St. Albans Messenger, June 19, 2017
Intervenors oppose discovery limits
By TOM BENTON
Messenger Staff Writer
SWANTON — Parties filed responses to Swanton Wind’s motion to limit discovery questions for the remainder of the case on Friday.
The filings send a clear, and discernably bitter response: No way. And here’s why.
Swanton Wind filed the motion on June 7, after “recommending” the limitation of discovery questions in a late May filing concerning a new schedule for the project’s Public Service Board (PSB) review.
Christine and Dustin Lang fired back, filing an objection noting what they alleged were specific violations of PSB procedure, requiring a properly filed motion — which Swanton Wind’s counsel then filed.
The motion requests a limit for discovery questions — specifically, no more than 50. Those participating in the PSB review have now submitted more than 1,000 pages of discovery questions to which the PSB process requires Swanton Wind respond, just in the first round of discovery.
The PSB required responses to Swanton Wind’s motion by Friday, June 14.
The Langs’ response said even the question of discovery limits is “premature” until “foundational issues” with Swanton Wind’s PSB application are resolved. The Langs referred to the Department of Public Service (DPS)’s proposed scheduled for the remainder of the board’s review, a filing that doubled as a sharp critique of what the Department alleges are crippling deficiencies in Swanton Wind’s application.
The central deficiency, according to the DPS, is the application’s reliance on a power-purchase agreement against which the board has since ruled.
Those “foundational issues” aside, the Langs said more time in the review process, as proposed in schedule filings by the Langs and the DPS, will allow for more specific, less duplicated discovery questions. For example, the Langs have proposed 90 days to review the firstround discovery responses before a deadline for the second round of discovery questions.
“Sufficient time to analyze the responses to the first round of discovery, and for the [non-Swanton Wind] parties to coordinate their requests, will result in more efficient and less duplicative information requests,” the Langs wrote.
They also said “the ability to engage in additional fact-gathering,” such as a soon-to-be-held visit to the project’s proposed construction site and a public hearing concerning the project, will help “inform more succinct and focused information requests.”
The dozens of citizens representing themselves in the board’s review filed a response saying a 50-question limit “would be particularly unfair, as our interests are not identical. Some live on the east side of Rocky Ridge, some on the west side. Some of the intervenors have been granted intervenor status on one criterion, e.g. aesthetics, or others on water or other grounds.”
“Given Swanton Wind’s answer to the first round of discovery questions, where many questions went unanswered due to technical reasons (the failure of the questioner to define “industrial wind” in several questions, e.g.), the lack of answers necessitates more precise follow-up questions so that a meaningful response providing the information sought can be received.”
The Northwest Regional Planning Commission (NRPC)’s response was the most scathing. Its response noted PSB regulations require parties to confer prior to the filing of any motion “in detail in a good faith effort to eliminate or reduce the area of controversy, and to arrive at a mutually satisfactory resolution,” with multiple citations defining how to prove such efforts, as well as a note from a prior PSB decision stating, “Ideally, it means meeting in person. A substantive phone call is also sufficient.”
The NRPC said Swanton Wind did none of the above. Swanton Wind noted in its motion that it had conferred with the DPS, but the NRPC said the project’s failure to confer with any of the other interested parties “alone requires that [its] motion be denied.”
And while Swanton Wind stated it had sent or participated in “numerous communications” regarding scheduling, the NRPC asserted those were “in fact limited to a small handful of emails and phone calls in early May 2017 regarding scheduling in general.”
“In short, [Swanton Wind] made its May 19thproposal to drastically limit the non-petitioners’ rights to discovery, received a response from a single party (DPS) it did not like, and then proceeded with its filings to the Board,” the NRPC’s response said.
The NRPC response also took issue with Swanton Wind’s statements regarding the enormous amount of discovery questions received, and the “unprecedented number of individual parties” participating in the review.
“The large number of individual parties participating in this docket and the first-round interrogatories propounded are merely the results of [Swanton Wind]’s desire to locate a large-scale wind project in close proximity to a populated residential area, as well as the lack of information about the project initially provided with the Certificate of Public Good petition,” the NRPC stated.
The NRPC response said Swanton Wind’s complaints stemmed from “selfinflicted wounds.”
DPS’s response said that Swanton Wind has not provided any facts proving just how burdensome the discovery process, without limitations, is. But more specifically, the DPS took issue with Swanton Wind’s statement that “discovery should be limited because the proposed project is a renewable energy project, and the State has goals requiring construction of more renewable energy projects,” as DPS put it.
“The same could be said about any renewable energy project, regardless of how poorly sited or deleterious to the interests reflected in [Public Service Board criteria],” the DPS wrote. “The Swanton Wind project must demonstrate that it meets all applicable criteria, in a process that adheres to standards of due process and fair treatment of parties; if it cannot do so it must be rejected, regardless of the State’s renewable energy goals.”
The PSB has not yet ruled on Swanton Wind’s motion.