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Vermont Supreme Court Rules Unanimously That The Public UtilityCommission Cannot Bypass The Public

Vermont's iconic Camel's Hump mountain. Photo: Petermann 2004

PRESS RELEASE, April 15, 2024

VERMONT SUPREME COURT RULES UNANIMOUSLY THAT THE PUBLIC UTILITY COMMISSION CANNOT BYPASS THE PUBLIC

On April 12, 2024 the Vermont Supreme Court ruled on an appeal of a Public Utility Commission (PUC) order in the ongoing case regarding irregularities in the construction of the Vermont Gas ANGP pipeline. The ruling states that, contrary to the PUC order, Vermont Gas must undertake the statutorily required process for seeking amendments to its Certificate of Public Good (CPG) in light of substantial changes made during construction without prior authorization.

A lengthy series of cases, stretching across the past decade resulted in numerous serious concerns about the pipeline construction and potential serious public safety implications. Ultimately, in April 2023, the PUC stated its agreement with the intervenors that at least five of the concerns that were raised were in fact “substantial” changes to the permitted construction of the pipeline. **  

All substantial changes should have been reported to the PUC at the time of construction, with a petition for amendment of the permit, prior to continuing construction.  VGS failed to comply with this requirement. The substantial changes were only brought to light by the monumental efforts of a group of intervenors working with their attorney, James Dumont.  While the PUC determined that the construction irregularities were in fact substantial, it then went further to determine that the process for seeking a permit amendment could be bypassed given the “uniquely extensive evidentiary record” already provided in proceedings.  Intervenors appealed to the Supreme Court arguing that bypassing the permitting process not only would contradict and undermine Vermont law, but would exclude public engagement in a process intended to determine if a project is “in the public good”.  The public process is of particular importance given potential risks associated with the irregularities in construction, especially for those living close to the pipeline. The Supreme Court agreed. stating: “Both Rule 5.408  and &248 were clearly intended to obligate parties to ask for permission not forgiveness: The Commission’s approach here turns that principle on its head.” 

Sarah Star, the appellate attorney who argued the case on behalf of the intervenors in the Vermont Supreme Court, stated that “This decision is a victory for the public and for public participation in the permitting process.”  As the Court stated: “It is clear that the statute and promulgating regulations require a project implicating the public good and § 248(b) criteria to receive input from various governmental bodies and members of the public to ensure the project complies with § 248’s requirements. Therefore, it stands to reason that when a certificate holder makes changes to the project, and those changes are of such significance that they have the potential to impact the public good under § 248(a) and any provisions under § 248(b), that same scrutiny should apply.”  Citing inconsistencies in how the PUC has dealt with the CPG permitting amendment processes in other cases, the supreme court justices warn: “The Commission’s ad hoc approach risks benefitting certificate holders who violate their CPGs while disadvantaging those who follow the letter of the law”.   

Rachel Smolker (intervenor) states: “After so many years, we are all very pleased and yet not surprised by the Supreme Court ruling. Frankly, the court must uphold the laws of the state and this was a blatantly clear case.  It is essential that the public be fully informed about the various issues with this pipeline which runs through our towns and yards, alongside schools and roadways and under our streams, rivers and lakes.  Vermonters deserve to have a voice in whether or not it is permitted as a “public good” because after all, we are the public!”  The PUC ordering that the process be bypassed was wrong on so many levels and the court saw that.

Nate Palmer (intevenor) states: A few years ago a gas pipeline exploded in Massachussets killing one person, injuring several and damaging multiple properties. The National Transportation Safety Board reviewed the incident and advised that all states should require pipeline construction plans to be stamped and approved by a licensed engineer. Vermont already required that by law, but Vermont Gas failed to comply.  It seems like a pretty big deal that they didn’t have someone who really knows what they are doing overseeing this project.  It’s fundamental and perhaps one of the main reasons there were so many problems during construction. I know that if I wanted to put in a new septic system in my back yard I would need an engineer to approve the plans, so how is it that a major utility project  – a pipeline carrying explosive gas through our communities – can get away with building a pipeline without that kind of professional oversight?

Lawrence Shelton (intervenor) stated:  I am so glad that the public will now have an opportunity to learn about what has gone on with the pipeline.  Like many others, I objected to this fracked gas pipeline from the start based in concerns about climate change and the impacts of fracking on the environment and communities. But after learning more and more about the problems with construction, I became highly alarmed by the potential risks to public safety.  Now the public has a chance to weigh in, fully informed, on whether or not this pipeline is – or is not – a “public good”.

NOTES: 

The Supreme Court ruling is Docket: NO. 23-AP-24

The PUC cases under appeal are NOS. l7-3550—INV & 18~0395-PET 

 **The five irregularities that PUC agreed were in fact substantial changes to the permitted specifications included 1) using an unspecified “sink in swamp” method of pipeline installation – in a rare and irreplaceable natural area. 2) failing to bury the pipeline to the minimum required 4 feet depth in several locations in proximity to VELCO high voltage transmission lines (increasing potential for electrical interference and corrosion) 3) failure to comply with specifications for compacting soil in trenches wherein the pipeline was installed, 4) failing to install trench breakers in locations where they were required, and 5) failure to engage a Vermont licensed professional engineer as responsible charge to oversee construction (as required by law).

Contact: Rachel Smolker (802)482-2848 or (802)304-6094 rs******@gm***.com

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