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| Panels and Intervention? |
By Andrew Delaney
What’s this case about? In a broad sense, it’s about whether a certificate-of-public-good (CPG) proceeding is the right place for a third party to allege federal non-compliance. Turns out, it’s not. Let’s take a look at what’s going on.
Allco Renewable Energy Ltd. (Allco) is developing a bunch of solar farms in Vermont. Allco approached Green Mountain Power Corp. (GMP) and tried to sell GMP some electricity. GMP declined. Then GMPSolar-Richmond, LLC (GMPSR) (owned by GMP and an investor) applied for a CPG for its own solar facility. Allco didn’t like that and moved to intervene in the CPG proceeding.
To make a long story short, Allco essentially argued that if GMP had purchased its power, then GMP didn’t need to make its own facility. Allco argued that federal law (the Public Utilities Regulatory Policies Act (PURPA)) required GMP to buy Allco’s power and that GMP was in violation by seeking to generate its own solar. Sure, it’s probably a bit more nuanced than that, but I like simple. Allco wanted to get in there and argue that its power was the more-appropriate purchase here.
The hearing officer denied the request to intervene because Allco failed to demonstrate a substantial interest that might be adversely affected by the proceeding’s outcome. In other words, the CPG process is concerned with compliance with Vermont statutory provisions, not federal law or competitive effects of a proposed solar-generation project.
Allco moved for reconsideration, and threw down some more arguments, including that no project could promote the general good unless the Public Service Board (PSB) followed Allco’s interpretation of federal law.
The PSB was not persuaded. Not only did the PSB agree with the hearing officer that Allco failed to demonstrate a substantial interest (and adverse effect), the PSB reasoned that Allco didn’t even follow the proper method for offering its power for purchase because Allco didn’t really understand Vermont’s implementation of PURPA. So, the PSB reasoned, Allco couldn’t now claim that the CPG proceeding was its only hope to ensure that the competitive pricing measures under federal law were followed. The PSB also reasoned that the effect of the proposed project would have on rate projections was negligible (2 out 31,000 total). The PSB rejected Allco’s argument that the Department of Public Service couldn’t adequately represent Allco's interests or those of other qualifying facilities in Vermont. The Department’s role isn’t to represent anyone per se, but to provide the necessary information under PURPA. And the PSB reasoned that the Department was well-positioned to represent the policy interests Allco sought to advance.
Allco appeals that order.
But wait! There’s more. The PSB had a technical hearing on the merits and Allco submitted a second motion to intervene a month after the hearing. The hearing officer denied Allco’s second intervention request. She explained that Allco already had been denied intervention and it did not raise any new issues that had not been raised in its prior filings. Allco didn’t appeal that decision to the PSB, but appealed straight to SCOV.
SCOV starts by narrowing the issues—always a good thing. First off, everyone agrees that Allco can appeal from the hearing officer’s denial of the first motion to intervene and the PSB decision on reconsideration.
But SCOV won’t touch the CPG decision. Allco has no right to challenge that order because it wasn’t a party below. SCOV rejects Allco’s argument that it has a statutory right to appeal because the statute’s cross reference still requires party status to appeal.
SCOV also will not touch the second motion to intervene because jurisdiction over the question was transferred to SCOV when Allco filed its appeal (before it filed its second motion to intervene) and the Board therefore lacked jurisdiction to even consider it. But even if the PSB had jurisdiction to consider it, the second motion to intervene was repetitive and untimely. No proverbial second bite at the apple with the second motion.
SCOV now looks at the merits of the surviving issues: (1) whether Allco established the right to intervene in its first motion and (2) whether the PSB erred when it denied Allco permissive intervention. SCOV notes that there’s no clear standard of review, but at least one past decision suggests it’s de novo. So, we’re rolling with that.
The applicable PSB rule gives three circumstances where intervention is authorized. And the only path for Allco is the third route: “when the applicant demonstrates a substantial interest which may be adversely affected by the outcome of the proceeding, where the proceeding affords the exclusive means by which the applicant can protect that interest and where the applicant’s interest is not adequately represented by existing parties.” There are three elements to that tortuous sentence and Allco has to hit the trifecta to establish a right to intervene. Spoiler alert: Allco doesn’t.
SCOV agrees with the Board’s reasoning—that Allco had no substantial interest that would be adversely affected by the issuance of the CPG, alternative means to protect its interest, and its interest would be adequately represented by the Department of Public Service—but focuses in on the reasoning that Allco had alternative ways to pursue its claim and advance its interests rather than intervening in a CPG proceeding.
SCOV notes that the Board identified two alternatives: “(1) to negotiate a PURPA contract with the designated purchasing agent under Rule 4.104, or (2) to bring a complaint directly against GMP under 30 V.S.A. § 208 alleging that the utility violated PURPA by not entering into a contact with Allco.” Allco could have brought suit in federal court or brought an action for declaratory judgment in state court. SCOV reasons: :Many of these remedies more directly address Allco's arguments than does intervention into a limited proceeding that does not directly involve the obligation to contract or the rates GMP can charge to ratepayers.” The “exclusive means” element simply is not met.
SCOV notes that much of the same analysis applies to any claim for permissive intervention. SCOV explains: :Allco sought to make the limited CPG proceeding a platform for a broad challenge to the methods of PURPA compliance in Vermont.” Thus, “it was within the Board's discretion to require that such a challenge be made in a proceeding suited to resolve the specific issues raised and in which all affected parties could fully participate.”
This one gets affirmed.
I don’t always mention the footnotes, but it may be worth mentioning one here. On July 1, 2017, the PSB became the Public Utility Commission. SCOV uses the former name in this opinion because it was in effect during all proceedings below. Personally, I think PSB has a nicer ring to it than PUC but maybe that’s just me.
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