In Re Amended Petition of UPC Vermont Wind, LLC

2009 VT 19, 969 A.2d 144, 185 Vt. 296, 2009 Vt. LEXIS 15
CourtSupreme Court of Vermont
DecidedFebruary 6, 2009
Docket2007-456
StatusPublished
Cited by29 cases

This text of 2009 VT 19 (In Re Amended Petition of UPC Vermont Wind, LLC) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Amended Petition of UPC Vermont Wind, LLC, 2009 VT 19, 969 A.2d 144, 185 Vt. 296, 2009 Vt. LEXIS 15 (Vt. 2009).

Opinion

Burgess, J.

¶ 1. In this appeal, we consider whether the Vermont Public Service Board erred in issuing a certificate of public good (CPG) to UPC Vermont Wind, LLC, for a wind generation facility in Sheffield, Vermont. Citizen action group Ridge Protectors, Inc. challenges the Board’s evaluation of several statutory factors necessary to the issuance of a CPG. We reject Ridge’s arguments and affirm the Board’s decision.

¶2. Before turning to the merits, we emphasize the limited nature of our review. When the Board evaluates a petition for a CPG under 30 V.S.A. §248, it is engaging in a “legislative, policy-making process.” In re Vt. Elec. Power Co., 2006 VT 69, ¶ 6, 179 Vt. 370, 895 A.2d 226 (quotation omitted). The Board must exercise its discretion “to weigh alternatives presented to it, utilizing its particular expertise and informed judgment.” Id. (quotation omitted). We give “great deference” to the Board’s expertise and judgment and “accord a strong presumption of validity to the Board’s orders.” Id. (quotation omitted). We will affirm the Board’s findings unless they are clearly erroneous, and an appellant bears a heavy burden of demonstrating clear error. Id. (citation omitted); see also In re Citizens Utils. Co., 171 Vt. 447, 450, 769 A.2d 19, 23 (2000) (Supreme Court accepts Board’s findings and conclusions unless appealing party demonstrates that they are clearly erroneous; in reviewing those findings and conclusions, Supreme Court defers to Board’s particular expertise and informed judgment).

*300 ¶ 3. With this standard in mind, we briefly review the underlying proceedings. UPC sought a CPG allowing it to construct a sixteen-turbine, forty-megawatt wind-generation facility in Sheffield. The project would be located high on a ridgeline, with rotors 315 feet in diameter on towers 262 feet high. Each tower would have a sixteen-foot diameter at its base and taper to nine feet in diameter just below the nacelle, which houses the main mechanical components of the turbine. With the blade tip in vertical position, the total height would be approximately 420 feet. The project’s expected annual energy production would meet the energy demand of over 15,000 homes, equivalent to about 45% of households in northeastern Vermont, and UPC proposed to sell the energy it generated to Vermont utility companies.

¶ 4. Following three public hearings and a ten-day evidentiary hearing, the Board issued a lengthy written opinion granting the CPG. In reaching its conclusion, the Board recognized that the project would have some negative impact on aesthetics, among other considerations, but concluded that these impacts would not be unduly adverse. It also found that the project would provide economic benefits to the state and that it would contribute to meeting a need for renewable power. Ultimately, the Board found that UPC’s proposal, with appropriate conditions, satisfied the statutory requirements set forth in 30 V.S.A. § 248, promoted the general good, and thus should receive a CPG. The CPG was subject to a continuing requirement, however, that UPC make a good faith effort to enter into fixed-priced contracts with Vermont utilities, in preference to variable market rate contracts, reflective of its sustainable and no-cost fuel source. The Board ordered UPC to submit such stably priced contracts for its approval prior to commencement of construction, or show cause why this condition should be modified or cancelled. Ridge appealed from the Board’s decision, challenging the Board’s evaluation of several of the specific statutory criteria necessary to the issuance of a CPG. See 30 V.S.A. § 248(b) (identifying findings that Board must make before issuing a CPG).

I. Economic Benefit under 30 V.S.A. § 248(b)(4)

¶ 5. Ridge first contends that the Board failed to find that the project would result in an “economic benefit to the state and its *301 residents” as required by 30 V.S.A. § 248(b)(4). 1 According to Ridge, the Board found that the project would result in an economic benefit only if UPC could successfully negotiate stably priced contracts to sell its power. Ridge challenges this “conditional” approval, arguing that it is inconsistent with 30 V.S.A. § 248(b), ease law, and Board precedent. Ridge maintains that given what it characterizes as the Board’s finding of an insufficient economic benefit under 30 V.S.A. § 248(b), the CPG should have been denied.

¶ 6. Ridge misconstrues the Board’s order, and its claims of error are without merit. The Board repeatedly and expressly found that the project would result in an economic benefit to the state and its residents. As explained by the Board, the project would create new jobs, increase tax revenue, generate substantial lease payments to the owners of the land on which the project was located, and draw on local sources for construction materials. It would also result in significant tax and mitigation payments to the Town of Sheffield, as well as confer a benefit on all ratepayers in New England. Although ultimately directing UPC to attempt even better terms for Vermont utilities in its power sales contracts, the Board noted that at least one power purchase contract would supply UPC power to a major Vermont utility at less than market rates, and that UPC planned for all project output to be sold to Vermont retail electric utilities. The Board specifically concluded that, “although stably priced contracts would be preferable, the Project nevertheless provides sufficient economic benefit to the state to satisfy Section 248 (b)(4).”

¶ 7. Bypassing these particular findings and conclusions, Ridge instead focuses on the Board’s more general discussion of economic benefit and promotion of overall public good. See 30 V.S.A. § 248(a)(2)(B) (Board must find that project “will promote the general good of the state” as prerequisite to CPG authorizing commencement of construction of electric transmission or generation facility). The “general good of the state,” considered under § 248(a)(2)(B), is a broader concern than the call for some, albeit possibly limited, positive impact amounting to “an economic ben *302 efit” required by § 248(b)(4). As the Board explained, while it was able to make positive findings under each of the § 248 criteria, the ultimate question to be resolved was whether the project promoted the general good of the state.

¶ 8. The Department of Public Service argued below that the project would not provide sufficient benefit to the state without stably priced contracts, and that the CPG should therefore be conditioned on UPC securing such contracts. The Board agreed that such contracts were beneficial, but it refused to deny the CPG in the absence of such contracts. Instead, it approved the CPG with the condition that UPC make “all reasonable efforts” to enter into diverse, long term, stably priced contracts with Vermont utilities. The Board indicated that it would reexamine this condition if UPC was unable to obtain such contracts.

¶ 9. The Board plainly found sufficient evidence to warrant positive findings under each of the statutory criteria, and found the evidence sufficient to warrant a CPG.

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Bluebook (online)
2009 VT 19, 969 A.2d 144, 185 Vt. 296, 2009 Vt. LEXIS 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-amended-petition-of-upc-vermont-wind-llc-vt-2009.