In re Petition of Swanton Wind LLCAnnotate this Case
Petitioner Swanton Wind LLC appealed three determinations by the Public Utility Commission. In September 2016, petitioner requested the Public Utility Commission to grant a certificate of public good (CPG), authorizing petitioner to build a twenty-megawatt wind-powered electric-generation facility in Swanton, Vermont. Petitioner paid a $100,000 fee as part of its CPG petition, which was required by 30 V.S.A. 248b. During the next nine months, petitioner and the other parties to the proceeding engaged in substantial activity, and participating in prehearing conferences with the Commission. In early June 2017, the parties submitted filings with proposed schedules for how the proceeding should continue. As part of those filings, the Department of Public Service argued the petition and evidence were insufficient, concerned that petitioner’s filings lacked a final system-impact study. In a June 22, 2017 order, the Commission agreed, finding that it needed a final system-impact study prior to the technical hearings in order to evaluate the petition. Petitioner moved for reconsideration, which was denied. Petitioner then requested to withdraw its petition pursuant to Vermont Rule of Civil Procedure 41(a)(1), and it requested that the Commission return the $100,000 fee it paid pursuant to 30 V.S.A. 248b. In response, several parties argued that the Commission should require petitioner to pay attorney’s fees. In a January 3, 2018 order, the Commission denied petitioner’s request to return the 248b fee, saying it lacked jurisdiction to do so. It granted voluntary dismissal without prejudice pursuant to Rule 41(a)(2), rather than Rule 41(a)(1). It did not award attorney’s fees, as the parties requested, because it found no exceptional circumstances to justify an award. No party appealed that finding. However, the Commission did order that the parties could request attorney’s fees and costs for this proceeding if petitioner chose to refile the petition in the future. Petitioner appealed. The Vermont Supreme Court determined the Commission erred in concluding it lacked jurisdiction to refund the 248b fee, and erred in concluding it could reopen findings from a final order in a previous proceeding. The Court reversed and remanded the Commission’s order regarding the 248b, and struck the Commission’s order regarding attorney’s fees.