February 12, 2018

DRM Win for Renewable Energy at Vermont Supreme Court

Leckey, Dodge, Trimarco prevail for Cady Hill Solar in Stowe

On January 12, 2018, the Vermont Supreme Court decided in favor of Stowe Cady Hill Solar LLC and reversed the Vermont Public Utility Commission’s sua sponte dismissal of a petition for a net-metered solar facility. The petition was dismissed as incomplete on account of a minor procedural irregularity that Cady Hill had immediately corrected, and which no party contested. The consequences of dismissal were severe because the petition was filed immediately before a substantial revision to Vermont’s net-metering program that took effect in January 2017. Cady Hill’s project was ineligible under the revised program because the project parcel did not qualify as a “preferred site” under new net-metering rules. As a result, the project as originally proposed was effectively dismissed with prejudice.

On appeal, DRM successfully argued that the Commission’s decision contravened the Commission’s own precedents, as well as the plain language of a legislative mandate granting important rights and regulatory certainty to developers during the transition to the revised net-metering program. The Supreme Court acknowledged a fundamental axiom of general administrative procedure — previously unrecognized in Vermont jurisprudence — that requires an agency to treat like cases alike. Beyond representing a major victory for Cady Hill Solar, the case stands to benefit renewable energy developers by underscoring that procedural rules must be applied consistently, particularly when substantive rights are at stake. This new standard is especially important for Vermont energy and telecommunications infrastructure projects, given the volume of regulatory changes being proposed or modified at the Commission level.

Joshua Leckey, an associate in DRM’s Burlington office with an active renewable energy practice, argued the case before the full Supreme Court. William Dodge (Chair of DRM’s Regulated Entities Practice Group) and Heidi Trimarco (of counsel in DRM’s Lebanon office) collaborated with Attorney Leckey on the brief.


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