In re Petition of Portland Street Solar LLC ( 2021 )

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2021 VT 67No. 2021-024
In re Petition of Portland Street Solar LLC Supreme Court
On Appeal from
Public Utility Commission
May Term, 2021
Anthony Z. Roisman, Chair
Kimberly K. Hayden of Paul Frank + Collins P.C., Burlington, for Appellant.
Eric B. Guzman, Special Counsel, Montpelier, for Appellee Vermont Department of Public
Service.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. ROBINSON, J. Portland Street Solar LLC appeals an order of the Public Utility
Commission denying Portland Street’s petition for a certificate of public good (CPG) under 30
V.S.A. §§ 248 and 8010 to install and operate a 500-kW solar group net-metering system adjacent
to a previously permitted solar array owned by Golden Solar, LLC.1 Interpreting the definition of
“plant” set forth in 30 V.S.A. § 8002(18), the Commission determined that the proposed Portland
Street project would be part of a single plant along with the already-approved adjacent Golden
1
Apart from an exception not relevant here, Vermont law prohibits companies from
constructing new electric-generating facilities without first obtaining a CPG from the Commission.
See 30 V.S.A. § 248(a)(2). The Commission determines whether to issue a CPG based on
extensive criteria set forth in § 248. The Legislature has provided a simplified procedure for
approving small net-metering systems, including solar arrays. Since January 1, 2017, the
simplified procedure has been codified in § 8010. See 2013, No. 99 (Adj. Sess.), § 10(d).
Solar project and thus would exceed the 500-kw energy-generating-capacity limit applicable in the
net-metering program. On appeal, Portland Street argues that the Commission’s decision is
inconsistent with this Court’s controlling precedent, as well as prior Commission decisions
involving similar cases, and that the Commission exceeded its statutory authority by expansively
construing the component parts of § 8002(18) that define the characteristics of a single plant.
¶ 2. The central question before us is whether the Commission committed reversible
error in concluding, based on its interpretation of the definition of “plant” set forth in § 8002(18),
that the Portland Street facility is, along with the previously approved Golden Solar facility at the
same location, part of a single plant and thus ineligible to benefit from a net-metering program
limited to facilities with a 500kW maximum energy-generating capacity. Applying the appropriate
deferential standard of review, we conclude that the Commission’s self-described expanded and
refined interpretation of what constitutes a single plant under § 8002(18) is not arbitrary,
unreasonable, or discriminatory and does not amount to compelling error that would require this
Court to intervene in matters the Legislature has delegated to the Commission’s expertise.
Accordingly, we affirm the Commission’s decision denying Portland Street’s petition for a CPG
to install and operate its proposed facility under the net-metering program.
I. Facts and Procedural History
¶ 3. The following facts are drawn from the Commission’s decision, which adopted the
hearing officer’s findings of fact. The Golden Solar and proposed Portland Street solar projects
are situated on an 82.2-acre parcel of land along Portland Street in St. Johnsbury. The two facilities
are owned by separate limited liability companies (LLCs). Norwich Technologies, Inc., also
known as Norwich Solar, owns both LLCs, as well as the property on which the projects are sited.
At different times, principals of the Golden Solar and Portland Street projects petitioned for CPGs
under distinct programs aimed at promoting the development of renewable energy by benefitting
small-to-moderately-sized renewable energy facilities.
2
¶ 4. Golden Solar is a solar-powered electric system with a standard-offer contract to
deliver up to 2.2 MW of electricity.2 In December 2017, Green Mountain Power (GMP) issued a
Feasibility Study to Sunny Acres, the original holder of the standard-offer contract, for the Golden
Solar facility. GMP required Sunny Acres to upgrade the existing distribution line along Portland
Street with 4500 feet of new conductor to connect to the Golden Solar facility. In December 2018,
Golden Solar filed a petition for a CPG to install and operate its facility, which would occupy
25.82 acres of the 82.2-acre parcel. In August 2019, the Commission granted a CPG to Golden
Solar for its proposed facility, and in September 2019, the Commission extended to December
2020 Golden Solar’s standard-offer contract deadline for commissioning the facility.
¶ 5. On June 27, 2019, seven weeks before the Commission approved a CPG for the
Golden Solar facility, Portland Street filed its petition to install and operate a 500-kW group net-
metering solar system on approximately seven acres of the same 82.2-acre St. Johnsbury parcel on
which Golden Solar was to operate.3
2
The standard-offer program is part of a larger program encouraging the development of
renewable energy in Vermont by requiring electric utilities to purchase a certain amount of power
from limited-sized (up to 2.2 MW) electrical providers under long-term power-purchase contracts
that guarantee a set price for the providers’ energy for the duration of the contract. See In re
Chelsea Solar LLC, 2021 VT 27, ¶ 3, ___ Vt. ___, ___ A.3d ___; see also 30 V.S.A. § 8005a(b)-
(c) (establishing 2.2-MW maximum energy-generating capacity for individual standard-offer
plants and 127.5 MW cumulative plant capacity under program).
3
The Commission is required by law to “adopt and implement rules that govern the
installation and operation of net metering systems.” 30 V.S.A. § 8010(c). Among other things,
the rules “shall establish and maintain a net metering program” that advances specified goals and
renewable targets, id. § 8010(c)(1)(A), and “shall establish standards and procedures governing
application for and issuance or revocation of a certificate of public good for net metering systems
under the provisions of [30 V.S.A. § 248],” id. § 8010(c)(3). “Net metering system” is defined in
part as “a plant for generation of electricity that: (A) is of no more than 500 kW capacity;
(B) operates in parallel with facilities of the electric distribution system; (C) is intended primarily
to offset the customer’s own electricity requirements . . . and (D)(i) employs a renewable energy
source . . . .” Id. § 8002(16). “Group net metering system” is defined in part as “a net metering
system serving more than one customer, or a single customer with multiple electric meters, located
within the service area of the same retail electricity provider.” Id. § 8002(10).
3
¶ 6. After extensive proceedings focused on the question, in October 2020, the hearing
officer filed a proposed decision recommending that the Commission deny Portland Street’s CPG
petition to operate a net-metering system because it would be part of a single plant along with the
adjacent Golden Solar facility.4 On December 23, 2020, the Commission adopted the hearing
officer’s findings of fact and legal reasoning and denied Portland Street’s petition, concluding that
the Portland Street facility would be part of a single plant along with the adjacent, approved Golden
Solar facility.
¶ 7. The Commission began its discussion by acknowledging and explaining its
expanded and refined analysis of the single-plant issue. The Commission pointed out that the
Legislature enacted the statutory definition of “plant,” primarily with wind facilities in mind, to
encourage the dispersed siting of energy-generating projects applying for financial incentives
available only to smaller facilities. The Commission recognized that the recent proliferation of
500-kW net-metering projects and the advent of preferred siting constraints and grid concerns had
driven uneven development, leading to a saturation of solar facilities in particular areas on
particular types of sites. The Commission stated that it was faced with the task of applying the
4
In response to Portland Street’s application, the Department of Public Service asked the
Commission to order Portland Street to provide additional information relevant to the single-plant
analysis. After a period of information gathering and written comments by the parties focused on
the issue, the Department took the position that the Golden Solar and Portland Street facilities were
a single plant. In January 2020, a hearing officer filed a first proposed decision recommending
that the Commission deny Portland Street’s CPG petition for a net-metering facility because the
Portland Street facility would be part of a single plant along with the Golden Solar facility and
thus would not satisfy the applicable net-metering eligibility criteria. In March 2020, in response
to the parties’ comments on the hearing officer’s first proposed decision, the Commission ordered
the hearing officer to file a second proposed decision after the parties had had an opportunity to
provide additional evidence and legal briefing on the single-plant issue. The hearing officer
subsequently denied Portland Street’s April 2020 motion for summary judgment on the single-
plant issue, and in August 2020 the Commission upheld that ruling. As the hearing officer later
noted in a proposed decision, the Department took a more equivocal position on the single-plant
issue in responding to Portland Street’s motion for summary judgment.
4
statutory single-plant test in the context of this shifting landscape and accompanying policy
concerns.
¶ 8. The Commission observed that large projects otherwise too big to benefit from the
standard-offer or net-metering programs were being proposed as independent smaller facilities to
take advantage of those programs’ economic incentives intended for smaller projects. In the
Commission’s view, such proposals, if successful, would conflict with the purpose of the definition
of “plant” in § 8002(18)—to ensure that larger projects do not take advantage of limited financial
incentives intended for small and moderately sized projects. The Commission acknowledged that
in this context, its analysis of what constitutes a single plant was evolving in order to adhere to the
purpose underlying the statutory definition of “plant.”
¶ 9. The Commission explained that its analysis under § 8002(18) consisted of two
parts. First, it asked whether the facilities are part of the same “project,” considering “common
ownership, contiguity in time of construction, and physical proximity.” Second, it asked whether
the facilities “share common equipment and infrastructure.” With respect to the argument that if
the proposed facility is “an independent technical facility,” it is not part of the same plant, the
Commission explained, “a finding that a plant is ‘an independent technical facility’ is not a separate
prong to the analysis; it is the conclusion.”
¶ 10. As to the first factor within the first prong, the Commission rejected the “legal
fiction” that facilities owned by two distinct LLCs do not have common ownership, and instead
considered the “actors, operations, and contractual arrangements for each facility” in assessing
common ownership. It concluded that the two facilities here were subject to common ownership.
In assessing whether facilities shared contiguity in time of construction, the Commission construed
“construction” to incorporate all steps in the process, from project planning and site reconnaissance
and preparation to physical plant construction and interconnection. In this case, the Commission
concluded that the facilities resulted from coordinated, simultaneous planning, and thus concluded
5
that the “contiguity of construction” factor favored a determination that the facilities were part of
a single project. Finally, in assessing physical proximity, the Commission held that the number of
feet between the facilities was not dispositive, and looked to a number of additional considerations
such as intervening buffers and topography. Considering these factors, the Commission concluded
that the facilities would be viewed as a single plant from the perspective of the average person and
concluded that the physical proximity of the facilities supports the conclusion that they are the
same project.
¶ 11. As to the second prong, the Commission considered whether the facilities shared
common equipment and infrastructure. The Commission rejected the argument that facilities were
legally distinct unless they shared both common equipment and common infrastructure and
concluded that it could consider infrastructure beyond where the facility first interconnects to the
grid in evaluating whether the facilities use common infrastructure. It stated that its conclusion
did not represent a departure from precedent, but also asserted that any evolution in its analysis
was allowable given its authority as an administrative agency, and further that its analysis was
supported by the legislative intent and policies. The Commission accordingly denied the CPG,
and Portland Street appealed.
II. Analysis
¶ 12. Our standard of review on appeal is deferential. “When the [Commission]
evaluates a CPG petition under 30 V.S.A. § 248, it is engaged in a legislative, policy-making
process.” In re Derby GLC Solar, LLC, 2019 VT 77, ¶ 18, 211 Vt. 144, 221 A.3d 777 (quotation
omitted). “Out of respect for the expertise and informed judgment of agencies, and in recognition
of this Court’s proper role in the separation of powers, we accord agency decisions substantial
deference.” In re Conservation Law Found., 2018 VT 42, ¶ 15, 207 Vt. 309, 188 A.3d 667.
Moreover, we employ a deferential standard of review to an agency’s interpretation of statutes
within its area of expertise. In re Acorn Energy Solar 2, LLC, 2021 VT 3, ¶ 22, ___ Vt. ___, 251
6
A.3d 899; see also In re Agency of Admin., State Bldgs. Div., 141 Vt. 68, 74-75, 444 A.2d 1349,
1352 (1982) (“[C]onstruction of statutes by those charged with their execution will be followed
unless there are compelling indications that the construction is wrong.”).
¶ 13. To be sure, notwithstanding this deferential standard, “we will overturn an agency’s
interpretation of a statute if there is a compelling indication of an error or if the interpretation is
unjust or unreasonable.” Acorn Energy Solar, 2021 VT 3, ¶ 23 (quotations omitted); see also In
re Stowe Cady Hill Solar, LLC, 2018 VT 3, ¶ 20, 206 Vt. 430, 182 A.3d 53 (“It is well established
that we defer to an agency’s interpretation of a statute that the agency is tasked with interpreting,
though we do not abdicate our responsibility to examine a disputed statute independently and
ultimately determine its meaning.” (quotations omitted)). “An agency must operate for the
purposes and within the bounds authorized by its enabling legislation, or this Court will intervene.”
In re Agency of Admin., 141 Vt. at 75, 444 A.2d at 1352. Ultimately, “[o]ur paramount goal in
construing a statute is to give effect to the intent of the Legislature.” In re Programmatic Changes
to Standard-Offer Program, 2014 VT 29, ¶ 9, 196 Vt. 175, 95 A.3d 999 (quotation omitted).
¶ 14. Portland Street’s arguments on appeal all relate to the Commission’s interpretation
and application of § 8002(18) of Title 30. That provision defines “Plant” as follows:
“Plant” means an independent technical facility that generates
electricity from renewable energy. A group of facilities, such as
wind turbines, shall be considered one plant if the group is part of
the same project and uses common equipment and infrastructure
such as roads, control facilities, and connections to the electric grid.
Common ownership, contiguity in time of construction, and
proximity of facilities to each other shall be relevant to determining
whether a group of facilities is part of the same project.
30 V.S.A. § 8002(18). The Legislature added the third sentence of the definition in 2014. See
2013, No. 99 (Adj. Sess.), § 3. Portland Street’s primary argument is that the Commission’s
decision is inconsistent with this Court’s precedent interpreting the statutory definition of “plant,”
see In re Programmatic Changes, 2014 VT 29, and with the Commission’s own resolution of the
7
single-plant issue in recent proceedings involving similar cases. Portland Street also argues that
the Commission committed clear error by treating the question whether the proposed facility would
be an “independent technical facility” as irrelevant; concluding that the facilities are part of the
same project based on common ownership, proximity, and contiguity in the time of construction;
and concluding that they share common infrastructure on the basis of the Portland Street
distribution line. We consider each argument in turn.5
A. Compatibility With Programmatic Changes and Prior Commission Decisions
¶ 15. Portland Street first argues that the Commission’s decision in this case is
inconsistent with the reasoning of this Court’s 2014 opinion in Programmatic Changes, the
Commission’s decision in Investigation into Programmatic Adjustments to the Standard-Offer
Program, No. 8817, 2017 WL 4841502 (Vt. Pub. Serv. Bd. Oct. 20, 2017), and its decisions in
other recent, similar cases.6 We conclude that the Commission’s decision in this case can be
harmonized with both this Court’s precedent in In re Programmatic Changes and the Commission’s
own decisions, and that any evolution in the Commission’s application of the statute is warranted
in light of the intervening statutory change and the evolving renewable-energy development
landscape.
5
Without filing a separate notice of appeal, the Department of Public Service filed what
it labeled as an appellee’s brief in support of Portland Street’s position asking us to overturn the
Commission’s decision. We do not consider the Department’s brief because the Department failed
to file a notice of appeal from the Commission’s decision. See In re Snyder Grp., Inc., 2020 VT
15, ¶¶ 6-8, ___ Vt. ___, 233 A.3d 1077 (granting motion to strike City of Burlington’s briefs,
which were both filed as appellee’s briefs even though they supported appellant’s position seeking
to overturn environmental division’s decision, because City failed to file notice of appeal of
decision).
6
At the time of the Programmatic Changes decision, the Public Utility Commission was
named the Public Service Board. In 2017, the Legislature changed the name from the Public
Service Board to the Public Utility Commission. 2017, No. 53, §§ 9-13. For clarity’s sake, we
refer to the Commission rather than the Board when discussing cases predating the name change.
8
1. Programmatic Changes
¶ 16. Considering our analysis in Programmatic Changes as well as subsequent
developments in the law and renewable generation siting in Vermont, we conclude that the
Commission’s decision does not reflect clear error and that the Commission acted within its broad
discretion.
¶ 17. In Programmatic Changes we reviewed the Commission’s determination that the
applicant for a proposed solar project did not qualify for the standard-offer program because it,
along with another proposed project on the same piece of land with similar interconnection points,
constituted a single plant that exceeded the program’s 2.2-MW energy-generating-capacity limit.
The applicant had argued before the Commission that the two projects were independent technical
facilities because, as proposed, they would connect with the electric grid through separate three-
phase lines; be separated by a fence; have separate access roads; use separate inverters,
transformers, and other equipment; and have different financing parties. The Commission rejected
this argument, reasoning that although the two “ ‘projects may [have been] operationally
independent, they [were] being advanced by the same developer, located on the same parcel of
land, and adjoining each other.’ ” Programmatic Changes, 2014 VT 29, ¶ 8 (quoting
Commission’s decision).
¶ 18. In reversing the Commission’s decision, we stated that the statutory definition of
“plant” made “no mention of physical proximity or common ownership as relevant factors in
determining whether facilities are separate plants,” such that the Commission “effectively imposed
additional nonstatutory eligibility criteria on potential [standard-offer] project developers without
prior notice.” Id. ¶¶ 11, 16. Referring to the second prong of § 8002(18)’s second sentence
concerning the use of common equipment and infrastructure, we noted that the two projects “will
not share common roads, control facilities, or connections to the electric grid,” and that they “will
have a separate interconnection agreement with [the utility] and separate interconnection facilities
9
designed and owned by [the utility], which would limit the capacity of each [project] to 2.0 MW.”
Id. ¶ 12.
¶ 19. Further, we questioned the Commission’s concerns that any-sized facilities could
be partitioned into independent facilities by including redundant equipment separated only by a
fence, noting that the facility would still have to be cost-effective to build, and that the Commission
had not cited any evidence indicating the applicant’s prices were artificially low due to economies
of scale. Id. ¶ 13. Finally, in response to the Commission’s reliance on the Legislature’s policy
of locating renewable small-to-moderately-sized energy plants across the state’s electric grid, we
stated that: (1) our interpretation of the statutory definition of “plant” was consistent with the
legislative goal of developing renewable energy in a cost-effective manner; and (2) because
inclusion of the word “small” in the title of 30 V.S.A. § 8007 concerning plants with a capacity of
up to 2.2 MW suggested that a 2.2-MW-maximum capacity plant is a small plant, “[a] cluster of
plants totaling 4.0 MW . . . could reasonably be defined as ‘moderate’ in size.” Id. ¶ 14.
¶ 20. Our analysis in this appeal is informed by two subsequent legal developments.
First, days before this Court issued Programmatic Changes, the Legislature passed Act 99, an
extensive bill reworking the net-metering program.7 In relevant part, Act 99 amended § 8002(18)
to include the following provision: “Common ownership, contiguity in time of construction, and
proximity of facilities to each other shall be relevant to determining whether a group of facilities
is part of the same project.” 2013, No. 99 (Adj. Sess.), § 3; see also 30 V.S.A. § 8002(18). The
Legislature’s amendment effectively negated a key component of our rationale in Programmatic
Changes for reversing the Commission in that case: our conclusion that the Commission was
applying nonstatutory criteria in determining whether a group of facilities is part of the same
7
The Governor signed Act 99 into law on April 1, 2014, and it took effect immediately.
10
project. We also interpret the amendment as an indication that the Legislature shared the concerns
expressed by the Commission in its decision on Programmatic Changes that we reversed.
¶ 21. Second, in Chelsea Solar we upheld the Commission’s denial of a CPG for an
amended version of the project originally addressed in Programmatic Changes on the basis that,
as amended, the purportedly distinct facilities constituted a single plant.8 2021 VT 27, ¶ 2. We
affirmed the Commission’s determination that the facilities would use common infrastructure on
the basis that the shared distribution line to which both facilities would interconnect was paid for
by the developer and would not have existed but for the proposed projects. Id. ¶¶ 30-32. And we
upheld the Commission’s finding that the facilities were part of the same “project”—a term that
was undefined in the pre-amendment version of the statute—in light of the evidence that they were
developed as part of a common scheme. Id. ¶ 33.
¶ 22. In arguing that the Commission’s decision in this case is inconsistent with
Programmatic Changes, Portland Street focuses on our holding in that case that because the
facilities did not share technical features such as equipment and infrastructure, they should be
considered separate plants, as well as on our response to the policy considerations that led the
Commission to conclude otherwise. Specifically, Portland Street relies on our statement in
Programmatic Changes that our reversal of the Commission’s single-plant determination in that
case was not inconsistent with the Legislature’s expressed goal of “ ‘[p]roviding support and
incentives to locate renewable energy plants of small and moderate size in a manner that is
distributed across the State’s electric grid,’ ” 2014 VT 29, ¶ 14 (quoting 30 V.S.A. § 8001(a)(7)),
because “[t]he title of § 8007 suggests that the Legislature considers ‘small’ plants to be those with
8
One of the solar projects that was the subject of Programmatic Changes was later renamed
Chelsea Solar and evolved into the amended Willow Road project on review in Chelsea Solar. See
Chelsea Solar, 2021 VT 27, ¶¶ 8, 12. The Commission determined that the Willow Road project,
along with an adjoining project proposed by the developer, comprised a single 4.0-MW plant under
the statutory definition. Id. ¶ 1. We issued our opinion affirming the Commission’s decision
several weeks after Portland Street filed its brief but before oral argument in this case.
11
capacities of less than 2.2 MW,” further suggesting that “[a] cluster of plants totaling 4.0 MW
therefore could reasonably be defined as ‘moderate’ in size,” id.
¶ 23. We reject Portland Street’s critique for three reasons. First, our policy discussion
in Programmatic Changes was tangential to the primary issues raised in that case. See Chelsea
Solar, 2021 VT 27, ¶ 39 (emphasizing that Programmatic Changes rested on fact that the two
facilities were not a single plant because they did not share common equipment or infrastructure
rather than on Commission’s policy analysis). Second, the Legislature’s intervening amendment
of § 8002(18) casts a new light on its policy goals and suggests a legislative intent to prevent
developers from realizing the benefits of statutory programs targeted at smaller projects by
essentially splitting up larger projects into co-located smaller projects with redundant equipment.
In particular, the amendment reinforces that the Legislature shares the policy concerns animating
the Commission’s current approach.
¶ 24. Finally, in the decision on appeal, the Commission gave a detailed explanation of
the reasons underlying its refined approach to the single-plant analysis. The Commission
acknowledged the “tensions” created in weighing the potential environmental and land-use
benefits of co-locating solar facilities against the legislative policy of restricting the standard-use
and net-metering programs to small-to-moderately-sized projects dispersed across the state. The
Commission considered this legislative policy in the context of a “shifting landscape” of saturated
solar facilities “in particular areas and in particular types of sites” resulting from the increased
efforts of solar developers to parse large projects into smaller projects at the same location to take
advantage of the financial incentives of programs (while maintaining economies of scale) aimed
at benefiting small facilities dispersed across the state.9
9
In the context of its related argument that the Commission departed from its precedents
without providing a reasonable basis for doing so, which we reject below, Portland Street contends
that there is no evidence to support the Commission’s description of this shifting landscape. We
12
¶ 25. These are matters within the expertise of the Commission, which the Legislature
has authorized to implement the statutes at issue here. The fact that the Commission’s
interpretation and application of the statute does not reflect the only reasonable understanding of
the statute does not overcome the Commission’s interpretation of statutory language within its
expertise that is neither unreasonable nor indicative of compelling error. And the policy-based
challenges to the Commission’s refined approach to implementing the Legislature’s intent should
be directed to the Legislature.
2. Commission Precedents
¶ 26. We likewise conclude that the Commission’s reasoning in this case is not reversible
on the ground that it conflicts with recent Commission precedent. Although “we generally expect
agencies to provide nonarbitrary reasons for departing from their own established law,” the
Commission is restrained from departing from precedent only when doing so rests on “arbitrary,
unreasonable, or discriminatory” bases. In re Apple Hill Solar LLC, 2019 VT 64, ¶ 25, 211 Vt.
54, 219 A.3d 1295 (“[A]dministrative agencies are free to depart rather freely from their
precedents, and an agency may depart from precedent if it decides that law it has previously
disagree. The very fact that the single-plant issue has arisen in many recent cases involving co-
located solar facilities (as cited by Portland Street) belies this contention. Citing a prior
Commission order, the hearing officer in this case found that the Commission had ample evidence
that developers were regularly investing in duplicate infrastructure at co-located facilities to gain
the benefits of programs targeted at smaller producers while maintaining economies of scale. As
part of its single-plant determination in a decision we affirmed in Chelsea Solar, the Commission
acknowledged our comment in Programmatic Changes regarding economies of scale that “it will
not always be cheaper or more efficient for plants to be located next to each other.” Programmatic
Changes, 2014 VT 29, ¶ 13. The Commission observed, however, “that the economic benefit of
building solar facilities in close proximity outweighs the cost of building redundant infrastructure,
and this has been borne out by subsequent practice in the industry,” which, contrary to legislative
policy, “creates economic advantages for developers because it preserves the financial incentives
and size limitations associated with the standard-offer program and the net-metering program,
while at the same time achieving economies of scale gained by having facilities in close
proximity.” Petition of Chelsea Solar LLC pursuant to 30 V.S.A § 248 for a Certificate of Pub.
Good Authorizing the Installation and Operation of the “Willow Road Project,” a 2.0 MW Solar
Elec. Generation Facility on Willow Rd. in Bennington, Vt., No. 17-5024-PET, 2019 WL
2524170, at *43-44 (Vt. Pub. Util. Comm’n June 12, 2019).
13
declared is unsound and ought not to be followed.” (quotations omitted)). We conclude that the
Commission’s determination that the single-plant test does not require that facilities share both
equipment and infrastructure is not inconsistent with the Commission’s analysis in a 2017
decision, and that its analysis of the question whether the two facilities constitute one project does
not improperly contradict its analyses in a number of cases cited by Portland Street.
a. Investment into Programmatic Adjustments
¶ 27. We reject Portland Street’s argument that the Commission ignored its analysis in
Investigation into Programmatic Adjustments to the Standard-Offer Program, No. 8817, 2017 WL
4841502 (Vt. Pub. Serv. Bd. Oct. 20, 2017), by attributing different meanings to multiple uses of
the word “and” in the second sentence of § 8002(18). That sentence provides: “A group of
facilities, such as wind turbines, shall be considered one plant if the group is part of the same
project and uses common equipment and infrastructure such as roads, control facilities, and
connections to the electric grid.” 30 V.S.A. § 8002(18). In Portland Street’s view, by determining
in its 2017 decision that the first “and” in the sentence created a two-prong test for determining
whether proposed projects are a single plant, the Commission established a precedent for its
interpretation of the meaning of all three uses of “and” in the sentence, which it defined in this
case by interpreting the second “and” in the sentence in a disjunctive sense. We disagree.
¶ 28. In determining in its 2017 decision that § 8002(18) creates a two-prong test for the
single-plant issue, the Commission relied on the Legislature’s normal conjunctive use of the first
“and” in the second sentence and the fact that the additional factors in the third sentence added by
Act 99 explicitly applied only to the first prong of the test—whether the proposed projects are part
of the same project. Investigation into Programmatic Adjustments, 2017 WL 4841502, at *10.10
10
The Commission also quoted this Court’s statement in Programmatic Changes that
“[t]he logical corollary of the second sentence is that facilities that are not part of the same project
and do not share equipment and infrastructure should be considered separate plants.” 2014 VT 29,
¶ 10.
14
In its decision under review in this appeal, the Commission addressed the second “and” in the
sentence, concluding that the phrase immediately following the words “common equipment and
infrastructure”—“such as roads, control facilities and connections to the electric grid”—provides
examples of what could be considered either common equipment or common infrastructure and
thus does not require that there be both common equipment and common infrastructure to satisfy
that prong of the test. In other words, “equipment and infrastructure” describes a single category
of components such as roads, control facilities, and grid connections, rather than two distinct
requirements.
¶ 29. The Commission acknowledged that the word “and” is most often used in its
conjunctive sense but noted that courts have recognized exceptions to this rule. See United States
v. Fisk, 70 U.S. 445, 447 (1865) (observing that in ascertaining legislative intent, “courts are often
compelled to construe ‘or’ as meaning ‘and,’ and again ‘and’ as meaning ‘or’ ”); cf. State v. Turner,
2021 VT 30, ¶ 10, ___ Vt. ___, 254 A.3d 204 (“Although the word ‘or’ is most often used in the
disjunctive, it can also be used in the conjunctive, meaning ‘and.’ ”). The Commission also stated
that the unintended practical effect of construing the second “and” in its conjunctive sense would
be to allow developers of large projects to easily satisfy the single-plant test by sharing significant
infrastructure while avoiding sharing equipment such as transformers, thereby gaining a financial
advantage over smaller facilities meant to benefit from the standard-proof and net-metering
programs.
¶ 30. The fact that the Commission construed the second “and” in the second sentence of
the statutory definition of “plant” differently than it had previously construed the first “and” in the
sentence in a different context does not demonstrate that it failed to follow its precedent. Further,
15
the Commission’s construction of the second “and” is neither unreasonable nor indicative of
compelling error.11
b. Other Recent Commission Precedent
¶ 31. We likewise reject Portland Street’s argument that the Commissioners’ decision
here is inconsistent with other recent Commission decisions approving small renewable-energy
facilities located on the same parcel of land and proposed by the same developer. The cases relied
upon by Portland Street do not undermine the Commission’s decision in this case and, as set forth
more fully below, the Commission’s decision in this case is not impermissibly inconsistent with
those decisions.
¶ 32. Portland Street first cites simultaneously filed but separate June 2018 CPG petitions
to locate three net-metered roof-top solar facilities on adjacent buildings at the Blodgett plant in
Burlington. The Burlington Electric Department represented to the Commission that the three
facilities were adjacent and would exceed the net-metering program’s 500-kW maximum energy
capacity if the facilities were part of the same plant under the statutory definition. In response to
the Commission’s request for additional information on this point, the applicants stated that the
facilities would not share any common equipment or infrastructure and would have separate points
of interconnection, control facilities, and access. In support of their response, the applicants
provided a site-plan map depicting the facilities. The Commission approved the CPGs after stating
in a single sentence that it had reviewed the additional information provided by the applicants and
determined that the three facilities were not a single plant because they did not share any common
11
In Chelsea Solar, we declined to address the developer’s unpreserved assertion “that to
be a single plant, facilities must use ‘common equipment and infrastructure’ ” but noted “that the
key question as identified in Programmatic Changes is whether the facilities ‘share technical
features such as equipment and infrastructure,’ using these as examples rather than requiring a
showing of both.” Chelsea Solar, 2021 VT 27, ¶ 35 (quoting Programmatic Changes, 2014 VT
29, ¶ 10) (emphasis added).
16
equipment or infrastructure.12 See Application of Solar 32 LLC for a Certificate Pub. Good for a
30 kW Solar Net-metered Elec. Power Sys. in Burlington, Vt., No. 18-1767-NMR, Application of
BOC SOLAR LLC for a Certificate of Pub. Good for a 400 kW Solar Net-metered Elec. Power
Sys. in Burlington, Vt., No. 18-1768-NMR, Application of Lakeside Avenue Solar, LLC for a
Certificate of Pub. Good for a 400 kW Solar Net-metered Elec. Power Sys. in Burlington, Vt., No.
18-1769-NMR, 2018 WL 4851430 (Vt. Pub. Util. Comm’n Sept. 27, 2018). A single-sentence
determination like that does not establish a precedential policy that the Commission failed to
follow in this case. As the Commission explained here in the hearing officer’s proposal that the
Commission adopted, in previous cases the Commission relied solely on the testimony of the
developers that their facilities were not a single plant under the statutory definition.
¶ 33. In this case, the Commission noted the difficult task of determining whether
projects constitute a single plant, given developers’ lack of incentive to inform the Commission
that a proposed facility would be co-located with another facility, and acknowledged that at times
it has relied on the candor of an applicant who has made a conclusory statement that a facility is
not part of a single plant. The Commission explained that it had taken a more proactive role in
requiring applicants to submit additional information on co-located facilities. We agree with the
Commission that cases such as these do not demonstrate that in this case the Commission departed
from policy it had established in the earlier cases.
¶ 34. Likewise, we reject Portland Street’s argument that the Commission’s decision in
this case amounted to a departure from its single-plant analysis in Application of SolarSense VT
12
The Commission similarly approved CPGs with little analysis based on applicants’
representations in the Shephard Wind and South Ridge Solar Park cases cited by Portland Street.
See Application of Ralph Shepard for a Certificate of Pub. Good for a 25.0 kW Wind Elec. Power
Sys. in Ferrisburgh, Vt., No. 20-3382-NM, 2020 WL 7082727 (Vt. Pub. Util. Comm’n Nov. 23,
2020); Petition of S. Ridge Solar Park, LLC, for a Certificate of Pub. Good, pursuant to 30 V.S.A.
§§ 8010 and 248 and Commission Rule 5.100, to Install and Operate a 500 kW Grp. Net-Metered
Solar Elec. Generation Facility in Middlebury, Vt., No. 18-2621-NPM, 2019 WL 194913 (Vt. Pub.
Util. Comm’n Jan. 10, 2019).
17
XXVII, LLC for a Certificate of Pub. Good, pursuant to 30 V.S.A. §§ 248 and 8010 and Rule
5.100, for a 250 kW (AC) Solar Net-metering Sys. in Concord, Vt., No. 19-2132-NMP, 2019 WL
5822169 (Pub. Util. Comm’n Oct. 31, 2019). As the Commission explained in responding to
Portland Street’s argument on this point, in that case the access road shared by the co-located
facilities pre-existed both solar facilities on the site, in contrast to this case, and thus did not
constitute common infrastructure.
¶ 35. Finally, the case of Kirchheimer Solar, in which the Commission apparently
granted an amended CPG for a net-metering facility shortly after denying the CPG in this case, is
readily distinguishable.13 The Kirchheimer Solar case presented an unusual fact pattern insofar as
both the projects at issue had already been built. The hearing officer in that case concluded that
common-ownership considerations weighed slightly against finding common ownership because,
although the facilities were commonly owned, different parties contractually benefitted from the
projects, which were located on different parcels under different leases, and which were neither
designed nor constructed together. The Commission’s analysis of the single-plant issue in this
case was not a fundamental departure from the hearing officer’s analysis in Kirchheimer Solar.
¶ 36. In sum, Portland Street has not established that the Commission substantially or
unreasonably departed from established precedent concerning the single-plant issue. The extent
to which outcomes in past Commission cases do not comport with the outcome in this case is due
primarily to a lack of focus on the single-plant issue or distinguishable facts, and not the
Commission’s departure from established precedent.
13
Portland Street states that the Commission issued a December 17, 2020 decision granting
an amended permit, but cites only to the hearing officer’s proposed decision recommending that
the Commission grant the amended permit. As we conclude above, the hearing officer’s reasoning,
assuming it was accepted by the Commission, does not demonstrate that the Commission in the
instant case fundamentally departed from a previously established analysis of the single-plant
issue.
18
B. Independent Technical Facility
¶ 37. As noted above, 30 V.S.A. § 8002(18) provide as follows:
“Plant” means an independent technical facility that generates
electricity from renewable energy. A group of facilities, such as
wind turbines, shall be considered one plant if the group is part of
the same project and uses common equipment and infrastructure
such as roads, control facilities, and connections to the electric grid.
Common ownership, contiguity in time of construction, and
proximity of facilities to each other shall be relevant to determining
whether a group of facilities is part of the same project.
¶ 38. Portland Street argues that, by treating the first sentence defining a plant as “an
independent technical facility” as irrelevant surplusage in this case, the Commission deviated from
both this Court’s Programmatic Changes opinion and the Commission’s 2017 Standard-Offer
Program decision, which require the Commission, in addressing the single-plant issue under
§ 8002(18), to consider primarily technical features such as control facilities, electrical
connections to the grid, and limited-energy-capacity agreements. Portland Street contends that the
two-part test reflected in the second and third sentences of the definition of “plant” does not
supplant consideration of whether, based on an assessment of the mechanical elements of proposed
generating facilities, they are “independent technical facilities.” The Commission, on the other
hand, concluded that whether a facility is an independent technical facility is essentially a
conclusion based on application of the two-prong test in the second and third sentences of
§ 8002(18) rather than a distinct and independent factor.
¶ 39. The Commission’s interpretation is reasonable when the statute is read in its
entirety. The first sentence of § 8002(18) provides that a plant is “an independent technical
facility,” and then the next two sentences establish a two-prong test for determining whether
facilities should be considered a single plant or independent facilities. In effect, Portland Street
would have us read into the first sentence the phrase, “a technically independent facility,” rather
than the actual phrase, “an independent technical facility,” essentially ignoring the nontechnical
19
criteria set forth in the statutory definition. Moreover, the concept of “technical” independence,
as described by Portland Street, is largely subsumed within the “common equipment and
infrastructure” prong of the analysis. For these reasons, the first sentence of § 8002(18) does not
compel a determination that multiple facilities are a single plant as long as the developers arrange
for each facility to have separate inverters and electrical connections to the grid and obtain separate
interconnection agreements that limit the energy capacity of each individual facility to that allowed
under the standard-offer and net-metering programs. The statutory considerations are whether the
facilities are part of the same project considering the factors listed and whether they use common
equipment and infrastructure such as “roads, control facilities, and connections to the electric
grid.” Id. Technical independence alone is insufficient to establish that two facilities are separate
plants. Nothing in either our Programmatic Changes opinion, which was decided before the
statutory amendment to § 8002(18), or the Commission’s 2017 Standard-Offer Program decision,
compels a contrary interpretation.
C. Same Project
¶ 40. As noted, after we concluded in Programmatic Changes that the Commission erred
in considering physical proximity and common ownership as relevant factors in determining
whether facilities are separate plants because § 8002(18) did not mention these factors, see
Programmatic Changes, 2014 VT 29, ¶¶ 11, 16, the Legislature amended the definition of “plant”
to include the following sentence: “Common ownership, contiguity in time of construction, and
proximity of facilities to each other shall be relevant to determining whether a group of facilities
is part of the same project.” 30 V.S.A. § 8002(18). The Commission considered the policy this
amendment sought to vindicate, in addressing each of these three factors in determining whether
Portland Street and Golden Solar should be considered a single project. Portland Street argues that
the Commission committed compelling error and exceeded its statutory authority by expansively
construing precise terms set forth in the third sentence, beyond what the Legislature intended. We
20
conclude, with respect to each of these factors, that the Commission acted within its authority and
reasonably interpreted the terms contained in § 8002(18), which the Legislature charged it with
implementing.
a. Common Ownership
¶ 41. The hearing officer recommended that the Commission find common ownership in
this case because the two corporate principals for both Norwich Technologies and Sunny Acres—
the owner of the 82.2-acre parcel on which the Portland Street and Golden Solar facilities are to
operate—controlled both Portland Street and Golden Solar. The hearing officer found that the two
facilities were part of a plan to have separate LLCs own separate facilities on the same site, which
would allow the facilities to satisfy energy-capacity limits established in the standard-offer and
net-metering programs. The Commission adopted the hearing officer’s findings and conclusions,
including those concerning common ownership.
¶ 42. In assessing the common-ownership factor, the Commission considered, among
other things, who developed the projects, owned the completed projects, owned the project site,
and leased the land to whom. The Commission declined to resolve the question of common
ownership based solely on the fact that two distinct corporate entities owned the respective
facilities. The Commission explained that doing so would effectively negate the common-
ownership factor, contrary to legislative intent, because developers typically form separate LLCs
for each facility, particularly those with an energy capacity above 150 kW. Accordingly, the
Commission determined that the term “common ownership” requires an analysis of the actors,
operations, and contractual arrangements for each facility, rather than relying solely on corporate
status.
¶ 43. Portland Street does not challenge the Commission’s factual findings concerning
the relationship between the facilities but argues that because the two facilities at issue in this case
are separate legal entities owned by separate LLCs, they are not commonly owned. According to
21
Portland Street, the Commission exceeded its statutory authority by considering nonstatutory
elements, such as who controlled the LLCs involved with the projects, in determining that the
separately owned facilities are not in fact separately owned.
¶ 44. We disagree. The Commission could reasonably conclude, given the broad
language and purpose of the amendment, that the Legislature intended for the Commission to
consider whether the individuals or entities that ultimately own two facilities are the same rather
than whether the facilities are nominally held by distinct LLCs. Otherwise, very few if any plants
would have common ownership, and the Legislature’s recent statutory amendment to include
“common ownership” as a factor in the “same project” analysis would be meaningless. See In re
Mountain Top Inn & Resort, 2020 VT 57, ¶ 37, ___ Vt. ___, 238 A.3d 637 (“We consider the
whole and every part of the statute and avoid a construction that would render part of the statutory
language superfluous.” (citations and quotations omitted)); cf. In re Investigation to Review the
Avoided Costs that Serve as Prices for the Standard-Offer Program in 2019, 2020 VT 103, ¶ 31,
___ Vt. ___, 251 A.3d 525 (concluding that demonstrating site control in favor of one wholly
owned subsidiary of parent company was sufficient to establish site control in favor of another
wholly owned subsidiary of same parent company because the wholly owned subsidiaries are like
“a multiple team of horses drawing a vehicle under the control of a single driver” (quotation
omitted)). Accordingly, the Commission acted within its delegated authority when it reasonably
construed the term “common ownership” to include an examination of the elements of control and
interest beyond the formal corporate status of the immediate owner of each facility.
b. Contiguity in Time of Construction
¶ 45. The Commission adopted the hearing officer’s recommendation that the
Commission conclude that Portland Street and Golden Solar were the product of coordinated,
simultaneous planning by a common owner based on Norwich Technologies’ funding of a single
survey of endangered plants conducted for the entire project site and on the utility’s reconductoring
22
of 4500 feet of a distribution line to serve both facilities. The hearing officer determined that
actions such as these, which were relied upon in both facilities’ CPG petitions, were indicative of
the common owner’s plan for development of a single project. The hearing officer pointed out
that both facilities could have been under construction at the same time if the Portland Street
facility had been approved on the accelerated schedule requested, but that, in any event, the word
“contiguous” is defined, in part, as “[n]ear in time or sequence; successive.” Contiguous, Black’s
Law Dictionary (11th ed. 2019).
¶ 46. Analogous to its common-ownership analysis, in assessing the contiguity-in-time-
of-construction factor, the Commission declined to reduce the inquiry to whether both projects had
“shovels in the ground” simultaneously. Rather, the Commission considered all construction steps,
including project planning, site reconnaissance and preparation, physical plant construction, and
interconnection. In the Commission’s view, project construction begins when an applicant takes
affirmative, identifiable steps beyond mere rumination toward bringing a facility into being. The
Commission pointed out that this analysis is reinforced by the requirement that an applicant obtain
a CPG before beginning site preparation. See 30 V.S.A. § 248(a)(2)(A) (providing that “no
company . . . may begin site preparation for construction of an electric generation
facility . . . unless the Public Utility Commission first finds that the same will promote the general
good of the State and issues a certificate to that effect”).
¶ 47. Portland Street counters that by looking beyond whether there was an overlap in
actual construction in interpreting the contiguity-in-time-of-construction factor, the Commission
exceeded the scope of its statutory authority. It invokes our decision in In re Agency of
Administration, 141 Vt. 68, 444 A.2d 1349 (1982), to support its contention that construing
“contiguity in time of construction” to include development activities exceeds the scope of the
statute and is clearly erroneous.
23
¶ 48. Again, we disagree. The Commission’s interpretation of this factor is reasonable
and does not undermine the statute’s underlying purpose; on the contrary, the Commission sought
to further the statute’s underlying purpose of limiting the benefits of the standard-offer and net-
metering programs to genuinely independent projects. Cf. Chelsea Solar, 2021 VT 27, ¶ 33
(concluding, in considering whether facilities were part of same project before statutory
amendment adding “contiguity of construction” factor, that where “facilities were pursued and
developed as part of a common scheme,” they “did not need to be literally built at the same time”
to be considered as same project).
¶ 49. Our analysis in Agency of Administration, 141 Vt. 68, 444 A.2d 1349 does not
suggest otherwise. The issue in that case was whether the state’s demolition of a house within the
area contemplated for potential construction of a “capitol complex” constituted the
“commencement of construction” on a state project involving more than ten acres of land so that
it was thereby subject to Act 250, Vermont’s land-use and development law. Id. at 74, 444 A.2d
at 1351. Reviewing the statute’s legislative history, including the history of the specific language
referencing “construction” as an indicium of “development,” thereby triggering Act 250
jurisdiction, this Court concluded that the “legislative history discloses a well-considered intent on
the part of the Legislature to define as ‘development’ only that activity which has achieved such
finality of design that construction can be said to be ready to commence.” Id. at 79, 444 A.2d at
1354. Upon determining that many of the Board’s factual findings were clearly erroneous, we
concluded that the razing of the building was not part of an established plan to develop the site.
Id. at 91, 444 A.2d at 1361. In that context, we considered the Environmental Board’s
implementing regulation that defined “construction of improvements” to include “any activity
which extends, modifies, or initiates any use of the land,” other than activities principally for the
purpose of preparing plans or applying for a permit. Id. at 92, 444 A.2d at 1361 (quotation
omitted). We concluded that the Board’s definition was overbroad in light of the narrower
24
language of the statute, and that there was no reasonable connection between an isolated
demolition project and the Act 250 purpose of determining the suitability of land for large-scale
development. Id. at 93, 444 A.2d at 1361-62.
¶ 50. In this case, there is no comparable history suggesting that the statutory focus on
“construction” reflected a legislative compromise designed to limit the circumstances in which the
“contiguity in time of construction” factor might apply. To the contrary, for the reasons set forth
above, the circumstances surrounding the Legislature’s adoption of that factor and the
Legislature’s apparent goals in adding the consideration, support the Commission’s conclusion
that the factor is designed to ferret out projects in which multiple facilities are constructed as part
of a common plan under common ownership.
c. Proximity of Facilities to Each Other
¶ 51. The Commission accepted the hearing officer’s recommendation that it consider
the physical proximity of the Portland Street and Golden Solar facilities in support of a
determination that they are part of the same project. The hearing officer concluded that the
Commission, in analyzing the proximity of facilities in prior cases to determine whether they were
the same project, had considered: the distance between the facilities, without arriving at any “magic
number”; intervening buffers such as fences, waterways, forest or vegetation, roads, and building
or structures; and topography. With these features in mind, the hearing officer found that:
(1) Portland Street would be located approximately 100 feet south of the Golden Solar fence line;
(2) the array rows of the two facilities would run parallel to each other east to west; (3) the
northernmost array of the Portland Street facility would be approximately 180 feet south of the
Golden Solar facility; and (4) that no natural boundaries separated the two facilities. The
Commission found that “[t]o an observer, the two facilities would appear as the same project.”
¶ 52. For its part, the Commission emphasized that its assessment of physical proximity
was not merely a calculation of the distance between facilities but rather required an examination
25
of the features noted by the hearing officer. Based on its consideration of these features, the
Commission adopted the hearing officer’s recommendation that the proximity-of-the-facilities-to-
each-other factor supported a same-plant determination.
¶ 53. Portland Street does not challenge the Commission’s underlying findings but
argues on appeal that arrays separated by 180 feet are not very close in space consistent with the
word “proximate” and that the Commission’s reference to whether a reasonable observer would
consider multiple projects one facility created an arbitrary standard. We agree that the perception
of a reasonable observer has no bearing on any statutorily relevant consideration, as the purpose
of the “proximity” factor here is not to promote an aesthetic goal but rather to help distinguish
genuinely independent smaller projects from larger projects carved into smaller components for
the purpose of accessing the statutory benefits available to smaller developments. Nevertheless,
we conclude that the Commission did not abuse its discretion in determining, based on a totality
of factors—including the topography and absence of natural barriers between the two facilities—
that these two facilities are near enough in space to support the conclusion that they are a single
project. See Proximity, Black’s Law Dictionary (11th ed. 2019) (“The quality, state, or condition
of being near in time, place, order, or relation.”). Because the Commission’s assessments of the
common ownership, contiguity of construction, and proximity are supported by the record and
consistent with its statutory authority, its overall conclusion based on the totality of these factors
that the two facilities are part of the same project is not an abuse of discretion.
D. Common Equipment and Infrastructure
¶ 54. The second prong of the single-plant test asks whether the facilities use common
equipment or infrastructure “such as roads, control facilities, and connections to the electric
26
grid.”14 30 V.S.A. § 8002(18). Here, the Commission accepted the hearing officer’s
recommendation that the Commission conclude that the Portland Street and Golden Solar facilities
share common equipment and infrastructure based on the following findings concerning the
facilities’ shared roads, control facilities, and connections to the electric grid: (1) the facilities
share the same access road; (2) access to the Portland Street facility would be via a 100-foot
extension of the 1760 feet of access road improved for the Golden Solar facility;
(3) reconductoring of 4500 feet of distribution line is needed in its entirety before interconnection
of either facility may occur; and (4) each facility has separate overhead lines that run from the
transformer adjacent to the solar field along the access road to separate poles of an upgraded utility
three-phase distribution system. While acknowledging that the facilities would have separate
points of interconnection with the electric grid at separate poles, the hearing officer concluded that
the common infrastructure analysis was not limited to the points of connection to the grid but rather
extended to the 4500-foot reconductored distribution line. In reaching this conclusion, the hearing
officer relied on the Commission’s recent decision in Willow Road, in which it concluded that the
mile-long Green Mountain Power extension line that both facilities relied on was “a single
interconnection facility” for the two projects at issue in that case.15
¶ 55. In accepting the hearing officer’s recommendation concerning this prong of the
single-plant test, the Commission rejected Portland Street’s argument that any infrastructure
shared beyond the pole where the facility first interconnects to the electric grid cannot be
considered shared infrastructure. The Commission stated that if this were the case, facilities could
share hundreds of thousands of dollars of distribution line extensions or upgrades without those
As set forth more fully above, we conclude that the Commission’s determination that
14
this prong of the statute is satisfied if the facilities share common equipment or common
infrastructure, and that they need not share both, is not clearly erroneous. See supra, ¶¶ 28-30.
15
We reviewed the Willow Road decision on appeal under the caption In re Chelsea Solar,
2021 VT 27, ¶ 12.
27
upgrades being considered “shared” infrastructure merely because the facilities’ first point of
connection was separate. Rather, the Commission followed the approach it had articulated in its
Willow Road decision and applied a “but-for” test that considered whether either facility could
connect to the electric grid but for the existence of a shared distribution line. For purposes of this
analysis, the Commission distinguished between preexisting infrastructure, such as an access drive
or distribution circuit, and infrastructure and equipment that is built, altered, or improved for the
projects. Finally, the Commission stated that its forewarning in its Programmatic Changes
decision that the profits of a group net-metering project could far outweigh the costs of redundant
infrastructure had been realized, and that an application showing overlap between proposed
facilities with respect to an environmental impact analysis, interconnection studies, roads, and
electric infrastructure upgrades raised “the ultimate red flag” in considering whether the proposed
facility was part of a single-plant.
¶ 56. Portland Street argues that the Commission’s analysis is flawed because the
utility’s reconductored distribution line to which both facilities interconnect is not a shared
interconnection facility. The facilities in this case had separate “control facilities” limiting their
respective energy-generating capacities in the form of project inverters, transformers, and
interconnection agreements. Portland Street notes that the Commission’s Interconnection Rule
5.500 draws a clear distinction between interconnection facilities and a utility’s system upgrades
and that the utility’s interconnection line is an interconnection to the electric grid.
¶ 57. In our recent decision in Chelsea Solar, we affirmed the Commission’s rejection of
these arguments. See 2021 VT 27, ¶¶ 29-30 (upholding as reasonable Commission’s
determination that, notwithstanding facilities’ separate points of interconnection to new mile-long
extension, facilities used common equipment). In Chelsea Solar we explained that the ownership
of the distribution line to which both facilities connected was not dispositive because § 8002(18)
speaks to the use of common infrastructure. Id. ¶ 31. Where the shared distribution line was paid
28
for by the developer and would not otherwise exist but for this project, it amounted to common
infrastructure used by the utilities. Id. Likewise, here the reconductored distribution line was not
preexisting grid infrastructure, was necessary for both facilities’ interconnections, and was paid
for by the developer. Moreover, the access road to the Portland Street facility was an extension of
the access road improved for the Golden Solar facility. Given these facts, we cannot conclude that
the Commission’s determination that the facilities use common infrastructure is clearly erroneous.
¶ 58. We acknowledge Portland Street’s argument that making a single-plant
determination based on a single shared line extension or access road would mean that virtually all
proposed co-located facilities would be considered a single plant, in contravention of important
land-use and environmental policies. This argument fails to recognize, however, that both prongs
of § 8002(18)’s single-plant test have to be satisfied for the Commission to determine that a
proposed facility is part of a single plant. See Chelsea Solar, 2021 VT 27, ¶ 32. As noted above,
to the extent Portland Street argues that the Commission’s application of the statute creates
perverse incentives from a land-use and environmental perspective, those arguments should be
directed to the Legislature.
III. Conclusion
¶ 59. We recognize, as did the Commission, that in recent cases the Commission has
expanded and refined its analysis of the single-plant test contained in § 8002(18). The
Commission states that it has done so to address a growing and evolving solar-development
industry that, in the Commission’s view, has increasingly sought to secure the benefits of statutory
regimes not intended for larger projects by breaking up larger projects into smaller ones. The
Legislature has driven and reinforced the Commission’s approach by amending § 8002(18) to more
clearly identify the harm it seeks to remedy. The Commission views itself as a gatekeeper tasked
with applying the screening mechanism that the Legislature established in § 8002(18) to determine
29
whether large projects have been segmented into smaller projects to gain financial incentives under
programs intended for the benefit of smaller projects, in contravention of legislative policy.
¶ 60. As explained above, we conclude that the Commission in this case acted within its
statutory authority and reasonably construed the component parts of § 8002(18) in the context of
a CPG petition seeking the benefits of the net-metering program. Ultimately, however, the
Legislature will determine if the Commission’s refined interpretation of the statute aligns with
ever-evolving legislative policies concerning land use and renewable energy.
Affirmed.
FOR THE COURT:
Associate Justice
30