On April 12 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. 

According to intervenor Rachel Smolker, the ruling states that, contrary to the PUC order, Vermont Gas must seek 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, Smolker said. VGS failed to comply with this requirement. The substantial changes were only brought to light by 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!” 

EB-5 related Stowe Aviation lawsuit may continue – The Vermont Supreme Court has ruled in favor of Stowe Aviation, allowing continuation of its lawsuit against state agency over EB-5 misrepresentations. 

The collapse of the EB-5 investment program derails Stowe Aviation’s expansion plans at Morrisville-Stowe Airport. Allegations of inadequate oversight lead to significant financial losses and the cessation of airport operations, highlighting ongoing state scrutiny.

The company alleges that the commerce agency promised a “gold standard” of oversight that never materialized, leading to financial losses and the eventual cessation of their airport operations in 2021.

The Supreme Court’s decision highlighted an “abuse of discretion” in the handling of the company’s complaint, paving the way for a renewed legal challenge.

This ruling comes as the state’s EB-5 program faces ongoing scrutiny, with a recent auditor’s report criticizing its regulation. Meanwhile, the Agency of Transportation has struggled to find a new operator for the Morrisville-Stowe Airport, further complicating the situation.

Editor – Much of the content for the VGS Supreme Court ruling was sourced from a press release issued by intervenor Rachel Smolker.