In re Green Mountain Power Corp., Nos. 11–277

Docket Nº11–367.
Citation2012 VT 89, 60 A.3d 654
Case DateOctober 19, 2012
CourtUnited States State Supreme Court of Vermont

60 A.3d 654
2012 VT 89

In re Joint Petition of GREEN MOUNTAIN POWER CORPORATION, Vermont Electric Cooperative, Inc., Vermont Electric Power Company, Inc., et al.

Nos. 11–277, 11–366, 11–367.

Supreme Court of Vermont.

Oct. 19, 2012.


[60 A.3d 656]


Brice Simon of Breton & Simon, PLC, Stowe, for Appellant Lowell Mountains Group, Inc.

Jared M. Margolis, Jericho, for Appellants Towns of Albany and Craftsbury.


William H. Sorrell, Attorney General, and Gavin J. Boyles, Assistant Attorney

[60 A.3d 657]

General, Montpelier, for Appellee Agency of Natural Resources.

Peter H. Zamore and Charlotte B. Ancel of Sheehey Furlong & Behm P.C., Burlington, for Appellees Green Mountain Power Corporation, Vermont Electric Cooperative, Inc., Vermont Electric Power Company, Inc. and Vermont Transco LLC.


Present: REIBER, C.J., DOOLEY and SKOGLUND, JJ., and EATON and ZONAY, Supr.
JJ., Specially Assigned.

REIBER, C.J.

¶ 1. In these appeals, the Lowell Mountains Group, Inc. (LMG) and the Towns of Albany and Craftsbury challenge several Public Service Board orders related to the construction of a wind-electric-generation facility and associated facilities on Lowell Mountain in Lowell, Vermont.1 We affirm the Board's orders.

¶ 2. The record indicates the following. In May 2010, petitioners Green Mountain Power Corporation (GMP), Vermont Electric Cooperative, Inc. (VEC), and Vermont Electric Power Company, Inc. and Vermont Transco LLC (VELCO) 2 requested a certificate of public good (CPG) under 30 V.S.A. § 248 to construct a wind-electric-generation facility on Lowell Mountain. The proposed project consisted of up to twenty-one wind turbines and associated transmission and interconnection facilities. The turbines, each of which is expected to be over 400 feet tall, are to be sited along the Lowell Mountain ridgeline.

¶ 3. On May 31, 2011, following four rounds of prefiled testimony, several site visits, a public hearing, and nine days of technical hearings involving over forty expert and lay witnesses, the Board issued a 179–page final order granting a CPG subject to forty-five conditions. Generally speaking, the Board found that the project, consistent with the expressed intent of the Legislature, would help meet the region's need for renewable energy, provide an economic benefit to the state in the form of jobs and tax revenues, and provide GMP and VEC with a long-term source of stably priced power. The Board explained that it had approved the project based on these economic benefits and because the addition of a renewable source of power in the region was consistent with the state's legislated policy goals.

¶ 4. In reaching its decision, the Board recognized that the project could have significant impacts. It noted that GMP had entered into a Memorandum of Understanding (MOU) with the Vermont Agency of Natural Resources (ANR) to mitigate impacts with respect to habitat fragmentation, necessary wildlife habitat, and state-significant natural communities. The Board expressly conditioned its approval of the project on GMP's compliance with the MOU, which, among other things, required GMP to secure conservation easements on four identified parcels of land adjoining the project area. With respect to noise, the Board required GMP to meet specific standards to ensure that any noise remained at levels consistent with the World Health Organization (WHO) and Environmental Protection Agency guidelines.

[60 A.3d 658]

¶ 5. For these and numerous other reasons set forth in detail in the Board's order, the Board found that, as conditioned, the project's benefits outweighed any adverse impacts and its construction and operation would promote the general good. Accordingly, it issued a CPG. Appellants and several other parties moved for reconsideration. On July 12, 2011, the Board modified its final order in certain respects, including granting GMP's request to extend the deadline for obtaining conservation easements. In Docket Number 2011–277, the Towns and LMG appeal the final order with modifications.

¶ 6. Shortly after filing their initial appeal, the Towns and LMG moved to stay and clarify the final order. The Board denied those motions on September 6, 2011. Prior to the issuance of this order, the Towns filed a motion to revoke the CPG, and LMG filed a motion for reconsideration. The Towns asserted that the project was no longer viable because GMP had failed to commence construction by the August 1 deadline set forth in the Board's final order, thereby jeopardizing federal tax credits that the Board had found enhanced the economic viability of the project. These motions were denied on October 3, 2011. The Towns appeal the October 3 order in Docket No. 2011–367.

¶ 7. In response to notice from GMP of unauthorized work performed by the owner of the parcels on which GMP was to obtain easements pursuant to the MOU, the Board issued a compliance order on August 11, 2011. The owner had undertaken earthwork and logging activities on three of the four parcels. 3 The Board's order required GMP to remediate and mitigate the impacts of those activities. Later that month, in response to the August 11 order, GMP filed a report stating that it had completed the required remediation and mitigation with respect to the easement parcels. ANR submitted a letter stating that GMP's remediation and mitigation was adequate to comply with an order ANR had issued pursuant to 10 V.S.A. § 1272 in response to the unauthorized work. For their part, the Towns submitted filings contending that the remediation and mitigation was inadequate and requesting a hearing on the issue. On August 31, 2011, the Board, in a 2–1 decision, concluded that GMP's remediation and mitigation was sufficient. The Board concluded that the Towns had failed to raise a significant issue warranting a technical hearing on the matter. The Towns appeal the August 31, 2011 order in Docket Number 2011–366.

¶ 8. Our review of the Board's decisions is limited. As we have explained:

When the Board evaluates a petition for a CPG under 30 V.S.A. § 248, it is engaging in a legislative, policy-making process. The Board must exercise its discretion to weigh alternatives presented to it, utilizing its particular expertise and informed judgment. We give great deference to the Board's expertise and judgment and accord a strong presumption of validity to the Board's orders. We will affirm the Board's findings unless they are clearly erroneous, and an appellant bears a heavy burden of demonstrating clear error.

In re UPC Vt. Wind, LLC, 2009 VT 19, ¶ 2, 185 Vt. 296, 969 A.2d 144 (quotations and citations omitted). Our deference extends to the whole of the Board's CPG decision, and we reject the Towns' assertion that we should not defer to the Board with respect to certain issues addressed in its decision, such as habitat fragmentation.

[60 A.3d 659]


I. Docket Number 2011–277
A. Noise

¶ 9. We first consider the Towns' challenge to the Board's finding that the proposed project complies with noise standards necessary to protect public health. According to the Towns, the Board's finding is erroneous because GMP's noise modeling shows that the applicable noise standards will not be met.

¶ 10. We begin with the Board's findings regarding noise levels, several of which the Towns claim are clearly erroneous. The Board concluded that the proposed project would not have an undue adverse impact with respect to noise provided that GMP complied with certain conditions, including an absolute noise standard. The Board set the noise standard at 45 dBA (exterior) (Leq) (1 hr) and 30 dBA (interior bedrooms) (Leq) (1 hr).4 It found this standard sufficient to protect human health and avoid sleep disturbance and equivalent to, if not more stringent than, the 2009 WHO Guidelines.

¶ 11. GMP conducted noise modeling on the four models of wind turbines being considered for the proposed project using standards related to the attenuation of sound propagation outdoors as specified by the International Organization for Standardization 9613–2, and as implemented in the Cadna/A acoustical modeling software, an internationally accepted and widely used acoustical model. This modeling showed that the project was expected to meet the noise standard of 45 dBA (exterior) (Leq) (1 hr) at nearby residences, with two of the proposed turbine models requiring a noise-reduced-operation (NRO) mode to meet the standard. The project would also meet the 30 dBA (interior bedrooms) (Leq) (1 hr) standard factoring in attenuation by structures.

¶ 12. The Board explicitly stated that if noise from the operation of the proposed project exceeded the maximum allowable levels, GMP was required to take all remedial steps necessary to bring the sound levels into compliance, including modification or cessation of turbine operation. As part of its order, the Board also directed petitioners to prepare a noise-monitoring plan subject to the parties' review and the Board's approval. This plan was required to be in place from the commencement of construction through the first two years of operations and to include, among other things: (1) a monitoring program to confirm under a variety of seasonal and climactic conditions compliance with the maximum allowable sound levels; (2) a means for ensuring that noise monitoring events were timed to coincide with those time periods when GMP's modeling indicated the likelihood that the NRO mode would be triggered; (3) compilation of monitoring reports that documented every instance when the NRO mode was triggered, with a description of how the NRO mode affected operations; (4) provision of monitoring, at the request of a homeowner, to ensure compliance with the interior noise standard; and (5) a process for complaint resolution for the entire life of the project. Many of these requirements were imposed in response to concerns raised by the Towns.

¶ 13. In reaching its conclusion, the Board considered the Towns' arguments that GMP's noise...

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  • Vt. Transco LLC v. Town of Vernon, No. 2013-243
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 8, 2014
    ...53, 61, 652 A.2d 1004, 1009 (1994). The same principle applies to appeals from administrative agencies. In re Green Mountain Power Corp., 2012 VT 89, ¶ 73 n.7, 192 Vt. 429, 60 A.3d 654. ¶ 17. At no point did taxpayer argue below that the state appraiser was required to use the Iowa Curve me......
  • Capitol Plaza Act 250, 59-5-19 Vtec
    • United States
    • Vermont Superior Court of Vermont
    • May 18, 2020
    ...Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Sep. 13, 2017) (Durkin, J.) (quotations omitted); In re Green Mountain Power Corp., 2012 VT 89, ¶ 50, 192 Vt. 429 (stating that under Rule 569(e), "[t]he trial court enjoys considerable discretion in deciding whether to grant such a motion to ......
  • Vt. Transco LLC v. Town of Vernon, No. 13–243.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 19, 2014
    ...53, 61, 652 A.2d 1004, 1009 (1994). The same principle applies to appeals from administrative agencies. In re Green Mountain Power Corp., 2012 VT 89, ¶ 73 n. 7, 192 Vt. 429, 60 A.3d 654.¶ 17. At no point did taxpayer argue below that the state appraiser was required to use the Iowa Curve me......
  • Vt. Transco LLC v. Town of Vernon, SUPREME COURT DOCKET NO. 2013-243
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 19, 2014
    ...53, 61, 652 A.2d 1004, 1009 (1994). The same principle applies to appeals from administrative agencies. In re Green Mountain Power Corp., 2012 VT 89, ¶ 73 n.7, 192 Vt. 429, 60 A.3d 654. ¶ 17. At no point did taxpayer argue below that the state appraiser was required to use the Iowa Curve me......
  • Request a trial to view additional results
12 cases
  • Vt. Transco LLC v. Town of Vernon, No. 2013-243
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 8, 2014
    ...53, 61, 652 A.2d 1004, 1009 (1994). The same principle applies to appeals from administrative agencies. In re Green Mountain Power Corp., 2012 VT 89, ¶ 73 n.7, 192 Vt. 429, 60 A.3d 654. ¶ 17. At no point did taxpayer argue below that the state appraiser was required to use the Iowa Curve me......
  • Capitol Plaza Act 250, 59-5-19 Vtec
    • United States
    • Vermont Superior Court of Vermont
    • May 18, 2020
    ...Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Sep. 13, 2017) (Durkin, J.) (quotations omitted); In re Green Mountain Power Corp., 2012 VT 89, ¶ 50, 192 Vt. 429 (stating that under Rule 569(e), "[t]he trial court enjoys considerable discretion in deciding whether to grant such a motion to ......
  • Vt. Transco LLC v. Town of Vernon, No. 13–243.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 19, 2014
    ...53, 61, 652 A.2d 1004, 1009 (1994). The same principle applies to appeals from administrative agencies. In re Green Mountain Power Corp., 2012 VT 89, ¶ 73 n. 7, 192 Vt. 429, 60 A.3d 654.¶ 17. At no point did taxpayer argue below that the state appraiser was required to use the Iowa Curve me......
  • Vt. Transco LLC v. Town of Vernon, SUPREME COURT DOCKET NO. 2013-243
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 19, 2014
    ...53, 61, 652 A.2d 1004, 1009 (1994). The same principle applies to appeals from administrative agencies. In re Green Mountain Power Corp., 2012 VT 89, ¶ 73 n.7, 192 Vt. 429, 60 A.3d 654. ¶ 17. At no point did taxpayer argue below that the state appraiser was required to use the Iowa Curve me......
  • Request a trial to view additional results

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