Court rules two local solar projects separate


BENNINGTON -- The Vermont Supreme Court has reversed a ruling made by the Public Service Board that classified two potential local solar projects as being one in the same for the purposes of an energy subsidy program.

The ruling made by the Public Service Board, which oversees Vermont's electrical facilities, was appealed to the Vermont Supreme Court by Ecos Energy LLC, which according to the decision put two solar projects, was referred to by the court as the "Bennington project" and the "Apple Hill" project, into consideration for the state's Sustainable Priced Energy Enterprise Development program.

Ecos Energy has given the Bennington County Regional Commission a notice of its intent to file a request for a "certificate of public good" from the Public Service Board. That project is known as the "Chelsea Solar Project" and is proposed to be built off Willow Road, northwest of the Route 7, Route 279 East intersection, south of Apple Hill Road.

Jim Sullivan, director of the BCRC, said he was not aware of any filing by Ecos about an Apple Hill project, but the company indicated to his agency it plans to file the Chelsea project with the PSB this spring.

SPEED offers a fixed market rate to qualifying renewable energy projects according to the background given by the court decision. One of the requirements for the "standard-offer program" is an individual project can not have a nameplate capacity of more than 2.2 megawatts.

The SPEED program was created by the legislature in 2005. In 2009, VEPP Inc., the Manchester Center-based nonprofit company that administers SPEED, asked the Public Service Board to clarify the definition of a single plant because it felt developers would propose multiple facilities at single locations that if viewed collectively would exceed the 2.2 megawatt limit.

A power company, Central Vermont Public Service, which later merged with Green Mountain Power, said separate projects would need separate interconnection agreements, contracts, and certificates of public good. Renewable Energy Vermont, a non-profit trade association, said facilities that shared interconnections and infrastructure should be counted as the same plant.

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The board ordered that, "To the extent that any generation components share common infrastructure, we direct VEPP to consider these components as a single plant." The board also told VEPP to inform it when such situations arose where the board would make decisions on a case-by-case basis.

In April 2013, VEPP issued requests for proposals for the solar standard-offer program, saying it would accept bids based on the lowest prices. Three of Ecos' projects were the lowest bids and they included the two in Bennington and the Sudbury Solar Project.

VEPP did as the Public Service Board requested and notified it that the Bennington projects would be next to each other.

On May 16, 2013, the Public Service Board ruled that Apple Hill and the other project were a single four-megawatt plant because they were on the same parcel of land and had similar interconnection points.

Ecos appealed, arguing that the two facilities would have separate access points be connected to the power grid through different three-phase lines, be separated by a fence, and have different financial backers. The Public Service Board reaffirmed its decision, saying the same developer and same parcel of land meant it was all the same plant. According to the board, ruling otherwise would mean any size plant could be built by a developer if it were "technically partitioned" into 2.2 megawatt chunks. This would defeat the intent of the legislature, it ruled.

The Vermont Supreme Court said that while it defers to the board's expertise on these matters, it must still apply its judgment on board orders. According to the court, the law states that facilities sharing common technical features and equipment are one plant. The law makes no mention of common ownership or physical proximity as being relevant to determining whether or not two plants are one.

The court ruled that Apple Hill and the other project would have separate connections to the grid, separate access roads, and separate agreements with Green Mountain Power. This is enough to consider them two different projects.

Contact Keith Whitcomb Jr. at or follow him on Twitter @KWhitcombjr.


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