Vermont Legislature SmartTranscripts:

[Rep. Amy Sheldon (Chair)]: Alright. Good morning, and welcome to the House Environment Committee. This morning, we are hearing from Annette Smith from Vermonters for Clean Environment, Siting and Land Use. Welcome.

[Annette Smith (Executive Director, Vermonters for Clean Environment)]: Thank you very much for having me here. I think this is my first time before this committee, so I'll provide a brief introduction. My name is Annette Smith. I'm executive director of Remoders for a Clean Environment. It's a grassroots organization that started in 1999 to deal with a proposed billion dollar natural gas power plant and pipeline project for Rutland and Bennington Counties. And I expected to dry off my cow for two months and stop the gas project and get my life back. And twenty six years later, here I am. So in the intervening years, I have worked in Vermont communities dealing with inappropriate developments that include quarries, landfills, large farms, and groundwater protection, water supply disinfection. I've been before this committee in various forms over the years many times. My first testimony in this state house was in January 2000 before the House Commerce Committee, which was then the committee of jurisdiction over the Public Utility Commission. And since 2009, most of our work has been on the Public Utility Commission side dealing with wind turbines up until about 2015 and then solar. And most recently, there have been a lot of tower applications. So in the 2000s, we were dealing a lot with ANR permitting and with Act two fifty. And so I have experienced a whole range of the systems that we have for permitting and that involve land use and public participation. We are unique right now in that we're really the only organization doing this. My staff people are here, John Brabant and Alison Despathy. We're very small compared to the large groups with million dollar budgets. Ours is about 135,000. We are totally supported by the people of Vermont. And the issues we work on are the issues that people bring to us. So for instance, I happily stayed out of the wind issue because nobody came to us and asked. But when they did, then we stepped up and looked into it. I'm not a lawyer. My primary ability in terms of my expertise is research. I'm also very good at organizing and have excellent secretarial skills. So I have, because of my years of experience dealing with the Public Utility Commission, I have worked and understood how to use EPUC. They've made a lot of changes as a result of my input to try and make it more user friendly, but still not user friendly. I'm also familiar with the agency of natural resources databases and the environmental notice bulletin. And so I'm here to talk to you today about land use and the siting of solar projects, tower siting appeals Act two fifty, the Public Utility Commission process for Section two forty eight, which is energy projects, and section 248A, which is a separate statute for tower projects, which also are still under Act two fifty. And the inconsistent standards that we use for the PUC compared to Act two fifty and the processes that are in place for public participation and for developers to present their materials in Act two fifty compared to the Public Utility Commission. There's a very good session going on in the House Energy and Digital Infrastructure Committee right now in the last two weeks over Section 248A. And there's very good and informed testimony about the PUC process. I come to it from the perspective of having people who participated telling me their words. It's brutal. Another person this week called it horrific. So the committee understands that the PSC's process is not good. The documents that I provided for you are I majored in history in college. I would want to know how did we get here. And the one that I suggested that you pull up turns out to have the history of how we got the Public Utility Commission to have a separate process for land use compared to the Act two fifty process. And while it's a court decision from 2006 that is about the sighting of a meteorological wind measurement tower on Glebe Mountain, it actually contains, if you go to page nine and ten, transcripts from the 1988 legislative discussion, when Senator Doug Racine was chair of the Senate Natural Resources and Energy Committee. And it's very revealing. I learned a lot from it. Rich Cowart, who was at the time Commissioner of Public or he was chair of the Public Service Board, it was called. It was changed to the Public Utility Commission in 2017. He explains and answers questions about Act two fifty review and Section two forty eight review. And the way I got this court case was that I have encountered cases at the PUC where there are projects that are covered by Act two fifty. And I've heard that there was some court decision. So I wrote to the general counsel of Act two fifty and said, what is this court decision? And she sent me this. This is the only decision ever out there. But it is the decision that says that Act two fifty does not apply if a PUC case is applied for. So you can have a project that is covered by Act two fifty. Something comes along applying for a PUC, then Act two fifty goes away. I think that's the short story of it. Sometimes developers who have Act two fifty permits for a tower that are under Act two fifty will get some changes to those permits before they go to the PUC. So I'm not a lawyer. I'm not totally clear on whether it completely does away with Act two fifty, but that's the understanding that I have. And and in looking at the the reason why we now have a process that land use is taken by the PUC, the word network comes up. And the first time it's used is at the bottom of page 11. The chief reason for doing that is that, first of all, the history of it in two forty eight was that the facilities that provide those utility services to the state are an integrated network. And it has always been thought to be unwise to allow a single jurisdiction to put up a roadblock as part of a network. So, this is back in the day when they're citing transmission lines and pipelines. That was one of the things that was under consideration during the Cunan administration. Now, over the years, we have had a number of changes that have taken place. One is the 1996 Telecom Act. And I've submitted to you a report from Vermont Natural Resources Council from 1997 that Bruce Post, who's been doing environmental history work, sent to me. It was scanned in at VNRC with all the pages in the wrong order. So I downloaded it, put the pages in the right order. There were some other articles that weren't of interest, so I just took those out. And it also contains a section on aesthetics. That article does provide a good background into what happened after the Telecommunications Act was passed, the conflicts that were going on in Vermont over towers, and the process at Act two fifty, the review process that went on. And I also asked Ed Stanick, former district coordinator, about what did you do when you reviewed towers? And it was very helpful. And I recommend that that I I think that that bill that's in the the energy committee is going to be coming to you. And and Ed will be a very good witness to to explain the way that they reviewed the tower applications. And the testimony I'm hearing over there and that explanation and that article all helped me to understand how the Public Utility Commission process, which has been a real nightmare for towns, municipalities, and the public to participate in, is considered to be very rigorous. It's rigorous to the extent that it involves a lot of documents and a lot of exchange of documents. It is not rigorous on investigating the substance of an issue the way that happens and can happen in Act two fifty. Because at the PUC, it's all done on paper. There's a scheduling hearing. Well, if the schedule's agreed upon, that scheduling hearing lasts five minutes. For telecom, they don't hold public hearings. Even if they do for other sites, other types of projects, the public hearings are not part of the record. There will be an evidentiary hearing. The evidentiary hearing is a very strange thing because it's all based on cross examination. And so you look at the testimony and you say, so online so and so you said this. You ask a question that's intended to inform your brief to help your position. You might just use it. The industry often just uses it to try and trash the credibility of the witness. So the actual delving into a topic, the way one would do in a real hearing, where you have a witness and you say, well, could you explain this? And could you talk about it? And wait a minute, I don't understand that. Could you tell me a little more? Never happens. I was at one time a few years ago following a Green Mountain Power rate case. And all of a sudden, I understood that's what this system was designed for. It was designed for rate cases, which involved the exchange of financials, and expertise, and depositions, and discovery. The PUC's process for these solar and power and wind projects all involve depositions and discovery and are totally weighted in terms of these skilled attorneys. And no citizens don't know what deposition or what discovery is. They don't know what a brief is. They don't know what pre filed testimony is. It's very much a legal process. But it was set up for utility rate cases and cases that require that level. So the other document that I've given you is my comments to what was set up in 2016, which was the Public Service Board Act 01/1974 working. This came about after I had been put under criminal investigation by the Vermont Attorney General's Office because someone filed a complaint alleging I was practicing law without a license for helping people participate at the Public Utility Commission. Five newspaper editorials came to my defense. Green Mountain Power issued a press release that came to my defense. They said they'd never seen me do anything unethical. But it certainly made the case that this is a legal process and that it's not possible for the average person to participate in. So the legislature back in 2016 formed this working group. Margaret Cheney, who's now on the Public Utility Commission, was on it, Senator Ginny Lyons, then Commissioner of Public Service, Chris Reckia, and Judge Mello, and Representative Tony Klein, who at one time shared the Senate Natural Resources and Energy Committee. That was the group. And some things changed as a result of it. That was what resulted in the change of the name, because it's confusing when you have the Public Service Department, the Public Service Board trying to make some distinction because that's another level of confusion. Nobody understands in the public realm the difference between a PUC and the PSP. And I looked at that document that I was invited to testify to them. So I went through it. And some of the things that I raised as issues at the Public Service Board were addressed. But at the end of it, I made two suggestions for solutions. One was if you wanted to fix Section two forty eight, and then the second one was move it to Act two fifty. And while I could update that document and it would look different from what it is today, I thought it was worth looking at because I put the work product into it. And I think Act two fifty is a good law and is the place to do land use. And so what has happened in the time since 2009 when I got involved in wind and then the solar project started to really pick up in 2015, Until the other last Thursday, when I went in and testified at the House Energy Committee and took them through the process of what the Section two forty eight process is like, starting with the advance notice, going through the first thirty day comment period where you have to file your comments, get your motions to intervene in. And then there's a scheduling conference. And then there's a you serve discovery on the applicant. Then they respond to the discovery. Then you put in your pre filed testimony. And then they serve discovery on you. And then you respond to the discovery. And there might be rebuttal testimony and more discovery. And then this leads to the evidentiary hearing. Then there's a brief. And then there's a reply brief. And then there's a proposal for decision, and then there's a comments on the proposal for decision. And then you can ask for oral argument. And finally, there's the final decision, is appealable to the Vermont Supreme Court. I don't think that, in my knowledge, any committee in this legislature has ever looked at what the process is at the PUC. And there was any fault that I wanted to put on anyone, it would be during the time when all of these new cases were and citing is now a big part of the PUC's work. And I think it's taking away from their workloads that they should be focusing on, because they have a huge workload. Nobody came in and said should have been the chair who said, Wait, things are changing. We should really look at this process and whether or not it's changed. Now, I'm not here to blame anyone. I'm just here to note that this conversation has never happened. So thank you. Because it needs to happen. And it needs to happen because also with Act 181 and the changes that are going on with Act two fifty, that this is the perfect time to take a look at what we're doing in terms of land use and the different standards that are being applied by the PUC compared to Act two fifty that are resulting in inconsistent land use results. And the poor quality of decisions that are coming out of the PUC. And I'm a big supporter of the PUC. I'm not trashing them. I'm just saying the process isn't set up to do what can happen through the active 50 process. But also, will say that the best thing that this legislature has done in recent years is to create the Land Use Review Board and eliminate the Natural Resources Board Because the the that transition from the environmental board to the natural resources board seriously has resulted in a degradation of the Act two fifty program. And now, two fifty is the whipping boy. It's the one that gets blamed on everything, even though it's ANR permits that take time. But there are other issues with the program. And the Land Use Review Board is well positioned. Once they get rid of all the work that you've given them to do, they are well positioned to improve the program, to bring it back. And Ed can talk to you, Ed Stannett can talk to you about what the program did that we have lost that can be brought back. And so the opportunity right now is very timely to actually look at it. Now, want to touch a little bit on the difference in standards. When this committee was talking about adding forest fragmentation and habitat connectivity as a criterion in Act two fifty, I thought, Well, the Public Utility Commission already does it. How does that happen? Because they have a statute, B5, that incorporates the Act two fifty criteria. But they previously had a statute that had the natural environment and other things in it. So, I wrote to the general counsel who responded and explained, Well, we just use the natural environment. So, they didn't need rulemaking or anything. They just used the same sort of reviews that they do through other criteria that they have. That B5 statutory language is a little strange in that it includes that there should be no undue adverse effect on the natural environment, aesthetics, and public health and safety. And then it incorporates the Act two fifty criteria and gives them and due consideration shall be given to section six thousand eight hundred and six one through nine ks. Now, in January 2024, we were confronted with legislation to remove the undue adverse aesthetic effect from that criterion. And it went to Senate Finance Committee because they're the committee of jurisdiction over the PUC. And they never left committee. But it took me a while to understand that it wasn't eliminating all aesthetics. It was just eliminating the undue adverse aesthetic part of it or adverse effect. But in Act two fifty, the standard is no undue adverse effect. And that has been incorporated into the PUC, but it's only given due consideration. So there is currently a bill that's been introduced and was given an introduction of House Energy Committee to again remove that no undue adverse aesthetic part of B5, leaving the due consideration part of it to the due consideration to the Act two fifty criteria, which are given where the standard in Act two fifty is no undue adverse effect. And I will say I'm very concerned about the aesthetics of Vermont. Because what I see happening at the Public Utility Commission is very serious impacts to our aesthetics, especially with towers, with solar projects. And the PC denied one solar project on aesthetics. It was in Manchester. I got involved in it. The day after the evidentiary hearing, I got a call from one of the neighbors. The neighbors had tried to participate. They'd managed to intervene. They had technical issues. They couldn't get into the hearings. They called people at DPS. They couldn't get help there. And the record was closed. And I saw they had nothing in the record. And I looked at the case, and I worked with them since. And the PUC did deny it on aesthetics. But what I learned was that it was on a site that floods all the time. It had numerous floods. And so even though I knew that record was closed, I wrote the brief for them, and I put pictures. And I kept putting in the information about the flooding. And in their final and the PUC did a site visit. The week before they did a site visit, the field flooded again. And so they could see all the sediment and everything. The neighbors were great. It was actually a neighborhood that was built for workforce housing. Came to the a they lot of people came to the site visit. And one of them apologized and said, look, we're sorry that we're talking about the flooding. But we care about the view, but we also care about the flooding. And the commissioner who was present said, we understand you have a problem here. And so in their denial, they said that if we weren't denying it on aesthetics, we would deny it on or we would we would want more information on the flooding Because the case just didn't get the information it needed from the state agencies. The Agency of Natural Resources is, in my perspective, overwhelmed. They are beyond capacity. They're doing a very cursory job on all these cases. I'm seeing less and less and less so that we are losing more and more normal. An example is that there is a tower that's already been approved by the PUC for next to Lake Willoughby, in view of the National Natural Landmark. And ANR is the steward of that. The National Park Service put in a letter saying, we look forward to We're available to work with ANR to make sure that this is protected. ANR did nothing. Now, we've got a case in Timmith. Same company wants to put a tower up in the low part of Timmith that has the state's largest Class one wetland, the Timmith Channel. It's state owned, twelve fifty acres. It's actually larger than that, but that's a portion of state owned. And when you put your kayak in and you go south, you'd be looking at the tower the whole time. When you're in there right now, it's like you're in a wilderness area, and there's one home that's that's visible. And this tower would be visible for the entire length of the channel. And the town clerk and representative select board and planning commission testified yesterday to that committee in the house. And she's tried to talk to people at Fish and Wildlife. She's talked to people at she talked to Billy Costa. They're staying out of it. They're not doing anything. Now, that's a public investment. And they're not protecting the public investment. The tower is not in the channel, but we have a balloon float photo that shows that at the height of the balloon, you'd look out at it. Historic preservation. If there's an archaeological resource, historic preservation will get involved. But otherwise, there's Fox Hall on Lake Willoughby. That's a historic resource not getting looked at. Historic preservation also, I gather, is getting so many applications. They just don't have the capacity to do much. So I never see any of our historic resources protected. The town of Washington is facing a tower that would be very prominently visible from their village and all the historic buildings. And these tower companies are doing more and more, especially this new company, Industrial Tower and Wireless. And then Verizon had a lull. Now they're back. AT and T would, if they saw that there was opposition, they would find another location. They've only had two contested cases for all the towers that they built. But they seem to be more litigious now too. But Verizon is coming They said that they're doing more. And I'm getting contacted more and more by these small towns, rural areas. They don't have the capacity. And then these companies are very litigious. There was a tower denied in Edinburgh based on the Regional Planning Commission's recommendation. And the company took it to federal district court. They lost. They took it to the Second Circuit Court of Appeals. They lost. That happened in November. And a week later, the day before Thanksgiving, they filed for another tower in the same location, but just 20 feet short. So they're back in this community that has been put through this once already, is having to go through it again. The aesthetics of Vermont really matter. And to see any efforts to eliminate the protections we have are very problematic. I actually was an aesthetics witness in an Act two fifty case back in around 2001 about the bearing of power lines around the Harris Peels Gallery in Dandy. And was a process that was at the environmental board. It was very easy to do. So I do have a background in the aesthetics criteria in particular and understand that the cuichi analysis is something that provides for protection of our environment, but it's not being used, especially on these very visible cases. And one of the things I see about solar, and I've lived off grid with solar since 1989, is that poorly sited solar results in more opposition. And that's not helpful to the development of something that people want. There are a couple other things I want to talk about, but I also want to give you guys time to talk with me about and ask questions. One is this network idea and what it would look like to move the siding part of solar and towers. And wind would be worthy of consideration too. Into Act two fifty. Now, at the time that this discussion took place in 1988, they weren't dealing with any of these things. But the way that solar is done, it's not part of a network. It is done case by case. The utilities are the only ones that actually have the knowledge of what's connected. I've been investigating the taxation of solar projects in Vermont. And it's based on per kilowatt, dollars 4 a kilowatt. And then the property tax is locked in for the life of the project. They're getting a tremendous benefit that's shifting the cost to the rest of us property taxpayers. And so, since it's based on the total kilowatts in the state, collected through the UTC. UCT. What is it? Uniform capacity tax. UCT. Uniform capacity tax. And then that's supposed to go into the education front. We got numbers from the tax department about how many projects were being taxed and the dollar amount. I think for 2024, it was 200 and some projects and the dollar amount was about $1,000,000 Okay. So, I wanted to know how many it's every solar project, 50 kilowatts and above, is supposed to pay into this. And so I wanted to know, well, how many are there? And so I tried to figure out myself by downloading a lot of stuff from EPDC and creating a list. But I realized that what I had didn't show what was connected. It just showed what was applied for. So I asked the PUC, do you have a list of all the projects that are connected to the grid? I asked Department of Public Service. They are going to get back to me. The utilities all have this information. So every solar project that is being approved by the PUC, really, the citing part of it, the public hearing part of it, the public participation part of it, that's really not part of any network. And it's not like we have a statewide plan to have x amount of solar, and that it has to be in certain areas. Same thing with towers. I read recently, well, if we had a statewide plan about towers and where they went, but we don't. So it's just case by case. It's where the developer can find a landowner to lease it or purchase the land. And so it's very helter skelter development. There's no network going on. So I'm seeing this network argument, the word shows up about four times in this document, as not really relevant anymore. And so what is relevant to having these cases be at the PUC? I see absolutely no reason for towers to be at the PUC. They used to be at Act two fifty. The only reason that they were put at the PUC was during the Douglas administration that the industry wanted to build more and they wanted an expedited process. They apparently wrote the first law. It's been updated several times to try and give municipalities more say. The issues that have surfaced only very recently with Section 248A, I justified before this committee in 2023. There were hardly any contested cases. Now, are a lot of contested cases. The reason is because the companies are coming closer to village centers, closer to people's homes 300 feet, 500 feet, 700 feet from your home. Yeah, people are upset with that and there are more contested cases. And this has only happened in the last three years. So, all of a sudden, the law is being tested, and towns are intervening. And towns have been given substantial deference with a rebuttable presumption based on their recommendations. And so, some towns have said, This doesn't comply with our plans and our bylaws and according to statute. And the industry is fighting back and wanting a fully contested case, even though there's a rebuttable presumption and that should end it. So Manchester right now is dealing with it. Timmits is dealing with it. Rochester is about to deal with it. So, none of these problems with Section two forty eight were known until very recently. If somebody can make the case for why a serious land use issue belongs in this utility regulation process. I haven't seen it. Solar projects, I think that the way it would work is that, as with everything that goes through Act two fifty, they would go out and get their permits. So the solar company would go out and get their permit from the PUC for the interconnection. The interconnection is standard practice. They go to the utility. And then the Active fifty case could be ongoing. And Active fifty is like a clearinghouse. And so you don't get your permit until you get all your other permits. And then you get your permit. So I don't see that it would be in any way a burden. I don't understand why the solar companies actually want to be in the PUC. Have watched John used to record a lot of things before we had all this technology. And he would go in, or my prior staff person would go in and record all the PUC public hearings. We have a tremendous record of what has gone on. And I watched one and I thought, with all the lawyers in the room on both sides and all the experts in the room on both sides, that hearing must have cost $50,000 And what was the issue? Where to plant the screening trees. That could be handled at the district commission level. And we have done stakeholder processes that have been tough. We did a big stakeholder process with OMIA. We did stakeholder processes with Agrimarc Abbott over the disposition of their wash water, with JP Carrera and Sons over their gravel pit expansion. When the parties come together and sit down and talk, everything changes. And Active 50 already allows for that. It's already in statute that they can convene in formal discussions. Now, are some cases that are absolutely no way we want to fight. Okay, well, the environmental court right now, or if Act two fifty appeals were to go to the LERB, there are ways that that can be done. The appeals stakeholder group, which I was a part of, I was part of all four of the land use review board stakeholder groups. Billy Costa and I are the only ones who participated in all of them. And it was during the discussions of the appeal stakeholders where I heard lawyers from both sides talking about motion practice and discovery and how lawyers were using that to drag things out. That's exactly what I see at the PUC. And there's one lawyer in particular who's very litigious, who has taught me so much about motion practice. And everything he does, he gets denied. And then he files a motion to reconsider. And he has just played things out. And he's still playing things out. And so that's when I realized, wait a minute, that's one of the big problems with the Public Utility Commission process is that it's a lawyer's game. It completely overwhelms everyone. It's the same problem with environmental court. And so there are recommendations in the appeal study to minimize and reduce emotion practice and discovery, which apparently the judges can already do, but they don't in the environmental court. There's also training. There's training for the pro se parties in environmental court. There's a district coordinator in Act two fifty. You can actually go and talk to somebody. There's nobody at the PUC you can go and talk to. Okay. So, there's one other topic I want to talk about. And that is Act 174, an enhanced energy planner. I was not in favor of it when it went through. It was part of a veto session that involved the wind noise rule. I was asked by Chap Smith about it the day of the veto session. And I said, I like it. I don't want it. But I also want the wind noise rule. So I stayed neutral on it because and so it went through. And we got the wind noise rule, which is really what removing the undue adverse aesthetic impact is about. That's the effort to remove the standards in that wind noise rule, to only give it due consideration. I was on the Rutland Regional Planning Commission for more than ten years. I was on my town's planning commission for six years. I remember Mark Blucher when I was at a Rutland Regional Planning Commission meeting. His father was one of the authors of Act two fifty. Mark was Executive Director. And Mark was very heated when I heard him say, Plans are visionary. They should not be used for regulatory processes. And what have we done? We've turned town plans into regulatory documents. I have considered Act 174 and enhanced energy planning to be a good way to torture municipal planners. And that's exactly what's happened. There are still a lot of towns that don't have enhanced energy plans. They don't know how to write them. Some of them hire outside consultants who say their plans say in the beginning that they have to use the words must and shall, and then they don't use the words must and shall. But for your town plan to be regulatory at the PUC or in Act two fifty, you must identify the specific location in some way. You can't discriminate against other types of development. So for instance, with wind turbines, you could say, there shall be no wind turbines on the Pittsford Ridge. That would be regulatory. But you can't say there shouldn't be. That would not be regulatory. You can't say there shall be no wind turbines on our ridgelines. That's too general. That's not specific. If you're doing solar, you have to pretty much identify every scenic resource in your town. There is one town plan that has done that, and that is East Montpelier. Because Gene Vissering, who was an aesthetics expert and worked for both sides at the PUC and ACT two fifty, and is one of the authors of the Queechee test. And that VNRC document I've given you has a section on aesthetics and talks about the Cuicci analysis and how it came about. It's really a very, very thorough write up in that. She worked on updating their plan. I think it was because they were faced with a tower proposal. It has in it maps and a list of the roads, every segment of every road that is scenic. And that is regulatory. Most towns can't do that. So you end up with something that's proposed that is a solar project or an example is there was one, a 2.2 megawatt project proposed for the exit off Route 4 in Castleton. And I was contacted by the zoning administrator there who was really upset about it. He said, that's our gateway. We don't want this to be our gateway. Well, they didn't have anything useful in their town plan about it. So I worked with them, they updated their town plan. But it was too late. The project was already proposed. It's very hard to figure out where a solar project might be proposed or where a tower might be proposed in advance to be able to put language in. General language doesn't work. You can have all kinds of aspirational language. It doesn't work. So then that gets to the point of zoning and why we don't consider zoning. And that's also discussed in this transcript. By the way, want to mention a footnote on think it's on page 10. It says that the full transcript was provided to the court as attachment D. That's a transcript of the legislative hearing. I'd love to see that if you can get it. Because that would be the whole hearing that was held in 1988. I have no idea how to get it. The court decision's old. But it would be interesting. So there's also a discussion about zoning. Yesterday, the town clerk in Tinmouth testified. She's also the zoning administrator. And was a legislator for six years, and about 2003 on, and she was on institutions. And she said, the town plan is our vision. It's implemented through our zoning. But zoning is not considered by Act two fifty. Now, Stephanie Kaplan, when she taught me about aesthetics back in 2000, said that when there is no clear written community standard, then in Act two fifty, we would look at zoning to see if there was a clear written community standard. There is one decision at the PUC from 2010, I think. It's called Halmuth. And in that decision it was about a wind turbine. In that decision, they actually did it right and they considered zoning. So we tried in a wind turbine case in Virginia's where we were helping the neighbor who was suffering from terrible glare and shadow flicker and noise next to the worker training center there. They were the only ones affected. They were no longer sleeping in their bedroom. They had their shades drawn. They couldn't use their backyard. They didn't have a garden. And I looked at the zoning regulations, and it said that you're talking about glare. So we put that in there, and it was thrown out. We don't look at zoning. So something's evolved at the PUC over time. Also, the PUC has adopted an addition to the aesthetics criteria and the analysis that says that they can find a societal benefit over ways of finding of an undue adverse aesthetic effect. The Hallman case did go to the Vermont Supreme Court. They said the proper test is a two part test, not a three part test. And I researched this. A week later, the chair of the PSB put this societal benefit in that's been using it ever since. So we have this different standard on aesthetics. Other standards that are different, if you want to impact ag soils in Act two fifty, you pay mitigation. I noticed there are discussions about that. It doesn't happen at all at the PUC. The ag agency signs off on this thing. Say stockpile the soil. Bring it back when the project's done. Any soil person will tell you that stockpiling the prime ag soil for twenty years kills the soil. You're not going to restore it. And so that's the kind of stuff we see go on there. Deer yard mitigation doesn't happen at the PUC. Just don't cut the trees and don't go in there during certain seasons. I mean, it's just from an environmental perspective, for us, it's not about the technology or what's proposed. It's about the issues and the impacts to the environment. And because of renewable energy, the groups, the other environmental groups are completely stayed out of all PUC cases where it involves, and also towers, they do not get involved. So it has fallen to us, very small organization, to try and not only help the public participate in this nightmare of a process that they're going to lose. I testified to Tony Klein's committee in 2016 and again last week. I feel like I'm leading the lambs to slaughter. Nothing has changed in ten years. And I cannot keep doing this. And something has to change. We have a very good law, Act two fifty. It provides for all of the evaluation of things. We need to improve our process at the district commissions a lot of the issues that have cropped up over the years through the Natural Resources Board. I think that we have opportunities here. But getting back to using town plans as regulatory, we need to allow these decisions to also look at zoning and look at standards in a way that does not create this problem for planners. So, think I'll stop there. And if you have any questions, I'd be happy to hear what your thoughts are on this.

[Rep. Amy Sheldon (Chair)]: Thank you for your testimony. That was a lot. That's a scene. So do members have questions?

[Rep. Sarah “Sarita” Austin (Clerk)]: Representative Austin. Thanks. Can you see a way that needs of Vermonter's energy needs be balanced with the environment? Or is it you can't?

[Annette Smith (Executive Director, Vermonters for Clean Environment)]: I think that we have I'll just be blunt. We've done renewable energy all wrong. The wind projects are all built far from load in critical habitats. I was up on the Lowell Mountains before that ridgeline was destroyed. It was one of the most extraordinarily beautiful places, just full of life with water dripping off moss, with moose piles and moose beds everywhere. I mean, it should have been a state park. The Deerfield Wind Project, there's now a report out, a thesis by someone out in Vancouver who looked at all the data for bear tracking. And the conclusion is we shouldn't be building these things in important critical habitat. It was some of the finest beach stand and habitat in the state. Far from low. So the problems with the grid up in the Northeast Kingdom, Shi'ai, what is called the Sheffield Highgate e. I forgot what the e I is. But Interface. Interface. What's the e? Electrical. So there are now grid constraints up there because there's too much generation on the grid, and the the region can't use it. And so adding more up there, there now is a fee that you have to pay. And there's a proposal right now for a gorgeous agricultural field right in the heart of Louisville, five megawatts, 27 acres right across from their school, because there's capacity on the substation because, gee whiz, they upgraded the power lines to try and free up the constrained capacity of the wind turbines. So now the town of Lowell has found itself in the PUC process fighting against a project that can't that the cannot be used in the Northeast Kingdom. Why aren't we building close to load? Why aren't we putting up parking lot canopies on all our parking lots? There's a beautiful one at the Stafford Technical Center right next to the Rutland High School. Provides shade for cars in the summer. You can have chargers next to it. The developers I asked them when I was on the Regional Planning Commission, they came in and they're like, Well, they're more expensive. Well, how expensive is it to Vermont to lose our natural environment? And so, as I said, I've lived off grid with solar for a long time. I expected that Vermont would be building solar from the ground up, that we would be looking at serving our communities. We would be looking at meeting our state's needs and the load. And instead, what we've done is continue what I call the big grid model, where all we're doing is throwing projects up on the big grid. And it's resulting in a lot of harm to our state. So yes, there's a way forward, but the way that this came about was the legislature at the time was heavily lobbied. I heard people used to walk around with wind turbine pins on that were given out. The goal was to build, build, build no matter where. And, okay, the goal of Act 174 was to have towns create sites where things could be built and have preferred sites and try and encourage things that way. But planning for energy projects is totally disconnected from the grid issues. So if you look at Green Mountain Power's two point zero map, they have a solar map. It has all these areas in red. I live in Danby. I'm half an hour south of Rutland. I look at Paulette and all these areas to the west of me, they're all in red. And solar projects have come in and used up the grid capacity at the substation. Big solar projects, like five megawatts. And so how's everybody supposed to electrify? How's everybody supposed to get heat pumps and build their own when it's just serving the big grid. There's nothing coordinated going on about how we're doing. I did something I don't know. I sent it to your predecessor, Robynne Tessna Tanderman, I think maybe two or three sessions ago when it was the House Energy and Technology Committee. It was called strategic energy planning. And it was just to talk about how to do it in a strategic way instead of having it all be developer driven. Nobody's ever talked about that in the State House. But it is possible to do it differently, and we need to do it differently, and look at where the load is, build close to load, and bring our communities into it so they're a part of it. And I mentioned that we went out and recorded a lot of these public hearings. The best public hearing we recorded was in Sudbury. And the citizens had a chance to talk to the developer after the PUC public hearing. And the citizens were saying, well, why here? Why us? We want to be part of this. Do we get the power? We heard the same thing over and over and over in every community. We want to be a part of this. What are we getting out of this? Are we going to get the electricity? Well, it's going up on the grid. So, yeah, good question. Long answer. But yes, there are certainly ways to do it differently, do it better. But we need to empower our communities rather than the developers.

[Rep. Amy Sheldon (Chair)]: Other questions?

[Annette Smith (Executive Director, Vermonters for Clean Environment)]: Just I

[Rep. Amy Sheldon (Chair)]: was gonna ask you to introduce yourself since you spoke a couple of times.

[John Brabant (Staff, Vermonters for Clean Environment)]: Yeah. I'm John Braban.

[Rep. Amy Sheldon (Chair)]: I work with the deck. Sure. Just so peep not not just just so people who heard you, yeah, on the record could hear. Forgot to do that when you spoke. Yes. Thank you, Karen.

[Rep. Christopher “Chris” Pritchard (Member)]: I did have a question. It's really just to help me understand. You made a statement where you said rebuttable presumption should end. I don't even know what that means.

[Annette Smith (Executive Director, Vermonters for Clean Environment)]: Well, welcome to the world of DC. At at one point, I was working with a citizen doing a gas project, and she said, they need a glossary. And she started writing her own glossary. BBC has a glossary. I sent it to her. But yeah, another person said they speak a different language. So in any legal realm, a rebuttable presumption, and this occurs in Act of 52, ANR permits will come in with what's considered a rebuttal presumption. That places the burden on the other side to show that there is good cause. And in the PUC statute for Section two forty eight A, it says, unless there is good cause. So that if a if a town says, no, this tower does not comply with our town plan or bylaw, then it's the burden is on the other side to show why there is good cause to overcome the recommendation to deny it.

[John Brabant (Staff, Vermonters for Clean Environment)]: I could provide even maybe an alternative presentation. John, very bad. Act two fifty, republican presumption, that comes up all the time. We hear about act two fifty taking so long, and when you drill down, you find out. If you heard from Ed Steinke, he'd tell you this. You probably haven't heard this before. That it takes a long time to get all your A and R permits together on any large project. Those permits serve as a presumption on any particular criterion, like water quality or air pollution. If you have an air pollution control permit, that meets the presumption that you are in compliance with with the standards for controlling your air emissions from your power plant. That can be challenged, and that's rebutting legal terminology. That's rebuttable. So while it serves as in evidence as meeting the criterion for air pollution control, and that this project will not be unduly polluting the environment, it's in compliance, that can be challenged. And that process of challenging is called rebutting the presumption, The presumption being the permit. In this case, the plan town plan is presumed to be kind of the rule in that town for siting when written correctly with the shells and musts and all that. The applicant has the right to rebut the presumption where it's given deference. No. Substantial deference.

[Annette Smith (Executive Director, Vermonters for Clean Environment)]: So in Act two fifty, I remember Ed Stanick was helping neighbors on a case involving an asphalt plant, and it had a permit. And he brought in experts. They brought then the community brought in experts, and they were able to rebut the presumption. I've been involved in a lot of permit reform stakeholder groups over the year. And at one point, I think it was 2001, there was a big meeting of stakeholders over the summer. And it was back when Rich Phillips was working at ANR, and he did a study on the rebuttable presumption because they wanted there's always an effort to give ANR permits more weight. And he found that I think I found the documents not too long ago that of the permits that had been issued, that those that were challenged were all rebutted or the majority of them were. So that just because something has an ANR permit, unless somebody looks at it, you don't know that it it actually has holes in it that you could could get changes to.

[Rep. Amy Sheldon (Chair)]: Representative Tagliavia?

[Rep. Michael “Mike” Tagliavia (Member)]: So thank you very much. It's a lot of information, like you said, chair. Hopefully, you have a little bit more time.

[Annette Smith (Executive Director, Vermonters for Clean Environment)]: You can watch the video again.

[Rep. Michael “Mike” Tagliavia (Member)]: Just to get to a specific point, with respect to citing two forty eight A or B, I can't remember which. For a municipality, small town, to preserve its rural character, the best way to do that is to let this particular law or bill sunset so that the municipality has more say, the citizens of that town have more say.

[Annette Smith (Executive Director, Vermonters for Clean Environment)]: So the the process is is actually human. Right now, it's just paper. And the hearing officer who does all the telecom cases isn't a lawyer. But as I've been listening to the testimony and thinking about it, if you have the scales of justice, 48 is this, or 248A, both of them. If you're going to bring it into Act two fifty, it's still going to be like this. The industry's still got the But you can actually go to a hearing and talk. You can get party status without having to file paperwork that you don't even understand what you're doing. I have given the same presentation over and over and over to so many municipalities just explaining them what their rights are to participate in a Section two forty eight or two forty eight process. And when that has to when that happens, something's wrong. So, yeah, let it sunset. Now to take it back to active 50, it still is going to need what we've lost, which is that there was training that was done of district coordinators specific to the issues associated with them. And so consider this a preview to what you will probably be getting from the other committee, because if that bill comes over here, this is a complicated topic. And it it involves not only towers, but also we're seeing a change in technologies with more small cells being put up with not without notification. So there may be modifications that we need to make to assure that there is notification to people and so they know that if somebody's gonna put an antenna outside your house. And then back when Act two fifty was doing it, they would look at the radio frequency emissions under the criterion 1A air pollution. And there are cases about it, but the PUC says that we're preempted by the federal government. We can't do it. There is discussion about that in the NRC article. So it's not simple. Moving it or Sunsetting Act section two forty eight a. I don't want to just sugarcoat it. There will be need to be training of the district commissioners to bring this back into because it's been so long since it's lapsed. It's been since twenty two thousand seven. It is, however, still it section two forty eight a is just an option. And I do see that some towers that were approved through act two fifty, the companies are using active 50 to add antennas, swap out antennas. It's not like active fifty is not active on telecommunications. It's still totally possible for towers to go through.

[Rep. Amy Sheldon (Chair)]: Pritchard?

[Rep. Christopher “Chris” Pritchard (Member)]: Yeah, thank you for your testimony. I have spoken to Gail a little bit about this. I find her to be a wealth of knowledge and wisdom and common sense. It's my understanding, that their town plan that they have in place really protected them from this. Think the discussion I had was a matter of one of the criteria was a matter of height, right? Which they had covered in That's in the bylaw. In the bylaw. So why did this happen?

[Annette Smith (Executive Director, Vermonters for Clean Environment)]: Well, this is where the problem has surfaced. It surfaced in Westmore and it surfaced in Tinmouth. Ironically, the same company, ITW, which is new to Vermont and they plan to carpet the whole state with their lattice towers. In Westmore, they have a very litigious attorney who managed to get the recommendations of the town struck because they were filed after the thirty days. And there's nothing in any procedure or any rule or any of the PUCs never promulgated rules. So there's nothing that says you have to get your recommendation in by the thirtieth day. So in ten minutes, because of learning from Westmore, that they got in by the thirtieth day. And so, complied with the understanding of what you have to do to file your recommendation. And ITW didn't do anything. And so, the hearing officer issued a proposal for decision to deny the tower. And then the ITW attorney went The different attorney with the same firm filed an extensive objection as his comment on a proposal for decision. And the PUC remanded it back. PUC remanded it back for the town to submit testimony and exhibits. Now the statute does not envision anything about I mean, towns don't have to intervene even to file the recommendations. There's nothing there's nothing that's ever been promulgated that describes how a recommendation is handled. EPUC has hundreds of different things under the drop down menu for for what's what do you call this? And there's nothing for recommendation. So they get filed as public comment. I suggested to Gail. She filed it as an other document. So it ends up at least not in the public comment because in Westmore, they struck all the public comment to get rid of the town's recommendation. So in in Tinmouth, learning from what happened in Westmore, the idea is that the town's recommendation should stand unless ITW filed good cause. But they did not respond, and then they complained that there was no procedure in place for a response, and that's why they didn't respond. So a lawyer's game. It makes a lot of money for attorneys, costs the town money. But now where it stands is that today a schedule is supposed to be proposed. The ITW wants a schedule that envisions all their three interveners, the interveners and the town filing pre filed testimony. And the town at a point where really what should happen is that the town's recommendation should be dealt with first. There should be good cause shown by the company why it shouldn't be given substantial deference. And then that should decide it. If there's good cause, then it should go to the full process. So the attorney that has been hired by the town, because this is way too much for a town to do, a town of 400 people, has filed, I think on Monday, a motion to appeal the decision of the PUC's remand because it calls for testimony from the town first before good cause is shown. I'm sorry. That was really complicated, and it is really complicated.

[Rep. Amy Sheldon (Chair)]: Thank you so much for your testimony, and I know folks have meetings at lunch. Thank you very

[Rep. Christopher “Chris” Pritchard (Member)]: much.

[Rep. Amy Sheldon (Chair)]: Thanks for coming in and sharing your information.

[Annette Smith (Executive Director, Vermonters for Clean Environment)]: Yes. I do. With that,

[Rep. Amy Sheldon (Chair)]: we are adjourned.