In re Petition of Swanton Wind LLC, 204 A.3d 635

Background

Swanton Wind LLC filed for a certificate of public good (CPG) under 30 V.S.A. § 248 for a 20 MW wind project and paid a $100,000 § 248b fee to the Agency of Natural Resources (ANR).
Over nine months, parties conducted discovery, motions, workshops, and prehearing conferences; dispute arose whether a final system‑impact study was required before technical hearings.
The Public Utility Commission (PUC) declined to proceed without a final system‑impact study and denied reconsideration; Swanton then sought to withdraw its petition and sought refund of the § 248b fee.
The Commission granted voluntary dismissal without prejudice under V.R.C.P. 41(a)(2), denied refund of the § 248b fee (saying it lacked jurisdiction), and declined to award attorney’s fees for lack of exceptional circumstances, but stated parties could seek fees if Swanton refiles.
Swanton appealed. The Vermont Supreme Court: (1) declined to review the Commission’s pre‑dismissal determination about the system‑impact study for lack of jurisdiction; (2) held the Commission has authority to order ANR to refund an appropriate portion of the § 248b fee and remanded for an accounting; and (3) struck the Commission’s order preserving future consideration of attorney’s fees as invalid.

Issues

Issue	Swanton's Argument	State/ANR's Argument	Held
Whether the Court may review the Commission’s pre‑dismissal decision requiring a final system‑impact study	Commission deviated from prior practice; should have issued conditional CPG without final study	Commission properly required final study before technical hearings	Court lacked jurisdiction to review an unappealed, pre‑dismissal interlocutory determination; claim not addressed on merits
Whether the Commission had authority to order refund of the § 248b fee	Fee should be refunded because ANR did not present evidence; fee exists to support ANR’s participatory role	Fee was paid into the Natural Resources Management Fund and allocated to ANR, so Commission lacks power to order refund	Commission erred: under 30 V.S.A. § 9 it has power to order ANR (a party) to refund an appropriate portion; remanded for ANR accounting and Commission determination of reasonable retention
Proper measure of refundable amount of the § 248b fee	ANR entitled to none if it did not present evidence	ANR entitled to retain full fee due to substantive review performed	Court held ANR may retain reasonable portion tied to documented activities; remand for accounting and evidence of reasonable costs
Whether Commission could preserve right to award attorney’s fees later if Swanton refiles	Commission cannot reopen its final finding that no exceptional circumstances justified fees	Commission relied on V.R.C.P. 41(a)(2) to impose conditions and preserve fee requests	Order allowing future fee claims is invalid: the Commission’s final finding that no exceptional circumstances existed is binding and cannot be relitigated; the conditional preservation was not a proper Rule 41(a)(2) term and is struck

Key Cases Cited

In re UPC Vt. Wind, LLC, 185 Vt. 296, 969 A.2d 144 (Vt. 2009) (describing deference to Commission decisions)
In re GMPSolar‑Richmond, LLC, 179 A.3d 1232 (Vt. 2017) (Commission’s statutory and rule interpretations generally entitled to deference)
In re MacIntyre Fuels, Inc., 175 Vt. 613, 833 A.2d 829 (Vt. 2003) (courts interpret statutes independently despite deference to agencies)
In re Vt. Elec. Power Producers, Inc., 165 Vt. 282, 683 A.2d 716 (Vt. 1996) (Commission possesses only statutory powers but has powers akin to a trial court under 30 V.S.A. § 9)
In re Hinesburg Hannaford Act 250 Permit, 179 A.3d 727 (Vt. 2017) (courts may address issues on remand for judicial economy)
Perez v. Travelers Ins. ex rel. Ames Dep’t Stores, Inc., 181 Vt. 45, 915 A.2d 750 (Vt. 2006) (Vermont follows the American Rule for attorney’s fees; departure allowed only in exceptional circumstances)
Custis v. United States, 511 U.S. 485 (1994) (principles supporting finality of judgments)