In 2023 and 2024, the Public Utility Commission updated four key rules governing renewable energy permitting in Vermont. The major takeaway from the REV2024 panel Review of New PUC rules 5.100, 5.400, 5.500, and 2.100 – featuring Anthony Iarrapino (Wilschek Iarrapino Law Office), Victoria Westgate (SRH Law), Jacob Flanigan (VHB), and Joslyn Wilschek (Wilschek Iarrapino Law Office) – was that the Commission lost an important opportunity to speed up renewable energy development and added new layers of red tape instead.
Rule 2.000 sets the general procedure for all PUC cases. One significant change to the Rule was to reduce the threshold for intervention. The revised Rule eliminates the requirement that potential intervenors demonstrate a “substantial” interest in the proceeding and allows intervention even when there are other venues for the potential intervener to protect their interests. The Rule also puts the burden of proof on the applicant to demonstrate that issues raised by a potential interventor are already adequately represented by another party in the case (such as the Agency of Natural Resource Public Service Department), reversing existing practice, which requires the potential intervenor to demonstrate that their interests were not adequately represented. These changes to intervention thresholds will make it easier for project opponents to delay permitting.
Rule 5.100 governs net-metering cases. Some of the most controversial changes to 5.100 included changes to preferred sitting criteria – such as new limitations on tree clearing – put with the phase-out of offsite virtual net-metering in Act 174, these changes may be less impactful than they originally seemed. In a positive change, CPG commissioning deadlines can now be extended to 2 years with a written notice to the PUC and there is a temporary grace period for some late CPG compliance filings. The penalties for being out of compliance, however, “can be expected to be significantly higher.”
Rule 5.400 sets the requirements for generation facilities under Section 248 and the revisions to this rule included several changes that make permitting more complicated. The number of stakeholders that must be sent and advanced notice was expanded and now includes all adjoining landowners as well as the Natural Resources Board. This expansion will make pursuing a waiver of the 45-day advance notice period impracticable in many cases. The advance notice must now also include more detail about the project including preliminary aesthetic mitigation plans. The requirements for intervention by adjoining landowners and others have been reduced to filing a notice of intervention and intervenors will be able to intervene on any criteria absent the Commission actively imposing limits on the scope of their intervention. The Rule also expands the requirements for Section 248(j) to be closer to the requirements in full Section 248 cases, reducing its effectiveness as an expedited permitting tool for projects of “limited size and scope.”
Rule 5.500 covers interconnection procedures. Notably the net metering interconnection process is now covered in 5.500 rather than in 5.100. Many of the fees and procedures in the Rule are now based on export capacity rather than nameplate capacity, making it possible to build non-exporting or export-limited projects at sites with grid constraints. The old “Fast Track” process has been replaced with an optional “Preliminary Screening Review” which will allow projects to go directly to a feasibility study, which will accelerate the interconnection process for some projects.
While the rule changes include some positive changes, overall they tend to make the permitting process longer rather than shorter. All panelists emphasized the importance of reviewing the text of the rules anytime they are being applied to a specific project.
See the panelists’ slides and supplemental information on the changes to Rule 5.400.