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In re Construction & Operation of a Meteorological Tower

Supreme Court of Vermont

April 26, 2019

In re Construction & Operation of a Meteorological Tower (Travis Belisle, Appellant)

          On Appeal from Public Utility Commission Anthony Z. Roisman, Chair

          Anthony Z. Roisman, Chair Leslie A. Cadwell and Alison Milbury Stone of Legal Counselors & Advocates, PLC, Castleton, for Appellant.

          Megan R. Ludwig, Special Counsel, Public Service Department, and Eleanor L.P. Spottswood, Assistant Attorney General, Agency of Natural Resources, Montpelier, for Appellee State.

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

          EATON, J.

         ¶ 1. Travis Belisle appeals the Public Utility Commission's (PUC)[1] grant of partial summary judgment in favor of the Department of Public Service (DPS) on the question of whether Belisle violated 30 V.S.A. § 246 by constructing a meteorological tower on his land in Swanton without a certificate of public good (CPG). Belisle also appeals the PUC's imposition of a $10, 000 fine for the violation following an evidentiary hearing. We affirm the PUC's determination that the construction of the tower without a CPG was a violation of applicable law, but reverse and remand for consideration of the appropriate penalty.

         ¶ 2. The factual and procedural history is as follows. In 2010, Belisle consulted with Vermont Environmental Research Associates (VERA) to monitor the wind on top of the ridge on his property. On November 1, 2010, Belisle filed a document with the Swanton town clerk entitled "Declaration of Planned Community for Rocky Ridge." In the document, Belisle stated he "may develop . . . an electrical generation wind farm" on his property. In January 2011, Belisle consulted with VERA for a proposal to install a meteorological tower on the property to see what the wind was like on the ridge. In January 2012, a tower standing 132 feet high and measuring six inches in diameter was installed on Belisle's property. Belisle did not obtain a CPG before the installation.

         ¶ 3. In July 2015, neighbors of Belisle filed a letter with the PUC alleging a meteorological tower had been constructed on Belisle's property. Shortly thereafter, the PUC directed DPS to investigate the neighbors' allegations. Later that month, DPS recommended that the PUC open an investigation regarding the construction of the tower without a CPG, which it did. A lengthy procedural history followed, ultimately resulting in DPS's filing a motion for partial summary judgment and Belisle filing a cross-motion for summary judgment. Belisle claimed the PUC lacked jurisdiction over his construction of the tower because he had no specific wind generating facility in mind at the time he constructed the tower, and thus no CPG was required under 30 V.S.A. § 246. Belisle argued that for a CPG to be required under § 246, a proposed tower must meet three elements: (1) the installation is temporary; (2) the installation is for the purpose of determining a particular location's suitability for a wind turbine; and (3) the future wind turbine will be grid connected. DPS claimed Belisle's admission that he constructed the tower to "see[] if the wind on the ridge would be right for wind turbines that generate electricity" was sufficient to trigger the need for a CPG pursuant to 30 V.S.A. § 246.

         ¶ 4. The PUC granted DPS's partial summary judgment motion and denied Belisle's. In rejecting Belisle's position and his proposed standard for determining the need for a CPG in the meteorological-tower context, the PUC found that an intent to construct a meteorological tower to assess wind resources for a prospective wind project was sufficient to trigger the CPG requirement under § 246. The PUC reasoned that a CPG was required because Belisle "erected the tower . . . for use in developing an electrical generation wind farm thus placing [him] under the [PUC]'s jurisdiction pursuant to Title 30" and that Belisle "did not obtain a [CPG] as required by 30 V.S.A. § 248 prior to erecting the tower." (Quotation omitted.) The PUC thus found Belisle in violation of §§ 246 and 248 and scheduled further proceedings to determine the appropriate penalty and remedial action.

         ¶ 5. An evidentiary hearing was held in September 2017 regarding the penalty to be assessed as a result of the violation and to consider what, if any, remedial action would be required. DPS asserted that the provisions of 30 V.S.A. § 246, which incorporate provisions of 30 V.S.A. § 248, made § 248 applicable to this permit violation. As a result, DPS further asserted the appropriate penalty should be assessed under 30 V.S.A. § 30(a)(1), which applies to violations of § 248. Although contesting any violation, Belisle claimed any appropriate penalty should be calculated under 30 V.S.A. § 30(a)(2), which he claimed applied to violations of § 246. A violation subject to § 30(a)(1) has a maximum penalty of $40, 000, absent continuing violation, while a violation subject to § 30(a)(2) has a maximum penalty of $10, 000. The PUC reasoned that because § 246 made the erection of a wind tower to determine the suitability of the site for a grid-connected wind generating facility subject to the supervision of the PUC under § 248, the penalty should be assessed according to § 30(a)(1). After considering the factors in § 30(c), which are applicable to any violation of § 30(a), the PUC imposed a fine of $10, 000. The PUC also ordered remedial measures at the tower site.

         ¶ 6. Belisle appealed, renewing his argument that the PUC lacked jurisdiction over his establishment of the meteorological tower because no CPG was required by § 246 or otherwise and that if a CPG was required, then the PUC erred in calculating the appropriate penalty. He also makes claims of factual errors, which we will discuss in context throughout our analysis.

         I. Standard of Review

         ¶ 7. As explained above, the PUC considered the matter at hand in two phases-first when granting partial summary judgment in favor of DPS on the issue of whether a violation had occurred and second with an evidentiary hearing when determining the appropriate penalty for Belisle's violation.[2] Different standards of review apply to these two proceedings-we review the PUC's summary judgment determination de novo, and we review the PUC's penalty determination for abuse of discretion. Throughout, we give deference to legal conclusions within the PUC's area of expertise.

         ¶ 8. On appeal, this Court reviews the grant of summary judgment de novo, applying the same summary judgment standard as the PUC applies in the first instance-summary judgment is appropriate if there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. Farrell v. Vt. Elec. Power Co., 2012 VT 96, ¶ 9, 193 Vt. 307, 68 A.3d 1111; V.R.C.P. 56(a). "The party opposing summary judgment is given the benefit of all reasonable doubts and inferences." Farrell, 2012 VT 96, ¶ 9.

         ¶ 9. Regarding our review of legal issues within the PUC's area of expertise, this Court reviews PUC decisions with "great deference to the [PUC's] expertise and judgment," allowing for "a strong presumption of validity to the [PUC's] orders." In re UPC Vt. Wind, LLC, 2009 VT 19, ¶ 2, 185 Vt. 296, 969 A.2d 144 (quotation omitted). We affirm the PUC's findings and conclusions are affirmed "unless they are clearly erroneous." Id.; see also In re Citizens Utils. Co., 171 Vt. 447, 450, 769 A.2d 19, 23 (2000) ("We accept the [PUC's] findings and conclusions unless the appealing party demonstrates that they are clearly erroneous, and, in reviewing those findings and conclusions, we defer to the [PUC's] particular expertise and informed judgment."). "Absent a compelling indication of error, we will not disturb an agency's interpretation of statutes within its particular area of expertise." In re Verizon New Eng. Inc., 173 Vt. 327, 334-35, 795 A.2d 1196, 1202 (2002).

         ¶ 10. Finally, the PUC's decision to set and impose a penalty is within its discretion and will be upheld as long as it "shows a thorough and fair evaluation of the various relevant factors." Citizens Utils. Co., 171 Vt. at 457, 769 A.2d at 29.

         II. Sections 246 and 248

         ¶ 11. First, Belisle argues that § 246 rather than § 248 of Title 30 governs the CPG requirements for the establishment of a temporary meteorological tower. Here, the PUC applied §§ 246 and 248 to determine whether it had jurisdiction over the matter at hand and whether Belisle's project required a CPG. To the extent that there has been confusion regarding whether to apply § 246 or § 248, or some combination of the two, when determining PUC jurisdiction and CPG requirements for temporary meteorological towers, we now clarify that § 246 governs such inquiries, and we reject the PUC's analysis to the contrary.

         ¶ 12. We begin with our principles of statutory construction. "The bedrock rule of statutory construction is to determine and give effect to the intent of the Legislature." In re C.S., 158 Vt. 339, 343, 609 A.2d 641, 643 (1992). "If the statute is unambiguous and the words have plain meaning, we accept that plain meaning as the intent of the Legislature and our inquiry proceeds no further." Springfield Terminal Ry. Co. v. Agency of Transp., 174 Vt. 341, 346, 816 A.2d 448, 453 (2002). If a statute is ambiguous, however, "legislative intent must be determined through consideration of the entire statute, including its subject matter, effects and consequences, as well as the reason and spirit of the law." Tarrant v. Dep't of Taxes, 169 Vt. 189, 197, 733 A.2d 733, 739 (1999).

         ¶ 13. Here we are construing both § 246 and § 248. The plain language of § 246 clearly indicates that § 246 governs the CPG process for meteorological towers. The title of § 246 is "Temporary siting of meteorological stations"; § 246(a) states, "in this section, a 'meteorological station' consists of one temporary tower . . . to collect and record wind speed, wind direction, and atmospheric conditions"; and § 246(b) directs the PUC to establish "standards and procedures governing application for, and issuance or revocation of, a certificate of public good." Thus, according to our rules of statutory construction, we accept the plain language of § 246 and proceed no further.

         ¶ 14. What is less clear is whether § 246 governs temporary meteorological stations alone or whether § 248 also applies. Section 246 indicates that the PUC should create a separate, streamlined process governing CPGs for temporary meteorological towers, but it also references § 248 in doing so, drawing on § 248's criteria. 30 V.S.A. § 246(b). And § 248(a)(2)(A) directs that "no company . . . may begin site preparation for or construction of an electric generation facility" without first obtaining a CPG.[3] This is broad language that arguably could include the construction of a meteorological tower. This ambiguity regarding the reach of § 248 is amplified by the penalty provisions under 30 V.S.A. § 30(a). Section 30(a)(1) provides a penalty for violations of § 248, while § 30(a)(2) provides a penalty for violations of other provisions in chapters three or five of Title 30, including § 246. This distinction is important because § 30(a)(1) permits a higher penalty than § 30(a)(2) and the analysis the PUC must engage in is different under each provision.

         ¶ 15. Given this ambiguity, we must turn to the traditional tools of statutory construction to discern the intent of the Legislature. See Tarrant, 169 Vt. at 197, 733 A.2d at 739. We conclude that the Legislature intended for § 246 to govern whether and how to obtain a CPG for temporary meteorological towers as an independent statutory scheme and that § 248 does not apply except as incorporated within § 246. We come to this conclusion because of the language, history, and context of the statutory scheme as a whole. See Tarrant, 169 Vt. at 197, 733 A.2d at 739 ("[L]egislative intent must be ...


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