Investigation Into General Order 45 Notice Filed by Cent. Vermont Public Service Corp., In re, 88-008

• Decision Date: 29 January 1988
• Docket Number: No. 88-008,88-008
• Citation: 149 Vt. 285,542 A.2d 288
• Court: Vermont Supreme Court
• Parties: In re INVESTIGATION INTO GENERAL ORDER 45 NOTICE FILED BY CENTRAL VERMONT PUBLIC SERVICE CORPORATION Re: Proposed Power Purchase Agreement with Vicon Recovery Systems, Inc. for Output from a Resource Recovery Electric Generating Facility to be Located in Rutland, Vermont.

Page 288

542 A.2d 288

149 Vt. 285

In re INVESTIGATION INTO GENERAL ORDER 45 NOTICE FILED BY

CENTRAL VERMONT PUBLIC SERVICE CORPORATION Re: Proposed

Power Purchase Agreement with Vicon Recovery Systems, Inc.

for Output from a Resource Recovery Electric Generating

Facility to be Located in Rutland, Vermont.

No. 88-008.

Supreme Court of Vermont.

Jan. 29, 1988.

Alan B. George and Timothy Martin of Carroll, George & Pratt, Rutland, for appellant Vicon.

Miller, Eggleston & Rosenberg, Ltd., Burlington, for appellant Rutland County Solid Waste Dist.

Morris L. Silver and Donald L. Rushford, Rutland, for appellee CVPS.

Thomas J. Kennedy, St. Albans, for appellee VPIRG.

David Dickinson, pro se.

David J. Mullett, Sp. Counsel, Montpelier, for Department of Public Service.

Before ALLEN, C.J., PECK and MAHADY, JJ., and BARNEY, C.J. (Ret.) and SPRINGER, District Judge (Ret.), Specially Assigned.

MAHADY, Justice.

Appellant, Vicon Recovery Systems, Inc. (Vicon), filed a motion under V.R.A.P. 2 for suspension of the appellate rules seeking an expedited adjudication. This motion was filed with Vicon's notice of appeal on January 8, 1988. The schedule proposed by Vicon in its motion contemplated that a decision would be issued by this Court on the merits of the case on January 28, 1988.

Vicon asserted compelling financial reasons for such an expedited adjudication. It thereby alleged sufficient hardship for us to order an expedited hearing on Vicon's motion. At oral argument on the motion, the Rutland County Solid Waste District (District) also asserted similar compelling financial reasons for expedited adjudication.

Based upon these assertions, we ordered appellees to file their briefs on or before January 22, 1988. Although such a time frame hardly provides for adequate briefing, appellees have complied to the best of their abilities.

At oral argument it was represented that a single issue was presented. That issue was whether the Public Utility Regulatory Policies Act of 1978 (PURPA), 16 U.S.C. 824a-3 et seq., effectively preempted the authority of the Public Service Board (Board) with regard to the Purchase Power Agreement (PPA) entered into by Vicon and Central Vermont Public Service Corporation (CVPSC) on December 20, 1984 (or, as amended by stipulation on October 28, 1987).

Given the compelling financial reasons asserted by Vicon and the District, contemplating a single-issue case, we have attempted to comply with Vicon's request for an expedited adjudication.

Upon examining the briefs submitted by the parties, however, it is clear that important multiple issues are presented. These include at least the following:

1) Is the PPA a presently enforceable agreement, or does it contain an as-yet unsatisfied condition precedent?

2) Does the Board have jurisdiction to approve or disapprove the PPA under the Board's General Order 45?

3) If so, is there statutory authority for General Order 45 itself in Title 30, V.S.A.? And,

4) Is PURPA preemptive?

These issues are all complex on their face. They are further complicated by the unique manner in which Vermont has sought through the Board's Rule 4.100 to implement the directives of PURPA, § 210(f)(1). No controlling precedent on the federal issues have been provided by the United States Supreme Court. The challenge to the validity of General Order 45, an important regulatory tool of the Board, is a matter of first impression.

These issues are all of substance, and our determination with regard to them can be expected to have profound and lasting implications for the people of this state. A court which is final must be a court which is careful.

To be candid, it may be possible for a single justice of this Court to write a credible opinion within the requested deadline. However, an opinion of this Court is precisely that--an opinion of the Court. In some instances, it is of course appropriate under the statutes and the rules for a single justice of this Court to rule upon a motion. Otherwise, we eschew the practice of "single justice" decisions. The decisions of this Court represent the collegial opinion of all of the justices who join in the majority. Under the circumstances presented by Vicon's motion, it is simply not possible for all members of this Court to provide the thoughtful and scholarly...