Swanton Wind battles continue: All sides seek reimbursement of costs 

Swanton Wind filed notice that project developers were voluntarily dismissing the project’s application on Nov. 27, after months of single, one-sentence updates on a system impact study the commission ordered in June. The commission wrote that the area of Vermont with which Swanton Wind would interconnect is known for electric transmission congestion, and said that Swanton Wind needed to complete a study determining exactly what effect its interconnection would have on the area’s utilities and customers.

Without the study, the PUC wrote, Swanton Wind’s application was incomplete.

Swanton Wind filed a response asserting the commission’s order was unfair, that many similar projects had received Certificates of Public Good, the ideal end product of the PUC process, before competing such a study. The PUC wrote that the project had “unique circumstances” requiring early completion of the study.

It was “in light of the Commission’s incompleteness determination,” project attorney Leslie Cadwell wrote, that Swanton Wind’s Nov. 27 dismissal filing included a sentence “respectfully [requesting] a return of the $100,000 filing fee” project developers paid upon filing the project’s application on Sept. 9, 2016.

The notice cited Vermont statutes contained under Title 30, Section 248b. That statute concerns fees associated with filing a Certificate of Public Good application with the PUC, but does not contain an explicit description of any refund procedure.

The case’s pro se intervenors, represented by St. Albans attorney Paula Kane, filed a response to Swanton Wind’s dismissal notice on Dec. 11. Those intervenors, mainly residents of Fairfield, Swanton and St. Albans Town, objected to the idea of Swanton Wind’s developers getting their filing fee back.

“A filing fee by a plaintiff is a prerequisite in any court action in Vermont as well as by a petitioner in a PUC application for a certificate of public good,” Kane wrote in the pro se intervenors’ response. “The fee is required to commence the action, regardless of the ultimate outcome of the case… While the PUC is not a court, the situation is analogous,” though Kane noted “the amount of a filing fee for an application for a new electric facility greater than 5 [megawatts] in plant capacity is considerably more than the filing fee for an ordinary civil suit in Vermont court.”

Kane also wrote that the above-cited statute clarifies that “the purpose of the fee is to… support the role of the Agency of Natural Resources in reviewing applications for such in-state facilities,” and that “the check or money order is actually paid to the Vermont Agency of Natural Resources, not the PUC.”

While Swanton Wind did not officially file its PUC application until Sept. 2016, Kane wrote, “it had stated an intent to file a full year earlier and the Agency of Natural Resource had already spent time and resources on the project by meeting with the applicant’s lawyer and experts, doing a site visit, meeting with the landowner, engaging in discovery and participating in the litigation, even if the Section 248 review had not been completed.”

And more parties than just the Agency of Natural Resources had already expended significant financial resources, Kane wrote. She mentioned the PUC, the state’s Department of Public Service, the Towns of Swanton, Fairfield and St. Albans and the Northwest Regional Planning Commission (NRPC).

“No one is going to get their money back,” Kane wrote, “and it would be manifestly unjust for Swanton Wind to get its filing fee back under circumstances where its application necessitated so much expenditure of time and money by everyone, even if the application ultimately ended up being withdrawn.”

Swanton Wind’s developers did not “[change] their mind about going forward a day or two after filing,” she wrote, and the filing fee “acts to deter frivolous filings and to insure that anyone proposing projects of this magnitude file complete applications.”

The Vermont Agency of Natural Resources, represented by attorney Leslie Welts, wrote in its response to Swanton Wind’s filing that the agency already deposited the project’s filing fee into the Natural Resource Management Fund, and asserted the project’s team “has pointed to no authority enabling the Commission to access or direct the Agency’s use of the money.”

Joseph McLean, representing the NRPC, wrote “that any dismissal be conditioned on Swanton Wind equitably reimbursing reasonable intervenor costs and fees” due to the project’s “unreasonable and highly inefficient” progression.

“Swanton Wind set up a situation that forced other parties, including the NRPC, to incur litigation costs and fees that they should not have been required to incur,” McLean wrote. “And, in the case of the NRPC, the costs incurred were public costs and the interests it sought to protect were public interests.”

Ed Adrian, representing the Towns of Swanton and Fairfield, agreed. “Justice not only requires, but demands that the Board award attorney’s fees, in addition to any other litigation expenses and costs incurred by the Towns,” Adrian wrote, “… not only to right a wrong in respect to the instance case, but to send a message to similarly situated petitioners that massive, ill-formulated power generating facilities, should not be proposed, in a gold rush scenario, utilizing the thin veneer of ‘clean energy’ to advance less than complete filings.”

Even the Department of Public Service wrote, in its response, that “this case, in which the Petitioner has completely failed to address system constraints of which it knew or should have known prior to filing its petition, is an appropriate one for the Commission to exercise its discretion to allow” reimbursal of opponents’ attorney fees and related costs.

Cadwell responded to these assertions on Swanton Wind’s behalf in a Dec. 20 filing. She wrote there is no legal basis for the above parties’ proposed conditions, and that Vermont law requires evidence that Swanton Wind “acted in bad faith” during the PUC process for the commission to allow those conditions.

Cadwell cited a PUC decision filed March 2, in which the commission denied a motion to dismiss Swanton Wind’s application due to incompleteness, and wrote that “the Commission commenced proceedings without first exercising its authority to review the petition for completeness, thereby requiring Swanton Wind and the parties in this case to expend resources that could have been spared had the Commission acted earlier.”

The fact that Swanton Wind’s application did not include a completed system impact study “existed on the day the petition was filed,” Cadwell wrote. “The only change in circumstances between the time the petition was filed and the Commission’s incompleteness determination was the appointment of a new Commission Chair.”

Cadwell also wrote that there is no factual or legal basis supporting claims that Swanton Wind’s developers knew the project’s PUC application was deficient at the time it was filed. Developers Travis and Ashley Belisle said at the time of the project’s filing in Sept. 2016 that the delay in the filing, despite a year’s notice of their intent to do so, was so that they could ensure the application was as complete as possible.

The PUC has not issued a decision as of press time.