In re Derby GLC Solar, LLC, 19-078

CourtUnited States State Supreme Court of Vermont
Citation221 A.3d 777
Docket NumberNo. 19-078,19-078
Parties IN RE Application of DERBY GLC SOLAR, LLC
Decision Date18 October 2019

221 A.3d 777


No. 19-078

Supreme Court of Vermont.

September Term, 2019
October 18, 2019

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


221 A.3d 779

¶ 1. Applicant Derby GLC Solar, LLC appeals the decision of the Public Utility Commission (PUC) denying its application for a certificate of public good (CPG) for a net-metered solar electric-generation facility. The PUC determined that applicant's proposed project failed to satisfy 30 V.S.A. § 248(b)(7) or (10). Applicant contends that the PUC erred by not weighing the alleged economic benefits of the project against its adverse impacts, improperly considered evidence that should not have been admitted, misinterpreted the language of § 248, and treated applicant's project differently than similarly situated projects. We affirm.

¶ 2. A developer of a new electric-generation facility in Vermont may not begin construction until the PUC determines that the proposed project "will promote the general good of the State and issues a certificate to that effect." 30 V.S.A. § 248(a)(2)(B). To issue a CPG, the PUC must find that the project will meet the eleven criteria set forth in § 248(b), including that the project:

(4) Will result in an economic benefit to the State and its residents.


(7) [I]s in compliance with the electric energy plan approved by the Department under section 202 of this title, or that there exists good cause to permit the proposed action.


(10) [C]an be served economically by existing or planned transmission facilities without undue adverse effect on Vermont utilities or customers.

30 V.S.A. § 248(b). Pursuant to the net-metering statute, 30 V.S.A. § 8010(c)(3), the PUC has conditionally waived these and certain other § 248(b) criteria for net-metering projects. Public Utility Commission, Construction and Operation of Net Metering Systems, § 5.111, Code of Vt. Rules 30 000 5100,

¶ 3. In March 2017, applicant applied for a CPG to construct and operate a 500-kilowatt (kW) group net-metered solar photovoltaic electric-generation facility on a reclaimed portion of a sand and gravel pit in Derby, Vermont. Applicant provided notice to all required entities, including the Department of Public Service, Vermont Electric Cooperative, Inc. (VEC), and Green Mountain Power Corporation (GMP). The project would be located in VEC's service territory and was expected to operate for twenty-five years.

¶ 4. VEC and the Department filed comments raising concerns about the project and requested a hearing. In September 2017, the hearing officer granted the requests for a hearing and rescinded the conditional waivers for

221 A.3d 780

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 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

221 A.3d 781

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 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 resulting...

To continue reading

Request your trial
5 cases
  • McLaren v. Gabel, No. 19-003
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 14, 2020 have sufficient indication here of "what was decided and how the decision was reached." In re Derby GLC Solar, LLC, 2019 VT 77, ¶ 19, 221 A.3d 777 (quotation omitted).8 Although many of the same attributes of a de facto "joint venture" are present, with the property acquisition and renov......
  • In re Acorn Energy Solar 2, LLC, 19-398
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 15, 2021
    ...the general good of the State and issues a certificate to that effect.’ " In re Derby GLC Solar, LLC, 2019 VT 77, ¶ 2, 211 Vt. ––––, 221 A.3d 777 (quoting 30 V.S.A. § 248(a)(2)(B) ); accord In re SolarCity Corp., 2019 VT 23, ¶ 2, 210 Vt. 51, 210 A.3d 1255. "In deciding whether to grant a CP......
  • In re Acorn Energy Solar 2, LLC, 2019-398
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 15, 2021
    ...promote the general good of the State and issues a certificate to that effect.' " In re Derby GLC Solar, LLC, 2019 VT 77, ¶ 2, ___Vt. ___, 221 A.3d 777 (quoting 30 V.S.A. § 248(a)(2)(B)); accord In re SolarCity Corp., 2019 VT 23, ¶ 2, 210 Vt. 51, 210 A.3d 1255. "In deciding whether to grant......
  • In re Portland St. Solar LLC, 21-024
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 3, 2021
    ...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 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT