Victory for Renewable Energy Developers
Victory for Renewable Energy Developers at VT Supreme Court
In re Petition of Swanton Wind LLC, 2018 VT 141 (2018)
In 2016 wind project developer Swanton Wind LLC submitted an application to the Public Utility Commission (then the Public Service Board) to construct a 20 MW wind project in Swanton. As part of that application process the developer was required to pay the Agency of Natural Resources (“ANR”) a $100,000 fee required by 30 VSA § 248b. (Section 248b requires that these fees must fund Agency activities pursuant to its duties as a party in so-called “Section 248” proceedings, which include preparing to present evidence by reviewing a petition under Section 248.)
Ultimately, in mid-2017, the developer requested to withdraw its petition pursuant to VRCP 41(a)(1) and requested that the State return the $100,000 fee that had been paid to ANR. In a January 3, 2018 order, the PUC denied petitioner’s request to return the § 248b fee, saying it lacked jurisdiction to do so. The developer appealed to the VT Supreme Court.
Today, the Court overturned the PUC’s decision, remanding the matter back to the PUC “so that it may order the Agency to provide an account of its activities in petitioner’s proceeding and evidence of the reasonable cost of those activities.” 2018 VT 141 at ¶ 11. The Court further instructed that “After reviewing the Agency’s evidence, the Commission may then exercise its discretion to order a refund of that portion of the §248b fee, if any, which the Agency cannot reasonably justify retaining.” Id.
This is potentially a big win for developers, whose fees paid to State agencies are supposed to offset costs incurred by those agencies in participating in related proceedings. It will be very interesting to see what proof ANR puts forth.