198 A.3d 36
Vt.2018Background
- Green Mountain Power (GMP) sought a certificate of public good (CPG) under 30 V.S.A. § 248 to purchase eight hydroelectric facilities located outside Vermont.
- The Vermont Department of Public Service (DPS) participated as the statutorily mandated representative of the public.
- Allco Renewable Energy (Allco), a Vermont in-state generation developer and GMP competitor, moved to intervene in the § 248 proceeding both as of right under PUC Rule 2.209(A) and permissively under Rule 2.209(B).
- Allco asserted two bases for intervention: (1) as a ratepayer concerned about future rates and state economic benefit; (2) as a competitor alleging adverse economic impact on its in-state projects.
- The PUC hearing officer and the full PUC denied intervention, finding Allco lacked a "substantial, particularized interest" relevant to the § 248 criteria and that its concerns were generalized or outside the scope of § 248.
- The PUC later granted the CPG to GMP; Allco appealed both the denial of intervention and the grant of the CPG (the latter was dismissed after affirming the intervention decision).
Issues
| Issue | Plaintiff's Argument (Allco) | Defendant's Argument (PUC/GMP) | Held |
|---|---|---|---|
| Whether Allco could intervene as of right under PUC Rule 2.209(A) | Allco claimed a substantial interest as (a) a ratepayer facing potential higher future rates and (b) a competing supplier whose market would be harmed | PUC: Allco's interests were generalized, not particularized or within the scope of § 248, so no substantial interest | Denied—Allco lacked a substantial, particularized interest under Rule 2.209(A) |
| Whether Allco could permissively intervene under Rule 2.209(B) | Permissive intervention appropriate because Allco had interests that could inform the record | PUC: Allco failed to show a substantial interest; permitting intervention would delay/prejudice the proceeding | Denied (no need to reach full discretionary factors because no substantial interest); any failure to separately analyze was harmless error |
| Whether a ratepayer’s generalized concerns satisfy the "substantial interest" prong | Ratepayer status and concern about rates/state economic benefit confer a substantial interest | PUC: Ratepayer concerns are shared by all and can be represented by DPS; not sufficiently particularized | Held that generalized ratepayer concerns are insufficient; PUC may require a particularized interest |
| Whether a competitor’s economic injury qualifies as a substantial interest in § 248 proceedings | Competitive economic harm from GMP’s purchases suffices to intervene | PUC: § 248(b) economic inquiry is about public benefit, not individual competitive impacts; such harms are outside proceeding scope | Held that alleged competitive impacts on an individual supplier do not establish a substantial interest for intervention in § 248 proceedings |
Key Cases Cited
- Vermont Public Power Supply Authority v. Vermont Public Service Board, 140 Vt. 424 (1981) (permitting ratepayers to have a voice in power-supply issues under a different, earlier standard)
- In re Hydro Energies Corp., 147 Vt. 570 (1987) (give administrative rule language its plain meaning and defer to agency interpretations of its rules)
- In re Vermont Electric Power Co., 179 Vt. 370 (2006) (PUC proceedings under § 248 are policy-making requiring informed judgment)
- In re Chittenden Recycling Servs., 162 Vt. 84 (1994) (competitive impacts on a private business do not justify intervention when outside statutory permitting criteria)