In re Investigation Pursuant To 30 V.S.A. §§ 30 & 209 into whether the Petitioner Initiated Site Preparation at Apple Hill in Bennington

• Decision Date: 03 December 2021
• Docket Number: 2021-085
• Citation: 2021 VT 92
• Court: Vermont Supreme Court
• Parties: In re Investigation Pursuant to 30 V.S.A. §§ 30 and 209 into whether the Petitioner Initiated Site Preparation at Apple Hill in Bennington, Vermont (Allco Renewable Energy Limited et al., Appellant)

2021 VT 92

In re Investigation Pursuant to 30 V.S.A. §§ 30 and 209 into whether the Petitioner Initiated Site Preparation at Apple Hill in Bennington, Vermont (Allco Renewable Energy Limited et al., Appellant)

No. 2021-085

Supreme Court of Vermont

December 3, 2021

On Appeal from Public Utility Commission November Term, 2021 Anthony Z. Roisman, Chair, J.

Thomas Melone of Allco Renewable Energy Limited, New Haven, Connecticut, Appellant.

Thomas J. Donovan, Jr., Attorney General, and Justin Kolber, Assistant Attorney General, Montpelier, for Appellee Agency of Natural Resources.

Sarah L. J. Aceves, Special Counsel, Montpelier, for Appellee Department of Public Service.

PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Grearson, Supr. J. (Ret.) Specially Assigned

EATON, J.

¶ 1. Allco Renewable Energy Limited appeals from a Public Utility Commission (PUC) order, which found that Allco had begun "site preparation for . . . an electric generation facility" without first obtaining a certificate of public good (CPG) in violation of 30 V.S.A. § 248(a)(2)(A). The PUC enjoined Allco from any further site preparation unless certain criteria were satisfied and explained that, following another hearing, it would determine a civil penalty for Allco's violation under 30 V.S.A. § 30(a). On appeal, Allco challenges the PUC's injunction order. Because there is not yet a final appealable order, we dismiss this appeal for lack of jurisdiction.

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¶ 2. Allco has long sought to construct two 2.0 MW solar electric-generation facilities on a twenty-seven-acre parcel on Apple Hill in Bennington, Vermont. It obtained two standard-offer contracts for its proposed facilities in 2013 and 2014. The PUC has since extended the development-milestone deadlines in these contracts multiple times. Because of ongoing litigation, it remains unclear if Allco will obtain CPGs for its proposed facilities, now called "Apple Hill" and "Willow Road" (formerly "Chelsea Solar"). Most recently, in June 2019, the PUC denied a CPG for the Willow Road facility and in May 2020, it denied a CPG for the Apple Hill facility. Allco appealed both decisions.^[1]

¶ 3. In June 2020, an individual filed public comments with the PUC alleging that site- clearing was occurring on the twenty-seven-acre Apple Hill parcel and that areas set aside for rare, threatened, and endangered species were being disturbed. The Agency of Natural Resources (ANR) filed comments confirming that site clearing activity was occurring and expressing concern about site preparation without a CPG and without any assessment of the possible undue adverse effects on the environment. ANR sought a cease-and-desist order to prevent irreparable harm to the "very rare" and "rare" plants at the site. The Department of Public Service commented that, based on ANR's observations, further investigation appeared warranted into whether Allco violated 30 V.S.A. § 248(a)(2), which prohibits companies from beginning site preparation for an electric-generation facility without a CPG.

¶ 4. The PUC then opened an investigation into whether Allco initiated site preparation at Apple Hill for electric generation in violation of 30 V.S.A. § 248(a)(2)(A), citing 30 V.S.A. § 30 (allowing for imposition of penalty for violation of law); id. § 203 (describing PUC's jurisdiction

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over various entities); id. § 209(a)(6) (providing that PUC has jurisdiction "to restrain any company subject to supervision under this chapter from violations of law"). In late June 2020, the PUC held an evidentiary hearing and issued a temporary restraining order (TRO) prohibiting Allco and its related entities, affiliates, subsidiaries, and contractors, from engaging in any further tree-clearing activity on Apple Hill.

¶ 5. Allco then moved to vacate the preliminary-injunction hearing and to dissolve the TRO, and the PUC denied its requests. The PUC rejected Allco's assertion that it lacked jurisdiction over Allco and its related entities or that it lacked authority to grant injunctive relief. Allco filed a notice of appeal from this decision, which we dismissed for lack of jurisdiction. See In re Investigation Pursuant to 30 V.S.A. §§ 30 and 209 into Whether the Petitioner Initiated Site Preparation at Apple Hill in Bennington, VT (Allco Renewable Energy Ltd. et al.), No. 2020-242 (Vt. Nov. 5, 2020), https://www.vermontjudiciary.org/sites/default/files/documents/eo20-242.pdf [https://perma.cc/Z46F-ZNMZ].

¶ 6. In April 2021, following a second evidentiary hearing, the PUC found that Allco was engaged in site preparation without a CPG in violation of 30 V.S.A. § 248(a)(2)(A) and that an injunction remained necessary to prohibit this unlawful conduct. The PUC ordered the injunction to remain in place until one of the following occurred: (1) Allco received a CPG for constructing an electric-generation facility on the site; or (2) final orders from the Vermont Supreme Court or the PUC denied both CPG petitions in Docket 8454 and Case No. 17-5024-PET, any appeal periods or time limits for moving for reconsideration had expired, and both of Allco's standard-offer contracts had expired or been voluntarily relinquished. In other words, the injunction would remain in place until the PUC knew whether Allco would or would not have permission to build solar facilities on the site.

¶ 7. The PUC explained that its findings established a factual basis for issuing a civil penalty for Allco's violation of § 248(a)(2)(A) and that additional proceedings were required to

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document the factual basis for the penalty amount using the criteria set forth in 30 V.S.A. § 30(c)(1)-(8). It directed Allco to propose a schedule for the penalty phase of the proceeding after conferring with the other parties.

¶ 8. Allco instead filed a notice of appeal. It then moved to stay the penalty phase of the proceedings, asserting that the PUC had been divested of jurisdiction on all matters within the scope of its appeal. The PUC rejected Allco's argument in a June 2021 order. It explained that it was divested of jurisdiction only when a party filed a proper notice of appeal from a final judgment. It found that Allco's notice of appeal was prematurely filed as the proceedings before the PUC had not yet concluded; it still needed to determine the civil penalty. See Appliance Acceptance Co. v. Raymond, 121 Vt. 153, 155, 151 A.2d 316, 318 (1959) (explaining that to be final, appealable order, "[t]he judgment rendered must conclude the litigation in the court below to the extent that if no exceptions were taken, the controversy would end and the case would pass out of court"). The PUC nonetheless deferred a ruling on Allco's stay request until this Court decided whether to accept Allco's appeal. The PUC further found that, assuming arguendo that the appeal was appropriately filed, there...