Kaelin “Liz” Mackey

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In 2021, Vermont’s Public Utility Commission (PUC) denied a certificate of public good to a 500 kW solar development in Manchester, VT solely on aesthetic considerations.^[1] Among the many requirements the developer met, the PUC found the project would have permissible sound levels, would include appropriate wood turtle migration channels, would meet setback requirements, would not impact erosion, and “would not trigger a review for habitat loss of the northern long-eared bat.”^[2]

Ultimately, the PUC found the development would be “offensive or shocking to the average person,” and thus would not satisfy subjective § 248 aesthetic criteria.^[3] Prior to its determination, the Town, the regional planning commission, and a State-hired independent aesthetics consultant all agreed the proposal would have no undue adverse effect on aesthetics.^[4] Generation facilities must meet this statutory aesthetics standard.^[5] But “average” Vermonters in the age of climate devastation may struggle to square the PUC’s aesthetics findings with those of local governments and experts.

Landscapes in Vermont are precious. Thus, “[r]enewable energy siting represents the point at which broad energy policy aspirations intersect inextricably with local landscapes, local social and political contexts, and local land use law.”^[6] As we embark on “the critical decade for climate change mitigation,”^[7] renewable siting raises legitimate public fears over aesthetics and “energy sprawl.”^[8] How will communities and states wrestle with siting to meet renewable energy objectives while also providing meaningful public involvement?

Vermont knows this tension well. Vermont legislators have worked to engage the public in siting decisions by incentivizing their participation. Passed in 2016, Act 174 provides one incentive.^[9] Towns and regions that engage in renewable siting planning gain more deference from the State when renewable development is proposed.^[10] Legislators hoped public engagement would accelerate renewable growth by offering local benefits and building buy in.^[11] The results are mixed, and perhaps the biggest problem is that the State’s PUC is the ultimate arbiter of siting. The PUC but assesses proposals using dated and ambiguous aesthetics standards. This Note addresses the problem of ambiguous standards and proposes possible solutions.

This Note is organized into four parts. Part I outlines the predecessors to and recent history of Vermont laws and guidelines governing energy use and greenhouse gas (GHG) reduction objectives. Part I also establishes the State’s compliance greenwashing and details the GHG emissions reduction challenge of the current decade. Part II focuses on Vermont Act 174’s method for facilitating solar power siting. Part II clarifies the PUC’s role in facilitating greater renewable production. Next, Part III details the Manchester, VT case study. The PUC’s denial of that project demonstrates the tension in siting decisions between the PUC, developers, and Vermont towns and their corresponding regional planning commissions.

In Part IV, this Note proposes several solutions to easing siting. First, this Note proposes the legislature could revise the jurisdiction of the Environmental Division (ED) of the Vermont Superior Court to provide citizen remedies for government climate change mitigation failures. This solution tracks with the General Assembly’s intent that all State departments and agencies engage in climate solutions. Either in conjunction with this remedy, or singly, this Note also endorses the PUC defer to a mediation approach to local siting controversies.

Second, Part IV of this Note also recommends the General Assembly amend statutes to compel the PUC to:

1. make explicit the criteria for Act 174 deference to local siting decisions;
2. apply a methodological framework for evaluating aesthetic impact;
3. define the “average person” to comport with climate change realities; and,
4. balance undue aesthetic harms with the societal benefits of emissions reductions.

The solutions proposed in this Note would facilitate solar siting, better situating the State to meet the climate goals established in Part I.

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[1] Order Denying Certificate of Public Good, In re MHG Solar, LLC/500 kW-Manchester, 20-1261-NMP (Sept. 17, 2021) [hereinafter MHG’s CPG Denial Order], https://epuc.vermont.gov/?q=downloadfile/521380/149379; See Vt. Dep’t of Pub. Serv. (2021), https://publicservice.vermont.gov/ (housing the PUC within the Department of Public Service); See Vt. stat. ann. tit. 30 § 2(a)(7) (giving regulatory authority for the “siting of electric generation and transmission facilities” to the PUC).

[2] MHG’s CPG Denial Order, supra note 1, at 34.

[3] Vt. stat. ann. tit. 30 § 248(b)(5) (stating PUC solar development approval requires there are no “undue adverse effect on aesthetics . . . with due consideration having been given to . . . greenhouse gas impacts”).

[4] See MHG’s CPG Denial Order, supra note 1, at 29.

[5] See Vt. stat. ann. tit. 30 § 248(b)(5).

[6] Symposium, Uma Outka, Renewable Energy Siting for the Critical Decade, 69 Kan. L. Rev. 1, 2 (2020) (arguing federal, state, and local governments “must prepare to address” emerging siting “by adapting siting regimes to meet new opportunities[.]”).

[7] Id. at 3 (citing Intergovt’l Panel On Climate Change (IPCC), Summary For Policy Makers 9–12 (2018) [hereinafter IPCC], https://www.ipcc.ch/2018/10/08/summary-for-policymakers-of-ipcc-special-report-on-global-warming-of-1-5c-approved-by-governments/ (concluding that by 2030, CO₂ emissions must “decline by about 45% from 2010 levels,” otherwise temperature increase will have catastrophic impacts on human health, economic stability, food and water security, and extinctions)).

[8] Id. at 2 (citing Robert I. McDonald et al., Energy Sprawl or Energy Efficiency: Climate Policy Impacts on Natural Habitat for the United States of America, 4 PLOS ONE 1 (2009) (characterizing “energy sprawl” as “poorly planned, haphazard, inefficient urban development,” and/or “scaling up renewable energy without informed, thoughtful planning [that] could fragment wildlife habitats and harm natural landscapes unnecessarily”)).

[9] Energy Development and Improvement Act, No. 174 (2016), https://legislature.vermont.gov/Documents/2016/Docs/ACTS/ACT174/ACT174%20As%20Enacted.pdf.

[10] Id. (amending Vt. stat. ann. tit. 30 § 248(b)(1)(C) such that “‘substantial deference’ means that a land conservation measure or specific policy shall be applied in accordance with its terms unless there is a clear and convincing demonstration that other factors affecting the general good of the State outweigh the application of the measure or policy”).

[11] See Outka, supra note 6 (advocating for solutions generated through public engagement); Vt. Dep’t of Pub. Serv., Introduction to the Act 174 Regional and Municipal Energy Planning Standards [hereinafter Introduction to Act 174], https://publicservice.vermont.gov/sites/dps/files/documents/Pubs_Plans_Reports/Act_174/Standards%20Overview.pdf (last visited Mar. 14, 2022).