In re Petition of GMPSolar-Richmond, LLC Allco Renewable Energy Limited, Appellant
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
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