1 STATE OF VERMONT

ENVIRONMENTAL COURT

}

Glebe Mountain Wind Energy, LLC } Docket No. 234

‐ 11

‐ 05 Vtec

(Appeal of JO #2

‐ 227) }

}

Decision on Cross

‐ Motions for Summary Judgment

Glebe Mountain Wind Energy, LLC (“Appellant” or “GMWE”) appealed from

Jurisdictional Opinion (JO) #2

‐ 227 of the Acting District 2 Environmental Coordinator,

issued on October 6, 2005, concluding that a “proposed wind energy project

represent[s] material and substantial changes to existing Act 250 permits and thus

require[s] an [Act 250 permit] amendment.” Appellant is represented by Christopher

D. Roy, Esq.; Interested Person Glebe Mountain Group, Inc. (GMGI) is represented by

Robert E. Woolmington, Esq.; Interested Person Vermont Electric Power Co. (VELCO) is

represented by Stephen A. Reynes, Esq.; Interested Person Central Vermont Public

Service (CVPS) is represented by Carolyn Brown Anderson, Esq.; Interested Person

Town of Windham and Intervenor Town of Windham Planning Commission are both

represented by David Grayck, Esq.; Intervenor Department of Public Service (DPS) is

represented by Aaron Adler, Esq.; Intervenor Natural Resources Board is represented

by Melanie Kehne, Esq.; and Intervenor Windham Regional Planning Commission is

represented by Richard D. Perra, Esq.

Now pending before this Court are cross

‐ motions for summary judgment filed

by Appellant, by Interested Person Glebe Mountain Group, Inc., and jointly by

Interested Person Town of Windham and Intervenor Town of Windham Planning

Commission. Intervenor Windham Regional Commission also filed a motion for

summary judgment, advising that it joined in the motion filed on behalf of Glebe2 Mountain Group, Inc. Memoranda in support of Appellant’s motion for summary

judgment have been filed on behalf of VELCO and DPS.

Factual Background

The parties have stipulated to the material facts in this case, which are as follows:

1. Appellant is developing plans for a wind power generation facility on

Glebe Mountain in the Towns of Londonderry and Windham (the “Project”).

2. The Project includes the construction of up to twenty

‐ seven wind turbines

and associated roads and accessory structures.

3. The Project is proposed to be located on two parcels of land (the “Tract”)

owned by the McGraw Family Partnership and Magic Mountain, LLC. The Tract, or

portions of it, is encumbered by a number of Act 250 permits and amendments

previously issued to other projects on the same parcels. There are five sets of permits

and amendments thereto, dating back to 1971. The various permits are referenced in JO

#2

‐ 227, at ¶¶ 12–36.

4. Appellant has installed one temporary wind measurement tower on the

Project site. This tower was approved by the Vermont Public Service Board (PSB)

pursuant to 30 V.S.A. § 248(j) on January 29, 2004, in PSB Docket No. 6786. In that

proceeding, on October 8, 2004, the PSB also approved the installation of two additional

temporary wind measurement towers on the Project site. These two additional towers

have not yet been installed.

5. The Project is an “electric generation facility” subject to review by the PSB

pursuant to 30 V.S.A. § 248.

6. Appellant has not finalized the project’s design, and has not yet filed a

petition for a certificate of public good with the PSB pursuant to 30 V.S.A. § 248.

7. Appellant sent the Windham Regional Planning Commission and the

Towns of Londonderry and Windham a formal notice of intent to file a petition for a

certificate of public good with the PSB pursuant to 30 V.S.A. § 248.3 8. The Parties have agreed by stipulation, for the purposes of this appeal

only, that if the analysis typically employed under Environmental Board Rule 34 were

to apply to the Project as currently planned, it can be assumed that the Project would

constitute a material and/or substantial change to the previously approved

development on the Project site under one or more Act 250 criteria found in 10 V.S.A. §

6086.

Discussion

At issue in this appeal is a jurisdictional conflict between Act 250 review under a

concept known as “amendment jurisdiction,” see former Environmental Board Rule 34 1

(EBR 34), and PSB jurisdiction over power generation facilities under 30 V.S.A. § 248.

The conflict arises because a power generation facility is being proposed on lands that

are already encumbered by multiple Act 250 permits, amendments thereto and the

many conditions contained therein. 2

It is undisputed that if the wind power generation facility were proposed on land

unencumbered by Act 250 permit conditions, then jurisdiction over the proposed

facility would rest solely with the PSB. Electric generation or transmission facilities that

require a certificate of public good under 30 V.S.A. § 248 are defined out of the term

1 The former Environmental Board Rules have been supplanted by the Act 250 Rules promulgated by the

Natural Resources Board, effective May 1, 2006. We look to the former Environmental Board Rules as

they existed on October 6, 2005, because we are required to apply the substantive standards that were

applicable before the tribunal appealed from, pursuant to 10 V.S.A. § 8504(h). The Legislature ratified

former EBR 34, along with all other Environmental Board rules pertaining to the administration of Act

250, by Public Act 52, § 5 (1985), and the Rule therefore “has the same effect as would any law passed by

the Legislature in the first instance.” In re Spencer

, 152 Vt. 330, 336 (1989).

2 See Vermont Commission on Wind Energy Regulatory Policy: Findings and Conclusions, Attach. A to

Appellant’s Mot. for Summ. J., at § 4.2.1(7):

There are conflicting opinions and there is currently no definitive answer for how to deal

with the potential for overlapping jurisdiction between Section 248 and Act 250 (e.g., on

land that already falls under an existing Act 250 permit). For example, some wind

turbines may be proposed on lands that are already subject to the jurisdiction of Act 250

with permit conditions that may be difficult to resolve without going through two

regulatory processes. Section 248 should have jurisdiction in these cases but provide for

consideration of the existing Act 250 permit conditions.4 “development” by 10 V.S.A. § 6001(3)(D)(ii), and therefore do not trigger Act 250

jurisdiction.

The question before the Court is not whether the Project constitutes

“development” under Act 250 (as it clearly does not), but whether the Project will cause

material or substantial changes to previously permitted development, and thus require

the holders of the pre

‐ existing permits to seek a permit amendment under EBR 34. EBR

34(A), effective January 12, 2004, required a permit amendment “for any material or

substantial change in a permitted project.”

Appellant argues that, although EBR 34 would require a permit amendment “if

the analysis typically employed

. . . were to apply,” Stipulation of Facts at 2, that

requirement would be at odds with the Legislature’s grant to the PSB of exclusive

jurisdiction over § 248 projects. Appellant reasons that since power generation facilities

do not constitute development in the context of Act 250, the construction of such

facilities cannot trigger amendment jurisdiction under EBR 34 because “material or

substantial change,” as that term is used in EBR 34, is a subset of “development.” See

EBR 2(A)(1)(e) (“‘Development’ means

. . . (e) Any construction of improvements which

will be a substantial change of a pre

‐ existing development, and any material or

substantial change to an existing development over which the board or a district

commission has jurisdiction”). Intervenor DPS offered its concurrence at the motion

hearing by asserting that amendment jurisdiction is a derivative of development

jurisdiction and not an independent source of jurisdiction.

The consequence of the argument expounded by Appellant and the DPS is that if

the District Commission is deprived of development jurisdiction over power generation

facilities, then the Commission is likewise deprived of amendment jurisdiction over

those facilities.

Interested Person GMGI opposes Appellant’s interpretation. GMGI agrees that

Act 250 jurisdiction is not triggered by the construction of power generation facilities,5 but argues that when the construction of those facilities creates a material or substantial

change to an existing development encumbered by an Act 250 permit, then Act 250

review of the changes to the pre

‐ existing development is required.

The plain language of EBR 34 and § 248 do not provide an answer. Neither

statutory provision specifically addresses the situation at bar: that is, construction of a

§ 248 project on lands already encumbered by Act 250 permit conditions. In resolving

this jurisdictional conflict, our task is to “discern and implement the intent of the

Legislature.” In re MacIntyre Fuels, Inc.

, 2003 VT 59, ¶ 7. District Commission

jurisdiction over development and PSB jurisdiction over power generation facilities are

both in derogation of common law property rights, and therefore both must be strictly

construed. See Committee to Save Bishop’s House, Inc.

, 137 Vt. 142, 152 (1979) (“The

court’s true function is to give effect to the legislative intent, and in this endeavor, we

are guided by rules of general applicability, evolved through long judicial experience.

One of these is that legislation in derogation of common law property rights will be

strictly construed.”).

We conclude that EBR 34 represents an explanation of and not an expansion

from the statutory jurisdiction granted to District Commissions. The “amendment

jurisdiction” set out in EBR 34 is the lawful interpretation of existing Act 250

jurisdiction, which does not extend to the “construction of improvements for an electric

generation or transmission facility that requires a certificate of public good under

section 30 V.S.A. § 248.” 10 V.S.A. § 6001(3)(D)(ii).

Interested Person the Town of Windham and Intervenor the Town of Windham

Planning Commission argue in their joint motion for summary judgment that “where

land is subject to an Act 250 permit, a permit amendment is required under Board Rule

34 for otherwise exempt activity—such as logging 3 or farming—where such activity is a

3 The site preparation and construction for the proposed facility would involve tree

‐ cutting on the top of

Glebe Mountain.6 substantial or material change to the permit or permitted project,” This argument by the

Town and its Planning Commission relies upon the Environmental Board’s analysis in

Re: Keith Van Buskirk d/b/a/ American Wilderness Resources, Inc.

, Declaratory Ruling

No. 302, Findings of Fact, Conclusions of Law, and Order (Aug. 15, 1995). 4 In Van

Buskirk

, the Environmental Board, noting that logging activities below the elevation of

2,500 feet are excluded from the definition of development, went on to state that the

“[a]pplication of the logging exclusion to Van Buskirk’s operations does not end the

jurisdictional inquiry. The logging exclusion does not absolutely prohibit the assertion

of Act 250 jurisdiction over the cutting of trees [below 2,500 feet]

. . . . A competing

consideration is the Board’s (or district commission’s) authority to impose conditions

when granting Act 250 permits.” Id

. at 8. The Environmental Board found an exception

to the logging exclusion, ruling that:

Where findings of fact or conditions regarding tree cutting or logging are

included in a permit, or a representation is made that no tree cutting or

logging will take place, tree cutting or logging which constitutes a

material or substantial change to that permitted development or

subdivision will only be allowed if the permit holder applies for a[n

amendment to their] permit under EBR 34.

Id

. at 9. 5

The situation in Van Buskirk is distinguished from the case before this Court by

the fact that in Van Buskirk, the timber harvesting would come under Act 250

amendment jurisdiction, or under no jurisdiction whatsoever. The Board stated that

“[t]he policy behind the exception to the logging exclusion is that logging and tree

cutting associated with a development or subdivision has adverse effects with respect to

4 In a recent decision, In re Green Crow Corp

., 2006 VT 14, our Supreme Court stressed the “specialized

expertise of the Environmental Board in determining whether it has jurisdiction over a particular

development proposal.” Id

. at ¶ 7 (internal quotation omitted), citing In re Denio

, 158 Vt. 230, 235 (1992).

5 The Board did not order that Van Buskirk apply for a permit under EBR 34, but only because it found

that no such findings, conditions, or representations were present in the case.7 the ten criteria of 10 V.S.A. § 6086(a).” Id

. An absolute exclusion for logging, then,

could cause harm to the very values sought to be protected by Act 250. Here, however,

it is not a question of “Act 250 jurisdiction or nothing.” The excluded activity,

construction of an electric generation facility, is subject to the jurisdiction of the PSB,

which is required to conduct an environmental review, with due consideration to the

applicable Act 250 criteria, pursuant to 30 V.S.A. § 248.

Section 248(a)(2) states that “(A) no company

. . . and no person

. . . may begin

site preparation for or construction of an electric generation facility or electric

transmission facility within the state which is designed for immediate or eventual

operation at any voltage,

. . . (B)

. . . unless the public service board first finds that the

same will promote the general good of the state and issues a certificate to that effect.”

30 V.S.A. § 248(a)(2). When a petitioner files an application for a certificate of public

good with the PSB, the PSB “shall hold a nontechnical public hearing” under 30 V.S.A.

§ 248(a)(4)(A), and one or more technical hearings under 30 V.S.A. § 248(a)(4)(B). The

statute requires further that copies of the application:

shall be given by the petitioner to the attorney general and the department

of public service, and, with respect to facilities within the state, the

department of health, agency of natural resources, historic preservation

division, scenery preservation council, state planning office, agency of

transportation, the agency of agriculture, food and markets and to the

chairperson or director of the municipal and regional planning

commissions and the municipal legislative body for each town and city in

which the proposed facility will be located.

30 V.S.A. § 248(a)(4)(C).

Pursuant to 30 V.S.A. § 248(a)(4)(E), the Agency of Natural Resources:

shall appear as a party in any proceedings held under this subsection,

shall provide evidence and recommendations concerning any findings to

be made under subdivision (b)(5) of this section, and may provide

evidence and recommendations concerning any other matters to be

determined by the board in such a proceeding.8 Section 248(b)(5) provides the basis for Appellant’s claim here that the PSB has

exclusive jurisdiction over all electric power generation projects. Section 248(b) requires

the PSB to make a number of findings before issuing a certificate of public good.

Prior to 1987, § 248(b)(5) required the PSB to find that the construction of an in

‐

state electric power generation facility “will not have an undue adverse effect on

aesthetics, historic sites, air and water purity, the natural environment and the public

health and safety.” In 1987, the Legislature amended § 248(b)(5) 6 by adding the phrase

“with due consideration having been given to the criteria specified in 10 V.S.A.

§ 1424a(d).” 7 In 1988, the Legislature again amended § 248(b)(5) 8 by adding the phrase

“and § 6086(a)(1) through (8) and (9)(K).”

As it exists now, and at the time of the appealed

‐ from JO, § 248(b)(5) reads as

follows:

Before the public service board issues a certificate of public good as

required under subsection (a) of this section, it shall find that the

purchase, investment or construction:

. . . with respect to an in

‐ state

facility, will not have an undue adverse effect on esthetics, historic sites,

air and water purity, the natural environment and the public health and

safety, with due consideration having been given to the criteria specified

in 10 V.S.A. § 1424a(d) and § 6086(a)(1) through (8) and (9)(K)[.]

The phrase “due consideration” also appears in § 248(b)(1), requiring that due

consideration be given to the recommendations of municipal and regional planning

commissions, recommendations of municipal legislative bodies, and the land

conservation measures contained in Town Plans.

6 1987, No. 67 (Adj. Sess.), An Act Relating to Establishing a Comprehensive State Rivers Policy (H. 339).

7 Section 1424a(d) provides a non

‐ exclusive list of fourteen criteria that may be considered by the water

resources panel (at that time the water resources board) when deciding whether particular waters should

be designated as outstanding resource waters.

8 1988, No. 273, An Act Relating to Act 250 Jurisdiction over Waste

‐ Burning Electricity Generating

Facilities (H. 681).9 The “due consideration” language of § 248(b)(1) was interpreted by our Supreme

Court to mean that those recommendations and land conservation measures were

“advisory rather than controlling.” City of South Burlington v. Vermont Electric Power

Co.

, 133 Vt. 438, 447 (1975) (“‘Due consideration’ for municipal legislative bodies

. . . at

least impliedly postulates that municipal enactments, in the specific area, are advisory

rather than controlling

. . . . Any attempt at municipal regulation is pre

‐ empted.”).

The Legislature was presumably aware of the meaning ascribed to the phrase

“due consideration” when it added that phrase to § 248(b)(5) in 1987 and 1988, see

Heffernan v. Harbeson

, 2004 VT 98, ¶9 (“When we interpret statutes, we presume that

the Legislature was mindful of relevant precedents and prior legislation.”). It is

abundantly clear that the Legislature intended that the PSB have exclusive jurisdiction

over electric generation facilities proposed on previously unencumbered land, as

evidenced by the language excluding electric generation facilities from the definition of

development, combined with the language empowering the PSB to grant certificates of

public good “with due consideration” to Act 250 Criteria 1–8 and 9(K). It is less clear,

however, that the Legislature intended that pre

‐ existing Act 250 jurisdiction would

disappear when an electric generation facility is proposed on land encumbered by Act

250 permit conditions.

Where the plain statutory language is not clear, the Court endeavors to give

effect to the legislative intent underlying the statute by looking at “the legislative

history and circumstances surrounding its enactment, and the legislative policy it was

designed to implement.” MacIntyre at ¶ 7 (internal quotation and citation omitted).

The pertinent legislative history includes a meeting of the Senate Natural Resources and

Energy Committee held on March 13, 1988, at which the Committee heard testimony

relating to H. 681, which was enacted later that year as 1988, No. 273, An Act Relating to10 Act 250 Jurisdiction over Waste

‐ Burning Electricity Generating Facilities (H. 681). 9 This

Act added the phrase “and § 6086(a)(1) through (8) and (9)(K)” at the end of § 248(b)(5).

The hearing began with the testimony of Representative Emmons, who

explained that questions regarding environmental review of waste

‐ to

‐ energy plants,

wood

‐ fired plants, and gas pipelines were raised during discussions on H. 681:

Rep. Emmons: When we started working on this, we were dealing

with the Act 250 and the Environmental Board and also the Public

Service Board

. . . . Environmental issues would be covered under

the Environmental Board in their Act 250 review. We had the

chairman of the Environmental Board, Lon Wilson, and the Public

Service Board, Rich Cowert, in our committee discussing this,

and they worked out a compromise which seemed to be more

workable, that under Public Service Board review—the 248

process—the environmental aspects of that would be expanded to

include Act 250 criteria 1–9.

Appellant’s Attach. D at 2–3. Representative Emmons then outlined the structure of the

House bill, and answered questions posed by Senator Racine, the Chairman of the

Natural Resources and Energy Committee:

Rep. Emmons: [Subsection 5] on page 5 is where we include the Act

250 review. 10 V.S.A. Section 1424[a] and Section 6086, 1–8 and 9,

that’s your criteria 1–10 of Act 250 and that’s where

. . . . the

compromise was between the Environmental Board and the Public

Service Board—to include Act 250 review and 248 review.

. . .

Sen. Racine: Would they need an Act 250 permit?

Rep. Emmons: No. The certificate of public good is what

they’re going for and that’s exactly the reason, Mr. Chairman, that

we did incorporate the Act 250 process for our 248 review so it

would not be duplicative.

9 A transcript of the hearing was provided to the Co urt as Attach. D to Appellant’s Mot. for Summ. J.11 Sen. Racine: I don’t understand what you’re saying, you’re

incorporating the process. You aren’t requiring a 250 permit, but

you’re requiring a 250 review? How will that work?

At this point there is a gap in the transcript with the notation “break to turn tape

over.” Some testimony, including Rep. Emmons’ answer, appears to be missing. When

the transcript resumes, PSB Chair Rich Cowert and Senator Carter have joined in the

dialog:

. . .

Mr. Cowert: It 10 would apply to any Section 248 permit which

would include electric transmission lines as well—electric

generating station, electric transmission lines, gas line, anything

that needed Section 248 review.

. . .

Sen. Carter: Can I go back and ask a question which ties in? I

notice that you’ve got NEPA involved here as well. Why do we

exclude Criterion 10 on laterals which deals with compliance with

local and regional plans?

Mr. Cowert: I’ll be glad to answer that. There’s already a section

in 248 which requires the [Public Service] Board to give due

consideration to local and regional plans.

Sen. Carter: I realize you have to give due consideration to it, but

you don’t have to make a finding that it complies.

Mr. Cowert: Correct.

Sen. Carter: I guess I’m asking the question still why you phrased

it that way.

Mr. Cowert: Why did we choose to go with due consideration

rather than compliance with local plans?

Sen. Carter: Yes.

Mr. Cowert: The chief reason for doing that is that—first of all, the

history of it in 248 was that the facilities that provide those utility

services to the state are an integrated network, and it has always

10 Presumably, the compromise by which the PSB would undertake the environmental review normally

conducted by the Environmental Board.12 been thought to be unwise to allow a single jurisdiction (inaudible)

to put up a roadblock as part of a network.

Sen. Carter: I understand that. Is this a sign that the state, in fact,

is pre

‐ empting local and regional jurisdiction with respect to

control of the location of these pipelines?

Mr. Cowert: That has always been the case.

Sen. Carter: Does this extend to secondary impacts?

Mr. Cowert: No.

Appellant’s Attach. D at 4–8.

It is not absolutely clear what Senator Carter meant by “secondary impacts,” but

it is at least plausible that he was referring to situations like that discussed one year

later by our Supreme Court in In re Southview Associates

, 153 Vt. 171 (1989), where the

Court upheld the Environmental Board’s denial of a permit application to build a

residential development in a deeryard, stating that the “proposed project would destroy

ten acres of critical habitat and, through the secondary impacts of people living in the

homes, imperil the remaining 34 acres.” Id

. at 178. It is also not clear whether Mr.

Cowert was stating that PSB § 248(b) jurisdiction did not extend to secondary impacts

prior to the proposed amendment, but would so extend if H. 681 were enacted, or

whether he was stating that PSB jurisdiction would not extend even if H. 681 were

enacted.

If it is true that the Legislature did not intend for the PSB’s exclusive jurisdiction

to extend to secondary impacts generated by § 248 projects, then they must have

intended that jurisdiction over those secondary impacts would remain part of the Act

250 review process. 11

11 There is some evidence that the Legislature intended that the PSB have exclusive jurisdiction over

secondary impacts. Mr. Cowert testified that a “fact of life we have to deal with is that we don’t have

statewide or regional comprehensive land use planning to reassure us that we have the capability to

manage the secondary effects of infrastructure as significant as the pipeline. So what can we do? Well,

this bill attempts to do the best we can with what we’ve got right now.” Appellant’s Attach. D at 23.

More to the point, the testimony of Mr. Parenteau, then the Commissioner of the Department of13 Later in the hearing on H. 681, the testimony turns to the concept of “one

‐ stop

shopping” for permit approval. Mr. Cowert continues his testimony as follows:

Question: where should review lie? And this goes back to the beginning

of Act 250, and as you all know, the Legislature determined—and I think

it was a good decision—that electric generating facilities and transmission

facilities would not be subject to Act 250 review because the Public Service

Board was going to review, and they did not want two

‐ stop shopping.

They wanted one

‐ stop shopping. And everybody knew that the Public

Service Board was going to have to review the financing of the facility, the

way it’s located and connected to the network, the system reliability issues

that are related to the location of the network, whether transmission

facilities are adequate to service a generating station, whether the

company is going to have adequate catch [sic “cash”] flow and its effect on

rates. The Public Service Board is going to be reviewing all of those

things, and it didn’t make any sense to the Legislature to have the

Environmental Board or the district environmental commission on a

different track doing environmental review. Consequently, there was

language added to Section 248—very broad language—that required the

Public Service Board to conduct an environmental review of those

facilities at the same time that they were conducting these other reviews,

the financial and system reviews.

Appellant’s Attach. D at 16–17.

The “broad language” Mr. Cowert was referring to is the first portion of

§ 248(b)(5), which establishes the following standard of review: “with respect to an in

‐

state facility, [the project] will not have an undue adverse effect on esthetics, historic

sites, air and water purity, the natural environment and the public health and

safety

. . . .” Mr. Cowert went on to state that the PSB viewed this language as giving it

Environmental Conservation, includes this statement: “The logic of [the shift in control to the PSB] is that

you will have an expert board who will understand the full picture of the pipeline, the laterals, the

mainline, secondary impacts, environmental concerns, growth concerns and all the rest. But I do want to

stress that I have not looked at this language or these criteria with a view towards could they be

improved from the standpoint of secondary impacts. It may well be that they could. I don’t know if the

language needs to be changed, though.” Id

. at 40. The legislative record presented to the Court in this

appeal does not reveal an adoption or a rejection by House and Senate members of the witness testimony

offered by Messrs. Cowert and Parenteau.14 an environmental mandate “as broad and more flexible” than the mandate in Act 250,

and that the PSB “looked at the criteria of Act 250 in order to be informed as to what the

broad language of Section 248 meant.” Appellant’s Attach. D at 17. Mr. Cowert then

noted that the phrase “due consideration having been given to the criteria specified in

10 V.S.A. § 1424a(d)” had been added in the previous year (1987), and stated that “we

proposed [the language in the House bill] adding specifically the cross references to the

appropriate sections of Act 250.” Id

. at 18.

It appears from the record presented to us that Mr. Cowert viewed the addition

of the phrase “and § 6086(a)(1) through (8) and (9)(K)” as merely codifying the existing

practice of the PSB, as he stated that “I view this as an improvement because it will

codify what has been the unspoken practice in most cases that come before the PSB,

which is that the PSB will look at Act 250 in order to determine whether the general

umbrella language about the natural environment and the public health and safety has

been met.” Id

. at 20.

Mr. Cowert then returned to the concept of one

‐ stop as opposed to two

‐ stop

permit shopping:

At one point I was discussing one

‐ stop versus two

‐ stop shopping and

why I think that it is preferable to keep this review at the PSB rather than

having an Environmental Board review and a PSB review. First, as I said,

all on the system stability and economic factors, we’re going to have that

review in any event so you would have a dual track. You’d have the

environmental review going off over here and the financial review going

on over here. Now that raises an immediate coordination problem, not

just in timing. It’s a burden on everybody. It’s a burden on citizens who

want to oppose a facility. It’s a burden on local select boards and

planning commissions who have got to go to two sets of hearings. It’s a

burden on the applicant. It takes longer. I don’t think it’s worth it. But

there’s an even more fundamental problem. As you’ve seen with Vicon,

over on the environmental side every time you change the litigation [sic

“mitigation”] requirement, you change the economics of the project. You

better install a new scrubber. You’ve got to change your ash disposal

methods; you’ve got to do something over here. All of a sudden your15 finances are different, and the terms of any contract that you’ve got for the

sale of your power is going to be different. So the idea that you can

somehow segregate these things in their two different worlds is just not

reality. I think it’s a lot more sensible to keep them in the same place.

Id

. at 20–21.

Interested Person VELCO asserts that “[b]ecause [10 V.S.A.] § 6001(3)(D)(ii)

excludes electric generation and transmission facilities that require a [certificate of

public good], Act 250 jurisdiction does not apply to such facilities regardless of whether

they would constitute a material or substantial change to existing development.”

VELCO Mem. in Support of Appellant’s Mot. for Summ. J. at 11. We agree. Such

facilities are carved out of Act 250 jurisdiction by the plain language of the statute.

There are strong policy arguments, upon which the record establishes that the

Legislature relied, supporting the sole jurisdiction of the PSB over such facilities, chief

among them is the wisdom of having one statewide board handle the integrated electric

generation and transmission network, so that no single local body can put up a

roadblock. Also, the PSB has an institutional memory and an ever

‐ growing body of

knowledge regarding the cases it oversees, in contrast to local or regional boards which

would have to reinvent the wheel with every case.

We wish to minimize any confusion or misinterpretation that our decision here

may create, and therefore offer further comments on “secondary impacts,” with the

hope that these further comments do not increase the chance of confusion or

misinterpretation. Even though the proposed facility itself is not subject to Act 250

jurisdiction, it is possible that the exempt facility will generate secondary impacts on the

encumbered land surrounding the proposed facility. For example, the site clearing for

any construction of the proposed facility may force sensitive or protected species off the

site and onto surrounding encumbered land. The removal of forest cover and the

creation of new impervious surfaces may alter stormwater runoff patterns in areas far16 removed from a facility’s footprint. In the above two examples, the site clearing and

construction would be subject to the sole jurisdiction of the PSB, but the displacement of

animals and altered stormwater runoff patterns could create impacts beyond the

boundaries of the facility, and thus outside of the PSB’s jurisdiction. These and other

potential secondary impacts may either: (1) constitute material and substantial changes

to the previously permitted projects, triggering EBR 34 amendment jurisdiction; or (2)

create changes which must be addressed when an amendment to the pre

‐ existing Act

250 permits is otherwise required, due to the ordinary evolution of the pre

‐ existing

developments on the lands of McGraw Family Partnership and Magic Mountain, LLC.

Such off

‐ site, secondary impacts fall within the District Commission’s particular

area of expertise and jurisdiction, and not that of the PSB. The potential secondary

impacts are local, depending on local conditions and the particulars of the existing

permit conditions. The strong policy arguments in favor of exclusive PSB jurisdiction

do not pertain to such impacts, as the District Commission would not be called upon to

examine the proposed facility itself, nor would it be empowered to impose conditions

on the facility, or prevent its construction. The proposed facility would simply be an act

of the PSB, much as a meteor strike removing the top of Glebe Mountain would be an

act of God. The District Commission can do nothing to prevent either one, but must

address the changed conditions on the lands over which it has continuing jurisdiction

and attempt to mitigate adverse impacts on the values sought to be protected by Act

250.

The existence of secondary impacts sufficient to require an Act 250 permit

amendment is, at this point, merely theoretical. While the parties have stipulated that

the proposed project would itself constitute a material or substantial change if the

analysis typically employed under EBR 34 were to apply, they have made no such

stipulation regarding secondary impacts. Appellant has yet to file a petition for a

certificate of public good with the PSB for the proposed facility. Once that petition has17 been submitted, the PSB may impose conditions or require alterations, so that the

secondary impacts, if any, do not rise to the level of substantial or material changes

requiring an amendment to the existing Act 250 permits. It will be the PSB that

conducts the environmental review of the proposed facility, with due consideration to

Act 250 Criteria 1–8 and 9(K) as required by § 248(b)(5). Furthermore, it is up to the PSB

to determine the physical boundaries of the facility, within which its jurisdiction is

exclusive, and beyond which the District Commission retains continuing jurisdiction on

the subject properties.

If the PSB issues a certificate of public good for the proposed facility, and the

facility subsequently generates secondary impacts beyond the boundary established by

the PSB, and those impacts amount to a substantial or material change to the

surrounding permitted development, then there are a number of procedural avenues by

which the District Commission could exercise its authority to address the impacts. The

secondary impacts could cause the previously permitted development to be in violation

of prior permit conditions, resulting in an enforcement action that could be resolved

though a permit amendment. Or, the holder of an Act 250 permit could seek a permit

amendment for any reason, and the District Commission could then address the

secondary impacts in conjunction with the requested amendment. We leave the

consideration of these possible future scenarios to a future proceeding, as they are not a

case or controversy before us here.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that Appellant’s motion for summary judgment is GRANTED as to Question 1 in

Appellant’s Revised Statement of Questions. In so ruling, we conclude that Act 250

jurisdiction under ERB 34 does not attach to electric generation facilities that are located

on lands encumbered by pre

‐ existing Act 250 permits. For these same reasons,18 Interested Person GMGI’s motion for summary judgment is DENIED as to Question 1

in Appellant’s Revised Statement of Questions.

As to Question 2 in Appellant’s Revised Statement of Questions, Appellant’s

motion is GRANTED to the extent that it refers to the PSB’s exclusive jurisdiction over

all impacts within the boundaries of the subject facility. However, Appellant’s motion

is DENIED to the extent that it refers to secondary impacts beyond the established

boundaries of the proposed § 248 facility. We deny that part of Appellant’s motion for

the reason that such impacts are not properly before this court and therefore do not

constitute a case or controversy for which this court has authority to rule. See Cupola

Golf Course, Inc. v. Dooley

, 2006 VT 25, ¶ 11 (stating that “ the judiciary is not

empowered to render advisory opinions. Courts are not permitted to dispose of the

merely hypothetical.”). For these same reasons, the various summary judgment

motions filed on behalf of Interested Persons GMGI and Town of Windham and

Intervenors Town of Windham Planning Commission and Windham Regional Planning

Commission are also DENIED as to Question 2.

Because we have adjudicated all of Question 1, and that part of Question 2 that

presents an actual case or controversy to us, and because no other Questions are

contained in Appellant’s Statement of Questions, this decision concludes the

proceedings before this Court in this appeal. A Judgment Order accompanies this

decision.

Done at Berlin, Vermont this 18 th day of May, 2006.

__________________________________________ Thomas S. Durkin, Environmental Judge