017Background
- GMPSolar–Richmond, LLC (GMPSR), an affiliate part‑owned by Green Mountain Power (GMP), applied for a certificate of public good (CPG) under 30 V.S.A. § 248 to build a 2.0 MW solar facility in Richmond, VT.
- Allco Renewable Energy (Allco), a developer of solar projects and PURPA qualifying facility (QF) owner, moved to intervene opposing the CPG, arguing GMP should have purchased QF power under PURPA and that the Project would harm QFs’ avoided‑cost prospects.
- The PSB hearing officer denied Allco’s first motion to intervene (as of right and permissive) because the § 248 CPG proceeding did not address PURPA avoided‑cost contracting, Allco had alternative remedies, and the Dept. of Public Service could represent the policy interests. The Board later affirmed.
- Allco filed a second motion to intervene after a technical hearing; the hearing officer denied it as repetitive and untimely. Allco appealed the Board’s denial of the first intervention motion to the Vermont Supreme Court.
- The PSB’s then‑existing PURPA framework used a statewide composite avoided‑cost and a designated purchasing agent (VEPP) rather than obligating each utility to contract directly with each QF. The opinion analyzed intervention rights and permissive intervention under PSB Rule 2.209.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Allco was entitled to intervene as of right under PSB Rule 2.209(A)(3) | Allco: PURPA gives it a substantial interest; GMP’s Project would lower avoided‑costs and displace Allco; § 248 proceeding is the exclusive forum to protect that interest and existing parties won’t adequately represent it | Board/GMPSR: Vermont’s PURPA implementation (composite rates + purchasing agent) means GMP had no direct PURPA contracting obligation; Allco has alternative remedies and Dept. can represent relevant interests | Denied. Allco failed to show the proceeding was the exclusive means and had alternative remedies; affirm denial of intervention as of right. |
| Whether Allco should be allowed permissive intervention under PSB Rule 2.209(B) | Allco: should be permitted to litigate PURPA issues and related tax risks affecting rates | Board/GMPSR: Issues beyond § 248 scope; permitting intervention would unduly delay and prejudice parties; Board’s discretion should be respected | Denied. No abuse of discretion in refusing permissive intervention; Board reasonably required challenges be brought in appropriate forums. |
| Whether Allco may appeal the merits of the CPG (standing/appealability) | Allco: § 234 permits an aggrieved party to transfer causes to Supreme Court | Board/GMPSR: Only parties may appeal under § 12; § 234 does not confer broader appeal rights | Denied. Nonparties may not appeal the CPG merits; § 12 controls appealability. |
| Whether the hearing officer erred in denying Allco’s second motion to intervene | Allco: transcript review created new grounds (inadequate representation) making second motion timely | Board/GMPSR: Once appeal of first denial was filed, Board/divested jurisdiction; second motion was repetitive and untimely | Not considered on the merits. Court holds the second motion was procedurally improper and need not be reviewed. |
Key Cases Cited
- In re UPC Vt. Wind, 185 Vt. 296 (Vt. 2009) (describing § 248 as a policy‑making, weighing process where Board uses expertise)
- In re Vermont Public Power Supply Auth., 140 Vt. 424 (Vt. 1981) (would‑be intervenor may appeal denial of intervention)
- Allco Finance Ltd. v. Klee, 805 F.3d 89 (2d Cir. 2015) (explaining PURPA framework and avoided‑cost concept)
- Helm v. Helm, 139 Vt. 225 (Vt. 1981) (affirming denial of intervention where rule criteria not met)
- Petition of Vt. Elec. Power Producers, Inc., 165 Vt. 282 (Vt. 1996) (deference to Board’s interpretation of its regulations)