Vermont Court Orders PUC to Review Grant of Permit

Although the subject solar generating facility is already in commercial operation, the Vermont Supreme Court has directed the Vermont Public Utility Commission (PUC) to revisit its issuance of a certificate of public good (CPG) for the project. The court said its decision turned on several procedural deficiencies that occurred in the course of the certificate proceeding, including lack of timely notice of the CPG application being provided to all affected stakeholders. The matter centers on a 500-kilowatt project proposed by New Haven GLC Solar, LLC, which is net-metered and interconnected to Green Mountain Power's local grid. 

The town of New Haven had filed several objections to GLC Solar's application and had requested a hearing on its concerns. One of the town's primary questions was about the ability of Green Mountain Power to integrate the output from the solar facility in a manner that would not risk service reliability. The town maintained that even though the utility had told the commission that there would be no problem in assimilating the solar energy, the town was afraid that the local grid system had already reached its maximum capacity and could not handle additional power from others. 

The commission, however, never scheduled a hearing and dismissed New Haven's comments as untimely filed. The commission stated that the town had submitted its concerns well beyond the end of the 45-day notice period provided coincident with the filing of the CPG application. Moreover, the PUC said that it saw no reason not to believe Green Mountain Power's assertions that the GLC Solar project would present no impediment to system reliability. 

In seeking relief before the state court, New Haven renewed its opposition to the solar project and accused the commission of depriving the town of due process by not holding a hearing as requested. The town pointed out that state law sets forth certain standards for determining whether a proposed distributed generation project could interfere with system reliability and that the GLC Solar had not met all of those standards. Therefore, New Haven argued, the commission erred in not convening a hearing to explore that issue further. 

As to the timeliness of its comments, the town informed the court that GLC Solar's original CPG application at first had been deemed incomplete. It thus had to revise certain portions of the application and refile, which gave rise to a new 45-day notice period. But, the town averred, the requisite new notice had never been provided. 

In addition, the town drew attention to the fact that not only was new notice not issued, but the amended CPG application included a revision to the route of an associated service road, which affected a person not initially part of the group entitled to notification. Because that person was not aware of the certificate proceeding at all until after the PUC had already ruled, the town asked the court to set aside the commission's decision as procedurally deficient. The court agreed with New Haven that the commission should have considered the town's comments and should have held a hearing on its concerns. To that end, the court found that while the comments had been filed beyond the 45-day deadline for the original application, they were well within the 45-day period for the revised CPG proposal. 

The court deemed it telling that no party had protested the comments as untimely. That is, the court said, only the commission had raised the issue of the timeliness of the town's comments. Indeed, the court added, the PUC had actually instructed the other parties to respond to the town's concerns, which they did, but without addressing their timeliness. 

The court also determined that the solar project's noncompliance with certain interconnection screening criteria was a sufficient basis for holding a technical hearing on the application, Green Mountain Power's assurances of no adverse impacts on system reliability notwithstanding. The court cited state law as providing that a more rigorous evaluation process must be invoked if a proposed net metering project cannot meet all of the required screening requirements. 

In remanding the case, the court told the commission that the technical hearing must review all matters raised by New Haven, including interconnection protocols; land conservation measures; aesthetic impacts; soil and sediment concerns and potential need for a concomitant storm water permit; decommissioning plans; and possible negative economic and social benefits. Town of New Haven, Vermont, Appellant, In re Petition of New Haven GLC Solar, LLC, Supreme Court Docket No. 2016-125, 2017 VT 72, Aug. 25, 2017 (Vt.).