Appeal from Public Utility Commission Anthony Z. Roisman,
G. Carpenter of Facey Goss & McPhee P.C., Rutland, for
Alexander W. Wing, Special Counsel, Department of Public
Service, Montpelier, for Appellee State.
J. McClain of Sheehey Furlong & Behm P.C., Burlington,
for Appellee Green Mountain Power Corporation.
L. Wilschek of Wilschek Iarrapino Law Office, PLLC,
Montpelier, for Appellee Vermont Electric Cooperative, Inc.
A. Shems of Tarrant, Gillies & Richardson, Montpelier,
for Amicus Curiae Washington Electric Cooperative, Inc.
PRESENT: Robinson, Eaton and Carroll, JJ., and Dooley, J.
(Ret.), and Pearson, Supr. J. (Ret.), Specially Assigned
1. Applicant Derby GLC Solar, LLC appeals the decision of the
Public Utility Commission (PUC) denying its application for a
certificate of public good (CPG) for a net-metered solar
electric-generation facility. The PUC determined that
applicant's proposed project failed to satisfy 30 V.S.A.
§ 248(b)(7) or (10). Applicant contends that the PUC
erred by not weighing the alleged economic benefits of the
project against its adverse impacts, improperly considered
evidence that should not have been admitted, misinterpreted
the language of § 248, and treated applicant's
project differently than similarly situated projects. We
2. A developer of a new electric-generation facility in
Vermont may not begin construction until the PUC determines
that the proposed project "will promote the general good
of the State and issues a certificate to that effect."
30 V.S.A. § 248(a)(2)(B). To issue a CPG, the PUC must
find that the project will meet the eleven criteria set forth
in § 248(b), including that the project:
(4) Will result in an economic benefit to the State and its
(7) [I]s in compliance with the electric energy plan approved
by the Department under section 202 of this title, or that
there exists good cause to permit the proposed action.
(10) [C]an be served economically by existing or planned
transmission facilities without undue adverse effect on
Vermont utilities or customers.
30 V.S.A. § 248(b). Pursuant to the net-metering
statute, 30 V.S.A. § 8010(c)(3), the PUC has
conditionally waived these and certain other § 248(b)
criteria for net-metering projects. Public Utility
Commission, Construction and Operation of Net Metering
Systems, § 5.111, Code of Vt. Rules 30 000 5100,
3. In March 2017, applicant applied for a CPG to construct
and operate a 500-kilowatt (kW) group net-metered solar
photovoltaic electric-generation facility on a reclaimed
portion of a sand and gravel pit in Derby, Vermont. Applicant
provided notice to all required entities, including the
Department of Public Service, Vermont Electric Cooperative,
Inc. (VEC), and Green Mountain Power Corporation (GMP). The
project would be located in VEC's service territory and
was expected to operate for twenty-five years.
4. VEC and the Department filed comments raising concerns
about the project and requested a hearing. In September 2017,
the hearing officer granted the requests for a hearing and
rescinded the conditional waivers for 30 V.S.A. §
248(b)(4), (7), and (10). After conducting a prehearing
conference and a site visit, in January 2018, the hearing
officer asked applicant to prefile additional testimony
concerning § 248(b)(4), (7), and (10). In June 2018, the
PUC issued an order announcing that the full Commission would
conduct the evidentiary hearing. The hearing took place over
two days in August 2018. Following the hearing, the PUC
directed the parties to file comments regarding whether the
matter should be stayed pending a potential generic
proceeding to address the impacts of net-metering
projects located in the proposed area for the project. The
PUC subsequently concluded that applicant's case would
not be stayed and no generic proceeding would be initiated,
and set forth a final briefing schedule. After the parties
filed final briefs, the PUC issued a decision on January 24,
2019 denying the application.
5. The PUC made the following findings in its decision. The
proposed project would be within the Sheffield-Highgate
Export Interface (SHEI). The SHEI is a largely rural area
along the Canadian border in northern Vermont where the
electrical transmission system is frequently constrained.
Output from existing energy generators often exceeds local
demand for electricity, and the transmission lines leading
out of the area lack sufficient capacity to transport the
excess power without jeopardizing the reliable operation of
the electrical grid.
6. In 2013, ISO New England, the entity that serves as the
independent system operator for New England's bulk
electric power generation and transmission system, demarcated
the SHEI and established generator operation limits to ensure
that the transmission system continued to function reliably.
When these limits are reached, large energy generators in
northern Vermont that sell power in the regional energy
markets are required to reduce, or "curtail," their
output because the transmission system lacks capacity to
export the power. In ...