Ellsworth ME Solar, LLC v. Public Utilities Comission

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2026 ME 10
Docket: PUC-25-60
Argued: December 11, 2025
Decided: February 5, 2026

Panel: STANFILL, C.J., and MEAD, CONNORS, LAWRENCE, DOUGLAS, and LIPEZ, JJ.

ELLSWORTH ME SOLAR, LLC

v.

PUBLIC UTILITIES COMMISSION

CONNORS, J.

[¶1] Ellsworth ME Solar, LLC, appeals from an order of the Public Utilities

Commission denying its petition for a good cause exemption from the 2024

Commercial Operation Date (COD) deadline in Maine’s Net Energy Billing

statute, 35-A M.R.S. § 3209-A(9) (2025), as well as the Commission’s decision

not to grant Ellsworth Solar’s petition to reopen the record pursuant to 65-407

C.M.R. ch. 110, § 11(D) (2025). We affirm.

I. BACKGROUND

A. The Applicable Law

1. The Statutory Framework

[¶2] Much of the relevant legal background is set forth in Snakeroot Solar,

LLC v. Pub. Utils. Comm’n, 2025 ME 64, 340 A.3d 99, a previous appeal of a denial
2

of a petition for a good cause exemption. As discussed in more detail in that

decision, in 2019, the Legislature expanded the eligibility for participation in

Maine’s net energy billing (NEB) program to include customers with an interest

in a renewable energy (solar) facility with a generating capacity of up to five

megawatts. Id. ¶ 2; P.L. 2019, ch. 478, §§ A-3, A-4, codified as amended at 35-A

M.R.S. § 3209-A and 35-A M.R.S. § 3209-B (2025) (2019 NEB Act).1

[¶3] The 2019 NEB Act prompted what has been referred to as the “solar

gold rush”—a sharp increase in the development of solar projects seeking to

connect to the grid, leading to a steep increase in electricity rates charged to

consumers. Snakeroot Solar, 2025 ME 64, ¶ 3, 340 A.3d 99; Legis. Rec. H-750 to

-51 (1st Spec. Sess. 2021). As a result, in 2021, the Legislature added new

eligibility criteria for projects between two and five megawatts. P.L. 2021, ch.

390 (effective Oct. 18, 2021), codified as amended at 35-A M.R.S. § 3209-A(7)

(2021 NEB Amendment). The 2021 NEB Amendment established a series of

requirements for projects to be eligible to participate in the NEB program, one

of which was that the project have a Commercial Operation Date (COD) on or

1 “Net energy billing” is “a billing and metering practice under which a customer is billed on the
basis of the difference between the kilowatt-hours delivered by a transmission and distribution
utility to the customer over a billing period and the kilowatt-hours delivered by the customer to the
transmission and distribution utility over the billing period, taking into account accumulated unused
kilowatt-hour credits from the previous billing period.” 35-A M.R.S. § 3209-A(1)(C) (2025). It is a
renewable energy incentive program “intended to encourage electricity generation from renewable
resources.” Conservation L. Found. v. Pub. Utils. Comm’n, 2018 ME 120, ¶ 2, 192 A.3d 596.
3

before December 31, 2024. 35-A M.R.S. § 3209-A(7); Snakeroot Solar, 2025 ME

64, ¶ 4, 340 A.3d 99.

[¶4] The 2021 NEB Amendment included a still applicable provision that

permits the Commission to grant exemptions from those requirements:

An entity proposing [a project for] the development of a
distributed generation resource that does not meet one or more of
the requirements of this subsection may petition the commission
for a good-cause exemption due to external delays outside of the
entity’s control, which the commission may grant if it finds that,
without the external delays, the entity could reasonably have been
expected to meet the requirements.

35-A M.R.S. § 3209-A(7).

[¶5] In 2023, the NEB program was amended again, this time to require

that projects between one and two megawatts satisfy the 2024 COD deadline.

P.L. 2023, ch. 411 (effective Oct. 25, 2023), codified as amended at 35-A M.R.S.

§ 3209-A(9) (2023 NEB Amendment).2

2. Snakeroot Solar

[¶6] In Snakeroot Solar, a solar energy company appealed from the

Commission’s denial of a request for a good cause exemption under the 2021

2 Most recently, the Legislature enacted a December 31, 2025, cutoff date for new NEB entrants,
reduced the tariff credits received by participating projects over three megawatts and their
subscribers, and imposed a monthly fee on certain existing projects receiving kilowatt-hour credits,
to begin on January 1, 2026. P.L. 2025, ch. 430 (effective Sept. 24, 2025), codified as amended at
35-A M.R.S. § 3209-A(10)(11), 32-A M.R.S. § 3209-B(9) (2025), and 35-A M.R.S. § 3209-F (2025).
4

NEB Amendment for a project with a generating capacity of 4.98 megawatts.

Snakeroot Solar, 2025 ME 64, ¶ 1, 340 A.3d 99. We affirmed, concluding, as

relevant to the instant appeal, that (1) “external delays” within the meaning of

the statutory framework mean events that are outside of the interconnection

process (connecting the facility to the grid)—“a process that is typically ‘long,

complicated, . . . and subject to frequent interruptions’”; and (2) as reflected by

the statute’s use of discretionary “may” language, the good cause exemption is

not an entitlement. Id. ¶¶ 29-32, 34 (citation omitted).

[¶7] Also relevant to the instant appeal, we rejected Snakeroot Solar’s

argument that the Commission’s denial of the exemption was arbitrary because

the Commission had granted an exemption to another developer, Pembroke

Solar LLC, noting that “Pembroke’s circumstances at the time it petitioned for a

good-cause exemption were markedly different than Snakeroot’s” because

“Pembroke experienced an eleventh-hour, unanticipated change in the utility’s

equipment procurement schedule” that “unexpectedly increased from

thirty-four to eighty-one weeks,” pushing the COD well beyond the 2024

deadline. Id. ¶ 42.
5

B. Project History

[¶8] The following facts and procedural background are drawn from the

Commission’s order dated December 13, 2024, and the administrative record.

See Off. of the Pub. Advoc. v. Pub. Utils. Comm’n, 2023 ME 77, ¶ 2, 306 A.3d 633.

[¶9] Ellsworth Solar initiated a project to develop a ground-mounted

solar photovoltaic generating facility with a capacity of 4.98 megawatts and

submitted an interconnection application to Versant Power, the transmission

and distribution utility to which the project would connect, in May 2020. Both

parties signed an interconnection agreement on February 17, 2021.

[¶10] In March 2021, Versant notified Ellsworth Solar that the project

would need to undergo a cluster study.3 In September 2022, Ellsworth Solar’s

project received Section I.3.9 approval, and Ellsworth Solar signed an NEB

agreement with Versant on December 19, 2022.

As explained in Snakeroot Solar, where multiple projects with a combined generating capacity
3

of twenty megawatts or more propose to interconnect in a defined local area, ISO New England, the
governing independent system operator of the transmission system, may require a transmission
study, called a “cluster study,” for all the projects with a capacity greater than one megawatt. After
successful completion of such a study, the ISO must then issue “Section I.3.9 approval.” See Snakeroot
Solar, 2025 ME 64, ¶¶ 7-10, 340 A.3d 99. Such approval is issued when ISO New England determines
that a proposed project will not have a significant adverse impact on the reliability or operating
characteristics of the New England transmission system. Id. ¶ 8 n.11.
6

[¶11] In April 2022, while the cluster study was in progress and after the

2021 NEB Amendment was enacted, Ellsworth Solar downsized the project

from 4.98 megawatts to 1.99 megawatts.

[¶12] In October 2022, Versant provided Ellsworth Solar with an

updated cost estimate reflecting the change in the project’s capacity. Ellsworth

Solar obtained the necessary Maine Department of Environmental Protection

permits by January 24, 2023. Versant invoiced Ellsworth Solar for the costs of

interconnection equipment and construction, and on February 17, 2023,

Ellsworth Solar completed payment of the full amount it owed Versant for

interconnection. The City of Ellsworth issued the local zoning permit required

for the project on February 24, 2023. Ellsworth Solar started tree clearing and

construction in March 2023.

[¶13] Versant began procuring the necessary equipment for

interconnection on April 18, 2023. At a project kickoff meeting the following

month, Versant informed Ellsworth Solar that the tariff meter and regulator

were experiencing long lead times. In June 2023, Versant sent Ellsworth Solar

a construction schedule with a projected COD of February 11, 2025—after the
7

2024 COD deadline.4 Ellsworth Solar was informed of delays caused by trouble

procuring the meter and elected to postpone construction.

[¶14] The meter arrived in late 2023, earlier than Versant had

anticipated. Shortly thereafter, in February 2024, Ellsworth Solar resumed

construction. Delivery of the regulator, however, was further postponed.

[¶15] Ellsworth Solar continued construction and achieved mechanical

completion on August 30, 2024, but was unable to meet the December 31, 2024

COD deadline because the necessary interconnection upgrades were not

completed by that date due to the delay in the arrival of the voltage regulator.

C. Procedural History

[¶16] Ellsworth Solar filed a petition for a good cause exemption with

the Commission on May 7, 2024, seeking exemption from the 2024 COD

deadline provided by 35-A M.R.S. § 3209-A(9). After intervention by, inter alia,

the Office of the Public Advocate (OPA) and the taking of discovery, Commission

staff issued an Examiner’s Report recommending that the Commission grant

the exemption. That report stated that Ellsworth Solar had received its first

4 At that time, the amendment to the NEB program that applied to projects between one and two

megawatts had not yet been enacted. The Commission found that this was the first construction
schedule that Versant communicated to Ellsworth Solar. Ellsworth Solar argues that in March 2023
it received a previous schedule from Versant with the 2024 deadline. As discussed infra, the
Commission did not find sufficient evidence to support Ellsworth Solar’s assertion.
8

construction schedule from Versant on March 27, 2023, and concluded that the

delay causing Ellsworth Solar not to meet the 2024 deadline met the grounds

for exemption from the deadline.

[¶17] The OPA filed an exception to the report, and on

December 13, 2024, the Commission issued an order voting two to one to deny

the exemption. Contrary to the hearing examiner’s view that Ellsworth Solar

had received an initial construction schedule from Versant showing completion

within the 2024 deadline, the Commission found that Ellsworth Solar had not

provided sufficient proof that it received such a schedule at that time; rather,

the Commission found that the first time that Versant provided Ellsworth Solar

with any construction schedule was in June 2023, and that schedule projected

a COD of February 11, 2025. Given this fact-finding, the Commission declined

to grant Ellsworth Solar the exemption.

[¶18] Pursuant to 65-407 C.M.R. ch. 110, § 11, Ellsworth Solar filed a

petition for reconsideration or to reopen the record to admit additional

evidence to prove that at a meeting in April 2023, Versant had communicated

to Ellsworth Solar a schedule with a 2024 COD. The Commission did not act
9

upon the petition, and it was therefore deemed denied on January 22, 2025.5

Ellsworth Solar then filed a timely appeal pursuant to 35-A M.R.S. § 1320

(2025).

II. DISCUSSION

[¶19] On appeal, Ellsworth Solar advances three arguments:

(A) Ellsworth Solar received a schedule from Versant on April 5, 2023, with a

2024 COD, and the notice from Versant in June 2023, estimating a February

2025 COD due to delays in equipment receipt and the surrounding

circumstances resulting in an inability to meet the 2024 deadline, met the

statute’s definition of an unexpected, external delay supporting a good cause

exemption; (B) the Commission’s denial of the petition based on Ellsworth

Solar’s lack of sufficient proof of the receipt of an initial schedule from Versant

within the 2024 deadline was arbitrary because previously the Commission

had not announced such a requirement and, looking at the Commission’s

articulated reasoning in previous grants of exemptions, Ellsworth Solar should

have been granted an exemption; and (C) the Commission erred in not granting

Ellsworth Solar’s request to reopen the record.

5 The rules of procedure applicable to Commission proceedings provide that “[a] petition for
rehearing, reopening or reconsideration not granted within 20 days from the date of filing is denied.”
65-407 C.M.R. ch. 110, § 11.
10

A. The Commission’s finding that Ellsworth Solar did not meet its
burden of proof to show that it received an initial schedule with a
COD within the 2024 deadline is supported by substantial evidence
in the record, and the Commission’s interpretation of the statutory
text as permitting the Commission not to grant an exemption in the
absence of such proof was reasonable.

1. The Commission’s fact-finding is supported by substantial
evidence in the record.

[¶20] We accept the Commission’s findings of fact unless they are not

supported by substantial evidence in the record, meaning any competent

evidence in the record. Me. Coal. to Stop Smart Meters v. Pub. Utils. Comm’n,

2023 ME 8, ¶ 7, 288 A.3d 1195. “When an agency concludes that the party with

the burden of proof failed to meet that burden, we will reverse that

determination only if the record compels a contrary conclusion to the exclusion

of any other inference[.]” Douglas v. Bd. of Trs. of the Me. State Ret. Sys., 669 A.2d

177, 179 (Me. 1996).

[¶21] The parties agree that in June 2023, Versant told Ellsworth Solar

that completion would not occur within the 2024 deadline. The record reflects

that Versant’s manager for the project contacted Ellsworth Solar via email on

March 30, 2023, with no indication in that email that a construction schedule

was included. Ellsworth Solar and the project manager then met on

April 5, 2023, and there is no evidence that Versant provided a construction
11

schedule in subsequent emails between Ellsworth Solar and the project

manager following that meeting. In a June 5, 2023, email, the project manager

stated that he had “a preliminary schedule roughly put together” and he wanted

“to get that over to [Ellsworth Solar] next week.” On June 21, 2023, the project

manager included a schedule in an email to Ellsworth Solar referring to the

schedule as the “initial Versant Power Construction Schedule.” (Emphasis

added.) In a data request, Versant stated that it provided Ellsworth Solar with

the first construction schedule in June 2023—this schedule showed a COD of

February 11, 2025.

[¶22] To support its position that Versant previously told Ellsworth

Solar that the deadline would be met, Ellsworth Solar cited an email that

Versant sent to Ellsworth Solar on April 11, 2024 showing a 2024 COD date,

which Versant indicated that it was providing to Ellsworth Solar “for good cause

exemption purposes.”

[¶23] Put simply, the Commission was not compelled on this record to

believe that in April 2023 Ellsworth Solar received a schedule indicating an

initial 2024 deadline. It did not have to believe that the schedule received “for

good cause exemption purposes” a year later was in fact received a year earlier.
12

This record does not compel a contrary conclusion to the exclusion of any other

inference.

2. The statutory text allowed the Commission to deny an
exemption when the initial construction schedule that
Ellsworth Solar received did not establish that the project
would meet the 2024 deadline.

[¶24] We apply the plain text of a statute if it is clear, and if it is not, we

defer to the Commission’s interpretation if it is reasonable. See Competitive

Energy Servs. LLC v. Pub. Utils. Comm’n, 2003 ME 12, ¶¶ 15-18, 818 A.2d 1039.

[¶25] As noted supra ¶ 4, the statutory text permits an exemption “due

to external delays outside of the entity's control, which the commission may

grant if it finds that, without the external delays, the entity could reasonably

have been expected to meet the requirements.” 35-A M.R.S. § 3209-A(7). As

noted in Snakeroot Solar, the ordinary, expected timeline for completion can be

lengthy, and we upheld the Commission’s interpretation of an unexpected,

external delay to mean one outside of this lengthy process, and in affirming the

Commission’s denial of the exemption, we noted that in Pembroke Solar, the

Commission had granted the exemption based on a last-minute delay.

Snakeroot Solar, 2025 ME 64, ¶¶ 29, 42, 340 A.3d 99; see supra, ¶¶ 6-7.

[¶26] If a developer is given an initial schedule that reflects that the 2024

deadline will not be met, then it is reasonable for the Commission to conclude
13

that the timeline contained in that initial schedule reflects the ordinary, lengthy,

expected time period needed for completion of that project—whether we look

to the plain text of the statute, our interpretation of that language in Snakeroot

Solar, or we defer to a reasonable interpretation of the statute by the

Commission.

[¶27] Finally, the statute’s employment of discretionary “may” language

is also instructive as to the ability of the Commission to deny exemptions absent

indisputable proof of an initial schedule reflecting an expected completion date

within the deadline. We noted in Snakeroot Solar that the purpose of the

exemption was narrow, given the adverse impact that the expansive

development of projects was having on rates. 2025 ME 64, ¶¶ 31-33, 340 A.3d

99. We also noted that the “may” language in the statutory text reflected that

the decision of whether to grant the exemption lay “in the agency’s sole

discretion.” Id. ¶ 34 (quotation marks omitted).

[¶28] In sum, the Commission could reasonably find that Ellsworth Solar

did not provide sufficient proof of receipt of an initial schedule showing an

expected completion date within the applicable deadline and could reasonably

conclude that, absent such proof, an exemption is not warranted.
14

B. The Commission’s denial of Ellsworth Solar’s exemption was not
arbitrary.

[¶29] A Commission decision cannot be arbitrary. See NextEra Energy

Res., LLC v. Me. Pub. Utils. Comm’n, 2020 ME 34, ¶ 20, 227 A.3d 1117. Ellsworth

Solar argues that the Commission’s denial of its petition was arbitrary because

it was inconsistent with Commission precedent, citing Pembroke Solar LLC,

Request for Good Cause Exemption Pursuant to 35-A M.R.S. § 3209-A,

No. 2023-00304, Order (Me. P.U.C. June 20, 2024), available at 2024 WL

3201069, and Ellsworth Renewables, LLC, Request for Good Cause Exemption

Pursuant to 35-A M.R.S. § 3209-A, No. 2023-00333, Order (Me. P.U.C.

Sept. 25, 2024), available at 2024 WL 4332768.6

[¶30] As noted in Snakeroot Solar, Pembroke Solar involved an

“eleventh-hour, unanticipated change” in the utility’s equipment procurement

schedule. Snakeroot Solar, 2025 ME 64, ¶ 42, 340 A.3d 99. The record reflected

initial early estimates of completion by April 2024. Pembroke Solar LLC, 2023

WL 3201069, at *4 (June 20, 2024). Similarly, in Ellsworth Renewables, the

developer received an initial construction schedule with an estimated

in-service date of April 17, 2024. Ellsworth Renewables, 2024 WL 4332768, at

6 Ellsworth Solar and Ellsworth Renewables are two different entities.
15

*5 (Sept. 25, 2024). In contrast, accepting the Commission’s findings, Versant’s

initial schedule gave Ellsworth Solar a post-deadline date for completion.

[¶31] Ellsworth Solar does not point to any decision by the Commission

granting an exception despite evidence of an initial completion date after the

2024 deadline. Given that the Commission’s declination to grant exemptions

absent significant proof of an initial completion estimate within the 2024

deadline constitutes a reasonable position for the Commission to take,

consistent with the purpose and text of the statute,7 the Commission did not act

arbitrarily in declining to grant Ellsworth Solar an exception. 8

7 In its brief, the Commission pointed out that its precedent did not indicate that it had granted
exemptions in the absence of sufficient proof of an initial schedule indicating completion before the
2024 deadline. In its reply, Ellsworth Solar did not dispute this point but rather argued that
indications in the record after the initiation of the project could be understood as indicating that the
project could meet the deadline. But, as noted supra ¶ 28, it was reasonable for the Commission to
deem the delay not unexpected within the meaning of the statute in the absence of sufficient proof
from the inception of the project that the deadline would be met.

8 Ellsworth Solar argues that the denial of the exemption was impermissible because requiring
incontrovertible proof of an initial schedule estimating completion before the 2024 deadline
constitutes a new interpretation of the statute by the Commission. See Cassidy Holdings, LLC v.
Aroostook Cnty. Comm’rs, 2023 ME 69, ¶ 16 n.4, 304 A.3d 259 (noting that an agency is free to change
its mind in its interpretation of a statute, “[b]ut if it does so, the agency must acknowledge that it is
making a change, explain why, and give due consideration to the serious reliance interests on the old
policy.”). As noted supra ¶ 30, however, there was no inconsistency between the Commission’s ruling
here and its precedent.
16

C. The Commission was not required to reopen the record.

[¶32] The Commission’s denial of Ellsworth Solar’s petition to reopen

the record is reviewed for abuse of discretion. Mech. Falls Water Co. v. Pub. Utils.

Comm’n, 381 A.2d 1080, 1105-06 (Me. 1977).

[¶33] In its petition to reopen the record, Ellsworth Solar sought to

submit three items: a new affidavit from the Versant project manager in which

he avers that at the April 5, 2023 meeting, he “discussed . . . the anticipated COD

for the project on November 25, 2024”; an internal Ellsworth Solar email in

which the author of the email states “[n]ow forecasting COD out to end Q2

2024”; and what Ellsworth Solar characterizes as Microsoft Teams meeting

invites between Ellsworth Solar and Versant dated April and May 2023, which

do not present the contents of any such meetings.

[¶34] To advance its petition for an exemption, it was incumbent upon

Ellsworth Solar to prove that there was an unexpected, external delay causing

an inability to complete the facility by the 2024 deadline. As noted supra ¶ 26,

if the initial estimated schedule was outside the 2024 deadline, then it was

logical to conclude that the delay would not be deemed unexpected. Hence,

Ellsworth Solar had every incentive to provide all its evidence that the initial

schedule provided by Versant estimated completion within the 2024 deadline.
17

[¶35] In its petition to reopen, Ellsworth Solar did not indicate that it

could not have previously supplied the evidence it sought to include in the

record. Nor did Ellsworth Solar explain how good cause existed to allow the

expansion of the record to include a sworn statement not subject to

cross-examination. See 5 M.R.S. § 9057(5) (2025) (“No sworn written evidence

shall be admitted unless the author is available for cross-examination or subject

to subpoena, except for good cause shown.”)

[¶36] The Commission did not abuse its discretion in declining to reopen

the record to admit these materials belatedly proffered by Ellsworth Solar.

III. CONCLUSION

[¶37] Ellsworth Solar’s plight is not devoid of grounds for sympathy. It

began development of a 4.98-megawatt facility based on the law in place at the

time. The law then changed, causing it to lower the capacity of the facility. It

was then required to meet new requirements to procure the remaining benefits

of its investment. It also does not appear that Ellsworth Solar was responsible

for any of the causes of the facility not being completed by the 2024 deadline.

[¶38] But Ellsworth Solar had no vested right in the law as it originally

stood and, given the applicable statutory language, the contents of this record

and our deferential standard of review, the Commission did not err or abuse its
18

discretion in declining to grant Ellsworth Solar a good cause exemption or to

reopen the record.

The entry is:

Judgment affirmed.

Juliet T. Browne, Esq., and Hans C. Eysenbach, Esq. (orally), Verrill Dana, LLP,
Portland, for appellant Ellsworth ME Solar, LLC

Daya J. Taylor, Esq. (orally), and Amy B. Mills, Esq., Maine Public Utilities
Commission, Augusta, for appellee Maine Public Utilities Commission

Heather B. Sanborn, Esq., Richard P. Hevey, Esq., Brian T. Marshall, Esq. (orally),
Office of the Public Advocate, Augusta, for appellee Office of the Public Advocate

Public Utilities Commission case number 2024-00108
FOR CLERK REFERENCE ONLY