Otter Creek Solar LLC v. Vt. Pub. Util. Comm'n

• Docket Number: 99-1-20 Cncv,169-2-20 Cncv
• Decision Date: 16 November 2021
• Parties: OTTER CREEK SOLAR LLC and PLH LLC, Plaintiffs, v. VERMONT PUBLIC UTILITY COMMISSION and THE STATE OF VERMONT, Defendants. OTTER CREEK SOLAR LLC and PLH LLC, Plaintiffs, v. VERMONT AGENCY OF NATURAL RESOURCES, VERMONT PUBLIC UTILITY COMMISSION, and THE STATE OF VERMONT, Defendants.
• Court: Superior Court of Vermont

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2021 Vt Super 111602

OTTER CREEK SOLAR LLC and PLH LLC, Plaintiffs, v. VERMONT PUBLIC UTILITY COMMISSION and THE STATE OF VERMONT, Defendants.

OTTER CREEK SOLAR LLC and PLH LLC, Plaintiffs, v. VERMONT AGENCY OF NATURAL RESOURCES, VERMONT PUBLIC UTILITY COMMISSION, and THE STATE OF VERMONT, Defendants.

Nos. 99-1-20 Cncv, 169-2-20 Cncv

Superior Court of Vermont, Civil Division, Chittenden Unit

November 16, 2021

DECISION ON MOTIONS TO DISMISS

Samuel Hoar, Jr. Superior Court Judge

In these two cases, consolidated for hearing and this decision Plaintiffs have launched an assault on selected aspects of the regime that governs the permitting of solar projects in Vermont. They aim a broad barrage of constitutional statutory, and administrative law attacks at both discrete provisions of the statutory framework and the Public Utility Commission and Agency of Natural Resources, each of which has a role in interpreting and administering those provisions.^[1]The State has moved to dismiss both cases itself levying a broad barrage of attacks at Plaintiffs' claims. These attacks hit home; each of Plaintiffs' claims fails, some for a number of reasons. Thus, the court grants the motions to dismiss.

BACKGROUND

I. Facts alleged

On a motion to dismiss, the court treats all well-pleaded facts as true. Sutton v. Vermont Reg'l Ctr., 2019 VT 71A, ¶ 20. Ordinarily, this is a simple exercise. Here, however, the court's task is complicated by the prolixity and bombastic nature of Plaintiffs' allegations. For example, the opening allegation of the PUC case boldly asserts:

The planet is on fire and the Public Utility Commission ("PUC") and the State of Vermont act as if it is business as usual, fiddling while the planet burns. Instead of acting to combat such harm, the Defendants have willfully ignored, and continue to willfully ignore, this impending harm.

The second allegation of the ANR case states:

The Defendants need to get out of the way and stop their "business as usual" practice of throwing roadblock after roadblock in the way of people that are simply sick and tired of the Defendants' direct and indirect support of the fossil fuel industry and its allies.

Both complaints are replete with similarly sweeping, inflammatory assertions, in derogation of one of the more fundamental dictates of the Rules of Civil Procedure-the requirement that "[a] pleading which sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim." V.R.C.P. 8(a). Such allegations do little to assist the court in determining whether Plaintiffs have stated cognizable claims for relief.

Reading the complaints as if well-pleaded, and so separating factual wheat from rhetorical chaff, yields the following simple statement of Plaintiffs' claims. In the PUC case, Plaintiffs allege simply that they are LLCs with offices in Shelburne. In the ANR case, they go a bit further, alleging that they are the developer and site owner, respectively, "of the Warner solar project in Bennington, Vermont." In both cases, they make identical assertions as to their corporate missions:

Plaintiffs' corporate mission includes combating climate change, enforcing laws that benefit developers of solar energy, and challenging state policies that impede solar energy development and that support the fossil fuel industry and its allies. Plaintiffs' mission includes fighting the devastating environmental impacts from burning fossil fuels, including without limitation the adverse effects that continued use of fossil-fuel generation will have on endangered species.

With one exception, in neither case do Plaintiffs make concrete allegations of activities they have undertaken in Vermont or any actions taken against them by any state agency. Rather, they take aim at specific statutes and what they characterize as de facto rules. Even in this regard, however, their allegations are vague and conclusory.

In the PUC case, they allege first, "The statutes and PUC's de facto rules challenged herein have substantial adverse impacts on the development of solar electric generation in Vermont and by Plaintiffs. The adverse impacts, in turn, cause harm to the Plaintiffs, the environment, endangered species, and the good of the State of Vermont." PUC Compl. ¶ 4, To support their assertion of standing, they then allege "that the challenged statutes, the challenged PUC de facto rules, and the PUC's disregard of the VAPA cause a direct financial harm to the Plaintiffs because they limit the amount of solar facilities that they can build, and increase the costs of operation and of seeking and obtaining approval to build solar facilities," id. ¶ 7; that "the challenged statues interfere with or impair, or threaten to interfere with or impair, the legal rights or privileges of the Plaintiffs, and raise the costs to Plaintiffs of exercising their rights and trying to use their land to build solar projects and combat climate destruction," id. ¶ 8; "that the challenged statutes and PUC's actions cause a direct harm to the environment by limiting the amount of renewable electricity that can be generated in the State of Vermont, which, in turn, causes harm to the Plaintiffs," id. ¶ 9; and finally, that "Plaintiffs are beneficiaries of rights under the public trust doctrine, . . . [and] are directly impacted by the Defendants' actions," id. ¶ 10. In the ANR case, they parrot these allegations. ANR Compl. ¶¶ 5, 17-20. They also make the one allegation of action with a direct impact on them: "ANR is attempting to enforce its de facto rules in order to require Plaintiffs to alter the proposed [Warner] solar project, increasing the cost of construction and operation, and reducing the revenue it [sic] would receive from the project by forcing a reduction in the number of solar modules." Id. ¶ 17.

II. Statutory Framework

Plaintiffs attack three statutory provisions and what they argue are de facto rules that ANR and the PUC have adopted to implement those provisions. The first two of these provisions are part of the "Certificate of Public Good" ("CPG") process required of any electric generation, storage, or transmission project in Vermont. Broadly speaking, "no company . . . no[r] person . . . may begin site preparation for or construction of an electric generation facility, energy storage facility, or electric transmission facility within the State that is designed for immediate or eventual operation at any voltage . . . unless the Public Utility Commission first finds that the same will promote the general good of the State and issues a certificate to that effect." 30 V.S.A. § 248(a)(2). Before the PUC issues a certificate of public good, it "shall find" that the construction:

will not unduly interfere with the orderly development of the region with due consideration having been given to the recommendations of the municipal and regional planning commissions, the recommendations of the municipal legislative bodies, and the land conservation measures contained in the plan of any affected municipality [and] ...

will not have an undue adverse effect on aesthetics, historic sites, air and water purity, the natural environment, the use of natural resources, and the public health and safety, with due consideration having been given to the criteria specified in 10 V.S.A. §§ 1424a(d) and 6086(a)(1) through (8) and (9)(K), impacts to primary agricultural soils as defined in 10 V.S.A. § 6001, and greenhouse gas impacts.

30 V.S.A. § 248(b)(1), (5).

The third provision at issue here pertains to the "standard-offer program," which was "established . . . as part of an effort to promote development of renewable energy in Vermont." In re Investigation into Programmatic Adjustments to Standard-Offer Program, 2018 VT 52, ¶ 2, 207 Vt. 496 (citing 30 V.S.A. §§ 8001, 8005, 8005a). The standard-offer statute gives the Public Utility Commission "authority to offer power-purchase contracts to new renewable-energy plants if the proposed plants satisfy certain requirements; for example, the plant must be located in Vermont, have a capacity of 2.2 megawatts or less, and comply with other restrictions." In re Programmatic Changes to Standard-Offer Program &Investigation into Establishment of Standard-Offer Prices, 2017 VT 77, ¶ 2, 205 Vt. 358 (citing 30 § 8005a(b)). "Once a plant owner executes a standard-offer contract, the [Commission] guarantees a set price for that plant's energy for the duration of the contract regardless of whether the market price changes." Id. (citing 30 V.S.A. § 8005a(f)(4)). Vermont electric utilities are "then required to purchase the electricity generated by these projects at that price." Investigation into Programmatic Adjustments to Standard-Offer Program, 2018 VT 52, ¶ 2 (citing 30 V.S.A. § 8005a(k)(2)). This program effectively encourages the development of smaller-capacity renewable energy plants by providing long-term contracts with stable pricing.

As used in the standard-offer program statute,

"Plant" means an independent technical facility that generates electricity from renewable energy. A group of facilities, such as wind turbines, shall be considered one plant if the group is part of the same project and uses common equipment and infrastructure such as roads, control facilities, and connections to the electric grid. Common ownership, contiguity in time of construction, and proximity of facilities to each other shall be relevant to determining whether a group of facilities is part of the same project.

30 V.S.A. § 8002(18). This definition provides criteria to determine whether multiple facilities might be considered one "plant" for purposes of determining plant capacity. That, in turn, could affect whether they qualify for the standard-offer program. See In re...