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Vermont Supreme Court Affirms Public Service Board’s grant of a CPG to Rutland Renewable Energy

In In re Petition of Rutland Renewable Energy, LLC for Certificate of Public Good Pursuant to 30 V.S.A. §248, et al., 2016 VT 50 (April 29, 2016), the Vermont Supreme Court affirmed the Vermont Public Service Board’s grant of a certificate of public good (CPG) to Rutland Renewable Energy to construct the Cold River Solar Project. Langrock attorney Kevin Brown represented Appellant Town of Rutland.

Issue: RRE filed a petition requesting a CPG to build a solar electric generation facility in Rutland. The proposed project area was an undeveloped open meadow that included some Class II wetland and four Class III wetlands, and was designated as industrial/commercial on the Future Land Use Map. The Board granted the Town and neighbors permissive intervention, but the Board ultimately found that the proposal met the requirements of §248(b) after adding a mitigation measure. The proposal did not, however, comply with the Town of Rutland Solar Facility Siting Standards. The Town appealed the Board’s decision, arguing that the Board failed to give due considerations to the Town’s recommendations and that the solar facility would have an undue adverse impact on aesthetics, historic site, and primary agricultural soils.

Holding: The Court affirmed the Board’s conclusion, finding that there was no credible evidence in the record to show that the project would impact the land to the point that the Town argued it would. Because the Court affirmed the Board’s decision, it did not address the issue of whether the Board gave due consideration to the Town’s recommendation. With regard to the Town’s second argument, the Court found that the Board’s decision to modify the Quechee test was necessary to allow the Board to have the necessary regulatory power, and that under the current legislation, the Board has the final policy decision. The Court also found that the Board considered neighbors’ perspectives and worked to mitigate any impact the project would have on the sensibilities of the average person. The Court ultimately concluded that the Board’s ruling was within its discretion and that there was no fully formed alternative proposal. Finally, the Court held that the project would not have an undue adverse impact on historic sites.

Concurrence: Justice Robinson concurred in the majority’s decision, but did not join the majority in its analysis of whether the Board complied with §248(b)(1) “to the extent that the majority rests its analysis entirely on the lack of evidence concerning the impact of this project on the orderly development of the region.” Justice Robinson addressed the issue of due consideration and what it actually means, finding that the Town has a limited role in the solar siting process. She also addressed the Town’s proposed good faith standard, arguing that the Court is not in a position to evaluate the subjective good faith of members of the Board. She also noted that evaluating the “subjective motivations” of the Board would throw the Court into a policy debate that should be entirely left to the legislature.

Dissent: Chief Justice Reiber dissented, arguing that the Board did not give due consideration to the Town’s recommendations for the project or sufficient regard to the Town’s standards for preserving the project area’s “natural beauty and aesthetics, as required by law.” He felt that the Board’s decision was self-serving and one-sided, and would have remanded the case back to the Board to “afford a more balanced consideration” of the solar project’s impact on the area and to address whether larger setbacks, a smaller project, or a different location would be reasonable mitigation measures.

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