SWANTON – Swanton Wind’s developers are not getting the project’s $100,000 Public Utility Commission (PUC) filing fee back, nor are participants in the PUC’s review process getting their legal expenditures returned. But if Swanton Wind’s developers file a new application in the future, those participants may again argue they’re eligible for compensation.
That was the order the PUC issued Thursday.
Swanton Wind filed to dismiss its application, without prejudice, on Nov. 27, including a request for the return of its $100,000 filing fee.
In the following weeks, the central participants in the PUC’s review process filed responses, all in opposition to Swanton Wind’s request.
All asserted that legal fees those participants expended in the course of the review processshould be reimbursed.
Most, including the Vermont Department of Public Service, Northwest Regional Planning Commission and the Towns of Fairfield and Swanton, said that was fair because Swanton Wind’s developers had knowingly filed an incomplete application, an assertion Swanton Wind responded was not factually supported.
The PUC stated in its order that “a number of the commenting parties contend that the dismissal should be with prejudice, in large part because they do not believe that the filing was made in good faith given its alleged deficiencies… “While we ultimately concluded in this matter that there were shortcomings in Swanton Wind’s case in the form it was filed, for us to determine that the initial filing was made in bad faith would require us to assume that Swanton Wind knew its filing could not be approved as filed, and based on the comments of some of the nonpetitioning parties, that it could never be approved. Such a conclusion would be at odds with the significant resources expended by Swanton Wind in this matter and we decline to reach that conclusion based simply on the allegations made by some parties.”
For that same reason, the PUC stated in its order that it could not reimburse participating parties’ legal fees.
The above-cited participants asserted the case justifies a departure from the “American Rule,” a legal principle that attorney fees are not reimbursed without statutory authority or an enforceable contractual agreement. The PUC acknowledged departing from the American Rule before, “such as when a discovery sanction is warranted, or when it is appropriate to offset the additional litigation costs incurred by one party in responding to another party’s untimely or inefficient actions in presenting its case,” but also said “all parties to Commission proceedings must participate with the expectation that they will bear their own expenses… “Again, as in our reasoning above related to whether to dismiss this case either with or without prejudice, we are unable to determine that Swanton Wind filed its case in bad faith and without a belief that the project could ever be approved.”
The PUC compared the case to that of Vermont Gas Systems, a case in which the PUC also allowed dismissal without prejudice despite allegations that Vermont Gas acted in bad faith.In that case, the PUC conditioned that dismissal on allowing participants to file motions for reimbursement if Vermont Gas filed again. The commission chose the same action in the case of Swanton Wind.
“We will consider such requests in the future if Swanton Wind decides to file a new or amended petition for this project or a similar project in the same general location,” the commission stated in its order.
The PUC did order Swanton Wind to pay approximately $2,000 in overdue fees to the Department of Public Service, per the department’s request.
The commission said it has no statutory authority to refund the project’s $100,000 filing fee, which is directly paid to the Vermont Agency of Natural Resources, “nor did Swanton Wind point us to any such authority.”
The commission ordered Swanton Wind to pay its outstanding Department of Public Service fees within 30 days.
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