Posted by: Patricia Salkin | August 17, 2017

VT Supreme Court Reverses Issuance of a Certificate of Public Good for Construction of a Net-Metered Solar Array after Town Objects that Board Failed to Consider the Town Plan

In this case, the Town of New Haven appealed the Public Service Board’s issuance of a certificate of public good (CPG) to New Haven GLC Solar, LLC (GLC) to construct a net-metered solar array within the Town. On appeal, the Town asserted that the Board acted arbitrarily and beyond its lawful authority by issuing the CPG without holding a hearing on significant issues raised by the Town, without giving due consideration to the Town’s recommendations or the town plan, and without following its own mandatory regulations regarding interconnection procedures.

The Town’s first contention was that the Board acted arbitrarily and capriciously by denying a hearing when the Town raised significant substantive issues pertaining to the proposed project. Pertinent to this claim, Act 136 required the Board to “seek to simplify the application and review process as appropriate” and permitted the Board to “modify notice and hearing requirements … as it deems appropriate.” Act 136 notwithstanding, the Town argued a hearing was required as it made the requisite “showing that GLC’s application raises a significant issue regarding one or more of the criteria” applicable to net-metering CPG petitions.

In addressing this claim, the court found that the Board erred in not considering the Town’s September 17 comments. The record reflected that no party objected to the Town’s September 17 comments as untimely and the Board directed GLC to respond to the comments, which it did, without suggesting that the comments were untimely. Additionally, the court found the Board should have considered the Town’s September 17 comments because the Town filed the comments within ten days of the date the application was effectively completed. GLC argued, however, that any error on the Board’s part was harmless because the Town has failed to demonstrate that its September 17 comments would have changed the outcome.

Here, GLC’s September 8 filing was an attached FTA from GMP related to system stability and reliability, stating that although the project did not pass Criterion 3 of the FTA, Criterion 3 was no longer relevant. In response, the Town requested a hearing “with full discovery … to determine factually and legally why and how GMP determined that a regulatorily-mandated interconnection standard is irrelevant and its potential impact on system reliability and public safety.” In its decision, however, the Board only summarily concluded that the project would not adversely affect system stability or reliability. Accordingly, the court remanded the case for the Board to consider the Town’s September 17 comments and determine if they raised any significant issues requiring a technical hearing, on whether the FTA screening process is appropriate despite the failure of the project to meet Criterion 3 of that process.

In re New Haven GLC Solar, LLC, 2017 WL 3668583 (VT 5/25/2017)

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