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In re Application of Derby GLC Solar, LLC

Supreme Court of Vermont

October 18, 2019

In re Application of Derby GLC Solar, LLC

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

          David G. Carpenter of Facey Goss & McPhee P.C., Rutland, for Appellant.

          Alexander W. Wing, Special Counsel, Department of Public Service, Montpelier, for Appellee State.

          Owen J. McClain of Sheehey Furlong & Behm P.C., Burlington, for Appellee Green Mountain Power Corporation.

          Joslyn L. Wilschek of Wilschek Iarrapino Law Office, PLLC, Montpelier, for Appellee Vermont Electric Cooperative, Inc.

          Ronald 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

          EATON, J.

         ¶ 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 affirm.

         ¶ 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 residents.
(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, http://www.lexisnexis.com/hottopics/codeofvtrules.

         ¶ 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[1] 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 ...


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