SWANTON – Swanton Wind’s developers are getting a partial refund of their $100,000 regulatory application fee, and they won’t have to pay other parties’ attorney fees should they decide to renew the project.
That’s according to a Vermont Supreme Court ruling issued Dec. 21.
Attorneys Leslie A. Cadwell and Alison Milbury Stone filed an appeal to the Supreme Court after the project’s developers, Swanton residents Travis and Ashley Belisle, withdrew the project’s regulatory application in Nov. 2017.
At the same time, Cadwell asked the Public Utility Commission (PUC), which regulates Vermont energy projects, to order the Vermont Agency of Natural Resources (ANR) to refund the Belisles’ $100,000 application fee. Upon filing a project application with the PUC, applicants pay that fee not to the PUC, but to the ANR.
The fee’s stated purpose, per Vermont statute Title 30, Section 248b, is to support the ANR in reviewing applications. The money goes directly to the Natural Resources Management Fund.
In response to Cadwell’s request, the PUC stated it did not have statutory authority to order the ANR to refund the Belisles’ application fee.
The PUC also responded to motions filed by the multiple parties in opposition to the project, asking to be reimbursed for their legal fees.
“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 PUC stated.
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Stone and Cadwell appealed the PUC’s decisions to the Vermont Supreme Court, as well as a prior PUC determination that Swanton Wind had to complete a system impact study before its application could move forward. The PUC regularly approved projects before the completion of those studies, but stated Swanton Wind’s case was an exception because of concerns over the reportedly congested grid with which the project would interconnect. System impact studies are just as they sound: studies of how a proposed energy project could affect the electrical system to which it would connect. The V e r m o n t Supreme Court refused to rule on that point, claiming the court lacks jurisdiction to “review an unappealed determination the [PUC] made prior to voluntary dismissal without prejudice.”
But the court did tackle whether the PUC has the statutory authority to order ANR to refund its application fee.
Title 30, Section 248b – the statute concerning ANR’s application fee – says nothing about a refunding mechanism. It doesn’t even say anything about the PUC.
The ANR argued, as the Supreme Court put it, that the PUC couldn’t order it to refund its application fee “because the fee is paid into a specified fund and allocated to the Agency.” The Supreme Court disagreed.
Title 30, Section 9 grants the PUC “the powers of a court of record in the determination and adjudication of all matters over which it is given jurisdiction… [to] render judgments, make orders and decrees and enforce the same by any suitable process issuable by courts in this State.”
“The statutory grant of power in [Section] 9 does include the authority to order the Agency of Natural Resources, as a party [to the PUC regulatory process], to refund some or all of the [Section] 248b fee,” the Supreme Court concluded.
The question, then, is how much of the application fee ANR should refund. The Supreme Court left that up to the PUC to decide, based on “an account of [the ANR’s] activities” in the PUC process, and “evidence of the reasonable cost of those activities.”
The Supreme Court wrote that after reviewing that evidence, the PUC “may then exercise its discretion to order a refund of that portion of the [Section] 248b fee, if any, which the Agency cannot reasonable justify retaining.”
Lastly, the issue of attorney’s fees. The Supreme Court wrote that while “federal courts have found that it is permissible to award attorney’s fees as a condition of voluntary dismissal without prejudice… we have not yet decided that question.”
Nor did the court do so here. Instead, the Supreme Court simply ruled that the PUC’s order, opening the possibility of future attorney fee compensation should the Belislesre-submit their application, “does not alter or expand the [PUC]’s authority to award attorney’s fees in a subsequent proceeding, even assuming the [PUC] had the power to do so.
“It is therefore not a condition and effects no purpose. For the sake of clarity, we strike the order regarding attorney’s fees.”
The Belisles withdrew the Swanton Windapplication months after the PUC declared its review postponed, pending the completion of that system impact study. Project spokesperson Nick Charyk said proposed federal tax changes and an unpredictable permitting process caused the Belisles’ withdrawal.
“Here in Vermont,” Charyk wrote then, “the project currently faces a hostile environment from an administration opposed to wind energy, regulators and monopoly utilities who import a majority of Vermont’s power while opposing many independent local power projects.”
The proposed project would consist of up to seven turbines as tall as 499 feet, generating a total of up to 20 megawatts of power. The Belisles planned to construct the project on their land atop Rocky Ridge, overlooking Vermont Route 7, straddling the St. Albans Town-Swanton border and close to Fairfield as well.
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