Court Rules State Has To Refund Fee For Swanton Wind Project That's On Hold

Jan 23, 2019

The Vermont Supreme Court says the state has to repay a wind developer all or part of a $100,000 fee required for environmental review of a project in Swanton that is now on hold.

The developers had paid the fee, but asked for the money back after an adverse ruling from the state Public Utility Commission.

The Swanton Wind project has had a somewhat tortured history.

The 20-megawatt facility was planned for a hilltop in Swanton, but neighbors — including former Lt. Gov. Brian Dubie — opposed it. The developers withdrew the plan in the summer of 2017 after the Public Utility Commission ruled that they had not done a study to determine the impact on the regional electric grid.

With the project tabled, Swanton Wind asked the Vermont Agency of Natural Resources to refund the $100,000 that it had paid the state to review it.

“We’re pretty confident that the Agency of Natural Resources did not exert $100,000 worth of effort in reviewing Swanton Wind’s petition when it was withdrawn,” said Leslie Cadwell, a lawyer for Swanton Wind.

The agency’s review was curtailed “really near the very beginning of the proceeding when [the project] was withdrawn after a quite unusual and unprecedented ruling by the commission,” Cadwell said.

"We’re pretty confident that the Agency of Natural Resources did not exert $100,000 worth of effort in reviewing Swanton Wind’s petition when it was withdrawn." — Leslie Cadwell, lawyer for Swanton Wind.

Last year, the state Public Utility Commission said it did not have the authority to order the fee refund, so Cadwell appealed to the Vermont Supreme Court. The court last month ruled the commission did have the authority, and it sent the case back to the PUC to figure out how much should be repaid.

“So we’re looking for a return of the fee, and we hope that the commission will see fit to do that and close this case and allow Swanton Wind to refile at some point in the future,” she said.

The Agency of Natural Resources has just started that accounting, but a full refund may not happen. Matt Chapman, the agency’s general counsel, said his office needs to check on how much staff time and resources were devoted to the Swanton Wind case and what information the Public Utility Commission needs.

“The agency spent a significant amount of time reviewing the potential natural resources impacts associated with the project,” he said. “And that’s not atypical. There’s a lot of work the agency does with the applicant before they ever file” for PUC approval.

 

"The agency spent a significant amount of time reviewing the potential natural resources impacts associated with the project." — Matt Chapman, Agency of Natural Resources general counsel

But Cadwell, Swanton Wind's attorney, is skeptical.

“The agency had only engaged minimally in the process by appearing at the status conference, the pre-hearing conference and issuing some discovery [a request for information],” she said.

Cadwell said state law requires that fees be used to actually assess the impact of a project, and cannot be used to simply supplement an agency’s budget.

The case now before the Public Utility Commission may show just how much money the state spent in the Swanton Wind case.