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In re Programmatic Changes to the Standard-Offer Program

Supreme Court of Vermont

March 28, 2014

In re Programmatic Changes to the Standard-Offer Program and Investigation into the Establishment of Standard-Offer Prices under the Sustainably Priced Energy Enterprise Development (SPEED) Program

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Public Service Board. James Volz, Chair.

The Board's May 2013 and June 2013 orders are reversed. We remand the case to the Board for further agency action consistent with this decision.

Wesley M. Lawrence of Theriault & Joslin, P.C., Montpelier, and Thomas Melone and Michael Melone of Allco Renewable Energy Limited, New York, New York, for Appellant Ecos Energy LLC.

Jeanne Elias, Special Counsel, Montpelier, for Appellee Department of Public Service.

Present: Reiber, C.J., Dooley, Skoglund, Robinson and Crawford, JJ.

OPINION

Page 1000

Crawford, J.

[¶1] Applicant Ecos Energy, LLC appeals from the Public Service Board's decision that its proposed solar power project does not qualify for a standard-offer power purchase contract under Vermont's Sustainably Priced Energy Enterprise Development (SPEED) program because it exceeds the statutory limit on generation capacity. We reverse.

[¶2] The Legislature established the SPEED program in 2005 to promote development of renewable energy in Vermont. 30 V.S.A. § § 8001, 8005, 8005a. The statute promotes this goal in two ways: by requiring electric utilities to purchase a certain amount of power from renewable energy sources, and by creating a standard-offer program. Under the standard-offer program, the Board authorizes certain long-term power-purchase contracts with electrical providers in Vermont for renewable energy projects that have a nameplate capacity of 2.2 megawatts (MW) or less and meet certain other criteria. Id. § 8005a(b). Once a plant owner executes a standard-offer contract, the Board guarantees a set price for that plant's energy for the duration of the contract regardless of whether the market price changes. Id. § 8005a(f)(4). The standard-offer program is administered by the SPEED facilitator, VEPP, Inc., which operates under a contract with the Board. Id. § 8005a(a).

Page 1001

[¶3] In 2009, after soliciting public comment, the Board issued an order in which it prescribed various procedures and requirements for the standard-offer program. During the comment process, VEPP asked the Board to clarify how a plant was defined, stating that " the tenor of some questions it had received from developers indicated that at least some developers were anticipating construction of multiple plants at a single location that, collectively, exceed the 2.2 MW cap." One of the participants in the implementation process, Central Vermont Public Service, commented that separate projects would need to enter into separate interconnection agreements with the utility, enter into separate standard contracts, and obtain separate certificates of public good. Another participant, Renewable Energy Vermont, commented that the statute was clear that " separate plants that share common infrastructure and interconnection should be considered as one plant."

[¶4] In response to these comments, the Board ordered that " [t]o the extent that any generation components share common infrastructure, we direct [VEPP] to consider these components as a single plant." It ordered VEPP to identify and inform the Board of applications that would be on the same parcel of land or contiguous parcels of land and would collectively exceed the 2.2 MW cap, and stated that " [t]o the extent required, the Board will make case-by-case determinations as to whether [such] projects constitute a single plant for purposes of § 8002(12)." [1] The Board did not state what criteria would be ...


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