Hess v. Pennsylvania Public Utility Commission
107 A.3d 246
| Pa. Commw. Ct. | 2014Background
- PPL Electric sought Commission approval under 15 Pa.C.S. § 1511(c) to condemn easements across protestants’ land to build an 11.54‑mile, 69 kV transmission tie line and a new 69/12 kV substation to improve local transmission and distribution reliability.
- PPL relied on its internal Reliability Principles & Practices (RP & P) Guidelines and PJM review to show current reliability violations and that smaller fixes had not resolved the problems; estimated project cost ~$12 million.
- Protestants and intervenors contested necessity and alternatives, offering expert testimony that reconductoring or using existing rights‑of‑way would be less intrusive and sufficient.
- Two ALJs recommended denying PPL’s applications, finding PPL had not shown the type of ‘‘need’’ recognized in prior cases involving NERC/PJM mandates.
- The Pennsylvania PUC reversed in part: it struck protestants’ late extra‑record evidence, approved the route, and found PPL’s combined transmission and substation proposal was necessary or proper based on RP & P violations, exhaustion of lesser measures, consideration of alternatives, and PJM review.
- Commonwealth Court affirmed the PUC (majority), holding (1) NERC/PJM mandatory standards do not apply to sub‑100 kV non‑BES facilities and therefore PPL’s RP & P evidence was a permissible basis for necessity; (2) the PUC reasonably found PPL considered alternatives; and (3) striking late evidence was proper. A dissent argued environmental impact and Payne v. Kassab analysis should have barred approval.
Issues
| Issue | Plaintiff's Argument (Protestants) | Defendant's Argument (PPL/PUC) | Held |
|---|---|---|---|
| Whether PPL’s RP & P violations can establish "necessity" under §1511(c) | Necessity requires mandatory external standards or directives (e.g., NERC/PJM); self‑imposed guidelines alone are insufficient | RP & P Guidelines are required planning criteria, consistent with PJM/NERC practice for non‑BES planning and can show current, substantial reliability issues | Held: RP & P evidence may establish necessity for sub‑100 kV projects; TrAILCo/Susquehanna‑Roseland (PJM/NERC) are inapplicable to non‑BES lines; PUC’s broader standard affirmed |
| Standard of "necessity" — must it be "absolute" (imminent overload) | Need must be ‘‘absolute’’ (imminent overload or mandatory directive) before condemnation | Statutory and precedent law permit finding necessity where a project improves reliability, reduces outage duration/impact, and smaller measures fail | Held: Rejected the "absolute necessity" test; proactive reliability improvements are proper bases for condemnation |
| Whether PPL adequately considered and rejected reasonable alternatives | Protestants’ alternatives (reconductoring, double‑circuit on existing ROW, third feeder) were superior, less costly, less intrusive | PPL evaluated alternatives, found them infeasible, costlier, or unable to meet load‑transfer/reliability objectives; PUC credited PPL witnesses | Held: Substantial evidence supports PUC’s finding that PPL considered alternatives and its plan was the best available |
| Whether Commission properly struck protestants’ extra‑record quarterly reports in Reply to Exceptions | The quarterly reliability reports were public filings and would show PPL’s worst‑circuit claim was misleading; allowing them corrects the record | Introducing new facts after the record closed deprived PPL of opportunity to respond; procedural fairness/due process required striking them | Held: Commission did not abuse discretion in striking late evidence; protestants should have introduced or challenged that evidence during hearings |
Key Cases Cited
- Energy Conservation Council of Pennsylvania v. Pa. Pub. Utility Comm'n, 995 A.2d 465 (Pa. Cmwlth. 2010) (utility must show need to remedy reliability/NERC‑PJM violations in certain high‑voltage contexts)
- Energy Conservation Council of Pennsylvania v. Pa. Pub. Utility Comm'n, 25 A.3d 440 (Pa. Cmwlth. 2011) (Susquehanna‑Roseland) (PJM directive justified need for high‑voltage project)
- Riverwalk Casino, L.P. v. Pa. Gaming Control Board, 926 A.2d 926 (Pa. 2007) (agency technical determinations entitled to strong deference)
- Popowsky v. Pa. Public Utility Comm'n, 706 A.2d 1197 (Pa. 1998) (Commission is ultimate factfinder; credibility determinations are for the agency)
- Pa. Power & Light Co. v. Pa. Pub. Utility Comm'n, 696 A.2d 248 (Pa. Cmwlth. 1997) (necessity test should consider public power needs, technology, and alternatives rather than only engineering perspective)
- Payne v. Kassab, 312 A.2d 86 (Pa. Cmwlth. 1973) (environmental impact balancing test for public‑utility projects)
- Robinson Township v. Pa. Pub. Utility Comm'n, 83 A.3d 901 (Pa. 2013) (Environmental Rights Amendment requires advance consideration of environmental effects)