Appeal from Public Utility Commission, Anthony Z. Roisman,
Milbury Stone and Leslie A. Cadwell of Legal Counselors &
Advocates, PLC, Burlington, for Appellant.
J. Donovan, Jr., Attorney General, Justin Kolber, Assistant
Attorney General, and Geoffrey Commons, Public Service
Department, Montpelier, for Appellees State of Vermont,
Department of Public Service and Agency of Natural Resources.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1. Petitioner Swanton Wind LLC appeals three determinations
by the Public Utility Commission. We strike the
Commission's final order in part, and we reverse and
remand in part.
2. In September 2016, petitioner requested the Public Utility
Commission[*] to grant a certificate of public good
(CPG), pursuant to 30 V.S.A. § 248, which would
authorize petitioner to build a twenty-megawatt wind-powered
electric-generation facility in Swanton, Vermont. At the same
time, petitioner paid the Agency of Natural Resources a $100,
000 fee as part of its CPG petition, which was required by 30
V.S.A. § 248b. During the next nine months, petitioner
and the other parties to the proceeding-which included
numerous intervenors-engaged in substantial activity,
including filing and responding to motions and letters,
responding to discovery, participating in a workshop, and
participating in prehearing conferences with the Commission.
3. In early June 2017, the parties submitted filings with
proposed schedules for how the proceeding should continue. As
part of those filings, the Department of Public Service
argued, with the support of other parties, that the petition
and evidence were insufficient, and the Commission should not
set a comprehensive schedule until petitioner had clarified
whether it intended to supplement its filings. In particular,
the Department was concerned that petitioner's filings
lacked a final system-impact study. In a June 22, 2017 order,
the Commission agreed, finding that it needed a final
system-impact study prior to the technical hearings in order
to evaluate the petition. Petitioner filed a motion to
reconsider, arguing that the Commission was deviating from
its prior practice; in other cases, the Commission had
evaluated petitions without a final system-impact study,
instead issuing a conditional CPG and permitting the
petitioner to complete the final system-impact study after
the CPG was issued. The Commission denied petitioner's
motion to reconsider.
4. Petitioner then requested to withdraw its petition
pursuant to Vermont Rule of Civil Procedure 41(a)(1), and it
requested that the Commission return the $100, 000 fee it had
paid to the Agency of Natural Resources pursuant to 30 V.S.A.
§ 248b. In response, several parties argued that the
Commission should require petitioner to pay attorney's
fees. In a January 3, 2018 order, the Commission denied
petitioner's request to return the § 248b fee,
saying it lacked jurisdiction to do so. It granted voluntary
dismissal without prejudice pursuant to Rule 41(a)(2), rather
than Rule 41(a)(1). It did not award attorney's fees, as
the parties requested, because it found no exceptional
circumstances to justify an award. No party appealed that
finding. However, the Commission did order that the parties
could request attorney's fees and costs for this
proceeding if petitioner chose to refile the petition in the
future. Petitioner appealed.
5. On appeal to this Court, petitioner requests that we
reverse the Commission's determination that it could not
evaluate the petition without a final system-impact study. It
also requests that we reverse the Commission's refusal to
refund the § 248b fee and its determination that parties
could request attorney's fees in the future.
6. We decline to address petitioner's first claim of
error. We lack jurisdiction to review an unappealed
determination the Commission made prior to voluntary
dismissal without prejudice. See V.R.A.P. 3 (authorizing
appeal by right of final judgment); V.R.A.P. 5, 5.1
(authorizing interlocutory and collateral final-order appeals
by permission prior to final judgment).
7. Next, we address whether the Commission has jurisdiction
to refund petitioner's fee. In general, our review of
Commission decisions is deferential. In re UPC Vt. Wind,
LLC, 2009 VT 19, ¶ 2, 185 Vt. 296, 969 A.2d 144.
This deference extends to the Commission's
"interpretation of statutes it implements and its
rules." In re GMPSolar-Richmond, LLC, 2017 VT
108, ¶ 19, __ Vt.__, 179 A.3d 1232. But we do not
"abdicate our responsibility to examine a disputed
statute independently and ultimately determine its
meaning." In re Stowe Cady Hill Solar, LLC,
2018 VT 3, ¶ 20, __ Vt.__, 182 A.3d 53 (quotation
omitted). In our independent examination, we employ our usual
tools of statutory construction. See In re MacIntyre
Fuels, Inc., 2003 VT 59, ¶ 7, 175 Vt. 613, 833 A.2d
829 (mem.) (interpreting Act 250 independently and according
to rules of statutory construction despite general deference
to Environmental Board expertise). We look first to the plain
language of the statute, and, if this is insufficient to
determine legislative intent, we consider "the broad
subject matter of the statute, its effects and consequences,
and the purpose and spirit of the law." Id.
(emphasizing that "our fundamental objective is to
discern and implement the intent of the Legislature").
8. A petitioner who is requesting a CPG under 30 V.S.A.
§ 248 must pay a fee at the time it files its CPG
petition, as required by 30 V.S.A. § 248b. Section 248b
creates a formula to calculate the fee's amount and
directs that it be paid into the "Natural Resources
Management Fund and allocated to the Agency [of Natural
Resources]." The fee is "for the purpose of
supporting the role of the Agency of Natural Resources . . .
in reviewing applications" pursuant to §§ 248
and 248a. Id. Section 248 directs that the Agency
"shall appear as a party in any proceedings held under
this subsection, shall provide evidence and recommendations
concerning any findings to be made . . ., and may provide
evidence and recommendations concerning any other matters to
be determined by the Commission in such a proceeding."
Neither § 248 nor § 248b says anything about a
mechanism to refund the fee, and § 248b does not mention
9. The Agency argues that, because the fee is paid into a
specified fund and allocated to the Agency, the Commission
lacks the authority to order a refund of the § 248b fee.
We disagree. As an agency, the Commission "is a body of
special and statutory powers, as to which nothing is presumed
in favor of its jurisdiction. . . . [Its] powers include only
those expressly granted by the Legislature and such
incidental powers as are necessarily implied to carry out its
express grant." In re Vt. Elec. Power Producers,
Inc., 165 Vt. 282, 289, 683 A.2d 716, 719-20 (1996).
Section 9 of Title 30 grants the Commission "the powers
of a court of record in the determination and adjudication of
all matters over which it is given jurisdiction,"
including the power to "render judgments, make orders
and decrees, and enforce the same by any suitable process
issuable by courts in this State." 30 V.S.A. § 9;
see also Vt. Elec. Power Producers, 165 Vt. at 293,
683 A.2d at 722 (affirming that Commission has "all the
powers of a trial court" in proceedings over which it
has jurisdiction). We do not determine here the full reach of