I'm only covering one of the three cases that issued this week. Stay tuned for Kruska's take on the other two.
This case deals with the "standard offer program" and its application to clustered projects. The standard offer program is a Vermont rule that requires electric companies buy power from small renewable-energy projects, at a set price, for a set number of years. It matters because it encourages lots of smaller clean-energy projects to be built. There are size limits and that's what brings us here today.
If a new renewable-energy facility submits a proposal for a standard-offer contract from the Public Utility Commission (PUC) and is awarded that contract, the facility must also apply for and receive a Certificate of Public Good (CPG) from the PUC to begin construction. A standard-offer-contract recipient must be below a certain size (2.2 megawatts or less).
Enter Otter Creek Solar. Otter Creek wanted to build a new solar project. Otter Creek had first proposed three nearby solar projects. But only one, "Battle Creek 1," got a standard-offer contract and a CPG and was built and running. Later, Otter Creek tried to add another project next to Battle Creek 1 (now called Warner Solar), and the Public Utility Commission (PUC) denied a CPG after deciding the new project and Battle Creek 1 really counted as one bigger plant that was too large for the small‑plant program. Am I skipping some things here? You bet.
Otter Creek appeals.
On appeal, Otter Creek argues that the PUC used the wrong test for deciding when two projects are really one "single plant." It also claims the PUC is not allowed to use that single‑plant test when deciding whether to grant a CPG. It claims this is unfair, violates due process, and should be blocked because the issue had already been decided earlier.
To make a long story short (because that's kinda all we do here), SCOV rejects these arguments. SCOV first notes the deferential standard that applies when an agency interprets statutes within its area of expertise. SCOV reasons that the PUC is allowed to consider the corporate structures tracing back to the same owner in its determination of whether ownership is common. "Ownership," as used here, is broad and SCOV rejects Otter Creek's it-ought-to-be-narrower argument. Shared infrastructure factors in. SCOV finds no abuse of discretion with the PUC going there. SCOV considers and rejects Otter Creek's arguments one by one. And, ultimately, SCOV concludes that the PUC used the correct standard and could apply it at the CPG stage. Along the way, SCOV deals with an alternative single-plant test (not binding), vested-rights (nope), res judicata (nice try), outside PUC's authority (not quite), and due process (not preserved) arguments.
And so, this one gets affirmed. No CPG from the PUC and no luck at SCOV. In re Otter Creek Solar, LLC, 2025 VT 65.
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