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The Efficiency of Section 248 Permitting Must be Protected

by | Oct 2, 2023

The Public Utility Commission is jeopardizing the efficiency of the Section 248 process by changing the list of entities that must be notified when a Section 248 petition is filed and that are entitled to party status without being vetted by the Commission. Renewable Energy Vermont and Vermont utilities agree that these changes risk significantly slowing the Section 248 permitting process without providing a meaningful benefit to Vermonters.

The Legislature defined in statute, the entities that must be notified when a Section 248 permit process is initiated and that are entitled to party status without Commission review. In spite of this explicit Legislative action, the Commission has taken it upon itself to expand the list of individuals and entities that are that must be notified and granted party status in a permitting case. These changes would introduce major new sources of unpredictability and expense in the permitting process. The changes represent deviations from the explicit language in Section 248 setting the entities that must receive notification and are entitled to intervene by notice. The Vermont Electric Coop has provided a lengthy analysis that the Commission lacks the authority to make these changes submitted and REV also believes that these changes are contrary to clear legislative intent.

While it is difficult to predict the cost implications for new renewable power of lowering the threshold for and expanding the scope of adjoining landowners’ participation in Section 248 cases, it is very likely that these costs would be considerable. While the Commission has attempted to justify the changes as simplifying the participation process, the proposed language would seem to provide, at best, limited benefit for landowners seeking to intervene while eliminating a crucial opportunity for the Commission to fulfill its historical role in determining whether or not party status is appropriate.

Additionally, the changes create the potential entanglement of the historically distinct Act 250 and Section 248 processes. The Commission’s inclusion of the Natural Resources Board (NRB) as an entity that must receive advance notice and in the newly expanded list of entities entitled to party status through a Notice of Intervention “if the project site is subject to an Act 250 permit” implicitly suggests that Commission considers Section 248 projects as subject to the Act 250 process. Once again, this is contrary to the clear legislative intent evident in the creation of a separate Section 248 process for energy projects and the explicit exclusion of these projects from the definition of development governing the Act 250 process.

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