In re Investigation into Programmatic Adjustments to the Standard-Offer Program (Renewable Energy Vermont, Appellant)
Appeal from Public Utility Commission James Volz, Chair
Kimberly K. Hayden of Paul Frank Collins P.C., Burlington,
Elias, Special Counsel, Montpelier, for Appellee Department
of Public Service.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1. Appellant Renewable Energy Vermont (REV) asks this Court
to reverse and remand an order of the Vermont Public Utility
Commission that altered technology allocations in the
standard-offer program for renewable energy projects. We
conclude that REV seeks an advisory opinion and therefore
dismiss the appeal for lack of jurisdiction.
2. The standard-offer program was established by the
Legislature in 2005 as part of an effort to promote
development of renewable energy in Vermont. See 30 V.S.A.
§§ 8001, 8005, 8005a. The standard-offer statute
directs the Commission to authorize "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." In re Programmatic Changes to the
Standard-Offer Program, 2014 VT 29, ¶ 2, 196 Vt.
175, 95 A.3d 999 (citing 30 V.S.A. § 8005a(b)).
"Once a plant owner executes a standard-offer contract,
the [Commission] guarantees a set price for that plant's
energy for the duration of the contract regardless of whether
the market price changes." Id. (citing 30
V.S.A. § 8005a(f)(4)). Vermont electric utilities are
then required to purchase the electricity generated by these
projects at that price. 30 V.S.A. § 8005a(k)(2).
3. The standard-offer program has a cumulative plant capacity
of 127.5 MW, a portion of which is made available to new
projects each year. Id. § 8005a(c). For 2017,
the available new capacity was 7.5 MW. Id. §
8005a(c)(1)(A). This was increased to 8.625 MW due to
unsubscribed capacity from 2016. A portion of each year's
capacity, known as the "provider block, " is
reserved for new plants proposed by Vermont retail
electricity providers. Id. § 8005a(c)(1)(B).
The remaining capacity-the "developer block"-is
reserved for independent developers. Id. The
Commission is required to allocate the cumulative 127.5 MW
capacity among the following designated categories of
renewable energy technologies: solar power; wind power with a
plant capacity of 100 kW or less (referred to by the
Commission as "small wind"); wind power with a
plant capacity greater than 100 kW (referred to as
"large wind"); landfill methane; hydroelectric
power; and biomass power. Id. § 8005a(c)(2).
This requirement furthers the stated legislative goal of
"[p]romoting the inclusion, in Vermont's electric
supply portfolio, of renewable energy plants that are diverse
in plant capacity and type of renewable energy
technology." Id. § 8001(a)(8).
4. The Commission solicits bids for qualifying projects
through an annual request-for- proposal (RFP) process. Prior
to issuing the annual RFP, the Commission determines the
maximum price that utilities will be required to pay for
electricity generated by new projects in each category of
renewable technology, "with a goal of ensuring timely
development at the lowest feasible cost." Id.
§ 8005a(f). These price caps operate as a ceiling for
5. In 2016, the Department of Public Service observed that
solar projects were on track to fill three-quarters or more
of the cumulative capacity if the RFP process was not
modified. To address this disparity, the Commission issued an
order in February 2016 that set aside a "technology
diversity developer block" that would be allocated on an
equal basis to each of the non-solar technology categories.
Only projects using the designated technology would be
permitted to bid for the set-aside capacity for that
technology. The remaining capacity in the developer block
would be available to projects in any technology category and
would be awarded based solely on bid price. This was called
the "price-competitive developer block." The
Commission ordered that the new allocation arrangement was to
remain in effect for the remainder of the standard-offer
program, unless changed by a subsequent order.
6. After the Commission issued its 2016 order, the
Legislature passed Act 174, which created a temporary pilot
program for standard-offer projects located at
"preferred locations."2015, No. 174 (Adj. Sess.),
§ 12a (effective July 1, 2016) (codified at 30 V.S.A.
§ 8005a(c)(1)(D)). Act 174 required that for one year
beginning on January 1, 2017, the Commission was to allocate
one-third of the annual capacity increase to these projects.
Id. In September 2016, the Commission announced that
due to Act 174, it planned to revisit the allocations set
forth in its February 2016 order as part of its annual price
7. The Commission convened a workshop in October 2016 to
discuss the preferred location pilot program, price caps, and
technology allocations. Following the workshop, comments were
filed by various utilities, developers, and other
stakeholders, including REV. REV, which is a trade
organization made up of businesses, nonprofits, and utilities
committed to promoting renewable energy and energy efficiency
in Vermont, recommended that the Commission maintain the
technology diversity developer block established in the
February 2016 order.
8. In an order entered on March 2, 2017, the Board set
technology allocations and price caps for the 2017 RFP. The
Board ordered that one-third of the 8.625 MW capacity for
2017 be allocated to projects located at preferred locations
under the pilot program, as required by Act 174. Fifteen
percent of the annual capacity was allocated to the provider
block pursuant to 30 V.S.A. § 8005a(c)(1)(B)(i). The
Commission ordered that 2.2 MW be made available to the
price-competitive developer block for projects of any
technology category. The remaining 2.69 MW in developer block
capacity was allocated equally to "each non-solar
technology category with an avoided-cost price cap greater
than the solar price cap." For 2017, this meant the
capacity was allocated to small wind and food waste anaerobic
digestion projects. The order stated that this arrangement
would continue in 2018 and succeeding years. In effect, the
order eliminated the capacity set-asides for large wind,
landfill gas, biomass, and hydroelectric power for 2017, and
instead required projects using those technologies to bid in
the price-competitive developer block along with solar
projects in the 2017 RFP process.
9. On March 16, 2017, REV moved to alter or amend the order.
REV argued that the elimination of capacity set-asides for
all technology categories other than small wind and food
waste anaerobic digestion violated the Commission's prior
orders and 30 V.S.A. § 8005a. It asserted that the order
would exacerbate the existing lack of technology diversity in
the standard- offer ...