NEW HAVEN — The Vermont Supreme Court has reversed a key permit for a solar array off Route 7 in New Haven and ordered the state utilities regulator to reconsider the matter.
In a unanimous decision issued last Friday, the court ordered the Public Utilities Commission to consider town comments it had deemed to be filed too late and to hold a technical hearing on an interconnection issue in its reconsideration of the solar power project.
This is the first time the Supreme Court has reversed a Certificate of Public Good on a solar project, according to Cindy Hill, the town attorney for New Haven, which had appealed the case to the Supreme Court.
The Aug. 25 court decision reverses the Certificate of Public Good, or CPG, issued for the Waterbury-based Green Lantern Group’s 500-kilowatt GLC Solar project, an array built on the Russell Farm property west of Route 7 and north of Campground Road. In a 19-page decision written by Chief Justice Paul Reiber, the court demarcates where the Public Utilities Commission (PUC) did and did not correctly follow the rules and regulations that govern its processes.
Hill explained that the main issue the court wanted addressed was for the Public Utilities Commission to follow “its own rules regarding both the interconnection rules and the process rules of notification of appropriate parties.”
At stake is the integrity of the process by which Vermont regulates utilities, said Vermont Law School’s Jared Carter, a specialist in legal activism and environmental law.
“There are rules of the road that have to be followed in order to ensure the integrity of the process,” said Carter. “Without that integrity, I don’t think you can have a good process and make good decisions about siting these projects.”
Sam Carlson, Green Lantern Group director of project development, said his company was surprised and disappointed, but will fully comply with the Supreme Court’s order.
“We look forward to working with the Public Utility Commission, the Department of Public Service and Green Mountain Power to address the issues raised by the Supreme Court,” he said.
THE HIGH COURT SPEAKS
In explaining its reasoning, the high court first reviewed the history of proceedings leading up to New Haven’s appeal. In July 2015, Green Lantern filed for a Certificate of Public Good. The Public Utilities Commission (then the Public Service Board) issued a CPG on March 4, 2016, and New Haven appealed to the Supreme Court. The court heard the case last October. Meanwhile, on July 26, 2016, Green Lantern began building the project, which began generating electricity this past February.
In reversing the CPG, the court upheld some of New Haven’s claims and denied others. Most importantly, the court agreed that the PUC broke its own rules in two instances: rejecting the town’s Sept. 17, 2015, comments and failing to order the more rigorous study required for projects that fail interconnection criteria.
Comments. The PUC said New Haven submitted its comments too late after the GLC Solar application was completed. In its appeal, New Haven maintained that the GLC Solar application wasn’t completed until Oct. 20, 2015. The Supreme Court concurred, noting that on Oct. 2, 2015, the PUC itself directed Green Lantern to respond to the town’s Sept. 17 comments and on Oct. 15, asked for a supplemental document. The court said the application wasn’t effectively completed until Oct. 20, and thus New Haven’s Sept. 17 comments were timely.
The court rejected GLC Solar’s argument that this was a “harmless” error on the PUC’s part, noting that many of the town’s comments that the PUC did consider resulted in changes to the project.
Interconnection issues. In granting GLC Solar a CPG, the PUC acknowledged the project failed certain system stability and reliability requirements that are part of what’s called a “fast track analysis.” The rules stipulate that projects that fail fast track criteria for connecting to the electrical grid must then be subject to further studies. Instead, the PUC deferred to Green Mountain Power’s assertion that the criteria in question was “no longer relevant.”
In doing so the PUC waived its own requirement that applications not meeting all of the screening criteria must be evaluated under a more rigorous process, wrote the court. It ordered the PUC to follow that more rigorous process and hold a technical hearing.
RAMIFICATIONS
The New Haven town attorney considers the Supreme Court’s decision significant for a number of reasons, the most important being due process.
“We’re supposed to have a fair process,” Hill said. “The rule of law is that there’s rules, there’s a process, and we go through them. It may mean that substantively sometimes you win, sometimes you lose but everybody has a level playing field because the process is transparent and fair and evenly applied.”
But PUC processes haven’t always been clear, Hill added.
“The PUC process is renowned for being very confusing for people trying to participate in it,” she said. “So the decision really helps going forward in terms of providing some clarity and guidance to a process that has been quite confusing.”
Hill said the decision is also important in underscoring the responsibilities of state regulatory agencies to fulfill that function, rather than defer to the industry itself, as the PUC did in waiving an interconnection rule solely on Green Mountain Power’s recommendation.
Hill and other attorneys interviewed for this article also said the decision is notable because all of the Supreme Court justices concurred with the opinion.
A previous case provided fewer clear legal guidelines because the high court’s opinions were so splintered, noted Kevin Brown, an attorney with Langrock, Sperry and Wool.
Brown represented the town of Rutland in an April 2016 case opposing a CPG issued on a solar development. The court upheld the CPG, but the vote was divided, 3-2. He said he believes that the Rutland case was a turning point as “the first one where the Supreme Court got a view of how broken the system was.”
Hill agreed that the Supreme Court’s Aug. 25 decision set precedent.
“It’s the kind of case that will wind up being cited by many other people in other cases, whether it’s the Public Utilities Commission or numerous other agencies, because it helps provide guidance as to how agencies are to apply their rules regarding public participation and waivers of their rule,” she said.
WHAT NEXT?
Now that the Supreme Court has remanded the CPG process back to the PUC, what’s the status of the operating solar array?
Green Lantern Group has contacted the Department of Public Service to get clarification on the solar development’s status.
Meanwhile, Carlson said Green Lantern remains puzzled about “what possible harm this project is doing to the town of New Haven.” He stressed the extent to which Green Lantern has taken steps to comply with the town and make it well sited.
“We spent an extra $80,000 to move the project 900 feet from Route 7 so it would be invisible over the berm,” Carlson said. These measure included burying the interconnection lines so there would be no new power poles and using an existing driveway as the access road so there wouldn’t be new major road cuts into Route 7.
“The town of New Haven has already put this solar project onto its grand list and sent us a tax bill ($2,075) for the solar project, which we have paid. So the project is already providing benefits to the town,” Carlson said.
Concerning the interconnection issue, Carlson said that he and others have testified recently before the PUC that the criterion GLC Solar failed is “silly” and that there are hundreds of solar projects operating throughout the state that failed this benchmark.
“At least 50 percent of net-metered solar projects fail Criterion 3. It is largely irrelevant,” Carlson said.
Hill said the heart of the matter is that any such concerns be addressed via the proper channels.
“I think the importance of this decision and one of the cruxes of our argument is that the Public Utilities Commission is supposed to regulate the utility industry; that’s what these rules are about,” she said. “And if it’s time to change the rules because they don’t dovetail nicely with these distributed generation projects then so be it.”
Reporter Gaen Murphree is at [email protected].