Petition for Writ of Certiorari — Allco Renewable Energy Limited, et al., Petitioners v. Agency of Natural Resources, et al.

Supreme Court briefNov 27, 2024

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QUESTION PRESENTED

Whether statutory provisions that empower the

Vermont Public Utility Commission (PUC) to initiate

and

adjudicate

administrative

enforcement

proceedings seeking civil penalties violate the

Seventh Amendment?

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Petitioner

Allco Renewable Energy Limited, a Florida

corporation, discloses that there is no parent or

publicly held company owning 10% or more of its

stock. PLH Vineyard Sky LLC, a Florida limited

liability company, discloses that there is no parent or

publicly held company owning 10% or more of its

membership units. Apple Hill Solar LLC, a Vermont

limited liability company, and Chelsea Solar LLC, a

Vermont limited liability company, disclose that Allco

Finance Limited, a Florida corporation, owns 100% of

their membership units and that there is no parent or

publicly held company owning 10% or more of the

stock of Allco Finance Limited.

iii

RELATED PROCEEDINGS

Supreme Court of The State of Vermont,

In re Investigation Pursuant to 30 V.S.A. §§ 30 & 209

into whether the Petitioner Initiated Site Preparation

at Apple Hill in Bennington, VT, (Allco Renewable

Energy Limited et al.), No. 23-AP-346, 2024 VT 58

(August 30, 2024).

Vermont Public Utility Commission,

Investigation pursuant to 30 V.S.A. §§ 30 and 209 into

whether the petitioner initiated site preparation at

Apple Hill in Bennington, Vermont, for electric

generation in violation of 30 V.S.A. § 248(a)(2), No. 201611-INV (April 1, 2021, May 30, 2023, June 13, 2023

and September 19, 2023)

PETITION FOR A WRIT OF CERTIORARI

Allco Renewable Energy Limited, PLH

Vineyard Sky LLC, Apple Hill Solar LLC, and

Chelsea Solar LLC (collectively, Allco) respectfully

seek a writ of certiorari to review the judgment of the

Supreme Court of the State of Vermont in this case.

OPINIONS BELOW

The opinion of the Vermont Supreme Court

affirming the decision of the Vermont Public Utility

Commission (PUC) is reported at 2024 VT 58 and

reprinted in the Appendix to the Petition (“App.”)

beginning at App.1a.

The opinions of the PUC are unreported. They

are reprinted beginning at App.31a.

JURISDICTION

The Vermont Supreme Court issued its

opinion, which also constitutes its judgment, on

August 30, 2024. The jurisdiction of this Court is

properly invoked pursuant to 28 U.S.C. §1257.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Seventh Amendment is set forth at

App.118a. Relevant provisions of Vermont law are

reprinted beginning at App.119a.

STATEMENT OF THE CASE

Last Term this Court reigned in the power of

the Federal Administrative State in SEC v. Jarkesy,

144 S. Ct. 2117 (2024), and Loper Bright Enterprises

v. Raimondo, 144 S. Ct. 2244 (2024). This case is

Jarkesy at the State level.

The

Vermont

Legislature

transferred

jurisdiction to the juryless PUC as part of its land use

regulation of when a landowner can put a solar energy

facility on her property. As part of the transfer of

jurisdiction to the PUC, the Vermont statute allows

for knee-buckling fines and leaves the PUC to its own

devices for the process for implementation and

levying of fines.

Jarkesy is not binding upon the States unless

this Court applies the Seventh Amendment’s right to

a civil jury trial to the States. To date, the Seventh

Amendment has been treated as a distant relation to

the other rights in the Bill of Rights.

While the Petitioners’ applications to build

solar electric generation facilities on a 27-acre parcel

in Bennington, Vermont, were pending before the

PUC, the Petitioners sought to use the parcel for

farming. A member of the public complained to the

PUC that the Petitioners’ clearing of the parcel for its

farming activities would constitute “site preparation”

for the construction of an electric generation facility

without a certificate of public good, and thus would

violate 30 V.S.A. § 248(a)(2).

The PUC then sua sponte opened up an

investigation in which it was the complainant, the

prosecutor, the judge and the jury.

While the Petitioners disputed the charges,

pleas to “the same body that approved the charges[]

tend to go about as one might expect.” Jarkesy,

(Gorsuch, J., concurring) 144 S. Ct. at 2142.

And they did. While the investigation against

Petitioners initially donned a cloak of purported

“environmental protection”, in the end, even the PUC

was not willing to hold that noxious weeds and plants

that can be purchased at Home Depot were entitled to

environmental protection. But the PUC issued a

penalty despite conceding that there was no threat of

environmental damage. After all, farming is an as-ofright use in Vermont.

The PUC made it clear that its imposition of a

civil penalty was to punish the Petitioners. See, App.

54a (“Any penalty imposed in this case must

specifically deter the Developer from making the

same mistake again, and also generally deter any

other developers of Section 248 projects from making

the same error.”) App. 58a (“we believe a $5,000

penalty on top of these costs serves as an important

specific and general deterrent.”)

The Petitioners argued before the PUC that

they were entitled to a jury trial because intended to

impose a civil penalty as punishment and not for any

type of restitution.

The Vermont Supreme Court upheld the PUC’s

juryless treatment of the Petitioners, explicitly

holding that the civil jury protections in Vermont’s

Constitution are not as protective as the Seventh

Amendment after Jarkesy.

REASONS FOR GRANTING THE PETITION

While this Court “has not held that the right to

jury trial in civil cases is an element of due process

applicable to state courts through the Fourteenth

Amendment,” Curtis v. Loether, 415 U.S. 189, 192 n.

6 (1974), a state court is not involved here, a state

agency is. If the Vermont Supreme Court’s opinion is

allowed to stand, there will be a massive loophole in

the protection of Americans’ property rights that

would encourage States to do exactly what the Crown

did—transfer jurisdiction over various cases to

juryless administrative tribunals.

The Fourteenth Amendment, provides, among

other things, that a State may not deprive “any

person of life, liberty, or property, without due process

of law.” In McDonald v. City of Chicago, 561 U.S. 742,

767 (2010), this Court laid out the test for

incorporation of the Bill of Rights against the States:

“whether the right … is fundamental to our scheme of

ordered liberty, .. or as we have said in a related

context, whether this right is ‘deeply rooted in this

Nation's history and tradition.’” (citations omitted).

As Jarkesy makes plain, the Seventh

Amendment’s right to a jury trial—“the glory of the

English law”— 144 S. Ct. at 2128, easily satisfies both

of those criteria.

At stake here are two fundamental rights at

the heart of liberty in a democratic society—property

rights and a right to trial by jury. “[A] fundamental

interdependence exists between the personal right to

liberty and the personal right in property. Neither

could have meaning without the other.” Lynch v.

Household Finance Corp., 405 U.S. 538, 552 (1972).

“That rights in property are basic civil rights has long

been recognized. J. Locke, Of Civil Government 82-85

(1924); J. Adams, A Defence of the Constitutions of

Government of the United States of America, in F.

Coker, Democracy, Liberty, and Property 121-132

(1942); 1 W. Blackstone, Commentaries *138-140.” Id.

Thomas Jefferson identified the jury “as the

only anchor, ever yet imagined by man, by which a

government can be held to the principles of its

constitution.” Letter from Thomas Jefferson to

Thomas Paine (July 11, 1789), in The Papers of

Thomas Jefferson 267 (Julian P. Boyd ed., 1958). And

John Adams called trial by jury (along with popular

elections) “the heart and lungs of liberty.” The right

to jury trial is quite simply the most deeply rooted

right in American history and tradition. Steven G.

Calabresi, Sarah E. Agudo, and Kathryn L. Dore,

State Bills of Rights in 1787 and 1791: What

Individual Rights Are Really Deeply Rooted in

American History and Tradition? 85 So. Cal. L. Rev.

1451, 1511-12 (2012). Disputes between government

and its officers on the one part, and the subject or

citizen on the other, as here, were the “very cases

where, of all others, [the jury trial] was most essential

for [the people’s] liberty.” Luther Martin, Genuine

Information (1787), reprinted in 3 The Records of the

Federal Convention of 1787, at 222 (Max Farrand ed.,

1911) (italics omitted).

Trial by jury is a “fundamental” component of

our legal system “and remains one of our most vital

barriers to governmental arbitrariness.” Reid v.

Covert, 354 U.S. 1, 9-10, 77 S. Ct. 1222 (1957). The

Seventh Amendment protects that right.

Jarkesy makes clear that the treatment of

Petitioners at the hands of the PUC has been simply

inconsistent with the American scheme of liberty. 144

S. Ct. at 2131-2132 (“there is no liberty if the power of

judging be not separated from the legislative and

executive powers,” citing and quoting The Federalist

No. 78, at 466 (quoting 1 Montesquieu, The Spirit of

Laws 181 (10th ed. 1773)).

And here, the PUC opened up the investigation

sua sponte, and acted as prosecutor, judge and jury.

In other words, it was the same Commissioners that

brought the charges that also found the facts, decided

the law, and imposed the punishment, which is the

perfect replication of the Colonial vice-admiralty

courts that sparked the American Revolution.

As explained in Jarkesy, 144 S. Ct. at 2128:

the right is not limited to the commonlaw forms of action recognized when

the Seventh Amendment was ratified.

[citation]. As Justice Story explained,

the Framers used the term ‘common

law’

the

Amendment

contradistinction to equity, and

admiralty,

and

maritime

jurisprudence.

[citation].

The

Amendment therefore embraces all

suits which are not of equity or

admiralty jurisdiction, whatever may

be the peculiar form which they may

assume.”

(Internal citations and quotations omitted) (emphasis

added).

When, as here, civil penalties are sought

against a person (on their own or as part of other

relief), said person should be entitled to a trial by jury.

Id. at 2129 (“while courts of equity could order a

defendant to return unjustly obtained funds, only

courts of law issued monetary penalties to punish

culpable individuals.”) (internal quotation and

citation omitted). No longer should the Seventh

Amendment be treated as a poor relation to the other

rights guaranteed in the Bill of Rights.

CONCLUSION

The petition should be granted.

Respectfully submitted,

THOMAS MELONE

COUNSEL OF RECORD

ALLCO RENEWABLE ENERGY

LIMITED

157 CHURCH STREET, 19TH FLOOR

NEW HAVEN, CONNECTICUT 06510

(212) 681-1120

THOMAS.MELONE@ALLCOUS.COM

Counsel for Petitioners

NOVEMBER 27, 2024

APPENDIX

Appendix A—Supreme Court of Vermont

Opinion, 2024 VT 58 (Aug. 30, 2024) ................ 1a

Appendix B—Vermont Public Utility

Commission Final Order Imposing Civil

Penalty (Sep. 19, 2023) ................................... 31a

Appendix C— Vermont Public Utility

Commission Order Imposing Liability for

Civil Penalty (Apr. 1, 2021) ............................ 66a

Appendix D—Seventh Amendment ............... 119a

Appendix E—30 V.S.A. §30 ........................... 120a

Appendix F—30 V.S.A. §248 .......................... 128a

APPENDIX A

2024 VT 58

No. 23-AP-346

In re Investigation

Pursuant to 30 V.S.A.

Sec. 30 & 209 into

Whether the Petitioner

Initiated Site

Preparation at Apple

Hill in Bennington, VT;

(Allco Renewable

Energy Limited et al.,

Appellants)

Supreme Court

On Appeal from Public

Utility Commission.

May Term, 2024

August 30, 2024, Filed

Anthony Z. Roisman, Chair.

Michael Melone, Allco Renewable Energy Limited,

New Haven, Connecticut, for Appellant.

Charity R. Clark, Attorney General, and David

Golubock, Assistant Attorney General, Montpelier,

for Appellee Agency of Natural Resources.

Ben Civiletti, Special Counsel, Montpelier, for

Appellee Department of Public Service.

Present: Reiber, C.J., Eaton, Carroll, Cohen and

Waples, JJ.

¶1. Reiber, C.J. Developer, Allco Renewable Energy

Limited, and its affiliates, Chelsea Solar LLC, Apple

Hill Solar LLC, and PLH Vineyard Sky LLC, appeal

a permanent injunction and civil-penalty order issued

by the Vermont Public Utility Commission (PUC).

The PUC found that by clearing trees at the planned

location of an electric-generation facility while its

petition for a certificate of public good (CPG) was

pending, developer had initiated site preparation

without a CPG, in violation of 30 V.S.A. § 248(a)(2)(A).

Developer argues that the tree clearing was intended

not as site preparation but to support its agricultural

activities, and it brings a host of jurisdictional,

administrative, and constitutional arguments against

the injunction and civil penalty. We conclude that the

PUC had jurisdiction over developer's activities, that

it acted within its authority in imposing the

injunction and civil penalty, and that none of

developer's remaining arguments have merit.

Accordingly, we affirm the PUC's order.

I. Background

¶2. In 2013 and 2014, developer executed two

standard-offer contracts under 30 V.S.A. § 8005(a) for

solar-electric energy generation facilities at two sites,

Willow Road and Apple Hill Road, located on a

twenty-seven-acre parcel of land in Bennington,

Vermont. Developer subsequently applied for the

requisite CPGs by filing petitions with the PUC for

each contract, pursuant to 30 V.S.A. § 248. The

standard-offer contracts have been amended several

times to extend their operational deadlines and have

neither expired nor been relinquished. The PUC

denied a CPG for the Willow Road site in 2016 and

denied an amended petition in 2019, which this Court

affirmed in 2021. See In re Chelsea Solar LLC, 2021

VT 27, 214 Vt. 526, 254 A.3d 156. The PUC granted a

CPG for the Apple Hill Road site in 2018, but

neighbors appealed, and this Court reversed in part

and remanded for further proceedings. See In re

Apple Hill Solar LLC, 2019 VT 64, 211 Vt. 54, 219

A.3d 1295.

¶3. Following the remand, developer filed an

amended petition for a CPG for the Apple Hill Road

site to reflect developer's intention to graze sheep

and grow hemp on the Apple Hill Road site and an

adjacent five-acre parcel, which the PUC considered

part of the Apple Hill Road site. Developer's amended

petition stated that the agricultural activities were

“wholly unrelated to the proposed-solar [sic] use.” On

May 7, 2020, the PUC denied a CPG for the Apple Hill

Road site on remand and denied the motion to amend

the petition to reflect sheep grazing and hemp

farming at the project site.

¶4. In June 2020, while developer’s motion for

reconsideration was pending, a neighbor filed a public

comment with the PUC alleging that developer had

begun clearing trees on the land, despite the CPG

denial. In response, the Agency of Natural Resources

(ANR) raised concerns that the site clearing

threatened substantial and immediate harm to “rare”

and “very rare” plants and requested a cease-anddesist order to prevent irreparable harm to the plants.

The Department of Public Safety (DPS) also

requested further investigation into whether

developer initiated the tree-clearing activity as site

preparation for the electric-generation facilities, in

violation of 30 V.S.A. § 248(a)(2). The PUC

subsequently initiated an investigation “pursuant to

30 V.S.A. Sections 30 and 209” and informed

developer to “be prepared to address with affidavits

(filed before the hearing begins) or live testimony

whether site clearing being conducted on Apple Hill

in Bennington, Vermont, violates Section 248(a)(2) of

Title 30.”

¶5. At the subsequent evidentiary hearing, Thomas

Melone appeared on behalf of developer and testified

about the tree clearing and proposed agricultural

activities. While Melone insisted that the tree

clearing was being done for agricultural purposes, he

stated that the “primary aspect” of the sheep grazing

would be to clear vegetation around the solar facility,

and he agreed that it would not be possible to build a

solar facility on the site “unless the trees are cleared.”

Based in part on this testimony, the PUC concluded

that developer's “actions on Apple Hill continue to be

part of [its] plan to develop the site for the two

facilities that are the subject of its standard-offer

contracts.” The PUC therefore issued a temporary

restraining order prohibiting site-preparation

activities on both the twenty-seven-acre and five-acre

parcels. Despite the order, developer continued to

conduct site clearing activities the following day until

a sheriff arrived and ordered all work to cease.

Developer appealed the temporary restraining order,

but we dismissed without prejudice to refiling if a

permanent injunction was granted. See In re

Investigation Pursuant to 30 V.S.A. §§ 30 & 209, No.

2020-242, 2020 WL 6799008, 2020 Vt. LEXIS 118 (Vt.

Nov. 5, 2020) (unpub. mem.) [https://perma.cc/8PF3H3DN].

¶6. Following a second evidentiary hearing, the PUC

concluded that developer's tree-clearing activity was

site preparation for the proposed solar-electricgeneration facilities and thus, without a CPG,

violated 30 V.S.A. § 248(a)(2). The PUC found that (1)

ANR observed site-clearing activity on the twentyseven-acre parcel; (2) developer planned to build two

solar-electric-generation facilities on the site; (3)

clearing for a solar facility requires tree clearing; and

(4) developer planned to use sheep as part of its solar

facility development plan. The PUC therefore issued

a permanent injunction order in April 2021

prohibiting developer “from engaging in any further

site preparation without a CPG, including tree

clearing, on any properties identified in its standardoffer contracts or CPG petitions for solar electric

generation facilities,” which included both the

twenty-seven-acre and five-acre parcels. The order

would remain in place until either “(1) the Developer

receives a CPG for constructing an electric generation

facility on this site, or (2) final orders from the

Vermont Supreme Court or the Commission deny

both of the CPG petitions … and both of the

Developer's standard-offer contracts have expired or

been voluntarily relinquished.” Developer again filed

an appeal, which we dismissed because it was not

taken from a final appealable order. See In re

Investigation Pursuant to 30 V.S.A. §§ 30 & 209, 2021

VT 92, 216 Vt. 145, 274 A.3d 823.

¶7. The PUC conducted additional proceedings,

including a third evidentiary hearing, to determine

the amount of the civil penalty under 30 V.S.A. § 30.

DPS recommended a civil penalty in the amount of

$5000 while ANR recommended $29,000. Pursuant to

30 V.S.A. § 30(c), the PUC analyzed eight factors to

determine the amount of the penalty. The PUC

concluded that developer's failure to comply with its

regulatory obligations harmed the credibility and

integrity of the process, resulting in harm to the

statutory scheme and potential harm to public safety

and welfare, the environment, and utility customers.

The PUC also found developer's claims that site

preparation was done solely for unrelated farming

purposes to be not credible given that developer knew

that it did not have a CPG, that it was required to

have one, that it needed to clear trees for site

preparation, and that clearing had already been

denied by the PUC. Finally, the PUC found that

developer had sufficient resources to pay the fine and

that the $5000 penalty would have specific and

general deterrent effects. While the other statutory

factors did not weigh against developer, the PUC

concluded that based on these findings, a $5000 fine

was appropriate. This appeal followed.

II. Discussion

¶8. Developer makes five main arguments on

appeal. First, it contends that the PUC lacked

jurisdiction over its tree-clearing activities because

these activities were agricultural and not “site

preparation for or construction of an electric

generation facility.” 30 V.S.A. § 248(a)(2)(A). Second,

developer asserts that the PUC lacked statutory

authority to initiate the investigation, enjoin the treeclearing activities, and impose civil penalties. Third,

developer attacks the injunctive order on various

grounds, arguing that there was no irreparable

injury, that the order was overly broad, and that the

order was arbitrary and capricious. Fourth, developer

argues that ANR's participation in these proceedings

and its classification of rare and very rare plants

exceeded its authority. Finally, developer brings

several constitutional challenges to the proceedings,

arguing that § 248 is unconstitutionally vague, that

the delegation of authority to the PUC violates

separation of powers, that developer was denied due

process, and that it was denied the right to a jury

trial.

¶9. In reviewing decisions of the PUC, we accord

“substantial deference” and apply “a strong

presumption of validity to the Commission's orders.”1

In re Vt. Gas Sys., Inc., 2024 VT 2, ¶ 15, ___ Vt. ___,

312 A.3d 519 (quotation omitted) (alteration omitted).

The PUC's findings “will stand unless clearly

erroneous,” and we will neither “reweigh conflicting

evidence nor reassess the credibility of witnesses.” In

re Acorn Energy Solar 2, LLC, 2021 VT 3, ¶ 23, 214

Vt. 73, 251 A.3d 899 (quotation omitted). However,

while our review is generally deferential, “we do not

abdicate our responsibility to examine a disputed

infra, ¶ 30 n.6, nothing in our decision

today implicates deference to an agency's “permissible

construction” of an ambiguous statute. See Chevron, U.S.A., Inc.

v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S. Ct. 2778,

81 L. Ed. 2d 694 (1984). We therefore need not decide the impact

on our jurisprudence of the U.S. Supreme Court's recent decision

abrogating Chevron deference. See Loper Bright Enters. v.

Raimondo, 144 S. Ct. 2244, 219 L. Ed. 2d 832 (2024).

1 As discussed below, see

statute independently and ultimately determine its

meaning.” In re Swanton Wind LLC, 2018 VT 141, ¶

7, 209 Vt. 224, 204 A.3d 635 (quotation omitted). In

our “independent examination, we employ our usual

tools of statutory construction,” starting with the

plain language of the statute. Id. In construing a

statute, our “paramount goal … is to give effect to the

intent of the Legislature.” In re Portland St. Solar

LLC, 2021 VT 67, ¶ 13, 215 Vt. 394, 264 A.3d 872

(quotation omitted).

A. The PUC's Jurisdiction

¶10. Developer first argues that the PUC lacks

jurisdiction under 30 V.S.A. § 209 because its

property is not subject to the supervision of the PUC

under Chapter 5 of Title 30.2 Developer contends

that its tree-clearing activities were farming-related

rather than site preparation for its proposed solar

facilities and that these activities are therefore

beyond the PUC's jurisdiction. We disagree. Section

209(a) of Title 30 provides in relevant part that “the

[PUC] shall have jurisdiction to hear, determine,

render judgment, and make orders and decrees in all

matters provided for in the charter or articles of any

corporation owning or operating any plant, line, or

property subject to supervision under [Chapter 5 of

Title 30].” (emphasis added). Developer is a

corporation that owns the property at issue in this

case. Because it holds standard-offer contracts for two

proposed solar-electric-generation facilities under 30

2 Developer also argues that the PUC lacks jurisdiction under §

203. Because we decide that the PUC had jurisdiction under §

209, we need not decide this question.

V.S.A. § 8005(a) and applied for CPGs for both

proposed facilities under 30 V.S.A. § 248 — a

provision of Chapter 5 of Title 30 — developer is

subject to the supervision of the PUC under Chapter

5 of Title 30 and thus the PUC's jurisdiction under 30

V.S.A. § 209. See In re Constr. & Operation of a

Meteorological Tower, 2019 VT 20, ¶ 21 n.6, 210 Vt.

27, 210 A.3d 1230 (holding that “by erecting a tower

that required approval under § 246, a provision of

Chapter 5 of Title 30, [property owner] subjected

himself to PUC jurisdiction under [§ 209]”).

¶11. To be sure, the PUC does not have jurisdiction

over pure farming activity. See 30 V.S.A. §§ 203, 209

(describing general scope of PUC's jurisdiction);

Acorn Energy Solar 2, 2021 VT 3, ¶ 114 (noting that

“public administrative bodies have only such

adjudicatory jurisdiction as is conferred on them by

statute” (quotation omitted)). But the PUC has

related jurisdiction as described in the statute. As the

PUC found and the record reflects, developer's treeclearing activities were still prohibited as “site

preparation for or construction of an electric

generation facility” regardless of whether they also

had an agricultural character. Id. § 248(a)(2)(A).

Developer provided testimony during the initial

proceedings that “sheep and solar go together” and

that the “primary aspect” of the sheep project would

be for use in connection with the solar project.

Developer's initial proposal indicated that clearing

the trees would be part of site preparation. And at the

temporary-injunction hearing, developer conceded

that tree clearing was a prerequisite to building the

solar projects. Based on this evidence, the PUC found

that the sheep-farming activity would primarily serve

10a

to control vegetative growth for developer's proposed

solar facilities and that tree clearing was essential to

the preparation of a solar-electric-generation site.

Based on these findings, the PUC could reasonably

conclude that the tree clearing was “site preparation

for or construction of an electric generation facility.”

Id. Because developer subjected its property to the

PUC's supervision by applying for a CPG under 30

V.S.A. § 248(a)(2), developer was precluded from

conducting site preparation for its proposed solar

facilities without the requisite CPG. And based on the

PUC's findings and the plain language of the statute,

we agree that these activities constituted site

preparation.

¶12. Relatedly, developer argues that its sheepfarming and hemp-growing activities have “a

separate function apart from the electric facility” and

that under PUC precedent, these activities must be

deemed “reasonably related” to its proposed solar

facilities for the PUC to have jurisdiction. Developer

points to several prior decisions where the PUC

applied the reasonable-relationship test to evaluate

what project components should be included as part

of an electric-generation-facility subject to § 248, and

it argues that the PUC's decision not to apply the test

here was arbitrary and capricious.3 See Petition of

Mollica v. Division of

Property Valuation and Review, 2008 VT 60, 184 Vt. 83, 955

3 Developer also cites to our decision in

A.2d 1171, to support its argument that “a use that has a

separate function apart from the electric facility is not site

preparation for an electric generation facility.” In Mollica, we

concluded that the occasional off-season use of a building as a

rental property, where it retained its predominant use as a

“Christmas Cottage” for a Christmas tree farm, did not

11a

Beaver Wood Energy Pownal, LLC, Docket No. 7678,

slip op. (Vt. Pub. Util. Comm. Apr. 1, 2011).); Petition

of Monument Farms Three Gen, LLC, Docket No.

7592, slip op. (Vt. Pub. Util. Comm. Oct. 22, 2010);

Petition of Georgia Mountain Community Wind, LLC,

Docket No. 7508, slip op. (Vt. Pub. Util. Comm. Jan.

5, 2012). However, unlike the cited cases, the PUC

here was not evaluating whether developer's

proposed sheep-farming and hemp-growing activities

were themselves part of the electric-generation

facility; instead, the PUC was evaluating whether the

tree-clearing activities would be considered site

preparation under § 248(a)(2). As explained above,

regardless of any auxiliary agricultural purpose, the

tree clearing was site preparation under § 248(a)(2).

Developer therefore has not shown any inconsistency

with the PUC's precedents.

¶13. Finally, developer contends its property can

only be subject to the PUC's supervision once the PUC

has issued a CPG. But developer's argument is

inconsistent with the plain language of § 248(a)(2),

which refers to “an electric generation facility … that

is designed for eventual operation,” and which

prohibits “site preparation … unless the [PUC] first

finds that the [electric-generation facility] will

constitute the “subsequent commencement” of a nonfarming use

for purposes of taxation. Id. ¶ 17 (quoting 32 V.S.A. § 3752).

Contrary to developer's argument, Mollica does not stand for a

broad proposition that any farming use of a property supersedes

any nonfarming use of the property. Instead, we were simply

interpreting the specific language of 32 V.S.A. § 3752 to

determine whether “subsequent commencement” required

complete, or only partial abandonment of the farming use. The

case therefore has no relevance here.

12a

promote the general good of the State and issues a

certificate to that effect.” (emphasis added). As we

have previously recognized, the future-oriented

language of § 248(a)(2) “highlights the Legislature's

intent to bring within the statute's purview proposed

construction, i.e., a facility that has not yet been

built.” See In re Proposed Sale of Vt. Yankee Nuclear

Power Station, 2003 VT 53, ¶ 10, 175 Vt. 368, 829

A.2d 1284. By developer's reasoning, it could begin

site preparation for an electric-generation facility

without ever submitting a CPG application, while a

CPG application is pending, or, as was the case here,

pending reconsideration or appeal of the denial of a

CPG application. Developer's reasoning directly

contradicts the CPG requirement provided for in §

248(a)(2) and would provide an avenue for developer,

or any standard-offer contract holder, to circumvent

the PUC's supervision under Chapter 5 of Title 30,

contrary to the plain intent of the law. We therefore

reject this argument.

B. The PUC's Authority

¶14. Developer next argues that the PUC lacked

authority to open its investigation or to issue the

injunction and civil-penalty orders. We again

disagree. First, the PUC has the authority to open an

investigation into whether developer violated 30

V.S.A. § 248(a)(2) pursuant to 30 V.S.A. § 209(a)(6),

which authorizes the PUC to “restrain any company

subject to supervision under [Chapter 5 of Title 30]

from violations of law.” Developer is a company

subject to supervision under Chapter 5 of Title 30.4 To

4 Section 201 of Title 30 defines “company” to mean “individuals,

partnerships, associations, corporations, and municipalities

13a

determine whether a company has violated §

248(a)(2) and thus requires restraint, the PUC has

the implied authority to investigate the matter. While

developer contends that the PUC's power “to open

investigations is limited to express statutory

authorizations,” we have long recognized that the

PUC (formerly the Public Service Commission) has

“such powers as are expressly conferred upon it by the

Legislature, together with such incidental powers

expressly granted or necessarily implied as are

necessary to the full exercise of those granted.”

Trybulski v. Bellows Falls Hydro-Elec. Corp., 112 Vt.

1, 7, 20 A.2d 117, 120 (1941). We reiterate that

principle here. The plain language of § 209(a)(6)

authorizing restraint from violations of law implies

the power to investigate such violations. Without the

power to initiate an investigation, the PUC would be

unable to effectively exercise the power to restrain

violations of law by parties under its supervision. The

PUC therefore had the authority to open an

investigation into whether developer violated 30

V.S.A. § 248(a)(2) by beginning site preparation

without the requisite CPG.

¶15. Developer argues that only DPS can open an

investigation into violations of § 248, citing to 30

V.S.A. § 30(h), which provides that DPS “may issue

an administrative citation to a person [DPS] believes

after investigation violated [§ 248].” (Emphasis

owning or conducting any public service business or property

used in connection therewith and covered by the provisions of

[Chapter 5].” Because developer is a corporation owning property

covered by § 209, a provision of Chapter 5, it qualifies as a

company under § 201.

14a

added). However, while § 30(h) provides one avenue

for an enforcement action for a § 248 violation,

nothing in the statute makes that authority exclusive.

See State v. Boyajian, 2022 VT 13, ¶ 22, 216 Vt. 288,

278 A.3d 994 (“The plain, ordinary meaning of the

word ‘may’ indicates that [a] statute is permissive and

not mandatory.” (quotation omitted) (alteration

omitted)). Moreover, by the plain terms of the statute,

the “administrative citation” available under § 30(h)

is distinct from the civil penalties available under the

statute's other provisions. For example, § 30(h) caps

penalties at $5000, whereas § 30(b) permits penalties

of up to $85,000, plus ongoing fines for continued

violations. If § 30(h) were the only avenue for opening

investigations, the higher penalties authorized by §

30(b) would be ineffective. Thus, the PUC had the

authority to open the investigation under § 209(a)(6)

regardless of whether DPS chose to exercise its

authority under § 30(h). See In re SolarCity Corp.,

2019 VT 23, ¶¶ 11, 18, 210 Vt. 51, 210 A.3d 1255

(recognizing that PUC and DPS have overlapping

powers

and

distinguishing

between

“an

administrative-citation proceeding pursuant to §

30(h)” and “an investigation under the more general

provisions of § 30”).

¶16. Second, the PUC has the authority to issue a

permanent injunction order pursuant to 30 V.S.A. §§

9 and 209. Section 9 provides that the PUC “shall

have the powers of a court of record in the

determination and adjudication of all matters over

which it is given jurisdiction. It may render

judgments, make orders and decrees, and enforce the

same by any suitable process issuable by courts in this

State.” 30 V.S.A. § 9 (emphasis added). As explained

15a

above, the PUC has jurisdiction over developer

pursuant to § 209. Therefore, under § 9, the PUC has

the authority to make factual findings, draw legal

conclusions based on an investigation into violations

of law, and take subsequent enforcement action,

including issuing an injunction order which is a

“suitable process issuable by courts in this State.” Id.;

V.R.C.P. 65; see also Petition of Vt. Elec. Power

Producers, Inc., 165 Vt. 282, 293, 683 A.2d 716, 722

(1996) (noting that “the [PUC] has all the powers of a

trial court in the determination and adjudication of

matters over which it has jurisdiction”). The PUC's

authority to issue an injunction order is further

supported by § 209(a)(6) which gives the PUC the

power “to restrain” a company “from violations of

law.” (Emphasis added). Here, the PUC concluded

from its investigation that developer's activity was

site preparation for its proposed solar facilities and

therefore violated § 248(a)(2). Consequently, the PUC

had the authority to issue a permanent injunction to

restrain developer pursuant to §§ 9 and 209.

¶17. Finally, the PUC has the authority to issue civil

penalties under 30 V.S.A. § 30(a)(1), which provides

in relevant part that “[a] person, company, or

corporation subject to the supervision of the [PUC] …

who violates a provision of … section 231 or 248 …

shall be required to pay a civil penalty.” Here, as

discussed above, developer is a corporation subject to

the supervision of the PUC that violated a provision

of § 248. The plain language of § 30(a)(1) therefore

authorizes the PUC to impose a civil penalty and

requires developer to pay that penalty in the amount

determined by the PUC pursuant to § 30(c). Section

30(c), in turn, lays out eight factors the PUC may

16a

consider “[i]n determining the amount of a fine under

[§ 30(a)].” The PUC considered those factors in

determining the amount of the civil penalty here. It

held three evidentiary hearings, considered DPS's

and ANR's recommendations as part of its

determination of the penalty, and subsequently

issued the lower of the two recommendations — an

amount of $5000. It therefore acted within its

discretion in issuing the penalty. See Constr. &

Operation of a Meteorological Tower, 2019 VT 20, ¶

10 (“[T]he PUC's decision to set and impose a penalty

is within its discretion and will be upheld as long as

it shows a thorough and fair evaluation of the various

relevant factors.” (quotation omitted)).

C. The Injunction Order

¶18. Developer next brings two claims of error with

respect to the injunctive order. First, it argues that

the irreparable-harm requirement for injunctive

relief applies here and was not met. Developer

contends that our decision in Town of Sherburne v.

Carpenter, 155 Vt. 126, 582 A.2d 145 (1990),

permitting public agencies to seek injunctive relief

without a showing of irreparable harm in certain

circumstances, is inapplicable because there is “no

statute that authorizes the PUC to issue an injunction

for an alleged violation of § 248's site preparation

rule.” Assuming Town of Sherburne does not apply,

developer argues that there was no irreparable harm

here because harm to the regulatory process is not a

recognized harm, and the purported environmental

harms are insufficient since the trees will ultimately

be cleared either way.

17a

¶19. Developer is correct that a party seeking

injunctive relief ordinarily must prove that an injury

has occurred for which there is no adequate remedy

at law. See In re Investigation into Gen. Ord. No. 45,

2013 VT 24, ¶ 7, 193 Vt. 676, 67 A.3d 285 (mem.). This

burden is often met by showing that the plaintiff will

suffer irreparable harm if the court does not intervene

to enjoin the challenged activity. Id. But in Town of

Sherburne, we held that [g]enerally, where a statute

authorizes a … public agency to seek an injunction in

order to enforce compliance with a local ordinance or

state statute, and is silent as to the injury caused, [the

agency] is not required to show irreparable harm or

the unavailability of an adequate remedy at law

before obtaining an injunction; rather, all that must

be shown is a violation of the ordinance. 155 Vt. at

129, 582 A.2d at 148; see also 42 Paul M. Coltoff et al.,

Am. Jur. 2d Injunctions § 147 (2d ed. 2024) (“Where

the government is enforcing a statute designed to

protect the public interest, it is not required to show

irreparable harm to obtain injunctive relief; the

statute's enactment constitutes Congress's implied

finding that violations will harm the public and

ought, if necessary, be restrained.”)

¶20. We conclude that Town of Sherburne is

controlling here and that the PUC was not required

to make a finding of irreparable harm. As explained

above, 30 V.S.A. § 209(a)(6) authorizes the PUC, a

public agency, to restrain a company under its

jurisdiction from violations of law. The permanentinjunction order effected the restraint here to enforce

compliance with § 248(a)(2). Because § 209(a)(6)

remains silent as to the injury caused, the PUC was

not required to show irreparable harm before

18a

obtaining the injunction—only that developer

violated § 248(a)(2). As explained above, the PUC

made adequate findings to that effect. The PUC was

therefore not required to show irreparable injury or

harm before issuing a permanent injunction order

upon finding a violation of § 248(a)(2).

¶21. Developer further contends that Town of

Sherburne requires the PUC to review and balance

the equities before issuing an injunction order. But as

Town of Sherburne explains, a balancing of the

equities is permitted only in very narrow

circumstances: namely (1) “where the violation is so

insubstantial that it would be unjust and inequitable

to require” injunctive relief, and (2) where the

“violation is innocent,” or unknowingly committed.

155 Vt. at 131-32, 582 A.2d at 149. Neither of these

circumstances apply here. By the time of the

temporary-injunction order, developer had already

cleared three acres of its twenty-seven-acre parcel,

and it had plans to clear nearly the entire parcel in

the following months. And since developer began

clearing the trees following the denial of a proposed

amendment to reflect sheep farming activities, it had

knowledge that its actions were prohibited. See id. at

132, 582 A.2d at 149 (“Courts have generally found

that a conscious decision to go forward, in the face of

a direction not to from the regulatory body, outweighs

factors pointing against the issuance of a mandatory

injunction.”). Furthermore, developer continued to

conduct site preparation even after the PUC had

issued a temporary restraining order requiring

developer to halt its tree-clearing activity. We

therefore conclude developer's violation was neither

19a

insubstantial nor innocent. As such, no balancing of

the equities was required by the PUC here.5

¶22. Second, developer argues that the injunction

order is overbroad in that it applies not only to the

physical location of the planned energy facility, but

also to the adjacent five-acre “horticultural use lot.”

While it is true that the electric-generation facility

itself will not be placed on the horticultural-use lot,

that lot is part of developer's CPG application and is

therefore part of the overall site. In its initial

proposal, developer included a plan to use

conservation zones and trees in the horticultural-use

lot to offset environmental and aesthetic impacts of

the facility. And in its proposed amendment,

developer suggested that it would construct a building

on the horticultural use lot to obstruct neighboring

views and limit aesthetic impacts. These

environmental and aesthetic concerns were vital to

developer's CPG application because § 248(b)(5)

requires the PUC to find that the project “will not

have an undue adverse effect on aesthetics … [or] the

natural environment.” Because the horticultural-use

lot was part of developer's proposed electricgeneration facility, the PUC could conclude that site

preparation on the horticultural-use lot was still “site

5 In its permanent injunction order, the PUC concluded in the

alternative that irreparable injury existed by way of harm to

rare and very rare plants, harm to the trees that would be

cleared, and harm to the regulatory process through the

violation of § 248(a)(2). Because we hold that the PUC is not

required to show irreparable harm when seeking an injunction

to enforce compliance with § 248(a)(2), we need not decide

whether it correctly concluded that irreparable injury existed

here.

20a

preparation for … an electric generation facility” in

violation of § 248(a)(2).

D. ANR's authority

¶23. Developer next challenges ANR's participation

in these proceedings on two grounds. First, developer

argues that ANR lacked authority to participate in

the proceedings since these proceedings were

initiated under § 209 rather than § 248. However,

while jurisdiction was provided by § 209, this

proceeding was an enforcement action of the

prohibition on site preparation without a CPG under

§ 248(a)(2). Under § 248(a)(4)(E), ANR is required to

“appear as a party in any proceedings held under this

subsection.” It is therefore a proceeding under § 248

and ANR was not only permitted, but required, to

participate. In participating, ANR was required to

“provide

evidence

and

recommendations

concerning any findings to be made under subdivision

(b)(5) of this section” and permitted to “provide

evidence and recommendations concerning any other

matters to be determined by the Commission in such

a proceeding.” Id. § 248(a)(4)(E). Thus, by

participating in the proceedings, offering evidence

about the environmental impacts of the tree clearing,

and recommending a civil penalty, ANR acted within

the explicit scope of its statutory authority.

¶24. Second, developer argues that ANR only has

express statutory authority to classify endangered

and threatened plant species, and that its

classification of rare and very rare species is beyond

its authority. This question has no impact on the

outcome of this case and we therefore do not address

21a

it. As the PUC noted in its civil-penalty order, “the

validity of ANR's classification system is of no

significance because the Commission is not basing its

penalty assessment on actual harm to rare plants.”

While the PUC did consider the rare and very rare

plant classification in its injunctive order as part of

its finding of irreparable harm, we concluded above

that no showing of irreparable harm was required

here. See supra, ¶ 20. Therefore, ANR's plant

classification system did not impact the outcome of

the case. Because our assessment of this question will

not affect the outcome of the case, we decline to decide

this issue. See In re Vt. Elec. Power Co., Inc., 2006 VT

69, ¶ 26, 179 Vt. 370, 895 A.2d 226 (declining to

address appellant's contention that PUC applied

overly narrow definition of statutory term where

appellant failed to argue prejudice “or explain how, if

at all, a broader approach would have changed the

result”); see also People v. Ringland, 2017 IL 119484,

¶ 35, 89 N.E.3d 735 (“Generally, a court of review will

not consider an issue where it is not essential to the

disposition of the case or where the result will not be

affected regardless of how the issue is decided.”).

E. Constitutional Claims

¶25. Finally, developer raises several constitutional

challenges to the proceedings. First, it argues that the

prohibition on site preparation in § 248(a)(2) is

unconstitutionally

vague

and

standardless.

Developer contends that the phrase “site preparation

for … an electric generation facility” is undefined and

that the statute provides no standards for

interpreting or implementing it. Developer suggests

that this authorizes and encourages arbitrary and

22a

discriminatory application by allowing the PUC to

make ad hoc decisions. Second, developer argues that

the Legislature could not, consistent with

the principle of separation of powers, constitutionally

grant the PUC power to act here because the use of

an injunction “is the stuff of what traditional courts of

equity would handle, and thus could not be delegated

to the PUC.”

¶26. Developer's first two constitutional arguments

present facial challenges to the validity of § 248 and §

209 respectively. Each argument “seeks to invalidate

the provision outright” and neither identifies any set

of facts particular to this case “making the statute

unconstitutional, nor to a set of facts under which the

statute would be constitutional.” In re Investigation

to Rev. the Avoided Costs that Serve as Prices for the

Standard-Offer Program in 2019, 2020 Vt 103, ¶ 43,

213 Vt. 542, 251 A.3d 525; see also Vitale v. Bellows

Falls Union High Sch., 2023 VT 15, ¶ 3 n.1, 217 Vt.

611, 293 A.3d 309 (“In a facial challenge, a litigant

argues that there is no set of circumstances under

which the challenged law could be valid and seeks the

invalidation of the challenged law.” (quotation

omitted)). As we have previously explained, “the

Commission lacks jurisdiction to adjudicate a facial

challenge to a statute.” In re Petition of Apple Hill

Solar, 2023 VT 57, ¶ 33, ___ Vt. ___, 311 A.3d 117.

Because the PUC cannot adjudicate facial challenges,

we cannot review such claims on appeal from an order

of the PUC. “As we have insisted in the past,

[developer's] remedy is to follow the appropriate

procedures to seek a declaratory judgment in the

superior court, where other interested persons have

an opportunity to participate in the proceedings.”

23a

Investigation to Rev. the Avoided Costs, 2020 VT 103,

¶ 44.

¶27. Next, developer argues that the PUC violated

due process by failing to provide adequate notice of

the prohibited conduct and by denying developer’s

request for a hearing on the “harm to the regulatory

process.” On the first point, developer again asserts

that the meaning of “site preparation” is too vague,

such that it fails to provide adequate notice of

prohibited conduct. Developer also reiterates its

argument that the PUC acted contrary to its

precedents, which it argues require that “an

improvement to property must constitute a physical

part of an electric generation facility.” On the second

point, developer suggests that harm to the regulatory

process lacks any basis in the statute or

administrative law and was “simply made-up by the

PUC.” Because no such harm is recognized, developer

asserts, a penalty based on that harm is a violation of

due process.

¶28. We reject developer's due-process arguments.

First, as discussed above, we lack jurisdiction in this

matter to address developer's facial challenge that the

phrase “site preparation” is unconstitutionally vague.

We similarly reject developer's arguments about the

PUC's precedents for the same reasons discussed

earlier. See supra, ¶ 12. The PUC did not hold that an

improvement need not constitute a physical part of an

electric-generation facility; rather, it held that the

term “site preparation for … an electric generation

facility” encompassed site-preparation activities that

may also have a secondary purpose. This does not

24a

contradict the PUC's precedents and does not deprive

developer of due process.

¶29. On developer's second point, we conclude that

the PUC appropriately weighed the statutory factors

under 30 V.S.A. § 30(c) and set a penalty within the

reasonable bounds of the statute. Section 30(c)(1)

allows the PUC to weigh “the extent that the violation

harmed or might have harmed the public health,

safety or welfare, the environment, the reliability of

utility service or the other interests of utility

customers.” In discussing the harms to the statutory

scheme, the PUC described the regulatory harm as

“an extension of the harm and potential harm to (1)

public safety and welfare, (2) the environment, and (3)

utility customers.” As it explained, “[t]he § 248

process aims to protect these interests by preventing

undue adverse impacts to the resources protected by

§ 248.” Thus, a violation of § 248 has “attendant

potential to harm the natural environment.” This

discussion is in line with the PUC's obligation to

analyze the statutory factors and therefore does not

create any due-process issues. See 30 V.S.A. § 30(c)(1)

(requiring consideration of “the extent the violation

harmed or might have harmed … the environment”

(emphasis added)).

¶30.

Finally, developer argues that it is

constitutionally entitled to a jury trial on these

charges. It cites to Tull v. United States, 481 U.S. 412,

107 S. Ct. 1831, 95 L. Ed. 2d 365 (1987), for the

proposition that the right to a jury trial applies to “all

actions akin to those brought at common law as those

actions were understood at the time of the Seventh

Amendment's adoption.” Because this suit seeks

25a

“common-law-like legal remedies,” developer argues

it is entitled to a jury trial. In a supplemental citation

filed after argument, developer also points to the

recent U.S. Supreme Court decision in SEC v.

Jarkesy, 144 S. Ct. 2117, 219 L. Ed. 2d 650 (2024).6

Developer argues that under Jarkesy, when “civil

penalties are sought against a person … said person

is entitled to a trial by jury under the Seventh

Amendment to the United States Constitution.”

¶31. Despite developer's intimations to the contrary,

the Seventh Amendment is not applicable to state

courts, and Jarkesy is therefore nonbinding on this

Court.7 See, e.g., Curtis v. Loether, 415 U.S. 189, 192

6 Developer also directs us to the U.S. Supreme Court's recent

decision in Loper Bright, 144 S. Ct. at 2244, overruling in part

Chevron, 467 U.S. at 837. Developer argues that, like federal

courts, “this Court too defers to agencies,” and it asks that we

overrule our precedents requiring agency deference. However,

Loper Bright dealt only with “Chevron deference” — that is,

deference to an agency's “permissible construction” of a statute

that is “silent or ambiguous” as to the issue at hand. See Loper

Bright, 144 S. Ct. at 2264; Chevron, 467 U.S. at 843. Nothing in

our decision today implicates the deference to an agency's legal

interpretations of an ambiguous statute called for in Chevron.

Rather, our decision rests on our independent examination of the

statutory text and Legislative purpose. We therefore need not

decide whether to follow Loper Bright at this time. See supra, ¶

9 n.1.

even if it were binding, Jarkesy is easily

distinguishable based on the nature of the statutory claim. The

Jarkesy Court concluded that “[t]he SEC's antifraud provisions

replicate common law fraud, and it is well established that

common law claims must be heard by a jury.” Jarkesy, 144 S. Ct.

at 2127. This common-law antecedent was critical to the Court's

conclusion that the “public rights” exception to the Seventh

Amendment was inapplicable. Id. at 2137 (distinguishing from

7 However,

26a

n.6, 94 S. Ct. 1005, 39 L. Ed. 2d 260 (1974); City of

Monterey v. Del Monte Dunes at Monterey, Ltd., 526

U.S. 687, 719, 119 S. Ct. 1624, 143 L. Ed. 2d 882

(1999); Osborn v. Haley, 549 U.S. 225, 252 n.17, 127

S. Ct. 881, 166 L. Ed. 2d 819 (2007). Instead, in

defining the right to a jury trial in Vermont, “we have

historically looked to our own Constitution which, like

almost every other state constitution, guarantees the

right to jury trial to the extent that it existed at

common law at the time of the adoption of the

Constitution.” State v. Irving Oil Corp., 2008 VT 42,

¶ 5, 183 Vt. 386, 955 A.2d 1098 (quotation omitted)

(alteration omitted); see Vt. Const. ch. I, art. 12 (“That

when any issue in fact, proper for the cognizance of a

jury is joined in a court of law, the parties have a right

to trial by jury, which ought to be held sacred.”).

¶32. Under Vermont law, “[c]laims traditionally

tried in a court of law to which the constitutional right

Atlas Roofing Co. v. Occupational Safety and Health Review

Commission, 430 U.S. 442, 97 S. Ct. 1261, 51 L. Ed. 2d 464

(1977), on the basis that the statute there “did not borrow its

cause of action from the common law”). Here though, developer

fails to identify, and we are unaware of, any common-law

antecedent to the prohibition in § 248 on site preparation for an

electric-generation facility without a CPG. Developer notes only

that this case involves “common-law-like legal remedies.” But

under Tull and Jarkesy, the inquiry starts with the “cause of

action,” not the remedy. Id. at 2129; see Tull, 481 U.S. at 417

(setting forth two-part test beginning with comparison of “the

statutory action to 18th-century actions brought in the courts of

England prior to the merger of the courts of law and equity”).

Thus, as the Jarkesy Court noted, “Congress could assign …

[certain statutory] adjudications to an agency because the claims

were ‘unknown to the common law.’” Jarkesy, 144 S. Ct. at 2138

(quoting Atlas Roofing, 430 U.S. at 461) (emphasis added).

27a

[to a jury trial] attaches are to be distinguished …

from those that are equitable in nature, which were

traditionally tried solely before a judge and therefore

fall outside the scope of the right.” Irving Oil Corp.,

2008 VT 42, ¶ 5 (quotation omitted). To determine

whether the jury-trial right attaches to a statutory

claim, this Court looks primarily to “the remedy

sought … [and] whether it is legal or equitable in

nature.”8 Id. ¶¶ 7, 18; Agency of Nat. Res., 2013 VT

46, ¶ 26. Under this test, injunctive relief “is distinctly

an equitable remedy” and therefore does not require

a jury trial. Campbell Inns, Inc. v. Banholzer,

Turnure & Co., Inc., 148 Vt. 1, 8, 527 A.2d 1142, 1147

(1987) (quotation omitted).

¶33. In evaluating whether an action for civil

penalties is equitable in nature, we look to the

statutory factors and assess whether the penalty

primarily exists to punish the defendant or instead

Irving Oil Corp., we identified the two-part test from Tull,

which, in addition to examining the nature of the remedy sought,

required an examination of the “closest eighteenth-century

analogue to the statutory cause of action.” 2008 VT 42, ¶ 7.

However, we noted that the nature of the remedy is “more

important” to the analysis, and quoted several concurring and

dissenting U.S. Supreme Court opinions that “have called for

dispensing altogether with the abstruse search for what often

prove to be elusive and imprecise historical analogues.” Id.

(quotation omitted). In our subsequent analysis of the civil

penalties, we relied solely on the nature of the remedy and stated

that “we do not find Tull persuasive.” Id. ¶¶ 17-18. We have since

characterized our test from Irving Oil Corp. as “looking beyond

traditional analysis of whether [the] claim had [an] eighteenth

century common law analogue” and instead focusing on whether

the “penalty was equitable in nature.” Agency of Nat. Res. v.

Persons, 2013 VT 46, ¶ 26, 194 Vt. 87, 75 A.3d 582.

8 In

28a

serves primarily public purposes such as “protecting

the public health and safety and preventing unjust

enrichment at the expense of the State and the

public.” Irving Oil Corp., 2008 VT 42, ¶ 18. As we have

explained, civil penalties can “reimburse the

government for enforcement expenses and other costs

generated by the violation” and “serve a remedial

purpose by making noncompliance at least as costly

as compliance.” Agency of Nat. Res. v. Riendeau, 157

Vt. 615, 622, 603 A.2d 360, 364 (1991). Thus, in Irving

Oil Corp., we concluded that civil penalties in an

environmental-enforcement action were equitable in

nature because the statutory factors and legislative

purpose evinced “a legislative intent to assign the

careful balancing of equities … [to] the agency

traditionally entrusted with such decisions: a judge

rather than a jury.” 2008 VT 42, ¶ 18.

¶34. Here too, we conclude that the civil penalties

authorized by 30 V.S.A. § 30 are equitable in nature

in that they seek primarily to promote the public

welfare rather than punish violators. Cf. In re

Citizens Utils. Co., 171 Vt. 447, 454, 769 A.2d 19, 2627 (2000) (referring to § 30 as a “public remed[y]”). A

comparison of the statutory factors in 30 V.S.A. § 30(c)

and 10 V.S.A. § 8010(b) — the statute at issue in

Irving Oil Corp. — confirms the equitable nature of

the civil penalties here. Of the eight factors under §

30(c), seven are effectively identical to the factors in §

8010(b). Compare 30 V.S.A. § 30(c)(1)-(5), (7), (8), with

10 V.S.A. § 8010(b)(1)-(6), (8).9 While some of the

Irving

Oil Corp. to remove § 8010(b)(5). See 2007, No. 191 (Adj. Sess.),

9 Section 8010(b) was amended following our decision in

§ 5.

29a

criteria relate to the defendant's culpability, the

factors as a whole “reflect a primary legislative

concern with protecting the public health and safety

and preventing unjust enrichment at the expense of

the State and the public.” Irving Oil Corp., 2008 VT

42, ¶ 18; see 30 V.S.A. § 30(c)(1), (3) (requiring

consideration of “the extent that the violation harmed

or might have harmed the public health, safety, or

welfare” and the “economic benefit” obtained from the

violation). Because the statute requires a “careful

balancing of equities” both to “impose such civil

penalties” and to determine “the amount of any

penalty,” the Vermont Constitution does not require

a trial by jury. Irving Oil Corp., 2008 VT 42, ¶ 18; see

also PLH Vineyard Sky LLC v. Vt. Pub. Util. Comm'n,

Case No. 2:23-cv-154, 2024 WL 1072017, at *12, 2024

U.S. Dist. LEXIS 43153 (D. Vt. Mar. 12, 2024)

(rejecting developer's jury trial claim in parallel

federal court proceeding).

III. Conclusion

¶35. For the reasons discussed above, we reject

developer's challenges to the PUC's injunction and

civil-penalty orders. The PUC had jurisdiction under

§ 209 because developer submitted itself to PUC

supervision by applying for a CPG while holding two

standard-offer contracts. Developer was therefore

prohibited under § 248(a)(2) from engaging in site

preparation for its electric-generation facilities — a

prohibition that included the clearing of trees. The

PUC was within its authority to initiate an

investigation based on the credible allegations of site

preparation, and based on its findings, was permitted

to issue the injunctive and civil-penalty orders.

30a

Affirmed.

31a

APPENDIX B

STATE OF VERMONT

PUBLIC UTILITY COMMISSION

Case No. 20-1611-INV

Investigation pursuant to

30 V.S.A. §§ 30 and 209

into whether the

Respondents initiated site

preparation at Apple Hill

in Bennington, Vermont,

for electric generation in

violation of 30 V.S.A. §

248(a)(2)

Evidentiary hearings

conducted June 26,

2020, December 4,

2020, and

July 20, 2023

Order entered: 09/19/2023

FINAL ORDER IMPOSING CIVIL PENALTY

I. INTRODUCTION

Pursuant to 30 V.S.A. §§ 30, 209, and 248(a)(2), in

this order the Vermont Public Utility Commission

("Commission") imposes a civil penalty of $ 5,000 on

Allco Renewable Energy Limited, Chelsea Solar LLC,

Apple Hill Solar LLC, PLC Vineyard Sky LLC, and

PLH LLC, and their related affiliates and

subsidiaries (collectively, the "Developer" or

"Respondents") for conducting unauthorized site

preparation for an electric generation facility without

a certificate of public good ("CPG") on Apple Hill in

Bennington, Vermont, in June 2020.

32a

II. BACKGROUND

This case arises out of the Developer's efforts to

construct two solar facilities on Apple Hill in

Bennington, Vermont. A detailed history of those

efforts and the resulting Commission proceedings can

be found in our previous orders. 1 It is relevant to this

Order that on April 1, 2021, after two evidentiary

hearings, the Commission issued an order finding

that the Developer had violated Section 248(a)(2)(A)

by beginning site preparation without a CPG and

ordered additional proceedings to determine the

amount of a penalty pursuant to 30 V.S.A. § 30. 2

The Commission also enjoined the Developer from

engaging in any further site preparation without a

CPG, including tree clearing for proposed solar

facilities on Apple Hill (the "Injunction Order"). The

Injunction Order was to remain in place only until one

of the following occurs: (1) the Developer receives a

CPG for constructing an electric generation facility on

the site, or (2) final orders are issued by the Vermont

Supreme Court denying both of the CPG petitions in

Docket 8454 and Case No. 17-5024-PET, any appeal

periods or time limits for moving for reconsideration

have expired, and both of the Developer's standardoffer contracts have expired or been voluntarily

1 Case No. 20-1611-INV, Order of 4/1/21 at 3-9.

Id. at 3 ("We also direct that [the Developer] communicate with

the other parties and file a schedule for the next phase of this

proceeding. This next phase of the proceeding will determine the

civil penalty Allco must pay under Section 30 of Title 30 for

violating Section 248(a)(2) of Title 30 by conducting site

preparation without a CPG on Apple Hill in June 2020.")

33a

relinquished. Neither of these conditions has been

fully satisfied and the Injunction Order remains in

place.

On April 2, 2021, the Developer filed notice that it

was appealing the Injunction Order to the Vermont

Supreme Court.

On April 16, 2021, the Developer filed a motion

requesting that the Commission stay the penalty

phase of these proceedings because, according to the

Developer, the Commission had been divested of all

matters relating to the scope of the appeal. The

Commission denied the Developer's stay request on

June 11, 2021.

On December 3, 2021, the Vermont Supreme Court

dismissed the Developer's appeal of the Injunction

Order because it was not a final appealable order from

the Commission.

On November 4, 2022, the Developer filed a second

motion to stay the proceedings. This motion was

denied on December 14, 2022, in an order that

requested that the Vermont Agency of Natural

Resources ("ANR") confer with the other parties and

file a schedule for the remainder of the case.

On January 13, 2023, ANR filed a proposed onemonth schedule for the penalty phase of this

proceeding. The Developer responded with a yearlong schedule proposal.

On January 30, 2023, the Commission rejected the

Developer's proposed schedule and adopted a

schedule for briefs.

34a

On March 2, 2023, ANR and the Vermont

Department of Public Service ("Department") each

filed briefs with penalty recommendations.

On March 16, 2023, the Developer filed its response

to the penalty recommendations and a motion for a

third evidentiary hearing. The Developer also filed

the affirmations of Steve Broyer, the Developer's

project manager, and Jim McClammer, its natural

resources consultant.

On May 30, 2023, the Commission granted the

Developer's motion for a third evidentiary hearing in

part, limiting the scope of the hearing to the criteria

of 30 V.S.A. §§ 30(c)(3) ("the economic benefit, if any,

that could have been anticipated from an intentional

or knowing violation") and (6) ("economic resources of

the respondent"). The Commission also scheduled an

oral argument so the parties could address the

agencies' penalty recommendations.

On June 14, 2023, the Developer filed a second

motion for a third evidentiary hearing (the "Second

Motion"), requesting that the Commission broaden

the scope of the limited evidentiary hearing granted

in the May 30, 2023, Order to address "all relevant

evidence that Respondents seek to introduce." 3

Specifically, the Developer requested an opportunity

to provide evidence that no environmental harm had,

or could have, occurred due to the Developer's

activities. The Developer also requested an

opportunity to present evidence challenging ANR's

system of classifying rare and very rare plant species.

3 Second Motion at 5.

35a

The Developer withdrew the Broyer affirmation and

filed the affirmations of Thomas Melone and Jim

McClammer.

On June 28, 2023, the Department and ANR filed

responses recommending that the Commission deny

the Developer's second motion for a third evidentiary

hearing.

On July 20, 2023, the Commission held a limited

evidentiary hearing and an oral argument. At the

evidentiary hearing the Commission denied the

Developer's Second Motion and admitted elements of

the Melone testimony into evidence as discussed

further below.

III. DEVELOPER'S SECOND MOTION FOR

A THIRD EVIDENTIARY HEARING

At the beginning of the July 20, 2023, limited

evidentiary hearing, Chairman Roisman denied the

Developer's Second Motion, stating:

The Commission is denying the Developer's second

motion for a broadened third evidentiary hearing and

reaffirming the rejection of the testimony of Mr.

McClammer as untimely filed and unrelated to the

topic of this limited evidentiary hearing. We are

admitting discrete portions of the affidavit of Mr.

Melone that are arguably related to either economic

development or the ability of the developer to pay a

fine.

The remainder of Mr. Melone's affidavit, which is

primarily legal argument, for belatedly seeking to

present evidence on the issue of whether developer's

activities at the site without possessing a CPG

36a

constitute a violation of relevant statutes and

regulations will be admitted to the record of the

case, but it's not admitted as evidence.

For the purposes of the evidentiary hearing today

the Commission has created Commission Exhibit 1,

which is now visible on your screen, to identify the

specific paragraphs of Mr. Melone's testimony that

are being admitted into evidence. These paragraphs

are -- and I will read them off. Sections -- and these

are the numbered paragraphs in Mr. Melone's

affidavit: 1 through 9, 12 through 21, paragraph 47,

paragraph 55, and paragraph 64. We will reduce

these determinations regarding admissibility of

evidence and rejection of Mr. Melone's request for an

expanded evidentiary hearing when we issue the final

order in this proceeding today. 4

What follows is further discussion of our denial of

the Developer's second motion for a third evidentiary

hearing.

A. Positions of the Parties

Developer

The Developer requests to broaden the scope of the

hearing to address the amount of the penalty, the

constitutional requirement of rough proportionality,

the eight factors enumerated in Section 30(c), and

ANR's classification system for rare and very rare

plant species. According to the Developer, due process

4 Tr. 7/20/23 at 7-8 (Roisman).

37a

and 30 V.S.A. § 30(a)(1) require an opportunity for

hearing on these issues. The Developer argues that

while hearings were held in connection with the

temporary restraining order ("TRO") and whether a

violation occurred, neither hearing was the one

required by 30 V.S.A. § 30(a) because the Commission

bifurcated this proceeding into two phases.

Department

The Department recommends that the Commission

deny the Developer's motion. The Department

contends that this investigation was conducted

pursuant to Section 30 from the outset and that the

Developer has already been afforded two evidentiary

hearings. The Department argues that the existing

record provides an adequate basis to impose a penalty

for regulatory harm and there is no need to reopen the

record to relitigate aspects of the violation itself. The

Department asserts that the process provided by the

Commission, including an opportunity to submit

evidence on the two penalty factors and oral

argument on the penalty assessment more broadly, is

sufficient and appropriate.

The Department recommends that the Commission

admit the new Melone testimony that addresses the

economic benefit and financial resources criteria and

objects to all other portions of the Melone testimony

as "outside the scope of the limited hearing." The

Department does not object to the portions of the

Developer's testimony that were not admitted as

evidence being considered as a legal brief.

ANR

38a

ANR objects to the motion, arguing that "[t]he

Developer, once again, seeks to reopen the record to

relitigate issues that have been fully litigated, and for

which the Public Utility Commission has made

findings and conclusions in this proceeding." 5 ANR

further argues that "[t]he Developer has persistently

and repeatedly exhibited disregard for orderly

process" and that "[s]uch actions have resulted in an

inefficient use of [ANR]'s, and the public's, resources

as ANR has had to repeatedly address filings which

ignore Commission orders, filings which are

duplicative, late filings, and incoherent filings." 6

Finally, ANR recommends that the Commission

"deny the Developer's June 14, 2023, Second ReHearing Motion; deny admission of the McClammer

affidavit; and deny admission of the Melone affidavit

in its present form." 7

B. Discussion of the Developer's Second Motion

The Developer argues that due process and Section

30(a)(1) require a third hearing to give the Developer

an opportunity to present all relevant evidence on

the amount of the penalty, the constitutional

requirement of rough proportionality, the eight

factors enumerated in Section 30(c), and ANR's

classification system for rare and very rare plant

species. Having reviewed the affidavits offered by the

Developer on June 14, 2023, and considering the three

5 ANR's Response to the Developer's Second Motion for a Third

Evidentiary Hearing, filed 6/28/23, at 1 and 4.

Id. at 2-3 (citations omitted).

Id. at 4.

39a

evidentiary hearings and oral argument conducted in

the course of this proceeding, the Commission

concludes that the requirements of due process and

Section 30(a)(1) have been met. The Commission

further concludes that an evidentiary hearing

addressing ANR's classification system for rare and

very rare plant species is unnecessary because ANR's

system has not been given any weight in determining

the amount of a penalty under Section 30(c).

Section 30(a)(1) provides that the Commission may

assess a penalty "after notice and opportunity for

hearing." On June 24, 2020, the Commission issued

an order titled Order Opening Investigation and

Notice of Hearing. 8 The order's caption stated that

the matter was "an investigation pursuant to 30

V.S.A. § 30" and requested that "the parties be

prepared to address with affidavits (filed before the

hearing begins) or live testimony whether site

clearing being conducted on Apple Hill in

Bennington, Vermont, violates Section 248(a)(2) of

Title 30." This notice and the hearing that followed on

July 6, 2020, satisfied the basic requirements of

procedural fairness and Section 30(a)(1) with respect

to whether that violation occurred and resulted in

factual

findings

relevant

this

penalty

determination.

At the outset of the July 6, 2020, evidentiary

hearing, the Commission explicitly stated that the

matter being heard was an investigation that was

being conducted pursuant to Section 30 and that the

purpose of the hearing was, among other things, to

8 Case No. 20-1611-INV, Order of 6/24/2020.

40a

determine whether a violation of Section 248(a)(2)

had occurred. 9 At the evidentiary hearing ANR

presented evidence with the express purpose of

addressing the criteria the Commission considers in

determining the amount of a penalty. 10 Significant

portions of the hearing were devoted to whether any

harm to the environment had or could have occurred.

The Commission held a second evidentiary hearing

on December 4, 2020, again for the purpose of

addressing "whether the Developer's site work to date

constitutes site clearing activities without a

certificate of public good in violation of 30 V.S.A.

Section 248(a)(2)." 11 The Developer presented

testimony and documentary evidence addressing its

intent to conduct clearing on the site, which is

relevant to the penalty factor contained in Section

30(c)(2). 12

9 Tr. 6/26/2020 at 4 (Roisman) (this emergency hearing [is being

held] to address whether site clearing being conducted on Apple

Hill in Bennington, Vermont, violates Section 248(a)(2) of Title

30.").

Id. at 16 (Einhorn) ("The second issue is, what is the harm?

What is the harm of the clearing that's taking place? . . . the

degree of harm will, will naturally be factored into what an

ultimate penalty is.").

11 Tr. 12/04/2020 at 4 (Roisman).

See Id. at 54-55 (Kobelia), 60-63 (Kobelia), 65-66 (Kobelia),

118-119 (Melone), 130-132 (Melone), and 134-138 (Melone). See

also Tr. 6/26/2020 at 22-24 (Lowkes), 41-42 (Popp), 50-51 (Popp),

63-68 (Melone), and 88-90 (Melone). Further, the prefiled

testimony and documentary evidence relied upon in our findings

41a

On April 1, 2021, the Commission made a finding of

violation but deferred its ultimate determination of

the penalty amount until after an opportunity for

parties to recommend additional process. 13 After

reviewing the parties' penalty recommendations, the

Commission granted the Developer a third

opportunity to present evidence on two penalty

factors that had not been addressed at the previous

hearings. 14

We deny the Developer's Second Motion to expand

the scope of the hearing because the Developer has

had an opportunity to present its case through the

three evidentiary hearings described above. Any

evidence developed in the first two evidentiary

hearings was available to support a penalty

determination. 15 Contrary to the Developer's

assertion, the Commission's determination that

additional process was necessary to determine the

amount of a penalty did not automatically trigger a

new requirement to hold another evidentiary hearing

explicitly addressing each of the factors in Section

30(c). The Commission was within its discretion to

limit the scope of the additional process to those

subjects that had not been previously addressed in

and in our penalty conclusion here was entered into evidence at

the evidentiary hearings.

13 Case No. 20-1611-INV, Order of 4/1/21 at 25.

14 Case No. 20-1611-INV, Order of 5/30/23.

See In re SolarCity Corp., 2019 VT 23, at P 33 ("The evidence

supporting the Commission's finding that petitioner committed

a violation also provides an evidentiary basis to find liability and

to support the imposition of a penalty.").

42a

the first two evidentiary hearings. We also find that

an opportunity to challenge ANR's assertions

concerning actual or potential harm to rare and very

rare plants and ANR's system of classification for rare

plants is unnecessary because our determination of

the penalty in this case is not based on any actual

harm to rare plants.

IV.

PENALTY

ADDITIONAL FINDINGS RE CIVIL

In addition to the findings made by the Commission

in its previous orders in this proceeding, the

Commission makes the following additional findings

based on the testimony and exhibits admitted into the

record at the third evidentiary hearing held on June

14, 2023.

1. The Developer lost $ 2,200 in fees paid to the

Vermont Agency of Agriculture Food and Markets for

hemp growing licenses. During the time of the

Commission's injunction the Developer has also

incurred carrying costs such as taxes for both the 27acre and a neighboring 5-acre parcel in the amount of

$ 10,506 in property taxes. Melone pf. 6/14/23 at 18, P

64.

2. The Developer has continued to pursue the

construction of solar facilities on Apple Hill, and the

Commission's injunction has stopped the Developer

from commencing site preparation activities on its

land since the TRO was issued on June 26, 2020.

Melone pf. 6/14/23 at 2, P 9.

LEGAL STANDARD: CIVIL PENALTY

CRITERIA OF 30 V.S.A. § 30

43a

Section 30(a)(1) of Title 30 of the Vermont Statues

provides that:

A person, company, or corporation subject to the

supervision of the Commission or the Department of

Public Service. . . who violates a provision of chapter

2, 7, 75, or 89 of this title, or a provision of section 231

or 248 of this title . . . shall be required to pay a civil

penalty as provided in subsection (b) of this section

after notice and opportunity for hearing.

Before July 1, 2021, and applicable in this case,

Subsection (b) provided: 16

The Commission may impose a civil penalty under

subsection (a) of this section of not more than $

40,000.00. In the case of a continuing violation, an

additional fine of not more than $ 10,000.00 per day

may be imposed. In no event shall the total fine

exceed the larger of: (1) $ 100,000.00; or (2) one-tenth

of one percent of the gross Vermont revenues from

regulated activity of the person, company, or

corporation in the preceding year.

16 The penalty amounts authorized by Section 30 were amended

upward effective July 1, 2021. However, because the violation

discussed in this decision occurred before the amendments to

Section 30 became effective, the older, lower penalty amounts

stated above apply in this case.

44a

Subsection 30(c) identifies eight factors

Commission may consider in determining

amount of a civil penalty:

the

(1) the extent that the violation harmed or might

have harmed the public health, safety or welfare, the

environment, the reliability of utility service or the

other interests of utility customers;

(2) whether the respondent knew or had reason to

know the violation existed and whether the violation

was intentional;

(3) the economic benefit, if any, that could have been

anticipated from an intentional or knowing violation;

(4) the length of time that the violation existed;

(5) the deterrent effect of the penalty;

(6) the economic resources of the respondent;

(7) the respondent's record of compliance; and

(8) any other

circumstance.

aggravating

mitigating

The Department's recommends a $ 5,000 civil

penalty assessment for regulatory harm. 17 ANR

recommends a civil penalty of $ 29,000.00 for

17 Department's

Response to Developer's Second Motion for a

Third Evidentiary Hearing, 6/28/23, at 4.

45a

regulatory harm

environment. 18

and

harm

the

natural

Based on our consideration of these factors, and the

recommendations of the parties, the Commission

determines that a civil penalty of $ 5,000 is

appropriate.

VI. CIVIL PENALTY DISCUSSION

A. The extent that the violation harmed or

might have harmed the public health, safety or

welfare, the environment, the reliability of utility

service, or the other interests of utility customers.

By engaging in site clearing at the Apple Hill parcel

without

CPG,

the

Developer

violated

Section 248(a)(2)(A). The purpose of the blanket

statutory prohibition on site preparation without a

CPG is to allow time for the Section 248 review

process to occur. In this case, the prohibited activity

consisted of site clearing and its attendant potential

to harm the natural environment. The Commission,

ANR, and the Department needed the time created by

the statutory prohibition against site preparation

without a CPG to assess the potential impact of the

proposed project on the natural environment before

site clearing began, and to propose measures that

could mitigate those impacts, so that any undue

adverse impact on the natural environment would be

avoided. The Developer's violation of § 248(a)(2(A)

18 ANR's

Response to Developer's Second Motion for a Third

Evidentiary Hearing, 6/28/23, at 3-4.

46a

created harm to the statutory scheme and had the

potential to harm the natural environment.

The Developer disputes whether any harm to the

environment occurred or might have occurred due to

the violation. The Developer specifically challenges

ANR's position that there was harm to rare plants

and mature trees. 19 More generally, the Developer

attacks ANR's system of regulation for rare and very

rare plants. 20 However, these arguments miss the

mark because ANR has conceded that "the degree of

actual harm to the environment which resulted from

the clearing activities on the Apple Hill parcel was

minor." 21 Therefore, the validity of ANR's

classification system is of no significance because the

Commission is not basing its penalty assessment on

actual harm to rare plants.

The Developer questions whether there was harm to

the regulatory process. 22 As explained in the

Department's

penalty

recommendation,

the

Commission has held that failure to comply with

regulatory obligations "harms the integrity and

19 Respondents'

Brief Re: Penalty Recommendation, filed

3/16/23, at 8.

Id.

21 ANR's Brief and Penalty Recommendation, 3/2/23, at 10.

See Respondents' Brief Re: Penalty Recommendations,

3/16/23, at 6.

47a

credibility of the regulatory process." 23 The finding of

a violation itself provides the basis for the harm. This

notion is well-established and follows from the

principle that the process "cannot function when

regulated entities ignore their obligations." 24 The

regulatory harm is an extension of the harm and

potential harm to (1) public safety and welfare, (2) the

environment, and (3) utility customers. The § 248

process aims to protect these interests by preventing

undue adverse impacts to the resources protected by

§ 248. "When an entity acts within the Commission's

jurisdiction but without the Commission's approval,

such conduct undermines the integrity of the

regulatory review process, which exists to protect the

public from harm." 25

See, e.g., Investigation into potential violations of the Public

Utility Commission's March 23, 2021, Order in Case No. 202570-PET, Case No. 21-2501-INV, Order of 10/07/21 at 5.

See Investigation pursuant to 30 V.S.A. §§ 30 and 209 into

alleged violation of Otter Creek Solar, LLC's certificates of public

good issued in Cases 8797 and 8798, Case No. 19-1596-INV,

Order of 4/1/21 at 4-5; see also, e.g., Investigation pursuant to

30 V.S.A. §§ 30, 209, and 248 regarding the 2.2 MW solar plant

owned by Charlotte Solar, LLC in Charlotte, Vermont, Case No.

8636, order of 10/23/17; Investigation pursuant to 30 V.S.A. §§

30 and 209 into potential violations of Coolidge Solar I, LLC's

certificate of public good issued in Docket 8685, Case No. 1924

3671-INV, Order of 7/24/20.

See Case No. 19-3671-INV, order of 7/24/20 at 8 (quotation

omitted); see also Investigation pursuant to 30 V.S.A. §§ 30 and

209 into alleged violation of Newbury GLC Solar, LLC's

certificate of public good issued in Case No. 17- 4721-NMP, Case

No. 19-0734-INV, Order of 8/1/19 at 7-8.

48a

This factor strongly weighs in favor of a significant

penalty.

B. Whether the Developer knew or had reason

to know the violation existed and whether the

violation was intentional.

The Developer knew that it did not have a CPG. It

was aware that it was statutorily required to have a

CPG before engaging in site clearing to construct its

proposed electric generation facilities. The Developer

also acknowledged that it needed to clear trees to

construct its solar electric generation facilities at the

Apple Hill parcel. 26 The clearing performed by the

Developer in June 2020 was the very same clearing

that the Commission told the Developer it could not

undertake when, on May 7, 2020, the Commission

denied the Developer's March 23, 2020, request to

amend the Apple Hill solar project's Section 248

petition in Docket 8454. 27

26 Tr. 6/26/20 at 65-66 and 88-90 (Melone); exh. ANR-10 at 10.

27 Order of 4/1/21 at 29. On March 23, 2020, the Developer filed

a motion to amend its Section 248 petition in Docket 8454,

indicating that one of the changes to its Apple Hill solar facility

would involve the clearing of trees for hemp and sheep

operations which would occur quite some time before the solar

facility would be constructed. See Petition of Apple Hill Solar

LLC for a certificate of public good, pursuant to 30 V.S.A. § 248,

authorizing the installation and operation of a 2.0 MW solar

electric generation facility at 1133 Willow Road in Bennington,

Vermont, Docket 8454, Developer's Second Proposed

Amendment, filed 3/23/20, at 1 n.1. The proposed amendment

was denied as untimely by the Commission by order dated May

7, 2020, in Docket 8454.

49a

The Developer acknowledged that it knew that "they

could not engage in site clearing to construct a

proposed electric generation facility" and that the

clearing of trees was necessary to build a solar facility

on Apple Hill. 28 The Developer argues that these facts

are irrelevant because "[t]he site work was done in

connection with the Horticultural and Farming

Activities, two completely separate businesses of

Respondent." 29

The Developer asserts that:

Georgia

Mountain, Beaver Wood and Monument Farms, there

Based on [Commission] precedent in

was no reason for Respondents to know or have

reason to know that a violation existed, let alone a

knowing and intentional one. 30

While it was clear to the [Developer] based on

[Commission] precedent that they would be permitted

28 Respondents' Brief Re: Penalty Recommendation, 3/16/23, at

20; Case No. 20-1611-INV, Order of 4/1/21 at 12 ("Site clearing

for a solar facility requires clearing trees.").

29 Respondents' Brief Re: Penalty Recommendation, 3/16/23, at

20.

Id. at 21, citing Petition of Georgia Mountain Community

Wind, LLC, Docket 7508, order of 1/5/12; Petition of Beaver

Wood Energy Pownal, LLC, Dockets 7678 and 7679, Order of

4/1/11; and Petition of Monument Farms Three Gen, LLC,

Docket 7592, Order of 10/22/23 (October 22, 2010). See Case No.

20-1611-INV, Order of 4/1/21, at 23-24 ("We are not persuaded

by [the Developer's] arguments that these activities are not site

preparation, and that 'incidental overlap' is inapposite. The

cases [the Developer] references are all readily distinguishable

factually and procedurally.")

50a

to clear the parcel in question for an activity

unrelated to the electric generating facilities, the

[Commission] has now made it clear that it is no

longer abiding by its prior precedent. 31

Here, even if clearing for a farming use and

agricultural structures could be considered (as the

[Commission] concludes) as bearing a reasonable

relationship to the proposed solar facility and as a

precursor, neither the clearing nor the structures are

"part of an electric transmission or generation

facility," Op. Vt. Att'y Gen., No. 715 (Aug. 5, 1971) at

172, and those activities are being done specifically

for another purpose--farming, and not in preparation

for the construction of an electric facility." 32

The Commission has already distinguished this

case from the cases cited by the Developer in its Order

of April 1, 2021, and rejects the Developer's assertion

that its violation was unintentional for the same

reasons. The Developer intentionally cleared the

property based on its erroneous interpretation of the

law and did so without first seeking explicit

acceptance of its novel interpretation from the

Commission.

This factor strongly weighs in favor of a significant

penalty.

31 Melone pf. 6/14/23 at 16.

Id. at 17.

51a

The economic benefit, if any, that the

Company could have anticipated from an intentional

or knowing violation.

The record in this case contains no evidence of any

economic benefit that the Developer could have

anticipated from intentional or knowing violations.

The Department did not consider this factor to be

significant

rendering

civil

penalty

recommendation. ANR contends it is not aware of

any economic benefit that resulted from the violation

by the Developer in this matter but that "[i]f the

Developer were successful in this endeavor the

potential economic benefit could have been

substantial due to the Developer avoiding the costs

and limitations of environmental compliance." 34 The

Developer argues that "[t]he third factor weighs

heavily in favor of no penalty." 35

The Developer further argues that:

[T]here would have been no economic benefit to the

Developer from the clearing vis-à-vis the section 248

process. In fact, there could have been an economic

detriment if the CPG required certain screening that

would have been provided by the trees. No costs and

limitations of environmental compliance would have

been avoided by clearing the land in connection with

See Department's Recommendation of Penalty Assessment,

filed 3/2/23, at 3-4 (noting that "this factor is assigned a neutral

weight").

34 ANR Brief and Penalty Recommendation, 3/2/23, at 11-12.

35 Melone pf. 6/14/23 at 14.

52a

the Horticultural and Farming Activities. In fact, the

type of clearing required for the Horticultural and

Farming Activities can be more than twice as

expensive as the clearing involved for a solar facility.

We find that this factor has no weight in

determining the amount of any civil penalty.

D. The length of time that the violation existed.

Though the record does not reflect precisely when

the site preparations began, the contract for the

Developer's forester was dated June 8, 2020. 37 Site

clearing work was underway by June 16, 2020, and by

June 26 approximately three acres had been cleared.

38 A representative of ANR visited the Apple Hill

parcel on June 16, 2020, and observed that site

clearing was being done by the Developer at that

time. Subsequently, the Commission was notified of

the clearing activities and opened an investigation

into the matter because the parcel was the subject of

solar electric generation facility petitions filed by the

Developer and, after appeals, no final CPGs

authorizing clearing have been issued by the

Commission. The Commission then conducted an

evidentiary hearing on June 26, 2020, and on that

same date issued a TRO prohibiting the Developer

36 Respondents'

3/16/23, at 22.

Brief Re: Penalty Recommendation, filed

37 Tr. 06/26/20 at 127 (Kobelia).

See Case No. 20-1611-INV, Order of 4/1/21 at findings 1, 11;

Tr. 6/26/20 at 121 (Kobelia); and Case No. 20-1611-INV, Order

of 4/1/21 at findings 15-16; see also Tr. 12/4/20 at 39-44 (Kobelia).

53a

from continuing site clearing. Despite this, the

Developer continued with the site clearing on the

morning of June 27 until around mid-day, at which

time site clearing stopped. 39

Thus, the unlawful site clearing took place from at

least June 16 through June 27, a period of 12 days.

The length of time is not fully established or

particularly significant in this context, and therefore

is a neutral factor in the Department's analysis. ANR

considers 12 days to be a moderate length of time and

relevant to determining an appropriate penalty

amount. The Developer argues that that the

Commission's bench order had no effect and the

"fourth factor does not weigh in favor of a penalty." 40

We disagree with the Developer's arguments.

The record shows that the TRO was issued from the

bench on the afternoon of June 26, 2020,

and reiterated in a written order issued at 10:31 P.M.

that night. The Developer's forester, who participated

in the TRO hearing, was not informed of the order

until the next day at noon. He had begun working

early that morning. No effort was made by the

Developer to otherwise contact the forester before he

continued site clearing activity on the morning of

June 27, 2020. 41

39 Case

No. 20-1611-INV, Order of 4/1/21 at finding 15; Tr.

12/4/20 at 41-44 (Kobelia).

40 Melone pf. 6/14/23 at 14-15.

41 This

fact also supports the conclusion that the Developer

committed a knowing violation, above.

54a

This factor has limited weight in determining the

appropriate civil penalty.

E. The deterrent effect of the penalty.

The Developer asserts that its unauthorized site

clearing in violation of 30 V.S.A. § 248(a)(2)(A) is the

result of its interpretation of Commission precedent

addressing that rule. As discussed in our Order of

April 1, 2021, the Developer's interpretation of the

Commission precedent addressing the blanket

statutory prohibition on site preparation is mistaken.

The Developer could have resolved this interpretative

error prior to investing in an unauthorized activity by

seeking a declaratory judgment from the Commission

pursuant to Commission Rule 2.403. Had the

Developer sought a ruling regarding the applicability

of 30 V.S.A. § 248(a)(2)(A) to the Developer's proposed

site clearing for sheep grazing on Apple Hill, the

Commission would have made a determination

before the Developer began a three-year litigation

process involving three state agencies and including

two Vermont Supreme Court dismissal rulings, the

hiring and restraining of a forester for cutting down

trees, and the continued limitations on the

Developer's use of its property. Any penalty imposed

in this case must specifically deter the Developer from

making the same mistake again, and also generally

deter any other developers of Section 248 projects

from making the same error. 42

See e.g., Investigation Pursuant to 30 V.S.A. §§ 30, 247 & 248

into Possible Violations of Section 248 by Roderick & Irene

Ames., Docket 7896, Order of 12/20/12 at 1 (Respondent

misunderstood Commission rules and procedure and mistakenly

conducted site preparation without a CPG); and Investigation

55a

As the Commission recognized in its April 1, 2021,

order in this case:

[A] proposal to build an electric generation plant on

a bulldozed site would raise far fewer environmental

issues than a proposal to place the same facility on a

site that contains environmentally sensitive species

and other features. This destruction would all be done

without any review of its environmental impacts,

which is directly contrary to legislative intent. 43

The Department asserts that a $ 5,000 civil penalty

will:

[D]iscourage [the Developer] from committing this

type of violation in the future, as well as deter others

from following suit, by attaching meaningful

consequences. The circumstances of the Developer's

violation and the importance of deterring this type of

activity, which undermines the foundational

Pursuant to 30 V.S.A. Ss 30 & 209 Regarding the Alleged Taking

of Harsh Sunflower Plants by Vermont Gas Sys., Inc. in

Monkton, Vermont, Docket 8791, Order of 5/25/17, at 8

("Imposing a higher civil penalty would have a specific deterrent

effect on the Company. ... and a general deterrent effect here,

placing the Company and other CPG holders on notice that they

are responsible for ensuring that their contractors are in strict

compliance, not only with state environmental laws, but also

with applicable [Commission] Orders, CPGs, and MOUs.").

43 Case No. 20-1611-INV, Order of 4/1/21, at 1-2.

56a

elements of Title 30, weigh strongly in favor of a

substantial penalty. 44

The legislature has assigned to ANR the role of

representing the interests of the people of Vermont in

protecting Vermont's natural environment in the

context of energy siting proceedings before the

Commission. 45 ANR contends that it would be unable

to perform this role, and carry out the legislative

intent, if site clearing takes place before an area that

is cleared can be adequately assessed to determine

the presence, extent, and significance of any natural

resources that exist in the area at the time the

clearing is proposed. 46

ANR argues that:

In the context of Section 248, and its standard of no

undue adverse effect on the natural environment, the

relationship between the prohibition on site

preparation or construction without a CPG and ANR's

assigned role in representing the interests of the

people of Vermont in protecting Vermont's natural

environment,

are

inseparable.

One

cannot

function effectively without the other. The need to

deter violations of the site clearing prohibition must

be great if ANR's ability to perform its work is to be

preserved. As such, the penalty imposed in this case,

must be substantial enough to deter not only this

44 Department's Recommendation of Penalty Assessment, filed

3/2/23, at 4.

45 30 V.S.A. § 248(a)(4)(E).

46 ANR's Brief and Penalty Recommendation, filed 3/2/23, at 13.

57a

Developer from repeating its behavior but to also

deter others who are required to meet the Section

248(b)(5) standard of no undue adverse impact on the

natural environment and obtain a CPG before

commencing their projects. ANR recommends a $

29,000 penalty and contends that this factor weighs

heavily in support of a substantial penalty amount in

this case. 47

The Developer addresses the deterrent effect of

the penalty by asserting that its approach to this case

relies on Commission precedent, implying that the

Commission has altered that precedent in rendering

its determinations in this case. 48 The Developer

concludes that: "The fifth factor does not weigh in

favor of a penalty." 49 The Developer argues that:

A penalty in this case will not act as a deterrent.

Respondents have already borne a significant

financial impact. The [Developer] has suffered a

financial impact from the inability to use its property,

from the loss of fees paid for hemp-grow licenses, from

the need to re-work cleared areas, and from the

payment of taxes on land it cannot now use for any

purpose. Importantly, a penalty here would only

impact future activity on the [Developer]'s land. It

Id.

48 Respondents'

3/16/23, at 23.

Brief Re: Penalty Recommendation, filed

49 Melone pf. 6/14/23 at 15.

58a

would not have any deterrent effect beyond the

unique facts here. 50

We disagree. While we are cognizant of some of the

costs incurred by the Developer as it has continued

over a ten-year period to litigate the use of its land on

Apple Hill for solar development, we believe a $ 5,000

penalty on top of these costs serves as an important

specific and general deterrent. Moreover, the

deterrent effect of this Order is not only focused on

this Developer, but on future developers who will

think twice before applying novel interpretations to

clear Commission rules and precedents without first

seeking guidance from the Commission on the

correctness of their interpretation.

F. The economic resources of the Developer

ANR asserts that:

The Developer appears to have substantial financial

resources. The Developer owns the 27-acre Apple Hill

parcel, having acquired it to construct solar facilities.

The Developer paid Green Mountain Power $ 850,000

to upgrade and extend a distribution line to the Apple

Hill parcel for the purpose of connecting its proposed

solar electric generation facilities to the grid. In

addition, the Developer has proposed or already

developed at least nine utility scale solar electric

generation facilities in Vermont. 51

50 Melone pf. 6/14/23 at 15.

51 ANR's Brief and Penalty Recommendation, filed 3/2/23, at 13.

See also Case No. 20-1611-INV, Order of 4/1/21 at findings 9 and

23.

59a

Based on the same evidence, "the Department

finds it reasonable to conclude that [the Developer]

has adequate resources to pay a substantial penalty."

The Developer's entities include a private

corporation with multiple affiliated entities operating

in Vermont. 53 The Developer argues that this

proceeding is the product of a business decision by its

property-owning subsidiary: "The entire reason this

proceeding exists is because PLH decided that the

time had come to put both the Apple Hill parcel and

the horticultural use parcel to productive use after

nearly a decade of operating in the red." 54

The Developer further asserts that "the actual

Respondents, Apple Hill Solar LLC and Chelsea Solar

LLC, in this proceeding have no cash or assets to

pay a penalty from unless and until a CPG is

granted." 55

We do not find the Developer's assertion that it has

no cash or assets to pay a penalty to be credible and

find that the Developer, a collective entity including

Allco Renewable Energy Limited, Chelsea Solar LLC,

Apple Hill Solar LLC, PLC Vineyard Sky LLC, and

PLH LLC, and their related affiliates, and

52 Department's Recommendation of Penalty Assessment, filed

3/2/23, at 5.

Id. and Case No. 20-1611-INV, Order of 4/1/21 at 2.

54 Respondents'

3/16/23, at 23.

Brief Re: Penalty Recommendation, filed

55 Melone pf. 6/14/23 at 16.

60a

subsidiaries, has sufficient assets to pay a $ 5,000

civil penalty in this case.

G. The Developer's record of compliance.

ANR and the Department state that they are not

aware of prior penalties issued to Allco Renewable

Energy Limited or its affiliates or subsidiaries for

violations of Title 30 in Vermont. 56 The Developer

concurs with this summary. 57

We conclude that this factor weighs against a

significant penalty.

Any other aggravating or mitigating

circumstances

The Department argues:

A lower penalty may be appropriate when there are

mitigating circumstances, such as when the

respondent self-reports the violation in a timely

manner or initiates corrective steps. There are no

mitigating circumstances here, however, as [the

Developer] did not report the violation nor engage in

any other behavior that could be reasonably found to

weigh against the severity of the violation.

To the contrary: beyond its failure to report the

violation, [the Developer] has demonstrated conscious

56 Respondents'

Brief Re: Penalty Recommendation, filed

3/16/23, at 23.; Department's Recommendation of Penalty

Assessment, filed 3/2/23, at 5.

57 Respondents'

3/16/23, at 23-24.

Brief Re: Penalty Recommendation, filed

61a

disregard for its obligations while actively resisting

compliance with the regulatory scheme and the

Commission's efforts to enforce it. This uncooperative

and unrepentant approach is most clearly seen in [the

Developer]'s failure to ensure that site-clearing work

ceased following the [temporary restraining order]

that the Commission issued from the bench in the

early afternoon of June 26, 2020. The Department

considers this conduct, particularly the violation of

the Commission's TRO, to be an aggravating factor

weighing in favor of a substantial penalty. 58

The Developer asserts that "[t]he mitigating

circumstances in this case should be the fact that

Respondents believed (and continue to believe) that

the actions they performed were permitted under

Vermont and Commission precedent." 59 The

Developer further contends that "[a]n additional

mitigating factor is that the Respondents have

already been sufficiently penalized by the imposition

of these proceedings." 60

As discussed above, we are not persuaded by the

Developer's argument that its unauthorized action

was permitted. Section 248(a)(2)(A) prohibits all site

preparation before the issuance of a CPG.

58 Department's Recommendation of Penalty Assessment, filed

3/2/23 at 5 (citation omitted).

59 Respondents'

3/16/23, at 24.

Id.

Brief Re: Penalty Recommendation, filed

62a

The statute on its face disallows beginning site

preparation for any electric generation facility

without issuance of a CPG. In June 2020, the

Developer began site preparation for a solar electric

generation facility on Apple Hill without the

authority of a CPG. There is no exception for a facility

with a lengthy review or for new agricultural activity

that would be part of the operation of the electric

generation facility.

We are not persuaded by the Developer's arguments

that Commission precedent would allow for its

violation of this blanket prohibition so integral to the

Section 248 review process. We are cognizant of some

of the Developer's continued costs in attempting to

build a facility on Apple Hill, and the costs to the state

agencies responding to this extended effort, but we do

not believe that the Developer's misinterpretation of

the statute mitigates its violation of that statute.

I. Determination of Penalty Amount

We have considered the parties' filings and

arguments addressing the factors identified in

Section 30. While the Developer's unauthorized

activity did not have a significant impact on the

natural environment, it was an intentional violation

of the statute that undermined the effectiveness of the

regulatory process. Therefore, the Commission is

imposing a penalty of $ 5,000 on the Developer for its

violation of Section 248(a)(2).

VII. OTHER ISSUES

The Developer raises several other arguments

against imposing a penalty in this matter. We address

63a

each of these briefly. First, the Developer argues that

it is not a person, company, or corporation subject to

the supervision of the Commission or the Department

of Public Service and, therefore, is not subject to a

penalty under Section 30. This Commission rejected

this argument in its April 1, 2021, Order and does so

again here for the same reasons. 61

Second, the Developer argues that a penalty is a

"retroactive extraction" that "would violate [the

Developer's] rights to Due Process because of lack of

fair notice." This argument has already been rejected

by the Commission previously. The prior cases

involving ongoing agricultural activity cited by the

Developer are readily distinguishable from this case.

62 Therefore, there are no issues with a lack of notice

in this case because there has been no departure from

precedent by the Commission.

Third, the Developer argues that Section 30(c) is

unconstitutionally vague because it does not provide

notice of penalty amounts. This argument ignores the

fact that the statute includes a specific dollar limit on

the amount of a penalty the Commission can assess.

The Developer is on fair notice that it can be penalized

any amount up to the maximum provided in the

statute.

The

Developer

further

argues

that

the

recommendations of the Department and ANR violate

61 20-1611-INV, Order of 4/1/21 at 17.

Id. at 23-24.

64a

the "unconstitutional conditions doctrine." 63 This

argument is inapposite because the recommendations

of the Department and ANR are not the sort of

condition or extraction that would implicate the

constitutional limits cited by the Developer. The

penalty imposed by the Commission is the result of

the Developer's violation of a state statute and is not

imposed as a condition of any approval sought by the

Developer.

VIII. CONCLUSION

Based on our consideration of the factors in Section

30(c), the Commission imposes a $ 5,000 penalty on

the Developer for commencing site preparation of an

electric generation facility without a CPG, in

violation of Section 248(a)(2).

IX. ORDER

IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED by the Vermont Public Service

Commission ("Commission") that:

1. Pursuant to 30 V.S.A. § 30, Allco Renewable

Energy Limited, PLC Vineyard Sky LLC, and PLH

LLC, and their related affiliates, and subsidiaries,

must pay a penalty of $ 5,000 by sending to the

Commission at 112 State Street, Montpelier, VT

05620-2701, a check in that amount made payable to

the State of Vermont within 30 days of the date of this

Order.

63 Respondents'

3/16/23, at 5.

Brief Re: Penalty Recommendation, filed

65a

Dated at Montpelier, Vermont, this 19th day of

September, 2023.

Anthony Z. Roisman

Margaret Cheney

PUBLIC UTILITY COMMISSION OF VERMONT

66a

APPENDIX C

STATE OF VERMONT PUBLIC UTILITY

COMMISSION

Case No. 20-1611-INV

Investigation pursuant to Evidentiary

30 V.S.A. §§ 30 and 209

hearings conducted:

into whether the petitioner June 26, 2020, and

initiated site preparation December 4, 2020

at Apple Hill in

Bennington, Vermont, for

electric generation in

violation

of 30 V.S.A. § 248(a)(2)

Order entered: 04/01/2021

ORDER

MAINTAINING

INJUNCTION

PROHIBITING FURTHER SITE PREPARATION,

RULING ON MOTIONS, AND DIRECTING

SCHEDULING PROPOSAL

I. INTRODUCTION

This case raises the fundamental question of whether

the

Vermont

Public

Utility

Commission

("Commission") can enforce the statutory prohibition

against any company or person "begin[ning] site

preparation for or construction of an electric

generation facility, energy storage facility, or electric

transmission facility within the State that is designed

67a

for immediate or eventual operation at any voltage." 1

We conclude that the Vermont Legislature has

granted us this authority.

As the Vermont Department of Public Service

("Department") correctly notes, the developer's

activities here "challenge the integrity of the Section

248 permitting process." 2 If we did not have authority

to enjoin illegal site preparation, then every applicant

for a certificate of public good ("CPG") would have an

incentive to bulldoze its proposed project site before

submitting an application, even if it meant the

permanent destruction of trees, rare plants, and very

rare plants, as well as other environmental

degradation. After all, a proposal to build an electric

generation plant on a bulldozed site would raise far

fewer environmental issues than a proposal to place

the same facility on a site that contains

environmentally sensitive species and other features.

This destruction would all be done without any review

of its environmental impacts, which is directly

contrary to legislative intent. This is why the

Vermont Legislature has placed a blanket prohibition

on even "begin[ning]" site preparation without a CPG.

In this Order, we find that the petitioner has begun

site preparation without a CPG, and we enjoin any

further site preparation without a CPG. Because an

evidentiary hearing addressing an injunction has

1 30 V.S.A. § 248(a)(2)(A).

2 Department Brief at 5. 04/01/2021.

3 30 V.S.A. § 248(a)(2)(A).

68a

been conducted, this injunction is permanent. 4 But,

as discussed further below, this injunction is

temporally limited. We also rule on pending motions

regarding the admission of other filings into evidence.

On June 24, 2020, we opened an investigation

pursuant to 30 V.S.A. §§ 30 and 209 into whether

Allco Renewable Energy Limited, Chelsea Solar LLC,

Apple Hill Solar LLC, PLC Vineyard Sky LLC, and

PLH LLC, and their affiliates, subsidiaries, and

contractors (collectively, "Allco" or "petitioner" or

"Developer") were conducting site clearing on Apple

Hill in Bennington, Vermont, in violation of Section

248(a)(2) of Title 30. 5

See Committee to Save the Bishop's House, 136 Vt. 213, 218

(1978) (citing 11 C. Wright & A. Miller, Federal Practice and

Procedure: Civil § 2942, at 368 (1973)); see also Commission

Rule 2.406(A)(3) (noting that the Environmental Board may

grant a permanent injunction "after a hearing held upon legal

notice and where the proceedings have allowed the parties

adequate opportunity to avail themselves of all procedures

provided for by these rules and by all other provision of law").

5 Allco is the respondent in this investigation. Allco is referred to

as the petitioner in the case caption because it has petitioned the

Commission for two standard-offer contracts and for three

certificates of public good ("CPGs") for proposed solar electric

generation facilities on Apple Hill in Bennington, Vermont. The

standard-offer contracts were executed in 2013 and 2014 and

have been amended several times at Allco's request to extend the

contracts' operational deadlines. See Petition of Apple Hill

Solar LLC for relief from standard-offer contract milestone, Case

No. 20-0185-PET, Order of 3/12/20 (granting a fourth extension

of the operational deadline for the Apple Hill facility contract);

and Petition of Chelsea Solar, LLC for relief from standard-offer

contract milestone, Case No. 19-2179-PET (granting a fourth

extension to the operational deadline for the neighboring

Chelsea Solar/Willow Road facility); Petition of Chelsea Solar

69a

On June 26, 2020, we conducted an evidentiary

hearing and issued a temporary restraining order

("TRO") against Allco prohibiting any further tree

clearing or other site preparation on any property for

the facilities proposed by Allco in its petitions in

Docket 8454 and Case No. 17-5024-PET. 6

In this Order we enjoin Allco from engaging in any

further site preparation without a CPG, including

tree clearing, on any properties identified in its

standard-offer contracts or CPG petitions for solar

electric generation facilities on Apple Hill in

Bennington, Vermont. This injunction is temporally

limited and shall remain in place only until one of the

following occurs: (1) the Developer receives a CPG for

constructing an electric generation facility on this

site, or (2) final orders from the Vermont Supreme

Court or the Commission deny both of the CPG

LLC, pursuant to 30 V.S.A. § 248, for a Certificate of Public Good

authorizing the installation and operation of a 2.0 MW solar

electric generation facility to be located at 500 Apple Hill Road

in Bennington, Vermont, Docket 8302, Order of 2/6/16 (denying

petition for CPG);

Petition of Apple Hill Solar LLC for a

certificate of public good, pursuant to 30 V.S.A. § 248,

authorizing the installation and operation of a 2.0 MW solar

electric generation facility at 1133 Willow Road in Bennington,

Vermont, Docket 8454, Order of 5/7/20 (denying petition for CPG

after remand from Vermont Supreme Court) (second appeal

pending); and Petition of Chelsea Solar LLC, pursuant to 30

V.S.A. § 248, for a certificate of public good authorizing the

installation and operation of the "Willow Road Project," a 2.0

MW solar electric generation facility on Willow Road in

Bennington, Vermont, Case No. 17-5024-PET, Order of 6/12/19

(denying petition for CPG) (appeal pending).

6 Case No. 20-1611-INV, Order of 6/26/20.

70a

petitions in Docket 8454 and Case No. 17-5024-PET,

any appeal periods or time limits for moving for

reconsideration have expired, and both of the

Developer's standard-offer contracts have expired or

been voluntarily relinquished. In other words, this

injunction will remain in place until we know whether

the Developer will or will not build solar facilities on

this site.

In this Order we conclude that Allco's preparation of

the Apple Hill site for solar development without a

CPG violated 30 V.S.A.§ 248(a)(2)(A), which requires

a CPG before site preparation may begin, and

warrants a proceeding to address the issuance of a

civil penalty for that violation of Section 30, pursuant

to 30 V.S.A. § 30.

We also direct that Allco communicate with the other

parties and file a schedule for the next phase of this

proceeding. This next phase of the proceeding will

determine the civil penalty Allco must pay under

Section 30 of Title 30 for violating Section 248(a)(2) of

Title 30 by conducting site preparation without a CPG

on Apple Hill in June 2020.

II. BACKGROUND

On May 16, 2013, the Commission approved Allco's

petition for a standard-offer contract for the electrical

energy to be generated by the "Bennington" facility,

which was one of two then-proposed 2.0 MW solar

electric generation facilities to be located on a 27-acre

parcel on Apple Hill in Bennington, Vermont. The

Commission also denied Allco's request for a

71a

standard-offer contract for the second proposed

facility, the adjacent Apple Hill facility.

On June 20, 2013, Allco executed a standard-offer

contract for the Bennington facility, also referred to

as the Chelsea Solar facility in Docket 8302 and then

later with a different footprint as the Willow Road

facility in Case No. 17-5024-PET. Paragraph 7 of that

contract contained development milestones, including

a requirement that the Developer commission the

project by no later than June 19, 2015. 7 In later

orders, the Commission extended the deadlines for

these development milestones. 8

After the Commission's denial of a standard-offer

contract for the Apple Hill facility, Allco successfully

appealed that ruling to the Vermont Supreme Court,

which reversed the Commission's determination. 9

7 The

Vermont Standard Offer Purchase Power Agreement is

between Ecos Energy, LLC (an Allco subsidiary) and VEPP Inc.,

a Vermont nonprofit corporation.

In re request of Sudbury Solar, LLC and Chelsea Solar, LLC for

an extension of time to commission their respective solar electric

generating projects, Order of 1/8/15; I n re request of Chelsea

Solar LLC for an extension of time to commission a solar electric

generating project in Bennington, Vermont, Order of 3/31/16;

Petition of Chelsea Solar, LLC for relief from standard-offer

contract milestone, Case No. 17-4695-PET, Order of 3/15/18;

Petition of Chelsea Solar, LLC for relief from standard-offer

contract milestone, Case No. 19-2179-PET, Order of 8/20/19.

In re Programmatic Changes to the Standard-Offer Program

and Investigation into the Establishment of Standard-Offer

Prices under the Sustainably Priced Energy Enterprise

Development (SPEED) Program, 2014 VT 29.

72a

On May 13, 2014, Apple Hill Solar LLC, on behalf of

Allco, was awarded a standard-offer contract for the

electrical energy to be generated by the second of the

two solar facilities proposed for the Apple Hill site.

Paragraph 7 of that contract contained development

milestones, including a requirement that the

Developer commission the project by no later than

May 12, 2016. In later orders, the Commission

extended the deadlines for these development

milestones. 10

On February 16, 2016, in Docket 8302, the

Commission denied Allco's request for a CPG for the

Chelsea Solar facility located on the site of the

Bennington facility for which a standard-offer

contract was executed on June 20, 2013. 11

On September 26, 2018, in Docket 8454, the

Commission approved Allco's request for a CPG for

the Apple Hill solar facility for which a standard-offer

In re request of Apple Hill Solar LLC for an extension of time

to commission a solar electric generating project in Bennington,

Vermont; Order of 3/31/16; Petition of Apple Hill Solar LLC for

relief from standard-offer contract milestone, 18-3727-PET,

Order of 12/27/18; Petition of Apple Hill Solar LLC for relief

from standard-offer contract milestone, 20-0185-PET, Order of

03/12/20.

Petition of Chelsea Solar LLC for a certificate of public good,

pursuant to 30 V.S.A. § 248, authorizing the installation and

operation of a 2.0 MW solar electric generation facility at 500

Apple Hill Road, Bennington, Vermont, Docket 8302, filed

6/19/14.

73a

contract was issued on May 13, 2014. 12 Neighbors

appealed the Commission's approval of the Apple Hill

facility. The Vermont Supreme Court then reversed

the Commission's approval in part and remanded the

case to the Commission for further action consistent

with its remand. 13

On December 27, 2018, the Commission issued an

order extending the commissioning deadline in the

standard-offer contract for the proposed Apple Hill

facility a second time. 14 The commissioning deadline

in Allco's May 13, 2014, standard-offer contract for

Apple Hill was extended to twelve months after the

date the Vermont Supreme Court issued a mandate

letter for any appeal taken with respect to the

Commission's final order in Docket 8454.

On June 12, 2019, in Case No. 17-5024-PET, the

Commission denied an amended petition for the

Bennington facility, now referred to as the Willow

Road facility, for which a standard-offer contract was

executed on June 20, 2013. 15 Allco has appealed our

Petition of Apple Hill Solar LLC for a certificate of public good,

pursuant to 30 V.S.A. § 248, authorizing the installation and

operation of a 2.0 MW solar electric generation facility at 1133

Willow Road in Bennington, Vermont, Docket 8454.

In re Petition of Apple Hill Solar LLC, 2019 VT 64.

Petition of Apple Hill Solar LLC for relief from standard-offer

contract milestone, Case No. 18-3727-PET, Order of 12/27/18.

Petition of Chelsea Solar LLC, pursuant to 30 V.S.A. § 248, for

a certificate of public good authorizing the installation and

operation of the "Willow Road Project," a 2.0 MW solar electric

74a

decision in the Willow Road case to the Vermont

Supreme Court, where that matter is pending.

On August 20, 2019, the Commission issued an order

extending the commissioning deadline in the

standard-offer

contract

for

the

Bennington/Chelsea/Willow Road facility a fourth

time. 16 In this fourth extension, the commissioning

deadline in Allco's June 20, 2013, standard-offer

contract was extended to twelve months after the date

the Vermont Supreme Court issues a mandate letter

for an appeal taken with respect to the Commission's

final order in Case No. 17-5024-PET.

On March 12, 2020, the Commission issued an order

extending the commissioning deadline for the

proposed Apple Hill facility a third time to twelve

months after the Commission issued its decision on

remand in Docket 8454. 17

On March 23, 2020, Allco filed a motion requesting

that we amend the Docket 8454 petition for the Apple

Hill facility to reflect its intention to graze sheep at

generation facility on Willow Road in Bennington, Vermont,

Case No. 17-5024.

Petition of Chelsea Solar, LLC for relief from standard-offer

contract milestone, Case No. 19-2179-PET, Order of 8/20/19.

Petition of Apple Hill Solar LLC for relief from standard-offer

contract milestone, 20-0185-PET, Order of 03/12/20.

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the site and to grow hemp on the neighboring 5-acre

Orchard Lot. 18

On May 7, 2020, the Commission issued a final order

on remand denying a CPG for the proposed Apple Hill

facility in Docket 8454 and denying the motion to

amend the petition to reflect grazing sheep at the

project site. 19

On June 19, 2020, public comments were filed by

Annette Smith alleging that tree clearing was

occurring on Apple Hill on the sites of the two

proposed 2.0 MW solar electric generation facilities.

Ms. Smith also alleged that the area of Apple Hill set

aside for rare, threatened, and endangered species

was being disturbed by the tree-clearing activity.

Also on June 19, 2020, Allco filed a response to Ms.

Smith's comments, alleging that at approximately

12:45 P.M. on June 16, 2020, the Apple Hill site was

visited by Vermont Agency of Natural Resources

("ANR") Environmental Enforcement Officer Patrick

Lowkes, who "confirmed that NO [rare, threatened, or

endangered species] area was being disturbed and

18 Amendment to Petition for Certificate of Public Good of Apple

Hill Solar LLC, filed 3/23/20.

Petition of Apple Hill Solar LLC for a certificate of public good,

pursuant to 30 V.S.A. § 248, authorizing the installation and

operation of a 2.0 MW solar electric generation facility at 1133

Willow Road in Bennington, Vermont, Docket 8454, Order of

5/7/20 (denying petition for CPG after remand from Vermont

Supreme Court) (second appeal pending).

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that the [rare, threatened, or endangered species]

area was cordoned off to prevent intrusion." 20

On June 23, 2020, ANR filed preliminary comments

in response to Ms. Smith's public comments. ANR

stated that it "has confirmed that site clearing

activity is occurring on the 27-acre parcel on which

the Apple Hill and Willow Road solar projects are

proposed to be constructed." 21

ANR also noted that the tree-clearing activity raised

two concerns. The first concern is that Allco is

conducting site preparation without a CPG. The

second concern is that the site clearing has not been

reviewed to ensure that it does not have an undue

adverse effect on the environment. Specifically, ANR

was concerned that the site clearing presented a

substantial and immediate harm to "very rare" and

"rare" plants at the site. ANR requested a cease-anddesist order to prevent irreparable harm to the plants.

On June 24, 2020, the Department also filed

comments stating:

In this case, based on the Agency of Natural

Resources Environmental Enforcement Officer's

initial findings regarding the site clearing activity,

cause appears to exist meriting further investigation

into whether petitioner initiated preparing the Apple

20 Email from Thomas Melone to the PUC Clerk, at 7:07 P.M. on

June 19, 2020.

21 ANR Comments at 2.

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Hill site for electric generation in violation of 30

V.S.A. § 248(a)(2). 22

Also on June 24, 2020, the Apple Hill Homeowners

Association, Libby Harris, and the Mount Anthony

Country Club (collectively, the "Intervenors") filed

comments in response to Ms. Smith's public

comments. The Intervenors assert that: (1) the

standard-offer contracts for the two proposed

facilities on Apple Hill were procured by fraud and

should be voided by the Commission; and (2) the

Developer has engaged in site preparation in violation

of 30 V.S.A. § 248 and the Commission should declare

the petitions for those facilities to be withdrawn or

abandoned.

On June 24, 2020, the Commission initiated this

investigation.

On June 26, 2020, the Commission held the first of

two evidentiary hearings in this proceeding and

issued the TRO restraining Allco from further sitepreparation activity on Apple Hill. The Commission

also scheduled a second evidentiary hearing for July

9, 2020, to address whether the TRO should be lifted

and whether Allco's tree-clearing activities were siteclearing operations in violation of 30 V.S.A. §

248(a)(2).

On June 27, 2020, Allco conducted additional siteclearing work at the Apple Hill site.

22 Department Comments at 2.

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On July 1, 2020, the Commission issued a procedural

order providing guidance for the July 9, 2020,

injunction hearing.

Also on July 1, 2020, Allco filed a motion to vacate the

injunction hearing.

On July 2, 2020, the Commission issued an order

postponing the July 9 evidentiary hearing until after

the Commission ruled on Allco's July 1 motion.

On August 26, 2020, the Commission issued an order

denying Allco's July 1 motion and rescheduling the

injunction hearing to September 8, 2020 (the

"Jurisdiction Order").

On August 31, 2020, Commission staff conducted a

status conference with the parties, and Allco

requested that the injunction hearing be further

postponed to allow Allco additional time to conduct

discovery on the rare plant issue.

On September 1, 2020, the Developer filed a notice of

appeal to the Vermont Supreme Court seeking relief

from the Commission's TRO and Jurisdiction Order.

Also on September 1, 2020, the Commission cancelled

the September 8, 2020, hearing.

On November 5, 2020, the Vermont Supreme Court

dismissed Allco's appeal without prejudice to refiling

it if an injunction is granted.

On November 13, 2020, the Commission provided the

parties notice of a rescheduled injunction hearing and

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advised the parties of the procedures that would be

used in that evidentiary hearing scheduled for Friday,

December 4, 2020.

On December 4, 2020, the Commission conducted the

second evidentiary hearing during which Allco

requested that it be permitted to conduct additional

limited discovery on ANR.

On December 8, 2020, the Commission issued an

order establishing a briefing schedule and limiting

the scope of additional discovery to four specific areas.

On December 17, 2020, ANR filed a motion on behalf

of all the parties requesting a change to the posthearing schedule.

On December 18, 2020, the Commission granted the

parties' motion to alter the post-hearing schedule and

set aside the previous post-hearing schedule. This

revised schedule included a January 8, 2021, deadline

for ANR to respond to additional discovery questions

requested by Allco as well as a January 29 deadline

for initial briefs and a February 12, 2021, deadline for

reply briefs.

On January 26, 2021, Allco filed two motions and the

supplemental prefiled testimony of Thomas Melone.

We respond to these motions below.

On January 29, 2021, Allco, ANR, and DPS each filed

post-hearing briefs.

On February 1, 2021, the Intervenors filed their posthearing brief.

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On February 8, 2020, ANR responded to Allco's

motion for administrative notice. ANR requests that

the Commission deny the motion because: (1) the

documents are not "facts" as contemplated by V.R.E.

201(b); (2) the evidentiary record is already closed;

and (3) the documents are irrelevant.

On February 12, 2021, the parties each filed posthearing reply briefs.

On February 16, 2021, Allco replied to ANR's

February 8 response to the motion for administrative

notice asserting that the documents contain relevant

facts and that the evidentiary record is not closed.

Allco also filed the supplemental prefiled testimony of

Jim McClammer with six exhibits.

On February 23, 2021, ANR objected to the

Commission's consideration of Allco's supplemental

filings of February 16 because the evidentiary record

is closed.

No other comments have been filed by the parties.

III. RULING ON EVIDENTIARY MOTIONS

The record in this proceeding was closed at the end of

the second hearing on December 4, 2020. However,

the Commission made a limited exception for parties

to introduce new information that would address four

specific factual concerns that had arisen in that

hearing, and the evidentiary record was therefore

kept open to address those--and only those--issues,

including any relevant responses to the Intervenors'

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request for information from Allco and Allco's

remaining discovery requests of ANR. 23

In a December 8, 2020, order, the Commission

reiterated the limited scope of evidence that may be

submitted into the record. Specifically, based on

Allco's representations during the hearing, Allco was

to: (1) file a correction to the website link addressed

in a footnote in its recent filings and queried by the

parties during the hearing; (2) file the total number of

rare plant populations inventoried by Arrowwood

Environmental as shown in Figure 1 of its 2019 Apple

Hill Solar Rare Plant Monitoring Report, exhibit

ANR-14; (3) develop with ANR a reasonable and

timely schedule for ANR to respond to the Developer's

pending discovery requests on ANR; and (4) respond

in a reasonable and timely fashion to the discovery

request filed by the Intervenors on December 7, 2020.

On December 8, 2020, Allco filed an affidavit and

exhibit from Robert Kobelia. This was directly

responsive to the Commission's request that Allco

respond to the Intervenors' discovery request. The

Commission's December 8, 2020, Order allowed this

filing. Further, this filing provides relevant

information, and no one objects to it. For these

reasons, the December 8, 2020, affidavit and exhibit

of Robert Kobelia are admitted into the record.

On January 25, 2021, Allco filed supplemental

prefiled testimony of Thomas Melone and three

23 "The record is not open for new witnesses, new exhibits, new

testimony, other than whatever responses you get from these

discovery requests." Tr. 12/4/20 at 221 (Roisman).

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related exhibits. This filing addressed (1) the website

link issue, and (2) the rare plant inventories of

Arrowwood Environmental. These are both topics

that the Commission said it would allow into the

record in our December 8, 2020, Order. Again, this

filing is relevant, and no party has objected to it. For

these reasons, the January 25, 2021, supplemental

prefiled testimony of Thomas Melone and its three

exhibits (PLH-TMM-3, 4, and 5) are admitted into the

record.

On January 26, 2021, Allco filed two motions to

supplement the record. The first Allco motion was a

request that the Commission take administrative

notice of six documents, marked as exhibits A through

F, addressing rare plants by different declarants who

have not been made available for cross-examination.

The second Allco motion requested that the

Commission further supplement the evidentiary

record by admitting three additional exhibits (AHJM-4, 5, and 6) that had been inadvertently omitted

from Allco's response to discovery questions answered

by Jim McClammer in his testimony of December 3,

2020. These documents address the presence of rare

plants in the vicinity of Apple Hill.

On February 16, 2021, Allco filed another round of

supplemental

prefiled

testimony

from

Mr.

McClammer, along with six additional exhibits (AHJM-7, 8, 9, 10, 11, and 12).

ANR objected to the admission of Exhibits A through

F and the February 16, 2021, supplemental prefiled

testimony and exhibits because they are late,

irrelevant, and do not meet the requirements for

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administrative notice. ANR further requested that

the Commission admonish Allco for ignoring

Commission orders and directives.

We deny both of Allco's January 26, 2021, motions to

supplement the record. We also deny Allco's attempt

to place additional documents into the record on

February 16, 2021--documents that cannot possibly

be put into the record at this late date because they

were not accompanied by any motion requesting their

admittance into the record.

We deny Allco's motions for two reasons.

First, the information Allco seeks to admit into

evidence, including the testimony of Mr. McClammer,

is untimely and outside the scope of the limited

information that we said could be submitted for the

record. While Allco claims that the Commission left

the door open to any evidence that is related in any

way to ANR's answers to Allco's discovery questions,

that is incorrect. There have been two evidentiary

hearings in this proceeding. And now, two months

after the record was closed with the exception of

specific limited items, and eight months after Allco

requested discovery, Allco seeks to file new testimony

and six articles totaling more than 400 pages. None of

this new information was discussed or addressed in

the second evidentiary hearing, nor was ANR or any

other party given an opportunity to cross-examine

Mr. McClammer on any of this information.

Second, even if the record remained open to the

testimony

and

documents

filed

Allco,

administrative notice does not apply here. The

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testimony and attached documents are not the type of

irrefutable information that might be given

administrative notice and entered into the record. Mr.

McClammer makes numerous assertions that are in

dispute. Had this testimony or these documents been

presented before or during the hearing, ANR could

have cross-examined Mr. McClammer on these

matters.

IV. FINDINGS

At the evidentiary hearing on June 26, 2020, the

Commission admitted those exhibits listed in the

transcript

from

that

proceeding,

including

Commission Exhibit 1, ANR Exhibits 1-9, PLH

Exhibits 1 and 2 and their attachments, and

Intervenors Exhibit 1. The Commission provided an

opportunity for parties to object to those exhibits

remaining part of the record for future stages of this

proceeding, and no party objected. Therefore, the

transcript and exhibits admitted as part of the June

26, 2020, hearing remain part of the record. At the

evidentiary hearing on December 4, 2020, the

Commission admitted the additional exhibits listed in

the transcript from that proceeding. As noted earlier

in today's Order, the Commission is also admitting

the December 8, 2020, affidavit and exhibit of Robert

Kobelia, as well as the January 25, 2021,

supplemental prefiled testimony of Thomas Melone

and its three exhibits (PLH-TMM-3, 4, and 5). Based

on the exhibits admitted in the record and the

testimony provided in the two evidentiary hearings,

the Commission makes the following findings.

85a

1. On June 16, 2020, the Apple Hill site was visited

by ANR Environmental Enforcement Officer Patrick

Lowkes, who observed that site-clearing activity was

occurring on Apple Hill on the 27-acre parcel on which

the Apple Hill and Willow Road solar facilities are

proposed to be constructed. Tr. 6/26/20 at 22, 24

(Lowkes); Lowkes affidavit 6/24/20 at P 5.

2. Allco's forester has cleared part of the site on

Apple Hill by carving out a truck turnaround spot at

the end of Willow Road on the Apple Hill site and

clearing a path around the site to install soil-erosion

fencing. This work cleared approximately 3 of the 27

acres. Allco's forester had anticipated completing all

the

site-clearing

work,

including

clearing

approximately 26 of the 27 acres, by mid-September

2020. Tr. 6/26/20 at 126-127 (Kobelia).

3. As part of its CPG petitions in Dockets 8302 and

8454 and Case No. 17-5024-PET, Allco had previously

surveyed the site for rare, threatened, and

endangered plants and located both rare (nimblewill

muhly,

Muhlenbergia schreberi) and very rare

species (white arrow-leaved asters, Symphyotrichum

urophyllum). Some of the very rare plants, the white

arrow-leaved asters, were relocated to conservation

areas set aside on the 27-acre site. These conservation

areas were marked by Allco and enclosed with soilerosion fencing. The rare plants were not relocated.

Tr. 6/26/20 at 40 (Popp); tr. 6/26/20 at 114 (Kobelia);

exh. ANR-10 through 15.

4. There are several areas outside the conservation

areas where the rare plant species are located. These

would be harmed by the proposed site-clearing

activities. Tr. 6/26/20 at 40, 43, 46, 49, and 51 (Popp);

exh. ANR-10 through 15.

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5. Although Allco states that it is clearing the site to

allow for grazing sheep and growing hemp, those

activities would not begin until the 2021 growing

season. Tr. 6/26/20 at 73 and 87 (Melone); Melone

Affirmation 6/25/20 at 2.

6. Allco plans to build two facilities with a combined

4.0 MW of solar generation at this site. Tr. 6/26/20 at

63, 67, 70, and 81 (Melone).

7. Site clearing for a solar facility requires clearing

trees. Tr. 6/26/20 at 65-66 and 88-90 (Melone); exh.

ANR-10 at 10.

8. Sheep grazing is compatible with a groundmounted solar facility, and in this case Allco plans to

use sheep as part of its solar development. Sheep are

used primarily to control vegetative growth at a solar

site. Sheep and solar go together as part of Allco's

business plan. Tr. 6/26/20 at 64-65, 92, 93 (Melone);

tr. 12/4/20 at 129-130 and 137 (Melone).

9. Allco has paid $ 850,000.00 for Green Mountain

Power Corporation to construct a line extension to

Apple Hill that would serve the two solar facilities

that have been proposed there. Tr. 6/26/20 at 69-70

(Melone).

10. Allco does not have binding contractual

arrangements with any expert entities to begin sheep

and hemp production on Apple Hill. Tr. 6/26/20 at 71

(Melone).

11. Allco's forester had conducted approximately

three acres of clearing, laying out the boundary of the

area to be clear-cut and installing a silt fence on Apple

Hill before June 26, 2020. Tr. 6/26/20 at 121, 126

(Kobelia).

12. On June 26, 2020, Allco's forester participated as

a remote witness in the Commission's TRO hearing

and sent texts that afternoon asking Allco's Project

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Manager Chris Little about the "cease and desist

potential" and whether he would be "ok for tomorrow"

to do additional site-clearing work. Kobelia affidavit

12/8/20 at 2.

13. Around 1:30 P.M. on June 26, 2020, the

Commission announced from the bench that it was

issuing a temporary restraining order: "We've decided

to issue a TRO. We will issue an order to explain our

reasoning later today." The Commission then issued

a written order around 10:30 P.M. that same day. Tr.

6/26/20 at 146 (Roisman); Order of 6/26/20.

14. Around 8:30 P.M. on June 26, 2020, after the

Commission had issued its ruling from the bench, but

before a written order was issued, Allco's Project

Manager told Allco's forester that he had "not

received a TRO yet, so unless we receive one tonight

or tomorrow morning we're good to go. You will hear

from me the moment I see it hit my inbox." Kobelia

affidavit 12/8/20 at 2.

15. Allco's forester continued site-clearing work on

June 27, 2020, at 7 A.M. having not been informed by

Allco that the Commission had issued a temporary

restraining order halting site-clearing work at the

Apple Hill site by order on June 26, 2020. The

forester's work on Apple Hill ended shortly after 1

P.M. on June 27, 2020, when he received a text from

Allco informing him of the TRO at the same time that

the sheriff arrived at the site and informed the

forester of the order to cease and desist from work at

the site. Tr. 12/4/20 at 41-44 (Kobelia).

16. Between 7 A.M. and 1 P.M. on June 27, 2020, the

forester used a bulldozer to continue clearing a 100foot-by-250-foot area of the Apple Hill site of

vegetation after the TRO hearing. The forester

bulldozed the area so that it could serve as a place

88a

where a truck could turn around. Tr. 12/4/20 at 49-53,

66 (Kobelia).

17. The forester was not contractually required to

avoid rare plants while clearing the Apple Hill site.

Tr. 12/4/20 at 53-55 (Kobelia).

18. During the site-clearing work done by Allco's

forester before June 27, 2020, several white arrowleaved aster plants and nimblewill plants were

destroyed. The total number of plants destroyed and

the number of plants that might be destroyed if the

work continues remain uncertain in the absence of a

seasonally appropriate survey for rare and

endangered plant species at the site. Tr. 12/4/20 at

153-155, and 194-195; exhs. AH-RK-2, PLH-TMM-5,

and AH-JM-6.

19. White arrow-leaved asters were present at the

site of the vegetation cleared by the forester on June

27, 2020. Tr. 12/4/20 at 77, 79 (McClammer); exh.

ANR-10 at 5; exh. ANR-14.

20. White arrow-leaved asters present on June 27,

2020, would have been difficult to locate and identify

because at this time of year they would be diminutive

and likely obscured by the foliage of other plants

present at the Apple Hill site. Tr. 12/4/20 at 90-91

(McClammer).

21. ANR's system for the classification of rare,

threatened, and endangered species, like the white

arrow-leaved aster, is a rational technique for

addressing those species. Tr. 12/4/20 at 85

(McClammer).

22. Cutting and skidding trees at the Apple Hill site

would tear the aboveground portions of the white

arrow-leaved asters and the nimblewill plants from

their roots. In addition, the heavy equipment used to

do the site clearing would compact the soil and crush

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any plant over which it is driven. Exh. ANR-10 at 910.

23. Thomas Melone is the sole owner of Allco

Renewable Energy Limited, Chelsea Solar LLC,

Apple Hill Solar LLC, PLC Vineyard Sky LLC, and

PLH LLC, and their affiliates. Tr. 12/4/20 at 98-101

(Melone).

24. Allco agreed not to develop the 5-acre parcel-referred to variously as Lot Number 1, the Orchard

Lot, and the horticultural lot--in a settlement

agreement with the Town of Bennington on

September 14, 2018. Tr. 12/4/20 at 102-103;

Intervenors Exh. 4 at P 7.

25. This 5-acre parcel is adjacent to the 27-acre

parcel hosting the proposed Apple Hill and

Chelsea/Willow Road solar facilities. In Docket 8454,

Allco filed exhibit AHS-MK-12, proposing that it

would plant a row of trees at the northern edge of this

parcel, which is owned by Allco, as part of the facility's

landscaping plan as the "Hill Road Planting" to shield

views of the solar facility from a neighboring property.

The 5-acre parcel is part of the Apple Hill site where

site-clearing activity is enjoined by this Order. Tr.

12/4/20 at 124 (Melone); Intervenors exh. 4 at exh. B.

V. DISCUSSION

Introduction

In 2013, Allco petitioned the Commission to construct

two solar facilities on Apple Hill in Bennington using

standard-offer

contracts

authorized

the

Commission. The current form of those proposed solar

facilities is reflected in petitions filed in Docket 8454

and Case No. 17-5024-PET. The Commission has

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denied CPGs to Allco based on those petitions, and

those denials are currently under review by the

Vermont Supreme Court. Allco has amended or

sought to amend each of these proposed facilities

significantly, altering their proposed footprints, solar

technology, access routes, access to the distribution

grid, and aesthetic and natural resources impacts. 24

The proposed facilities currently under review by the

Vermont Supreme Court differ significantly from the

facilities proposed by Allco in 2013 in the standardoffer petitions.

On January 6, 2020, the hearing officer in Docket

8454 issued a proposal for decision on remand in the

Apple Hill case recommending that we deny the

petition.

On March 23, 2020, Allco filed a motion requesting

that we amend the Docket 8454 petition a second

time. 25 This second amendment reflected a plan by

Allco to use the neighboring Orchard Lot and the

24 We denied two requests to amend the Chelsea Solar petition

in Docket 8302 in Orders of 4/14/17 and 10/12/17. These denials

were followed by Allco filing a new petition further revising the

proposed facility as the Willow Road case in Case No. 17-5024PET. As explained in more detail below, we also denied Allco's

March 23, 2020, proposed amendment to the Apple Hill project

in Docket 8454. Docket 8454, Order of 5/7/20, at 24-25.

25 Allco's first amendment request in Docket 8454 was made on

April 4, 2016, before a proposal for decision or final order had

issued. The first request reflected technological changes that

reduced the proposed facility's footprint. The hearing officer

approved that amendment request, and we approved the petition

as amended. The Vermont Supreme Court reversed our decision

and remanded the case.

91a

facility site for agricultural purposes accommodating

sheep grazing and hemp production. Among the

specific changes to the petition, Allco proposed

clearing the facility site because "[b]y the time

construction might commence on the solar project, the

hemp and sheep operations would be established for

quite some time (as the litigation over the project is

likely to continue for at least a couple more years)." 26

On May 7, 2020, the Commission issued an Order

adopting the hearing officer's proposal for decision on

remand that we deny the petition in Docket 8454. We

also denied the second proposed amendment because

we had no jurisdiction on remand to reopen the

original petition and because it was untimely. We

concluded that Allco's interpretation of the

Commission's amendment rule "would lead to the

absurd result of allowing amendments that would

give a project proposal a potentially unlimited

lifespan." 27 We required that "new projects be filed as

new projects." 28

Then in June 2020, Allco began to clear-cut the site of

the neighboring proposed solar facilities on Apple Hill

without a CPG. Allco claims that this was farming

activity unrelated to the solar facilities and outside

the Commission's jurisdiction. By their comments of

June 23, 2020, ANR requested that the Commission

26 Docket 8454, Second Proposed Amendment, filed March 23,

2020, at 1 n.1.

27 Docket 8454, Order of 5/7/20, at 24-25.

Id. at 25.

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declare that Allco was violating Section 248. 29 Later

comments by ANR, as well as by the Department and

the Intervenors, requested that we order Allco to stop

clear-cutting its property on Apple Hill.

We initiated this investigation and learned that Allco

was cutting down trees and doing other site

preparation work on Apple Hill at the site of the two

proposed solar facilities. Based on those facts and

pursuant to our jurisdiction under 30 V.S.A. §§ 9, 10,

30, 209, 203, and 248, as well as Commission Rule

2.406 and Vermont Rules of Civil Procedure Rule 65,

we ordered Allco to stop clearing trees on the parcel

because that action is harmful to the natural

environment and the orderly regulation of the

generation of electricity in Vermont.

The potential for harm remains, and we maintain

that injunctive order. As discussed below, we also now

declare that Allco's clearing activity is site

preparation in violation of 30 V.S.A. § 248(a)(2)(A).

We direct the parties to propose a schedule for the

proceeding to address an appropriate civil penalty to

be issued against Allco pursuant to 30 V.S.A. § 30.

A. The Commission has Jurisdiction to Oversee,

Enjoin, and Penalize Allco

The Commission Has Jurisdiction over Allco

Comments at 2-3;