McClaughry: Vermont’s fourth branch of government

By John McClaughry

A current case before the Public Utility Commission (PUC) may illustrate how that regulatory board has become an unaccountable fourth branch of government, dedicated to accelerating the current preoccupation with defeating the Menace of Climate Change.

The case in point is a developer’s application to install a 500 kilowatt solar farm on Richville Road in Manchester. As an energy generation project, it falls under the jurisdiction of the PUC. What follows is the necessarily oversimplified account involving the “aesthetics” criterion that the project must meet to comply with what’s called the Quechee Test.

John McClaughry

John McClaughry is vice president of the Ethan Allen Institute.

(The following analysis leans heavily on the excellent 2021 Midyear Report by Annette Smith of Vermonters for a Clean Environment, which is assisting neighbors objecting to the Richville Road Solar Project. I take no position on the overall merits of that Project.)

The Legislature, in 1970, enacted Act 250. But it also provided for a carveout from Act 250 review for projects under the jurisdiction of the Public Service Board (renamed the PUC in 2017). The PSB borrowed from Act 250’s Criterion 8 (“no undue adverse effect on aesthetics”).

This became known as the Quechee Test. The first part inquires whether the project has an adverse effect on aesthetics and natural or scenic beauty. The second part inquires whether any such effect is “undue”. Sometime before 2002 the PSB, on its own, thought up a new and quite expansive third part to the Quechee Test: whether the project delivered “overall societal benefits” that could outweigh undue adverse effects on aesthetics. Whoa! Where did the PUC find that authority?

In a wind case titled In re Halnon in 2002, the Supreme Court set forth the proper Quechee Test — the first two parts, but not the PSB’s assumed third “Societal Benefits” part. Only eight days after the Court’s Halnon decision, the PSB professed the exact opposite. It claimed the power to overcome any undue adverse aesthetic impact with a single bold sentence declaring that its rulings on aesthetics would be “significantly informed by the overall societal benefits of the project.”

When asked by the (Douglas) Department of Public Service in 2003 to remove its “societal benefits” addition, the PSB stubbornly refused.

In 2014 the Legislature directed the PSB to follow the Supreme Court’s statement of the two-part Quechee Test for net-metering projects larger than 150 kilowatts. The PSB’s rewrite of its rules incorporated verbatim the Halnon court’s statement of the (two-part) Quechee Test. But the (now) PUC has never retreated from its position that it can approve an application for a renewable energy project by relying upon its invented “societal benefits” criterion to overcome opponents’ “undue adverse effects” aesthetic objections that would otherwise defeat the application under the Supreme Court’s definitive statement of the two-part Quechee aesthetic test.

Last January the PUC, chaired by longtime climate change warrior Anthony Roisman, opined in a legislatively-mandated report that a “robust” carbon tax on heating oil, kerosene and propane is sorely needed “to benefit the users of these fuels.” That urging followed his announcement two years earlier that Vermont was facing a “Pearl Harbor moment” requiring a “wartime effort” to cope with the growing Menace of Climate Change.

Roisman’s PUC seems likely to use the PUC-created and (arguably) extralegal “societal benefits” criterion to approve Big Wind and Big Solar projects that would otherwise flunk the Supreme Court’s aesthetics test. That would defeat the representations of citizen groups opposed to (arguably) environmentally defective projects, spurn the clear mandate of the Supreme Court, and greenlight the renewable-industrial complex that is waxing fat on subsidized wind and solar.

Only skilled lawyers can penetrate the workings of the PUC. The utilities and the renewable energy developers have hired those skilled lawyers to persuade a receptive PUC to make use of its undefined “societal benefits” criterion — such as “defeating climate change” — to approve their applications.

That’s why the Richville Road Solar developer, in a brief to the PUC, threw in this revealing Roisman-appealing though false argument: “Under Rule 5.112 the Commission conducts an aesthetic review as articulated in Halnon, which includes policy considerations such as societal benefits. The Project, as with other solar net metered projects, will result in societal benefits by utilizing a renewable energy resource that will assist in the reduction of greenhouse gases which in turn will address climate change impacts.”

The PUC’s decision in the Richvile Road application is pending. Will the PUC override the recommendation of its hearing officer by invoking “societal benefits” to rush through ever more renewable energy projects, that Roisman believes are so desperately needed to save the Earth from a “Pearl Harbor” climate catastrophe?

“Societal Benefits” — the PUC’s magical incantation! Who, again, ever voted for that?

John McClaughry is vice president of the Ethan Allen Institute.

Image courtesy of John McClaughry

10 thoughts on “McClaughry: Vermont’s fourth branch of government

  1. Since I have installed my solar system (which I am still paying for), the PUC have changed the laws that only benefit GMP, not the system owner. After a year, all the excess credits I generate will be “given” to GMP so they can profit off of the solar system I am still paying a loan on. Just another day in the life of a Vermont homeowner. Take, take, take, take and take some more.

  2. Since I have installed my solar system (which I am still paying for), the PUC have changed the laws that only benefit GMP, not the system owner. The gov’t claims they want homeowners to conserve energy and go cleaner, but now I am paying for a system and losing credits that I have saved for the winter. Last month I lost $68. and this month I will lose $120. unless I use it. All of the credits will be “given” to GMP so they can profit off of the solar system I am still paying a loan on. When I called, I was told I could donate the credits to another customer, but then I’m going to have to pay the customer service fees OOP sooner (a law that was passed after the system was installed). I was blamed for putting a system in too large for my needs, but unfortunately, sometimes a person’s way of life changes. I could have gotten a check for the extra credits but because I never did prior to 2016, I lost out on that benefit. Just another day in the life of a Vermont homeowner. Take, take, take, take and take some more.

  3. This is a stunning account of how corrupt Vermont bureaucrats can be and actually are……..No respect for the law…..While powerful lobbyist rule Vermont……..Absolutely amazing.

    Meanwhile our elected officials and media sit silently as Vermont repeatedly earns embarrassing low ratings for ethics and does nothing to empower an essentially toothless ethics commission……..Shameful.

  4. I may have missed this in the article, but how do the members of the PUC (PBS) come by their positions?
    Are they appointed by the Governor, by the legislature, or by yet another group of non-elected bureaucrats?
    Having spent a weekend pulling ‘Queen Anne’s Lace’ weeds out of my yard (grasp firmly and pull hard), makes me wonder how does Vermont pulls these privileged, self important ‘weeds’ out of this commission? Does it require a Governor with some backbone or a Legislature with some brains? If that’s the case, we concerned Vermonters need to use our franchise to better effect. The commission members, like Queen Anne’s Lace, might be pretty to look at, but don’t do a damn thing worthwhile. Just grab and pull hard…

    • Queen Anne’s Lace is a weed?
      Did you get Chervil mixed up with Queen Anne’s Lace? Chervil is an invasive species.
      Queen Anne’s Lace is native to Vermont.
      Sisyphean task in case…tilting against nature in a rural state… you could do some real good pulling the knotweed out… that actually works if you get it in June, by my own experience.
      Knot to get into the weeds too much…
      “Like Queen Anne’s Lace” NOT the thing…is a description of chervil. Which flowered last month, while non-invasive species and native plant, Queen Anne’s Lace, is flowering this month.

      • Since we are talking about invasive weeds, I must add my experience with trying to get the VT gov’t to take the knapweed that is destroying the farmland in my area and spreading aggressively. This weed has destroyed much of the hay fields in my area. I have been contacting the VT gov’t for three years to take this matter seriously, but it has fallen on deaf ears. I have called the governor’s office three times and told that the Governor was too busy to meet w/the farmers in the area. Two aides said someone in another dept. would contact me, but by the last time I called, I realized they lied and just hoping I would give up. The last thing I was told was that there was nothing the GOVERNOR’S office could do to help us, even though this weed is all over the State land. We have to spend thousands every year to spray our fields and I am not sure if I am going to have enough hay for my own animals this year. Be prepared, because this weed is coming to your Town very soon. I watched it overtake an 8 acre field within two months. The farmers are round baling some of their fields and throwing them in the woods. The animals will not eat it. Yet, they can spend our tax dollars on all expense paid “conferences” at top resorts like the Mountain Top Inn. What a disgrace this RINO is.

  5. In the same way that Burlington Voters are realizing the obstacles their city council has placed
    on public safety for the residents of Burlington, so slowly are Vermont voters beginning to realize what decades of one-party”rule” have done to Vermont and her residents. The PUC is but first in a line of authoritarian commissions and boards that past legislatures have allowed to usurp the democratic process.
    The Green Mountain Care Board, Vermont Climate Council and others, like the PUC can go about fulfilling the interests and desires of their members- as well as special interest groups, all in the name of whatever the current fad or fantasy Vermont’s elite choose to pursue.
    We have allowed this to happen- and wrestling power and control away from these boards isn’t likely to happen for decades more. Not until Voters realize the mandates these boards issue really don’t help the voters and residents- just enable government to assume more control over voter’s lives and pocketbooks.
    Between the PUC and the VCC, all energy imported, produced and consumed in Vermont will be tightly regulated as to method, quantity and cost. Rationing by taxation is already happening with electricity- very facet of energy will fall under purview of these boards-If the PUC decides that a solar farm is required, so be it. If the Vermont Climate Council deems gasoline rationing is needed to meet archaic carbon “goals”, you’d better be prepared to pay up- and you may pay for gasoline based on your income! The “Just Transitions” sub-committee will see to that. Same goes for every kilo-watt of electricity and every btu of oil or gas to heat your home. You, the voter gave the VCC and the PUC this power, all in the worship of the religion of climate change. I hope you are satisfied with the results of your votes.

  6. There is a LOT of bureaucracy we haven’t been consulted or asked about – under the bigger umbrella of rolling out the very detailed plans for our lives and how to live them better according to AI – within, under and rolled out here in Vermont, under the UN Sustainable Development Agenda that has sold our souls to the technofascists before we consented.

    The PUC is the arm in Vermont of those technofascists to do whatever they heck they please.

    Aesthetics is an unscientific, purely subjective evaluation, as can be witnessed by the variety of lifestyles extant here in Vermont. Agenda 2030 seeks to remove diversity and replace it with homogeny as determined by the engineers.

    The PUC is the ‘fast track’ for businesses who don’t want to wait for examination and permitting processes within Act 250 – that is its mission statement. It is deliberately a side step – but only for the foreign held international energy and telecomm companies.

    Another individual and amorphous term the PUC can NOT consider but SHOULD… a little higher on Maslow’s pyramid of needs scale, is the consideration of our health in proxmity to much of the technology Act 250’s side step PUC board’s permitted projects.

    The PUC needs to go, period.
    They are the gatekeepers for the devil in the form of technofascist agendas that curtail lives.
    They do not consider humanity – just profits.

    And who tests the examiners on what ‘aesthetic’ is?
    Does this require an MFA, at the least, I’m hoping?

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