In re Petition of GMPSolar-Richmond, LLC

         On Appeal from Public Service Board

          Lynn Fabrizio, Hearing Officer (motion to intervene); James Volz, Chair (final order)

          Thomas Melone, New York, New York, for Appellant.

          Geoffrey H. Hand and Victoria M. Westgate of Dunkiel Saunders Elliott Raubvogel & Hand, PLLC, Burlington, for Appellee GMPSolar-Richmond, LLC.

          Geoffrey Commons, Montpelier, for Appellee Public Service Department.

          PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          DOOLEY, J.

         ¶ 1. Allco Renewable Energy Ltd. (Allco) appeals from the denial of its motion to intervene, and its renewed motion to intervene, in this certificate-of-public-good (CPG) proceeding for a solar electric generation facility. The applicant, GMPSolar-Richmond, LLC (GMPSR), is an affiliate of Green Mountain Power Corp. (GMP), an electricity utility. The applicant is owned by GMP and an investor. Allco is developing a number of solar electric generation facilities in Vermont. A hearing officer of the Public Service Board (PSB) denied Allco's request for intervention as of right and permissive intervention; the PSB on motion for reconsideration similarly denied the intervention request. Allco argues that the PSB used the wrong framework in reviewing its request and incorrectly applied the intervention criteria. We affirm.

         ¶ 2. We begin with a brief overview of law that governs a CPG proceeding. Applicant's project requires a CPG prior to "site preparation for or construction" because it will be an "electric generation facility." 30 V.S.A. § 248(a)(2)(A). The CPG is essentially a license to build and operate the facility. Before it can issue a CPG, the Board must find that a list of statutory requirements are met. See id. § 248(b). Allco relies on two of these requirements as the bases for its intervention: (1) that the facility "[w]ill result in an economic benefit to the State and its residents, " id. § 248(b)(4); and (2) because the facility is owned by a company conducting a public service business, id. § 201, its construction "is consistent with the principles for resource selection expressed in that company's approved least-cost integrated plan, " id. § 248(b)(6). In conducting its analysis under § 248, the Board engages in a "legislative, policy-making process, " and "weigh[s] alternatives presented to it, utilizing its particular expertise and informed judgment." In re UPC Vt. Wind, LLC, 2009 VT 19, ¶ 2, 185 Vt. 296, 969 A.2d 144 (quotations omitted). As explained in more detail below, Allco's position is that the CPG should be denied for noncompliance with these requirements because GMP is a retail electricity utility governed by the federal Public Utilities Regulatory Policies Act (PURPA).

         ¶ 3. A brief overview of Allco's PURPA position is also helpful to understand the proceedings below. Allco argues that PURPA requires GMP to buy power for resale produced by Allco's solar facilities-termed "qualifying facilities" or QFs-if the cost of such power is below GMP's "avoided cost, " that is, the cost of producing an equivalent amount of the power that it is currently selling to customers. It alleges that it offered such power to GMP, but GMP illegally declined to purchase it. It further alleges that if GMP purchased Allco's power, GMP's power needs would be met, and it would have no need to build its own facility. GMPSR responds that because of Vermont's unique method of implementing PURPA, GMP had no obligation to purchase power from Allco, and, in any event, Allco's PURPA compliance issue cannot be raised in a CPG proceeding. Again, these positions are explained in greater detail below.

         ¶ 4. With this framework in mind, we turn to the facts and proceedings in this case. In July 2015, GMPSR sought a CPG under 30 V.S.A. § 248 to install and operate a 2.0 megawatt (MW) solar electric generation facility in Richmond, Vermont. In late September 2015, Allco moved to intervene in opposition to the application under PSB Rule 2.209(A) and (B). That rule provides:

(A) Intervention as of right. Upon timely application, a person shall be permitted to intervene in any proceeding (1) when a statute confers an unconditional right to intervene; (2) when a statute confers a conditional right to intervene and the condition or conditions are satisfied; or (3) when the applicant demonstrates a substantial interest which may be adversely affected by the outcome of the proceeding, where the proceeding affords the exclusive means by which the applicant can protect that interest and where the applicant's interest is not adequately represented by existing parties.

(B) Permissive intervention. Upon timely application, a person may, in the discretion of the Board, be permitted to intervene in any proceeding when the applicant demonstrates a substantial interest which may be affected by the outcome of the proceeding. In exercising its discretion in this paragraph, the Board shall consider (1) whether the applicant's interest will be adequately protected by other parties; (2) whether alternative means exist by which the applicant's interest can be protected; and (3) whether intervention will unduly delay the proceeding or prejudice the interests of existing parties or of the public.

PSB Rule 2.209(A)(3), (B), http://puc.vermont.gov/sites/psbnew/files/doc_library/2200-procedures-generally-applicable.pdf ...