In re Application of Derby GLC Solar, LLC ( 2019 )

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.
2019 VT 77
No. 2019-078
In re Application of Derby GLC Solar, LLC Supreme Court
On Appeal from
Public Utility Commission
September Term, 2019
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
¶ 1. EATON, J. 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.
2
¶ 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
proceeding1 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
1
The PUC occasionally initiates generic investigations in order to avoid repetitive filings
and simplify the administrative process. See, e.g., Generic Investigation into the Implementation
by the Utilities of Act H.832—Weatherization Tax, No. 5434, 1990 WL 666756 (Vt. Pub. Serv.
Bd. July 3, 1990) (opening generic investigation into proper implementation of new state tax).
3
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 addition, they
receive lower prices for the energy they do produce. “Large” generators have a capacity of five
megawatts (MW) or more.
¶ 7. In 2016, ISO New England amended its rules to apply these limits to renewable
energy generators. As a result, during times when the SHEI is export-constrained, large renewable
energy generators in northern Vermont receive lower prices for the electricity they produce and,
at the same time, are directed to curtail their output. This rule is known as the “Do-Not-Exceed”
dispatch rule.
¶ 8. The SHEI includes several large renewable energy generators, including the 63-
MW Kingdom Community Wind project, the 40-MW Sheffield Wind project, and the 27-MW
Sheldon Springs hydroelectric project. These generators sell their energy output in the ISO New
England regional electricity market. Kingdom Community Wind—– an array of twenty-one wind
turbines sited on Lowell Mountain and adjacent ridgetops in Lowell—is owned by GMP, which
retains 55 MW of the project’s output and sells the remaining 8 MW to VEC. Kingdom
Community Wind has been subject to price reductions and often receives directions from ISO New
England to curtail output. When this occurs, GMP loses the market value of the energy that could
have been produced as well as associated renewable energy credits and federal production tax
credits.
¶ 9. From March 2017 to February 2018, VEC’s net power costs increased by $587,750
due to lower price revenues as the result of existing SHEI constraints. These increased costs
resulted in upward pressure on retail electric prices paid by Vermont customers.
¶ 10. The SHEI also includes multiple small (i.e., less than 5 MW) hydroelectric, solar,
and farm methane generators. These generators do not sell their output in the regional electricity
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market, but instead operate as load reducers, reducing VEC’s obligation to purchase electricity to
match its customers’ use.
¶ 11. As a net-metered system, applicant’s proposed project would be a load reducer.
The project would reduce the effective amount of demand for electricity within the SHEI area that
is available to absorb local generation. During times of high local generation or low local
electricity demand, the project would cause ISO New England to curtail some amount of output
from existing renewable energy generators in the SHEI.
¶ 12. If the project had operated during March 2017 to February 2018, it would have
resulted in additional curtailments of Kingdom Community Wind totaling 57 megawatt hours.
That energy instead would be generated by applicant’s project at the net-metering rate of $0.16919
per kilowatt hour, resulting in an additional annual cost to Vermont ratepayers of $9,692. In
addition, Kingdom Community Wind would have lost approximately $612 in annual revenue, for
a total annual cost to ratepayers of $10,304. Over the life of the project, the project would result
in additional costs to ratepayers of more than $250,000. This estimate does not account for the
utilities’ loss of revenue from tax credits or impacts to other generation sources in the region, or
for system upgrades that VEC may need to install to handle the additional power generated by the
project.
¶ 13. There are currently no existing or planned transmission facilities that would resolve
all of the existing SHEI constraints or the incremental constraints caused by the project. Fully
resolving the congestion in the SHEI area would require an investment of several hundred million
dollars to upgrade the major transmission lines.
¶ 14. Based on these findings, the PUC concluded that applicant’s project could not be
served economically by existing or planned transmission facilities without undue adverse effect
on Vermont utilities or customers. See 30 V.S.A. § 248(b)(10). The PUC found that the addition
of the project to the SHEI would increase existing transmission constraints and worsen the
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resulting adverse effects on Vermont utilities and their customers. The parties agreed that the
project would result in additional curtailments to the Kingdom Community Wind project and
therefore increase costs to Vermont ratepayers, although they disagreed about how much the costs
would be. The PUC found VEC’s estimate of $250,000 over the life of the project to be more
reasonable than applicant’s lower estimate. The PUC agreed with the Department and the utilities
that this additional adverse effect was “unacceptable” because the project would displace less
expensive renewable electricity generation and the increased costs would be paid by ratepayers.
Moreover, because the project would be net-metered, its own output would not be reduced during
times when export constraints caused curtailments. The PUC concluded that the adverse effect on
Vermont utilities and ratepayers was “undue” because the project would “provide no benefit to
ratepayers relative to the less expensive renewable generation that is already available during times
of curtailment.” The PUC also stated that “[w]e find undue adverse effects here because, even if
this [p]roject caused displacement only some of the time, even a small amount of displacement
creates unnecessarily higher costs for Vermont utilities and customers.”
¶ 15. The PUC also found that the project failed to satisfy § 248(b)(7) because it did not
comply with the Vermont Comprehensive Energy Plan. Although the Plan calls for ten percent of
Vermont’s electricity to come from small renewable generators connected to Vermont’s electric
grid by 2032, it also seeks to place new generation close to demand to avoid costly transmission
upgrades and states that Vermont should strive to achieve its renewable energy goals in a least-
cost manner and to lower energy bills and electric rates. The PUC found that rather than reduce
the need for transmission upgrades, applicant’s proposed project would exacerbate the existing
need by placing additional generation in a place where the system was already constrained. The
project would be located in an area that already had a surplus of electricity. Further, the project
would cause curtailments that displaced less expensive existing renewable energy and was
therefore not a least-cost method for meeting the state’s renewable energy goals.
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¶ 16. Because the PUC concluded that § 248(b)(7) and (10) were not satisfied, it did not
analyze whether the project met § 248(b)(4). It noted, however, that it disagreed with applicant’s
claim that the project satisfied criterion 4 based purely on the economic benefits of the project’s
construction and associated jobs and taxes because any positive economic benefits had to outweigh
the negative impacts.
¶ 17. On appeal, applicant argues that the PUC violated the Administrative Procedure
Act by not making findings regarding the economic benefits of the project, either as part of an
analysis of § 248(b)(4) or in its discussion of (b)(7) and (10); ignored the plain language of
§ 248(a)(2)(B), which requires the PUC to consider whether the project will promote the good of
the state; improperly considered testimony by a GMP witness that was not part of the prefiled
testimony; improperly interpreted § 248(b)(10) by finding any adverse economic impact to be
“undue” and failing to consider the fact that the utilities caused the current curtailment situation;
applied an interpretation of § 248(b)(7) that was inconsistent with its prior decisions; and
improperly required applicant to prove that the § 248(b) criteria were not unsatisfied. As discussed
below, we conclude applicant’s arguments are without merit.
¶ 18. When the PUC evaluates a CPG petition under 30 V.S.A. § 248, it “is engaged in a
legislative, policy-making process.” Auclair v. Vt. Elec. Power Co., 133 Vt. 22, 26, 329 A.2d 641,
644 (1974). “The [PUC] must exercise its discretion to weigh alternatives presented to it, utilizing
its particular expertise and informed judgment.” In re UPC Vt. Wind, LLC, 2009 VT 19, ¶ 2, 185
Vt. 296, 969 A.2d 144 (quotation omitted). Our review of the PUC’s decision to issue or deny a
CPG is therefore limited in scope. In re New Haven GLC Solar, LLC, 2017 VT 72, ¶ 14, 206 Vt.
49, 175 A.3d 1211. We will affirm the PUC’s findings unless the appellant shows that they are
clearly erroneous. In re Stowe Cady Hill Solar, LLC, 2018 VT 3, ¶ 20, 206 Vt. 430, 182 A.3d 53.
Similarly, we defer to the PUC’s interpretation of the statutes that it is charged with interpreting,
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“though we do not abdicate our responsibility to examine a disputed statute independently and
ultimately determine its meaning.” Id. (quotation omitted).
I. Whether PUC Erred in Declining to Consider Overall Economic Benefit of Project
¶ 19. Applicant first argues that the PUC violated 3 V.S.A. § 812(a) by failing to make a
ruling on applicant’s proposed findings regarding the alleged economic benefit of the project.2
Section 812(a) requires that in a contested case, “the decision shall include a ruling upon each
proposed finding.” “The purpose of this requirement is to make a clear statement to the litigants,
and to this Court if an appeal is taken, of what was decided and how the decision was reached.”
Sec’y, Agency of Nat. Res. v. Upper Valley Reg’l Landfill Corp., 167 Vt. 228, 242, 705 A.2d
1001, 1009 (1997) (quotation omitted). Here, the PUC explained that it would not address whether
the project would result in an economic benefit to the state under § 248(b)(4) because it found that
the project did not meet § 248(b)(7) and (10). This was sufficient to explain to the litigants and
this Court what was decided and how the decision was reached. Because all of the § 248(b) criteria
must be satisfied for a CPG to issue, the PUC’s finding that a project fails to satisfy one or more
criteria is fatal to the project. Here, the PUC found that § 248(b)(7) and (10) were not satisfied,
and there was no need for it to go on to address (b)(4).
¶ 20. Applicant argues that the project’s alleged overall economic benefits are directly
germane to § 248(b)(7) and (10) and should have been considered with respect to those criteria
even if the conditional waiver of (b)(4) had not been rescinded. We disagree. Section 248(b)
contains eleven separate criteria, each of which must be satisfied before a CPG may issue. The
general economic benefit of a project to the state and its citizens is addressed under § 248(b)(4).
See In re Green Mountain Power Corp., 2018 VT 97, ¶ 22, __ Vt. __, 198 A.3d 36 (explaining that
2
Applicant alleged that the project would result in a total of over $1.1 million in economic
benefits to Vermont, approximately $600,000 of which would be associated with constructing the
project.
8
§ 248(b)(4) “relates to the general public”). This criterion is discrete from subsections (b)(7) and
(10), which address more specific considerations, some of which are economic in nature.
Subsection (b)(7) requires the PUC to find that the project complies with the Comprehensive
Energy Plan, and (b)(10) requires it to consider whether the project can be served economically by
the transmission grid without excessively impacting two subgroups of stakeholders—utilities and
customers. Nothing in the language of the statute requires the PUC to consider the general
economic benefit associated with the construction of the project in the form of jobs, taxes, and
similar benefits in deciding whether § 248(b)(7) and (10) are satisfied. We therefore see no error
in the PUC’s decision not to consider such evidence in its findings under these criteria. See Cady
Hill, 2018 VT 3, ¶ 20 (explaining that this Court generally will defer to PUC’s interpretation of
statute it is tasked with interpreting).
¶ 21. For the same reason, we reject applicant’s claim that the PUC erred by failing to
consider whether the project would promote the general good of the state and therefore violated
30 V.S.A § 248(a)(2)(B). Applicant argues that the PUC focused too narrowly on a limited set of
adverse impacts and should have balanced those impacts against the project’s broad economic
benefits to Vermont as a whole. Again, we see no error. To issue a CPG, the PUC must find both
that the project satisfies the criteria under § 248(b) and that it promotes the general good of the
state. See UPC Vt. Wind, 2009 VT 19, ¶ 10 (explaining that predecessor to PUC properly issued
CPG where it found that project, with conditions, satisfied all § 248(b) criteria and promoted
general good of state). The PUC cannot issue a CPG to a project that does not satisfy all of the
criteria under § 248(b). See 30 V.S.A. § 248(b) (providing that “[b]efore the Public Utility
Commission issues a certificate of public good as required under subsection (a) of this section, it
shall find” that (b)(1)-(11) are satisfied). It was unnecessary for the PUC to reach the “ultimate”
question of whether the project would promote the general good of the State because the project
failed to meet all of the prerequisite § 248(b) criteria. UPC Vt. Wind, 2009 VT 19, ¶ 7.
9
II. Whether the PUC’s Consideration of GMP Expert Testimony Requires Reversal
¶ 22. Applicant next claims that the PUC erred in considering certain testimony of a GMP
expert in its decision. At the hearing, the chairman of the PUC asked the GMP expert about the
project’s potential adverse impacts on energy prices paid to Vermont generators. In response, the
expert provided a general explanation of the impacts on GMP and estimated that between June
2016 and late 2017, SHEI constraints had cost GMP ratepayers “several million dollars.” The
PUC made a similar finding to this effect in its decision and mentioned the finding as part of its
discussion of § 248(b)(10). Applicant argues that the information regarding the estimated costs to
GMP ratepayers was not included in any of GMP’s prefiled testimony and therefore violated the
expert-witness prefiling requirements under Commission Rule 2.213 and Vermont Rule of Civil
Procedure 26(b)(5). Applicant argues that the PUC improperly relied on this information despite
its statement specifically denying that it relied on the testimony in reaching its decision.3
¶ 23. Commission Rule 2.213 requires parties to prefile testimony and exhibits of
witnesses they intend to call. See Public Utility Commission, Rules of Practice, § 2.213(A), Code
of Vt. Rules 30 000 2000, http://www.lexisnexis.com/hottopics/codeofvtrules [hereinafter Practice
Rules] (“Within such time as may be directed by the Commission, each party shall file the direct
testimony and exhibits of each witness it proposes to call in support of its direct case.”). However,
this rule is plainly intended to simplify complicated evidentiary hearings and not to entirely replace
live testimony. The language of the rule does not limit the PUC to considering only prefiled
testimony. See In re Green Mountain Power Corp., 2012 VT 89, ¶ 31, 192 Vt. 429, 60 A.3d 654
(affirming board’s finding based on expert’s testimony at hearing, which differed from his prefiled
testimony). Furthermore, Practice Rules § 2.215 explicitly permits the PUC to question any
3
GMP argues that applicant failed to properly preserve this argument. Although applicant
did not object to the admission of the testimony during the hearing, it did raise the argument in its
reply brief below, and the PUC addressed the issue in the decision denying the CPG. We therefore
consider the issue preserved for our review.
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witness during a proceeding. See Practice Rules § 2.215(B) (“Any member of the Commission,
and any member of its staff, may examine witnesses who testify in any proceeding.”). That rule
also contains no limit on the scope of permitted questioning or the use of such testimony as
evidence. We are therefore unpersuaded by applicant’s argument that the testimony violated PUC
procedure.
¶ 24. Applicant also has not shown that it either requested the disputed information from
GMP or any other party in interrogatories or sought a motion to compel. Thus, it has failed to
establish a discovery violation under the Rules of Civil Procedure. Nor did the applicant request
any other curative procedure, such as asking the PUC to keep the proceedings open for the limited
purpose of presenting contrary or additional evidence on the issue.
¶ 25. Even assuming that it was improper for the PUC to consider the expert testimony,
applicant has not demonstrated that the alleged error was prejudicial. See V.R.C.P. 61 (“The court
at every stage of the proceeding must disregard any error or defect in the proceeding which does
not affect the substantial rights of the parties.”); Practice Rules § 2.220 (providing that Rule 61
applies to PUC proceedings). The PUC cited the “several million dollars” figure once as part of
its general discussion of how current curtailments in the SHEI were already negatively impacting
ratepayers and utilities.4 It was undisputed that existing curtailments were financially impacting
ratepayers, and the PUC noted that the parties disputed the exact amount of the impacts. The PUC
did not directly compare GMP’s estimated costs to the costs or benefits of the project. It expressly
stated that it was not relying on the testimony in reaching its decision. There was ample other
4
In its brief, applicant overstates the number of times the PUC cited to the disputed
testimony in its decision. The other two places where the PUC cited the GMP expert’s testimony
did not refer to the “several million dollars” language but instead to his more general testimony
that GMP loses renewable energy and tax credits when exports are constrained in the SHEI.
Applicant did not object to this testimony below.
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evidence supporting the PUC’s analysis of § 248(b)(10). Under these circumstances, we do not
view its citation to the GMP expert’s testimony as a reason to disturb the decision below.
III. Whether the PUC Improperly Interpreted § 248(b)(10)
¶ 26. Applicant contends that the PUC improperly interpreted § 248(b)(10) by finding
that any adverse economic impact on utilities or customers would be undue. According to
applicant, the estimated additional cost to ratepayers of $250,000 over the life of the project is not
“undue” when compared with the alleged general economic benefit of the project.
¶ 27. The PUC has not defined a standard for determining when the adverse effects of a
project are “undue” under § 248(b)(10). Cf. UPC Vt. Wind, 2009 VT 19, ¶ 24 (explaining that in
determining whether project will have undue adverse aesthetic impact under § 248(b)(5), PUC
employs so-called Quechee test under which impact is undue if it violates clear written community
standard, offends sensibilities of average person, or developer has failed to take reasonable
mitigating steps). As we have recognized, any new energy project will likely have some adverse
impacts, and “[t]hus there must be the qualitative measure represented by ‘unduly,’ a word often
taken to be synonymous with ‘excessively’ or ‘beyond a proper degree.’ ” Vt. Elec. Power Co. v.
Bandel, 135 Vt. 141, 150, 375 A.2d 975, 981 (1977). However, “[t]he Legislature has put this
weighing process in the hands of the Board. So long as it has exercised this authority in good faith,
with adequate evidentiary basis, this Court will not intrude upon its decision.” Id.
¶ 28. We defer to the PUC’s interpretation of § 248(b)(10). The PUC found that the
adverse financial impact of this project was “undue” because it would displace cheaper existing
renewable energy and provide no comparative benefit to utilities or ratepayers. Contrary to
applicant’s argument, the PUC’s interpretation does not mean that any adverse economic impact
to utilities or customers is always undue. Rather, the PUC determined that in this case the project’s
expected effect of increasing costs was excessive within the context of the existing generation and
transmission system and the SHEI constraints. We understand the PUC to mean that a proposed
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project could have some adverse economic impacts yet still satisfy (b)(10) if it provided a
comparative benefit to utilities and ratepayers, such as replacing energy derived from polluting
sources with clean renewable energy or increasing the reliability of the electrical system. Here,
the adverse impacts were excessive because they would add to an overburdened system, increase
costs to ratepayers, and offer no relative benefits such as providing cleaner or more reliable
generation. The PUC’s application of (b)(10) in this case is reasonable and supported by the
evidence and we therefore decline to disturb it.5
¶ 29. Applicant also argues that the PUC should have considered the imprudent business
decisions made by the utilities that allegedly created the curtailment situation in the SHEI. We
disagree. Section 248 requires the PUC to analyze whether applicant’s proposed project will
promote the good of the State, taking the facts as they currently exist. The historical reasons for
the curtailment situation in the SHEI are outside the scope of this proceeding.6
IV. Whether the PUC Misinterpreted § 248(b)(7)
¶ 30. Next, applicant argues that the PUC’s interpretation of § 248(b)(7) in this case
conflicts with past agency interpretations of the statute. It argues that the PUC has never
5
Applicant argues that VEC’s estimate of $250,000 in additional costs to ratepayers over
the life of the project was unreasonably high because it was based on an overly conservative test
year and contained many flaws. The PUC acted within its discretion in finding VEC’s estimate to
be credible. Similarly, the PUC was not required to credit applicant’s testimony that allowing a
new project to generate, even if it results in curtailment of existing generation, is likely a more
economical solution than spending millions of dollars to eliminate curtailment entirely. See UPC
Vt. Wind, 2009 VT 19, ¶ 21 (“It is for the [PUC], not this Court, to weigh the evidence and assess
the credibility of witnesses.”).
6
The case cited by applicant in support of this argument is inapposite. In re Vermont Gas
Systems, Inc. was an appeal from a ratemaking proceeding in which the utility sought to change
its rate structure. We remanded for the PUC to engage in additional factfinding regarding the
applicant’s imprudently incurred costs, which would affect the rates paid by the utility’s customers.
2018 VT 44, ¶ 25, __ Vt. __, 187 A.3d 1138. In this CPG proceeding, by contrast, the past business
decisions of the potentially impacted utilities are not at issue. Analysis under § 248(b)(10) begins
with the Vermont utility infrastructure as it currently exists.
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previously denied a 500-kW net-metering project in VEC’s service territory based on
incompatibility with the Comprehensive Energy Plan, even though the SHEI curtailment area has
existed for at least seven years. Applicant argues that every previous project installed in the SHEI
has exacerbated the curtailment problem and resulted in displacement of other renewable energy
resources, and that its project just happened to be at the head of the line when ISO New England
amended its rules to apply curtailment to large renewable projects. Thus, applicant contends, the
PUC’s decision is erroneous because the PUC is treating similar projects differently. See Cady
Hill, 2018 VT 3, ¶ 21 (explaining that we will find error when agency applies its regulations
inconsistently).
¶ 31. Applicant has not identified any previous PUC decisions to support this
contention.7 Applicant therefore has failed to meet its burden of showing that the PUC has
inconsistently applied § 248(b)(7). See UPC Vt. Wind, 2009 VT 19, ¶ 2 (explaining that appellant
bears burden of demonstrating that PUC made erroneous findings or conclusions). Furthermore,
an agency may depart from precedent if it provides a nonarbitrary reason for doing so. In re Apple
Hill Solar, LLC, 2019 VT 64, ¶ 25, __ Vt. __, __ A.3d __. Here, the record shows that ISO New
England’s amendment of the Do-Not-Exceed dispatch rule in 2016 caused significant financial
impacts on utilities and their customers. Projects proposed after the rule amendment therefore
would have effects on curtailment and energy pricing that previous projects did not have. The
PUC could consider these changed circumstances in assessing whether new applications complied
with the Comprehensive Energy Plan. Compare id. (holding that PUC did not violate doctrine of
precedent by deciding that town plan did not constitute a clear, written community standard despite
reaching opposite conclusion in earlier proceeding because PUC could consider town’s recent
7
Applicant’s sole citation in support of this argument is to a motion filed by VEC in
another case withdrawing its objection to a proposed 135-kW solar project in the SHEI. This is
not a PUC decision and does not demonstrate that the PUC is treating similar projects differently.
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application of plan), with Cady Hill, 2018 VT 3, ¶ 22 (reversing PUC’s dismissal of application
for failure to comply with completeness rules where PUC had treated previous nearly identical
applications as complete).
V. Whether the PUC Engaged in Improper Burden Shifting
¶ 32. Finally, applicant argues that it provided credible evidence to satisfy each of the
§ 248 criteria and that the other parties failed to rebut that evidence with evidence of their own.
Thus, it argues, the PUC should have approved its petition. Applicant concedes that it retained the
ultimate burden of proof on all criteria, but nonetheless contends that the PUC’s denial of its
petition amounted to improper burden shifting because it required applicant to present additional
evidence to rebut the other parties’ evidence and thus prove a negative, i.e., that the § 248(b)
criteria were not unsatisfied.
¶ 33. We find no error. The record shows that the other parties presented evidence to
support their position that the project would not advance the goals of the Comprehensive Energy
Plan and would cause undue adverse impacts on Vermont utilities and ratepayers. Applicant
essentially is arguing that the PUC should have accepted its version of the facts instead. The PUC
acted within its discretion in weighing the evidence, assessing the credibility of the witnesses, and
determining that applicant had not met its burden of positive persuasion that criteria (b)(7) and
(10) were satisfied based on all the evidence of record. See UPC Vt. Wind, 2009 VT 19, ¶ 21 (“It
is for the [PUC], not this Court, to weigh the evidence and assess the credibility of witnesses.”).
Affirmed.
FOR THE COURT:
Associate Justice
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