Members of Verrill Dana’s Energy Group regularly participate in appellate review of agency decisions affecting energy companies and projects. Whether defending the issuance of a permit, license or approval needed for construction of new a new energy project, or challenging an agency’s denial of such a request, members of the group appear frequently in appellate court, reviewing the conclusions and findings made by the regulatory agency. In cases of the Maine PUC, where appeals go directly to the Maine Supreme Judicial Court, members of the practice group have argued several cases involving interpretation of Maine’s historic Electric Restructuring Act. Similarly, under the Wind Energy Act, in which judicial appeals of certain siting decisions go directly to the Maine Supreme Judicial Court, Verrill Dana has successfully argued numerous judicial appeals of wind power projects and has defended federal approvals for such projects in the United States District Court.
The following are significant examples of judicial appeals handled by our Energy Group:
- Emera Ownership Of Generation - The Group has represented Emera in a lengthy case addressing the extent to which the Maine Restructuring Act prevents affiliates of Emera Maine, a Maine T&D utility, from owning generation facilities. In its original 2012 decision the PUC approved Emera Energy acquiring 25% ownership of Algonquin Power & Utilities Corp. (APUC), despite APUC’s ownership of several small generators in Northern Maine; and, also, approved Emera Energy entering in to a joint venture with First Wind to jointly develop new wind projects in the Northeast. The PUC reasoned that because Emera Maine did not have control over the affiliated generation, there was no violation of the Act. On appeal, the Court ruled that “control” was not the correct test and remanded the case back to the PUC for a determination as to whether either transaction created an incentive for Emera Maine to favor the affiliated generator in violation of the Restructuring Act. On remand, the PUC again approved both transactions under the court’s new test and again intervenors appealed the revised decision to the Court. A decision is expected shortly.
- Defending Constitutionality of the Wind Energy Act - Verrill Dana successfully defended permits in which the constitutionality of the Wind Energy Act was challenged as well as numerous decisions involving the interpretation and application of sound and scenic standards that govern wind energy developments.
