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Vermont PUC Compliance Filing Grace Period Ends March 13, 2025

The six-month grace period established by the Vermont Public Utility Commission (“Commission”) is coming to an end on March 13, 2025.  The grace period is intended to allow Section 248 Certificate of Public Good (“CPG”) holders to address overdue compliance filings without incurring penalties.[1]
This presents a unique and valuable opportunity for those entities with CPGs to fulfill any outstanding compliance filing obligations without penalty. In addition, the Commission has specifically stated that it will levy heavier fines for outstanding compliance filings following the grace period.  We note that the grace period only applies to compliance filing obligations and does not apply to other violations of a CPG. 

Key Points:

  • Who is affected? Entities with overdue compliance filings required under a permit or other approval issued by the Commission, such as a CPG for an electric generation and storage facility.  For net-metering projects, CPG holders or installers of net-metering projects, or the attorney of record should have received a notice of any overdue compliance obligations from the Commission.
  • What’s required? Depending on the case, outstanding compliance filings may include:
    • Filing notice of intent to construct or operate a project.
    • Filing municipal notice forms with proof of recording.
    • Updating financial securities or cost estimates in connection with decommissioning funds.
    • Certifying completed aesthetic mitigation installations and inspections. The Commission has provided templates for these filings under Commission Rule 5.800.
  • Why comply now? The Commission does not typically offer this type of grace period to come into compliance, and CPG Holders should take advantage of it.  Furthermore, after the grace period ends, the consequences are likely to be much harsher for projects that had the opportunity to make overdue filings and opted not to.  The Commission will determine which cases still have overdue compliance filings, impose strict penalties for noncompliance, and publish a public list of noncompliant entities — including their installer/developer and attorney of record.

Our team at SRH Law is here to help you navigate these requirements. If you need assistance reviewing your compliance obligations or preparing filings, please contact us today.

[1] See Order establishing noncompliance grace period & guidance for meeting obligations, Order of September 13, 2024, Case No. 24-2874-INV.
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Businesses Supporting Charity: Are you a Commercial Coventurer?

Many Vermont businesses are dedicated to social responsibility and put these values into practice by running a charitable sales promotion in support of local charities, especially during the holiday season. When the promotion involves donations that are driven by a purchase of goods or services (such as donating a certain sum per item purchased or donating an item for each purchased item), these campaigns trigger certain legal requirements that vary by state.

Are you running a charitable sales promotion?

A “charitable sales promotion,” also known as “cause related marketing,” is a campaign where a person or business represents that a certain portion of the price of a good or service sold will be donated to a charity or benefit a charitable purpose, usually for a temporary period of time. For example, your local brewery might donate $1 per drink sold during the month of December to a charity. A charitable sales promotion does not include the following circumstances:

  • When 100% of the amount paid for the good or service is donated to charity;
  • The business selling the product does not generate a net profit; or
  • The promotion does not involve the sale or lease of goods or services.

Are you a commercial coventurer?

A for profit business that runs a charitable sales promotion is a “commercial coventurer,” such as the local brewery in the example above.

What are the legal requirements for a commercial coventurer to run a charitable sales promotion in Vermont?

Each state regulates commercial coventurers and charitable sales promotions a little differently.  If you are running a charitable promotion that applies to goods purchased outside of Vermont or online, you could be subject to other state rules. 

For promotions in Vermont, commercial coventurers need to ensure that consumers who might be enticed to purchase because of the promotion understand the key terms of the promotion.  Any place or time that the business it makes a representation that a purchase will trigger a donation to charity, it must include the following information somewhere close by  under Vermont law:

  • The name of the charity or charitable purpose that is to benefit.
  • The amount per goods or services purchased or used that will benefit the charity, usually expressed either as a dollar amount or the percentage of the amount paid.
  • The maximum amount that will be donated to the charity or cause (e.g., up to $1,000).
  • Although not specifically required under statute, it’s always a good idea to include the dates of the promotion so consumers are aware of when the promotion starts and ends. 

The business also needs to keep records to show that it has complied with these requirements. It’s generally a good idea to have an agreement with the charity you are supporting to make sure you have permission to use their name and that both you and the charity are clear on the amount of proceeds that are going to the charity and when you plan to donate the total amount raised. 

The requirements for charitable sales promotions in Vermont are less onerous than many other states. For example, several states require contracts with charitable partners and specific registration of commercial coventurers as well as pre-registration and reporting on each promotion. If you are a business that wants to run a charitable sales promotion in Vermont or online, or have questions about compliance, please reach out to Victoria Westgate or Megan Grove in our advertising and consumer protection practice group.

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SRH Law Sponsors Renewable Energy Vermont’s 2024 Annual Conference

SRH Law is a proud Megawatt sponsor of the 2024 Renewable Energy Vermont (REV) Conference, held at the DoubleTree Hilton in South Burlington, on October 16-17, 2024.

According to REV, the annual conference has become the largest renewable energy gathering in the region. Attendees include business leaders, policymakers, regulators and others all working to build a path for a 100% renewable energy future.

SRH Law is sponsoring the “Renewable Energy and Affordable Housing” panel, which will be moderated by partner Drew Kervick. This panel will focus on incorporating renewable energy and efficiency measures into affordable housing and will highlight three recent case studies that the firm has been involved with: Jess Neubelt, from Evernorth, will discuss the Bay Ridge affordable housing project being co-developed by Evernorth and Champlain Housing Trust in Shelburne, which incorporates both on-site and off-site solar.

Peter Schneider from VEIC will talk about the Salisbury Square project being developed by Randolph Area Community Development Corporation in Randolph, which features rooftop solar, battery storage, a microgrid and DC electric utilities. And Maddy Murray-Clasen from Green Mountain Power will present on the utility’s Tesla Powerwall battery program for low-income Vermonters. 

SRH Law partner Victoria Westgate, a REV Board Member, will also be presenting on the Vermont Public Utility Commission’s recently revised net metering rule (Rule 5.100) as part of a panel entitled “Review of New PUC rules 5.100, 5.400, 5.500 and 2.100”.

You may sign up for the Conference here. You can find more information regarding the Conference, sessions and speakers here.

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“Clean” Beauty in the Eyes of the National Advertising Division and Federal Courts

“Clean” claims are ubiquitous in the beauty industry, as the National Advertising Division (NAD) recently recognized, but there is no single definition of what it means to be a “clean” product. Some companies have been challenged for their “clean” claims, and two recent decisions by the NAD and a federal court have shed some light on what a company needs to support a “clean” claim.

First, the NAD itself challenged Amyris Clean Beauty, the manufacturer of Biossance skincare products, as to whether the company could support its claim that its products contain “Clean ingredients and clean formulas—we ban over 2000 ingredients that are known to be toxic to you and the environment.”  Because there is no single meaning of “clean,” the NAD explained that the context of the claim is key. Here, the NAD understood the claim to convey that Amyris products are “clean” because they do not contain thousands of ingredients that are toxic to humans and the environment. However, the company’s prohibited ingredients list included a large number of ingredients that aren’t normally used in cosmetics. That can be misleading under the FTC Green Guides, which provide that an otherwise truthful claim that a product does not contain a substance can still be deceptive if that substance is not normally used in or associated with that category of products. The NAD recommended that Amyris modify the claim to only reflect the ingredients banned that are normally used in beauty products.

Second, a federal district court in New York ruled in favor of Sephora, dismissing a complaint on behalf of a potential class of customers that the company’s “Clean at Sephora” label was false and misleading. Sephora describes its label on its website as meaning that the products are “formulated without parabens, sulfates SLS and SLES, phthalates, mineral oil, formaldehyde, and more.” The plaintiff argued that the label conveys the meaning that products with the label do not contain any synthetic ingredients or ingredients that could cause physical harm or irritation. The court rejected this argument, holding that plaintiffs failed to explain how reasonable consumers could mistake the label to mean that the products didn’t contain any synthetic or harmful ingredients beyond the list specified by Sephora. Since plaintiff also failed to show that products labeled “Clean at Sephora” contained any of the ingredients that Sephora claimed they did not, the court ultimately dismissed the suit.

Using terms that lack a regulatory definition such as “clean” or “natural” can often come with risk because of the potential for a wide array of meanings to consumers. These two cases helpfully suggest that if a company clearly and prominently defines what “clean” means in the context of the claim and ensures that all products labeled “clean” meet that definition, they may have a strong defense to consumers who interpret “clean” differently. In other words, don’t make a mess of your clean claims by failing to properly qualify them!

If you have questions about consumer protection and green marketing claims, contact Vic Westgate and Megan Noonan, our Advertising & Marketing attorneys.

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FTC Green Guides to be Reviewed in 2023

In a long awaited move, the Federal Trade Commission (“FTC”) announced in December that it is seeking public comment on its review of the ‘Green Guides’ for the Use of Environmental Claims (16 C.F.R. part 260).  The Green Guides are intended to help marketers avoid making false and misleading claims about environmental benefits and to offer specific guidance on the substantiation required to make certain green claims.  The Green Guides were first issued in 1992 and last updated in 2012.

The FTC’s request acknowledges that over the last decade, there has been increased attention paid to environmental issues along with the proliferation of environmental marketing claims that are not covered by the current Green Guides.  The FTC is interested in better understanding how the marketplace and consumer understanding of green claims has evolved and the efficacy of the Green Guides to date, as well as whether the Green Guides overlap and conflict with other laws, including state and local laws.

In addition to these general issues, the FTC has identified a number of specific green claims and asked for comment on whether the Green Guides should be revised to change current guidance or newly address claims that weren’t previously included: 

  • Carbon offsets and climate change claims, such as “net zero,” “carbon neutral,” “low carbon,” or “carbon negative”
  • Waste disposal claims – e.g., recyclable, compostable, or biodegradable
  • Waste content claims, such as recycled content
  • Energy use and efficiency claims
  • Organic claims
  • Sustainable claims

Any changes to the Green Guides are likely to impact any company making environmental claims.  This impact is potentially significant for companies making or considering making any claims that fall into the list above, as the FTC may well set new standards for what qualifications or evidence is required to make or support these types of claims.  Initial comments are due to the FTC on February 21, 2023.
Vic Westgate and Megan Noonan will continue to monitor this process and provide updates as the FTC’s review moves forward throughout this year.  

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Attorneys Westgate and Brennan Presenting at REV Annual Conference

Attorneys Vic Westgate and Malachi Brennan are serving on a panel at Renewable Energy Vermont’s Annual Conference and Expo on October 28, 2022. The panel will highlight recent regulatory developments that developers and others should be aware of, including ongoing Public Utility Commission rulemakings for interconnection, net-metering projects, standard Section 248 projects, and energy storage projects.  The panel will also touch on recent renewable energy cases of note.

You can find additional information regarding this upcoming event here, and sign up here.

If you have additional questions regarding renewable energy regulatory changes, contact Vic Westgate and Malachi Brennan. You can reach Vic at (802) 860-1003, ext. 111 or via email, and you can reach Malachi at (802) 860-1003, ext. 129 or via email. 

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SRH Law Names Victoria Westgate Partner

Burlington, VT – SRH Law today announced that Victoria Westgate has been named a Partner of the Firm.  Vic is an experienced counselor who helps clients in a range of practice areas, including energy and environmental, advertising and consumer protection, and business law.

Vic joined the firm in 2014 after a clerkship with Justice Marilyn S. Skoglund of the Vermont Supreme Court.  Since then, Vic has built a diverse regulatory practice across a variety of areas, including renewable energy permitting, advertising and marketing claims, and nonprofit law.  Vic enjoys helping businesses tackle complex regulatory questions and finding solutions to compliance issues.

“We are extremely pleased to have Vic join the partnership, as it signifies our deep respect for her skills and creativity as a lawyer, and her commitment to the mission of the Firm,” said Andy Raubvogel, Managing Partner.

Vic lives in Burlington with her husband and two sons. When she’s not at work, you can probably find her chasing her kids around one of Burlington’s many playgrounds.

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Attorneys Vic Westgate and Zoe Sajor Presenting on Marketing Locally Made Goods for VBSR

Attorneys Vic Westgate and Zoe Sajor are presenting at VBSR’s “Marketing of Vermont/Locally Made Goods: An Origin Story” webinar on September 13, 2021. The presentation will focus on the rules and regulations for applying product marketing claims about Vermont and locally made goods, as well as helpful information in maintaining compliance with such claims. The webinar will also provide perspective on the evolution of the rules regarding the marketing claims in addition to the benefits they provide.

You can find additional information regarding this upcoming event here, and sign up here.

If you have marketing or advertising questions, contact Vic Westgate and Zoe Sajor. You can reach Vic at (802) 860-1003, ext. 111 or via email, and you can reach Zoe at (802) 860-1003, ext. 123 or via email. 

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Marketing Your Mission: Zoë Sajor and Vic Westgate to Present this Thursday at Vermont Businesses for Social Responsibility

If you have a compelling message to spread about your company’s good works and values, it’s important to make sure that your message is not overshadowed by failing to comply with advertising rules and regulations.  SRH Law attorneys Zoë Sajor and Vic Westgate will present on legal considerations for marketing claims at Vermont Businesses for Social Responsibility’s upcoming Messaging Your Mission Workshop on December 3rd.  The interactive virtual workshop will cover strategies and best practices for messaging and communicating a company or organization’s socially responsible values.

Zoë and Vic will address basic regulatory requirements and common issues when making social impact claims, with a focus on “green” and charitable-giving claims. The workshop is part of VBSR’s ongoing Measure What Matters Workshop Series, and is “geared towards professionals looking for creative ideas and a sound understanding of legal implications when marketing socially responsible business principles or implementing communications responsibilities.” Full details and registration for the event can be found here.

Zoë and Vic are both senior attorneys at SRH Law and part of the Firm’s Advertising and Marketing practice.  As part of this practice, Zoë and Vic regularly advise clients on claim risks, claim substantiation, and regulatory compliance with state and federal marketing standards. They recently successfully handled challenges before the National Advertising Division and a subsequent appeal to the National Advertising Review Board. For more information on the Advertising and Marketing Practice , please contact Zoë, Vic, or Brian Dunkiel.

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State Issues Draft Stormwater General Permit for Public Notice and Comment

The Agency of Natural Resources (ANR) issued a draft of General Permit 3-9050 last month for public notice and comment.  General Permit 3-9050 will cover “operational” stormwater runoff, including runoff from existing impervious surfaces of three or more acres, which may not have previously been subject to stormwater permitting regulation.  See Dunkiel Saunders’ previous blogpost More Vermont Properties to be Subject to Stormwater Regulation: State to Issue First Letters for Three-Acre Sites for more information on the new regulation of three-acre sites.  The comment period ends on December 2nd, as discussed further at the end of this blog post.
In addition to affecting owners of existing three-acre sites and new property developers, the new permit will supersede several existing stormwater permits, including General Permits 3-9010, 3-9015, and 3-9030.
Some notable aspects of the draft general permit include the following:

  • Starting mid-2022, any new or re-development of more than ½ acre of proposed impervious surface will require coverage under the permit (a change from the current threshold of 1 acre).
  • “Impervious surface of three or more acres” is defined as:

[A] single tract of land with three or more acres of impervious surface; a project on a tract or tracts of land that was previously authorized under a stormwater permit that authorized the discharge of stormwater from three or more acres of impervious surface; and impervious surfaces adjacent to or adjoining the foregoing types of impervious surfaces where the surfaces in question are part of a related operation, such as a hospital, resort, or campus.

  • For currently unpermitted three-acre sites, the deadline to obtain coverage under this general permit will vary between 1 and 10 years, depending on where the property is located within the state:
    • If within the watershed of storm-impaired waters — by July 1, 2020 unless within the Lake Champlain or Lake Memphremagog watersheds (although possibly later depending on final adoption date of the General Permit).
    • If within the Lake Champlain watershed:
      • for properties in the Missisquoi Bay, Main Lake, Burlington Bay, and Shelburne Bay lake segment basins —  by January 1, 2021.
      • For all other properties within the Lake Champlain watershed — by January 1, 2022.
    • If within the Lake Memphremagog watershed — by October 1, 2022.
    • Within all other watersheds — by October 1, 2033.

This timeline is faster than the deadlines previously identified by the Agency in its recently adopted Stormwater Permitting Rule, which stated that the permitting deadline for properties in the Lake Champlain and Lake Memphremagog watershed was October 1, 2023.

  • Stormwater impact fees may be required to be paid by the property owner if an engineering feasibility study shows that the site cannot accommodate sufficient offsetting of stormwater discharges. The fees are based on amount of treatment that is feasible.
  • Property owners may reserve any excess offset capacity for themselves or another discharger in the same watershed, thus potentially opening the door to cooperative agreements between nearby properties that are subject to the general permit.
  • Some projects may be eligible to receive money back from ANR if they exceed treatment standards and there is enough money in the state’s Stormwater Fund from collected stormwater impact fees, or to reserve eligible receipt money as a credit towards future projects in the same watershed.
  • The permit provides for ANR to make determinations on the impact fees.  It appears that an applicant would need to wait until ANR issues its decision authorizing coverage under the general permit to formally challenge the impact fee and any other ANR determinations related to the permit.

The public notice period for the draft permit runs through December 2, 2019, with all public comments due by December 2, 2019.  Comments must be submitted through the Department of Environmental Conservation’s Environmental Notice Bulletin system, and instructions for using this system can be found on ANR’s website.  Once all comments are received, ANR will issue the final permit and continue notifying affected property owners.
If you have questions about the new stormwater permit or you have property that will be subject to the permit that you’d like to discuss, please contact any of the attorneys in our Environmental Practice, including Vic Westgate, Zoe Sajor, Brian Dunkiel, Andy Raubvogel, and Geoff Hand.

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