Summer 2009-#4. Energy Siting in the Green Mountains: Why Vermont's Holistic Approach Works.

Author:By John A. Sautter, Esq. and Donald M. Kreis, Esq.

Vermont Bar Journal


Summer 2009-#4.

Energy Siting in the Green Mountains: Why Vermont's Holistic Approach Works

THE VERMONT BAR JOURNALVolume 35, No. 2Summer 2009 Energy Siting in the Green Mountains: Why Vermont's Holistic Approach WorksBy John A. Sautter, Esq. and Donald M. Kreis, Esq.During the past couple of years there has been debate about the nexus between energy and land use law in Vermont. In particular, the siting of wind power facilities has led some to question the value of having the Vermont Public Service Board serve as the primary judicial vehicle for addressing land use questions in the context of energy generation cases. Some advocates of aggressive land conservation policies would have land use considerations decided by a separate body. This article considers the relative benefits of the holistic approach used by the Vermont Public Service Board in making energy siting decisions.

Most major developments proposed in Vermont receive exacting scrutiny, with respect to their impacts on Vermont, its environment, and its citizens, via the Act 250 process in which district environmental commissions make initial decisions that are subject to review by the Environmental Court.(fn1) Energy facilities, however, are subject to 30 V.S.A. § 248, which vests the Public Service Board with authority to permit the development of energy facilities, including both generation and transmission facilities. Among the most notable examples of the PSB exercising this jurisdiction in recent years are decisions on proposed wind turbine facilities.(fn2)

Act 250 and Wind Generation

Wind-powered electricity generation may have future importance future in Vermont. While wind generation is still generally new to the state, one sign of its future significance is the approval in April of a new wind project near Searsburg. The project consists of fifteen wind-powered generators each standing at four hundred feet in height. The wind facility will have a maximum generating capacity of thirty megawatts of electricity in total.(fn3)

Key to the Board's decision was the economic, environmental, and social benefits that the electricity generation source would produce. Indeed, the Board's approval rested, in part, on an expectation that the contracts for purchase of power from the facility would provide ratepayers with some of the benefits of being shielded from fossil-fuel price volatility. In its review, the Vermont Public Service Board unambiguously found the existence of environmental and aesthetic drawbacks to the project. However, the Board emphasized that the wind turbines would be a source of zero-carbon emission energy, new jobs, and needed electricity, and would assist Vermont in meeting its Regional Greenhouse Gas Initiative commitments.(fn4)

Act 250 contains no provision authorizing decision makers to consider environmental benefits of renewable energy projects such as that approved in April by the Public Service Board, much less a provision that would allow a balancing of these benefits against the environmental and social effects reflected in the familiar nine Act 250 criteria.(fn5)Conversely, section 248 explicitly requires the Public Service Board to consider the Act 250 criteria when reviewing in-state energy facilities- and, in addition to determining a lack of undue adverse effects under this criteria, before granting a permit the Board must find inter alia that the project "will result in an economic benefit to the state and its residents."(fn6) The result of a successful section 248 proceeding is a certificate of public good-an explicit determination from the Board that the project "will promote the general good of the state."(fn7) Such a broad grant of public interest-determining authority is characteristic of utility law as it has evolved historically in the states and at the federal level; it has no analog in Act 250, which essentially proceeds on the assumption that development is in the public interest absent an undue amount of adverse effects.

The Board took its responsibilities under its broad grant of jurisdiction with laudable and comprehensive seriousness. The Board invoked Act 250 criteria to make two key findings that were unfavorable to the applicant: an adverse (though not unduly adverse) impact on aesthetics, given that "[a] commercial windfarm is generally incompatible with the relatively isolated natural environment in the region,"(fn8)and an unduly adverse impact on bears inhabiting the...

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