In re Petition of New Haven GLC Solar
This is a pretty long opinion, because it details a lot of things that happened. I am generally going to skip those things, because this is a “summary” and not a “longary” which is a word I made up but you know what I mean.
New Haven GLC Solar (GLC) wanted to build a net-metered solar array in the town of New Haven. A net-metered system is some sort of electricity generation powered by renewable energy. Could be sun, could be wind, could be water, could be good vibes. The system is connected to the local electrical utility. The purpose is to supply renewable energy to the utility, and in doing so, lower a customer’s usage. In the long run, customers see savings. Because this is connected to the grid, it falls under the purview of the Public Service Board.
Someone wanting to start making electricity on a large scale can’t just go pop a bunch of solar panels in a cornfield and call it good. They’ve got to have a plan and they’ve got to go to the Board and they’ve got to get permission.
And, of course, others might object. Here, the Town of New Haven objected to GLC’s petition for various reasons. Over the course of 2015 to 2016, both GLC and the Town of New Haven filed lots of letters and documents in support of their positions. I won’t rehash them here, as they’re set forth pretty clearly (and over 9 or so paragraphs) in the opinion. The upshot is that the Board reviewed the project in terms of applicable statutory criteria and gave it a green light.
The Town of New Haven appealed to SCOV, and SCOV reversed and remanded back to the Board.
SCOV applies a deferential standard of review to appeals from the Public Service Board. The Board is recognized as having particular expertise in the subject matter. The Board is charged with the task of using that expertise in making its decisions. SCOV only overturns the Board if the findings are clearly erroneous. This makes sense. In our everyday lives we all rely on different experts, to some degree. If I want an opinion about why my tooth hurts, I go to my dentist because she’s an expert on teeth. I give her opinion a lot of weight.
SCOV is also quick to mention, though, that if there are statutory disputes implicated in a Board decision, SCOV isn’t going to let that slide without examining the appropriate statutes.
First of all, there’s a statute that meant to streamline the process for projects like this. From a policy standpoint, people agree that renewable energy is a good thing. Holding up projects for years and years while they go through the permitting process doesn’t achieve the goal of increasing the use of renewable energy. There are times when the Board can forego the formal hearing process in order to authorize installation of a project like the one here.
Here, the Town of New Haven was upset that no hearing was held. In order to ask for a hearing, a petitioner first files its request. Then other interested parties have 21 days from then to make a request for a hearing. The Town didn’t make a request in a timely fashion so the Board said it didn’t need to grant a hearing. The Town argued that GLC’s application wasn’t actually complete at the time it filed, because it was subsequently amended to change the location of the access road for the project. Since that got filed later, the Town reasoned its request for hearing was timely.
SCOV disagrees. Without getting too into the weeds on dates and filings and whatnot, it’s shown pretty clearly that the Town responded 10 days after GLC submitted its amended plan, which ultimately became its plan.
There were also other filings having to do with the safety stability of the project in relation to the larger electric utility system. This is fairly technical, but it boils down to this: new projects are great, and feeding renewably-sourced energy to the grid is great, but not if it make the current system go haywire. There needs to be a showing that the interconnectedness of the project and the grid is safe and stable.
The Town, however, had concerns about the interconnection issues between the project and the grid. The Board gave the go-ahead to the project even though it didn’t fully comply with particular project criteria. The utility and Department of Public Service gave opinions that the project would be okay, but it wasn’t exactly responsive to concerns raised by the Town. It’s sort of like when you don’t want to answer a question but you give enough of a non-answer to get the asker to stop asking.
But, when we’re dealing with a public utility, and where disruption could cause very serious problems, there needs to be good, factual information available, and the Board needs to consider those facts in making its decision. SCOV determines the Town properly asked for a hearing on interconnectedness, and that the Board should have held one. So there’s a remand order for that to occur.
SCOV also orders the Board to consider certain comments filed by the Town of New Haven to determine if a technical hearing is also needed. There were many comments raised and filed, and the Town took the position that a technical hearing was required. SCOV won’t go as far as to agree that the Board abused its discretion by not holding a hearing. But instead orders the Board to look at a certain set of comments – the ones filed after the change to GLC’s plan – to determine if a hearing is needed based on those particular issues raised.
There was also an error in the Board’s findings about a particular customer. It apparently ruled that Customer A would get a benefit from the net metering. Customer A got tired of waiting and dropped out of the program. However, GLC found someone else to take Customer A’s place. SCOV orders the Board to factor in its initial erroneous finding.
The Board’s findings also included an error about the size of the project. SCOV remands this piece and orders the Board to consider information from the Town about whether the amended plan actually made the project larger than initially projected. The Board also has to consider concerns raised by the Town about an access road and how close it is to a particular historic site. There also happens to be an endangered species living nearby, so that must also be factored. Last SCOV orders the Board to consider whether this project actually really is a net-metering system as defined by the rules.
So, many things to be considered before this project goes forward. Although, I’ll point out this is an opinion from the summer of 2017, so much of this has probably already happened.