*1 evidence, proofs averments 135, 5(d)(5) of Act in Section
criteria 1105(d)(5) met, abridges the are
P.S. litigant parties rights
substantive Further, Paragraph and void. is null 2009-1 is Regulation
3 of General Court requires a extent it to the
invalid seeking to serve as corporation
nonprofit Philadelphia current to have a
conservator License. Privilege
Business
ORDER NOW, day April, this 30th
AND Pleas of the Court of Common
the Order above-cap- County Philadelphia hereby affirmed.
tioned matter 2009- Regulation
portion of General Court ¶ 7(k)(l)-(9) requires petition- which evidence, averments and include
er 5(d)(5) that the criteria Section
proofs 1105(d)(5) met, are
Act 68 P.S. rights par- the substantive
abridges void. General litigant
ties and is null and 2009-1 is invalid to the Regulation
Court nonprofit corpora- requires
extent that it as conservator to seeking
tion to serve Priv- Philadelphia current Business
have a
ilege License.
ENERGY CONSERVATION COUNCIL PENNSYLVANIA, Petitioner
OF
v. COMMISSION,
PUBLIC UTILITY
Respondent. Pennsylvania. Court
Commonwealth Dec. 2009.
Argued 6,May
Decided 30, 2010.
Reargument Denied June *4 Burns, Marianna,
Willard R. for peti- tioner. Wiedt, Counsel,
Patricia T. Asst. Harris- burg, respondent. for Seltzer, Alan Michael Wyomissing, for intervenor. JUBELIRER,
BEFORE: COHN LEAVITT, Judge, Judge, and and QUIGLEY, Judge. Senior BY Judge OPINION COHN JUBELIRER.
Energy Conservation Council of Penn- (ECC) sylvania petitions for review of that portion of the Pennsylvania order of the (PUC), which, Public Commission (1) part: granted relevant the Trans- Allegheny Interstate Company Line (TrAIL Co.) a Certificate of Public Con- respect venience with (502 Facilities), 502 Junction Facilities sub- (2) ject conditions; to certain granted TrAIL Co. authorization and certification locate, construct, operate the 502 Facilities, subject to certain conditions. On appeal, argues that ECC the PUC’s determination must be reversed because: (1) TrAIL applications for a Certifi- cate for Public authority Convenience and locate, construct, operate the 502 (Applications) allegedly Facilities did not comply with siting criteria set forth in (2) regulations; the the PUC 13, 2007, TrAIL filed five April for the 502 On finding need erred in (1) including: application an applications, preliminari- argues, The PUC Facilities.1 for a of Public Convenience to Certificate dismissed appeal should be ly, that ECC’s ,render, furnish, supply electrical and, there- aggrieved is not because offer Pennsylvania; transmission service in fore, bring petition this standing lacks to lo for authorization that it argues also review. The PUC cate, construct, and maintain the operate, Applications. properly granted County, in Greene south
502 Facilities Facilities Pennsylvania.2 western The 502 Background I. Project and con part are a Interconnection, May PJM (HV) 500-kV, high voltage of one sist (PJM), regional L.L.C. (502 Segment) transmission line and a new managing the elec- charged with operator (502 Substation) 500-kV substation systems thir- tric utilities transmission County. Segment would Greene (PJM Region), including, teen states the 502 to the Penn run from Substation others, Pennsylvania, Virginia, among *5 border, 1.2 sylvania-West Virginia miles and the District of Colum- Virginia, West south, and would continue for 240 miles bia, Project Mountaineer announced the ECC, Virginia Virginia. across West Mountai- concept. Project PJM described others, among opposition intervened in to through which PJM approach neer as an Applications. TrAIL Co.’s plan to in- identify comprehensive could a Hearings II. before the Administrative from the electricity the transfer of
crease Judges Law Region to the part of the PJM western Region. Thereaf- part eastern of the PJM assigned The matter was to two Admin- ter, (Allegheny), Inc. Allegheny Energy, (ALJs), who held Judges istrative Law parent corporation, TrAIL submitted Co.’s hearings comment ses- multiple public Trans-Allegheny outlining a its proposal sions, viewed the locations of the 502 Fa- (TrAIL Project), Project Interstate Line cilities, testimony live accepted both (kV) miles of kilovolt which involved 330 thou- deposition testimony, and admitted lines, including the capacity transmission documentary evidence pages sands of Facilities, a solution for possible as issuing a recom- prior into the record to objectives. In March Project (RD). RD, Mountaineer In the mended decision the TrAIL Allegheny recommended sepa- Application ALJs addressed each reliability issues in Project and, solution that TrAIL rately ultimately, found May parts Region. certain of the PJM on carry proof failed to its burden of Co. 5-year regional Therefore, PJM Applications. any of RTEP) (2006 plan expansion deny RD that the should ALJs’ was designed reliability appeals to ensure the Applications. Because ECC in the PJM Re- grid only grant public electric transmission of the certificate of to site and and which included a modified version convenience and the gion Facilities, the 502 this Court will Project. approved of the TrAIL PJM construct Applications. only address those two 2006 RTEP in June 2006. project, support Applications included a second joint brief in of 2. The 1. A amicus curiae Club, Facilities; however, Union of Con- Prexy ECC was filed Sierra that matter is Scientists, Society, National Audubon cerned appeal. not before our Court in this Pollution, Inc., Inc., Group Against Smog and Environmental Council. and Piedmont Application to its for a the 2006 RTEP regard questioned
With Cer- whether Convenience, of Public tificate there truly any reliability problems were a public submitted evidence there was Nevertheless, Region. in the PJM Facilities as need for the 502 demonstrated objectors and other presented the testimo- The by the 2006 RTEP. 2006 RTEP re- ny of experts their own that there were vealed that there would be numerous ways improve reliability other Reliability North American Electric Coun- Region transmission lines in the PJM by, (NERC) reliability cil criteria violations alia, inter increasing ground clearance or Region beginning the PJM within 2011 retensioning and reconductoring trans- Facilities, conjunction and that the 502 mission lines. TrAIL Project, with the rest of the would The ALJs pub found that there was no reliability resolve those violations. TrAIL lic need for the 502 pursuant Facilities reliability Co. witnesses testified that is- Section 1501 of the Utility Public Code sues in the transmission line in other (Code), 1501,3 66 Pa.C.S. Section 57.76 of reliability states could result in issues for regulations, 57.76, the PUC’s 52 Pa.Code electric customers south central Penn- and this Court’s decision in sylvania. Pennsylvania According to TrAIL wit- nesses, Facilities, Light Power & part the 502 as a Co. v. Public Project, Commission, were the most viable and 696 A.2d (Pa.Cmwlth.1997) (PP cost-effective L):4 (RD solution the documented & at 79- reliability problems in Region, 80.) the PJM ALJs held that there is no proposed by and the alternatives ECC and need in County Greene for the 502 Facili *6 objectors feasible, the other were neither ties and that TrAIL Co. does not claim Thus, nor viable. TrAIL Co. asserted that that such need County. exists Greene there a public was need for the 502 Facili- (RD 110.) Further, at the ALJs concluded reliability ties to ensure the regional of the that TrAIL Co. failed to meet its burden system transmission and services for proof because, for the 502 Facilities Pennsylvania customers. (1) among other things: the TrAIL Pro ject, including Facilities, argued Project
ECC
that
the TrAIL
the 502
was driv
economics,
by reliability,
was not driven
en
not
reliability problems
but
eco-
(2)
objectors
nomics. ECC and the other
with the
pre-
Region;
PJM
the costs and
sented evidence that
the TrAIL Project,
impacts
adverse
of the
Project
TrAIL
Facilities,
including the 502
clearly
benefits;
(3)
was not
outweigh
neces-
sary
improve reliability
to
process,
concerns. RTEP
identify
used to
reliability
ECC’s witnesses attacked the validity
problems
and the
for
need
the 502 Facili
Code, states,
L,
3.
Section 1501 of the
in relevant
4.
In PP & we stated that Section
part:
pertinent part,
requires
every utility
improvements
necessary
make
"as shall be
or
Every public utility shall furnish and
accommodation,
proper for the
convenience
efficient, safe,
adequate,
maintain
and rea-
safety
patrons,
and
employees
of its
and the
facilities,
sonable service and
and shall
PUC,
public”
prior
granting
and that the
alterations,
make
repairs, changes,
all such
approval
application,
of an
consider that the
substitutions, extensions,
improve-
and
proposed transmission line will have a mini-
ments in or to such service and facilities as
impact
mum adverse environmental
"consid-
necessary
shall be
proper
for
accom-
ering
power
public,
electric
needs of the
modation, convenience,
safety
of its
technology
the state of the available
and the
patrons, employees,
public.
L,
and the
available alternatives.” PP &
methods did not meet siting process its criteria pointed out siting regulations support and could alia, to, inter process was route selection Route H was reasonable for finding that from res- separation distance maximize (RD 176-177.) the 502 Facilities. developments avoid residential idents and agreed objec- The ALJs with ECC and the Virginia. Morgantown, West outside of regarding TrAIL efforts to mini- tors testimony that TrAIL Co. offered impact mize the environmental chosen, H, the shortest Route was Thus, route posed project. the ALJs concluded alternatives, crossed direct of the and most satisfy that TrAIL Co. failed to its burden stream, no wet- responsibly crossed it and rea- only proof one small acted lands, mitigate more than the environmental im- required only slightly sonably to (RD (TrAIL at 189- pact proposed project. to be cleared. one mile of forest 90.) 15; *7 Reproduced Statement 5 at Co.. 184a.) (R.R.) 175a, The testi- at Record Appeal to the III. PUC only were
mony also revealed that there exceptions filed eleven to the TrAIL Co. 500 feet of the cen- two residences within regard with to ALJs’ determination there were no historic terline and that Facilities, six of which are relevant to (architectural) mile quarter sites within a for to this present petition review ECC’s (TrAIL Statement 5 at of the route. Co. ECC, among objectors, other filed Court.5 184a.) 6, 15; 175a, R.R. at Co. exceptions to the RD. The PUC reply siting regulations further asserted that the in exception considered each turn. standard, impact” a “no but impose do not to show that it took require applicant five, exceptions through two steps to minimize environmen- challenged reasonable the ALJs’ determination Co. by the which it did as evidenced no need for the 502 impact, tal that there was (1) Facilities, arguing that the ALJs: facts noted above. filed, lenge appeal, as TrAIL Co.’s technical granted all on such exceptions 5. Of the the PUC fitness, authority power TrAIL Co.’s to use exception. The PUC denied an ex- but one domain, involving the of eminent or issues ception alleging that the AUs exceeded their project originally Appli- authority. exceptions in- other included scope The other cations, which are not before this Court. that ECC does not chal- volved either issues regional reliability modeling projections issues stress and relating failed to consider to 2805(a) Code, to Section pursuant the twelve future NERC standard viola- (2) 2805(a); give proper failed to (PUC Pa.C.S. Op. (citing tions. at 34 TrAIL Co. weight to the evidence that the TrAIL SWG-1, 165a).) Ex. R.R. at The PUC Project designed response was as a direct held that it: reliability problems to documented and not an obligation regional has to enhance needs; (3) motivated economic errone- reliability mitigate and transmission con ously found that TrAIL Co. and PJM did straints in order to congestion reduce consider to alternatives the TrAIL ratepayers adja Project; holding erred in that the jurisdictions. cent 66 Pa.C.S. negatively impact 502 Facilities would view, In our the record is clear that the development generation facilities in the Mount Storm to heavily Doubs line is (TrAIL Region. eastern PJM Excep- alternatives, congested and that such as 1638a-53a.) 4-20; tions R.R. at reconductoring, retensioning, or other In response, ECC contended that raising height wise of the rights-of- ALJs regional reliability considered way improve likely clearance are concerns, but found that TrAIL Co. failed impose heavy congestion costs on con any prove establish NERC violations or Conversely, sumers. the record also in that a regional, reliability interstate issue dicates that the will [502 Facilities] re existed sufficient justify the 502 Facili- solve all of the projected ties. overloads in finding ECC asserted that the ALJs’ Project portion the TrAIL was the southern economically Allegheny Power[6] motivated supported by was the record. transmission zone in a cost- RTEP, next argued the 2006 timely effective and manner. process general, the RTEP clearly (PUC 35.) Op. at then PUC stated contemplates only those solutions involving it disagree did not with the ALJs’ increased transmission capacity by con- consideration of factors such as whether structing lines, additional transmission Project the TrAIL was built to facilitate that the record shows that no non-trans- transmission from the western PJM Re- solutions, mission such improving gion to the eastern Region, PJM ground clearance existing around the whether greenhouse gas emissions or costs lines, retensioning or recon- of emissions should be considered. But ductoring lines, the existing or reducing that, noted demand, considering alter- energy were Finally, considered. *8 natives to the TrAIL Project, ECC contended that “the the entire TrAIL issue of Project driver, important would result in incentives costs is an gen- as it should (PUC 36.) erators to build generating facilities in the be.” Op. at The PUC also western PJM Region, rather than in the agreed with the ALJs that economics were eastern Region, PJM ratepayers because a consideration of TrAIL in proposing Co. essentially would subsidize the western Facilities, given the 502 that the record generators by paying for the TrAIL Pro- that Project established Mountaineer and ject. an earlier version of TrAIL Project were proposed In within the its context of the opinion, persuaded the PUC was west-to- by However, the 2006 RTEP and TrAIL east transfer enhancements. sup- Co.’s porting testimony detailing system the the went on PUC to state: Co., 6. Like Allegheny sidiary TrAIL Allegheny. Power is a sub- that TrAIL claimed reasonable. Co. between easily distinguish one cannot Seg- process reli- for the route selection efficiency projects by necessity re- of con- congested ment was driven the within ability projects re- Pennsylvania portion resolves Removing congestion necting gion. violations, versa. and vice liability Virginia por- with the West Segment inherently wrong with nothing There is and that its select- Segment of the 502 tion on a reliability violations removing route, most was the shortest and ed which through construc- heavily congested line route, clearly was beneficial direct Here, line. of a new transmission tion all of its residents. Pennsylvania and the record establishes find that we (TrAIL 20-21, R.R. at Exceptions at Co. are] needed to [502 Facilities that 165Sa-54a.) responded reliability [are] issues address the route selection properly ALJs found achieve available to alternative best TrAIL unreasonable used Co. process alternatives physical result. Ap- TrAIL incomplete because Co.’s discussed by ECC and presented did not discuss the merits plication piece- in a problems approach ALJs general descriptions route chosen they certainty no meal manner with Thus, ECC, according D-H. Routes prob- actually resolve the modeled will satisfy the Application TrAIL did not Co.’s addition, with TrAIL agree In we lems. in 52 Pa. requirements minimum set forth of manual that the use argument Co.’s 57.72(c)(10), and the should Code alleviate the adjustments system granted Applications. have a host simply invites modeled violations excep- TrAIL granted The PUC Co.’s at- with system problems additional of its route rejection tion to the ALJs’ negative impacts. economic tendant stating: Segment, selection for the 502 added).) (bold (PUC emphasis Op. at 36 TrAIL asser persuaded by are Co.’s We that TrAIL Accordingly, the PUC found was driven tions that its route selection proving had satisfied its burden Co. adjacent jurisdic by routing criteria in Facilities, pursuant the 502 public need for argued by TrAIL repeatedly tions. As and 52 Pa. 1501 of the Code to Section Co., route is the shortest the chosen 57.76(a)(1), TrAIL granted Code Accord given route this circumstance. through two five. exceptions excep ingly, grant we will TrAIL Co.’s assert- exception, TrAIL Co. its sixth selection. Our regarding tion route find failing erred in ed that the ALJs Exception predicated, grant of this for the 502 process that the route selection in its on TrAIL Co.’s commitments part, ar- was reasonable. Co. Segment A, Items 8 and Exceptions, Appendix of the route and gued that the selection 11....[7] (ROW) is a matter rights-of-way (PUC 42-43.)8 Op. at instance utility in the first ALJs’ challenged next utility’s not be set aside unless and will not make that TrAIL Co. did discretionary power is un- conclusion exercise of its *9 11, Co. agreed to contact TrAIL to number 8 and TrAIL Co. 7. In Items regarding Facilities. complaints the 502 about safety of owners of met- the concerns address A, 8, (TrAIL Exceptions, Appendix Items Co.’s equipment farm structures and tall al-roofed 11, 1675a.) at R.R. by the 502 Facilities or near the ROWs for on buildings grounding existing within 50- all ROW, provide building TrAIL Co. to edge 8. PUC instructed the if the The feet of the descriptions and dis- up phone alternative route grounding, a better requires and to set to minimize the environ- efforts The takes environmental [PUC] sufficient 502 Facili- impact mental obligations seriously very and is con that the ties. TrAIL Co. asserted record cerned about the lack information the proposed showed that route evidence However, Application. this only we are Segment impact for the 502 has least approving the construction of the 1.2 and resources. on the environment segment mile known as the Seg [502 (TrAIL 21-22; Exceptions at R.R. at Co.’s only Because it is 1.2 miles in ment]. 1654a-55a.) response, pointed In out length, impact there will be minimal on TrAIL failed to address im- that Co. the environment. seg For this small waters, pact on and subsurface surface line, grant ment of the we will TrAIL- despite knowing majority that Exception Co’s and that it [sic] find has surrounding communities in the area drew met its of proof relating burden to envi their potable supplies water from such ronmental concerns. Our finding on this sources. is, in part, dependent issue on several granted by The TrAIL commitments made in Ap PUC Co.’s TrAILCo 13, exception, doing pendix Exceptions, with some conditions. In A to its Items 15....[9] so, the PUC held: and sources, cussions of the merits of the alternative impacting routes as to avoid those we note (PUC 42-43.) Op. applications. in future at regulations regarding PUC’s HV lines, 57.71-57.76, §§ Pa.Code do not re- 13, agreed quire applicant develop identify In Item TrAIL Co. to to sources of water, plan identify ground ground regulation to sources of in- water. The at Pa. 52 Code wells, cluding springs along 57.75(e) Seg- and accept does state that the PUC will sources, evidence, impacts "pro- consider, ment to avoid on those impact and implementation vided that TrAIL Co.’s of this posed hydrology HV line will have on and the condition shall be the same as or consistent efforts that have been made and will be made existing Allegheny practices with Power and impact. regulation to minimize the does (TrAIL procedures.” Exceptions, Ap- Co.'s require impact hydrology zero on and A, 13, 1676a.) pendix Item at R.R. In Item contemplates any future efforts to minimize 14, agreed report TrAIL Co. to file a with the Thus, impact may having occur. a con- evidencing required PUC that all and neces- says dition develop that TrAIL Co. will sary permits by environmental or certificates water, plan identify ground to sources of such government agencies other pri- were obtained wells, springs they so that can avoid beginning or to construction 502 Facili- mandatory regula- them is not based on (TrAIL A, Exceptions, ties. Appendix require approval tions and would not further 14, 1676a.) 15, Item R.R. In Item 14, requir- or action the PUC. Condition PUC, agreed report prior to file a with the ing TrAIL Co. to submit evidence that all commencing construction of the 502 Facili- required necessary per- environmental ties, establishing approval accep- and/or govern- mits certifications other and/or any required necessary tance of or wetlands obtained, agencies mental have been does not delineation, endangered species study final approval make the PUC's conditional. Rath- any mitigation plans, with historical/archeo- er, merely requires it provide TrAIL Co. to logical significance study mitigation with permits evidence that it obtained those plans, any required necessary other or already required certifications that it is (TrAIL currently underway. studies Ex- Co.'s separate obtain under administrative A, 1676a.) ceptions, Appendix Item R.R. at Finally, respect schemes. with to condition response requires provide to the which TrAIL Co. dissent’s assertion that evi- approval acceptance PUC’s order final dence of the was not because of the and/or PUC, imposed by any required conditions respect- necessary we wetlands delinea- tions, fully disagree. regard endangered species study any With final condition with etc., requiring identify mitigation plans, appears Co. to sources of it from the water, ground wells, including springs wording ap- so of the condition that the
475 an inter- 46.) that a “substantial interest is (PUC ing now this petitions ECC Op. at litigation that is est in the outcome for review.10 Court citizen”). Further, greater any than other Standing IV. evidence was the PUC asserts that ECC’s matter, a threshold As provide specificity devoid of and failed to that, aggrieved is not because ECC argues examples of the environmental ef- specific determination, peti ECC’s by the PUC’s Therefore, on individuals. the PUC fect should be dismissed tion for review concerns argues that ECC’s environmental 501 pursuant to Pa.R.A.P. standing lack of imminent are future potential, are not but party aggrieved a must be (requiring that Finally, argues concerns. the PUC contends appeal). The PUC in order “generic” concerns were most of ECC’s that, protest filed a though even ECC mitigated” by the conditions “significantly PUC, it is evidence before presented on the construction of imposed the PUC proceed to the automatically party a not (PUC’s 16.) at the 502 Facilities. Br. We right appeal a PUC’s ings with disagree with the PUC that ECC lacks Trade v. Penn Arsenal Board order. of standing. Commission, 166 Utility Public sylvania party adversely If a is not affect (1950). 612, 548, 72 A.2d 614-15 Pa.Super. any way by being ed in the determination ag is not The PUC asserts ECC and, challenged, party aggrieved is not protest was grieved because ECC’s thereby, standing judi has no to obtain a whole, Applications as TrAIL Co.’s challenge. resolution of the cial William any not reflect clear or the record does Garage, City Inc. v. Parking Penn to the 502 Fa regard direct interest with of 168, 192, 269, Pittsburgh, 464 Pa. A.2d 346 subject which are the particular, cilities (1975). is not 280 sufficient “[I]t argues appeal. The PUC present person claiming ‘aggrieved’ to be to assert not have a direct or sub that ECC does pro interest all citizens in common approval stantial interest 192, curing obedience to the law.” Id. at Facilities because it has not dem the 502 ag A.2d 280-81. In order to be 346 at or individ any onstrated discernable direct any grieved, party must have a substantial greater that is than ualized interest Hickson, subject litiga interest in the matter of the citizen.11 See In re 578 Pa. other (2003) (stat- 1238, tion, direct, 127, 135, the interest must be and the A.2d 1243 plans Environmental Resources v. Public proval acceptance of these merit and/or PUC, Commission, applications not lie with the but 18 Pa.Cmwlth. does Further, (1975). agency. A.2d some other administrative we note that TrAIL Co. submitted evidence that, according points The PUC 11. out Segment any does not cross exceptions, TrAIL Co.'s of the five owners of wetlands and that there are no historic sites property directly that will be affected quarter within a mile of the line. Segment, have construction of the 502 two Accordingly, we that the conditions conclude voluntarily signed options for easements imposed by PUC do not render the PUC's favor, agree- TrAIL Co.’s and TrAIL Co. has interlocutory. order principle ments in for easements across the (PUC parcels. (citing appeal granting other three Br. at 14 On from the of a certifi- PUC, 1634a).) Exceptions R.R. at public this TrAIL Co. cate of convenience responds evidence to "inquiry or- that there is no PUC’s] Court’s is whether [the granting support this conclusion where the assertion certificates of conven- ders exceptions, made in TrAIL Co.’s vacated or set aside for error was ience should be presented the evidence to the ALJs before supporting lack evidence or for of law or rights.” Depart- record was closed. of constitutional violation *11 476 (see protest be immediate. Id. The sub- A review of R.R.
interest must ECC’s at 448a-82a), members, requirement that and the list of its interest means stantial clearly reveals that standing ECC has “there must be some discernable adverse appeal the PUC’s determination. ECC other than the effect to some interest ab- has at least sixteen members that are lo- having stract interest of all citizens in oth- cated and around the area which the 195, comply ers with the law.” Id. at 346 Facilities, including 502 the potentially A A.2d at 282. direct interest “means that tall Segment, 200-foot 502 will be located. person claiming aggrieved to be must Nine of ECC’s members are located within the harm show causation of to his interest ROWs 502 Facilities. by person] the matter of which com- [the (TrAIL Co.’s Ex. AJF-1 at 3 (describing Finally, the plains.” Id. interest must Facilities), the path and ROWs for the 502 “be ‘immediate’ and ‘not a remote conse- ” 425a; R.R. at TrAIL Co.’s Ex. AJF-3 at 197, judgment.’ quence of the Id. at 346 (listing property 1-3 owners within the Keystone (quoting Raceway A.2d at 283 ROW, including members), the nine ECC Corp. Racing v. State Harness Commis- 430a-47a.) Further, R.R. at mem- ECC sion, 1, 7-8, 97, 173 405 Pa. A.2d 100 impacts bers testified as to the the siting, (1961)). construction, operation, and maintenance may An standing association have them, of the 502 Facilities would have on representative as a its members. properties, businesses, their their Tripps Park v. Public Utili their (Testimony communities. of various Commission, 317, ty 52 Pa.Cmwlth. 415 members, 1163a-1236a.) ECC R.R. at (1980). Thus, A.2d long 970 as an Additionally, ECC members include affect- organization “has at least one member who ratepayers. ed The ECC and its mem- direct, immediate, has or will suffer a bers, some of property whom own within injury substantial interest as a result the ROWs for the 502 Facilities or are action[, i.e., challenged aggrieved, is ratepayers, affected have an interest in the organization] has standing.” Parents PUC’s determination that is more than United Better Schools v. School Dis just the interest shared all citizens to trict Philadelphia, 166 Pa.Cmwlth. prevent the construction of a HV transmis- (1994) (PUBS). 646 A.2d For Park, sion line. See Tripps A.2d in-PUBS, example, this Court held that a (holding ratepayers affected are individuals, group of including parents of Moreover, aggrieved). alleged the harm students, high school incorporated to chal by members, on ECC behalf of its lenge the implementation of a new school including increased rates and decreased policy making district condoms available at values, property directly caused upon school-based health clinics request of approval PUC’s of TrAIL Facili- students, high school standing had because Applications. ties Finally, the interests at least one of its ag members would be alleged harmed, to be particularly the grieved by the school district’s actions. ratepayer objections given TrAIL Co.’s Similarly, Park, Id. in Tripps we held own showing evidence the construc- that an organization of Pennsylvania Gas tion and maintenance of the 502 Facilities and Water Company customers and rate will in higher result rates for Pennsylvania payers, standing (ECC’s had “even in the absence 22-23), ratepayers, Br. at are not a injury solely itself ... repre as the consequence remote judg- PUC’s Park, sentative of its members.” Tripps Accordingly, ment. has members 415 A.2d at 970. aggrieved by are authori-
477
and,
for HV transmission
grant approval
conse-
it will
Facilities
of the 502
zation
lines,
The
Segment.
like the 502
standing
representative
has
quently, ECC
(1)
forth, inter alia:
PUBS;
the
regulations set
Tripps
appeal.12
this
bring
applying
approval
for
for
of an
procedures
Park.
(2)
57.72;
§
line—52 Pa.Code
the
HV
line
hearings
applica-
cedures for
on HV
Trans-
Approval of TrAIL Co.’s HV
V.
n §
(3)
57.75;
tions—52 Pa.Code
what
Applications
for
the
Line
mission
deciding
the
must consider when
PUC
502 Facilities
deny
or
line
approve
whether
HV
Applicable
of Law
A. Overview
57.76(a).
§
Pa.Code
—52
Applica-
Transmission
Line
HV
regulations,
These
and 52 Pa.Code
57.76
tions
of
particular,
represent
a codification
I,
by
27
required
to the review
article
section
requires applicants
The PUC
Re
Pennsylvania
before
of the
regulatory standards
Constitution.13
meet certain
Hickson,
Moreover,
private attorney
In
a
filed two
Board
Trade v.
both Arsenal
12.
of
Commission,
private
complaints with the Philadel-
criminal
Utility
166
Pennsylvania Public
murder,
Attorney alleging
man-
548,
(1950)
phia District
and In re
Pa.Super.
(1) That there is a need for it.
complex,
462,
as it is in this case.” Id. at
(2) That it will not create an unreason-
ble statutes and providing for the protection of the natural re- argues ECC first that TrAIL sources of this Commonwealth. Applications Co.’s for the 502 Facilities did (4) satisfy certain criteria set forth in That it will minimum adverse have regulations impact, considering environmental 52 Pa.Code 57.72(c) and, § therefore, power public, electric needs of the PUC erred in granting TrAIL Applications.14 state of available technology and the regulation provides, This pertinent part: available alternatives. 57.76(a). Pa.Code These factors 57.72. Form and content of applica- proven by preponderance must be tion.
evidence. Samuel Lansberry, J. Inc. v. Commission, Public (c) An application shall contain: 134 Pa.Cmwlth. 578 A.2d
(1990). A preponderance evidence only party means that one presented (7) has A description of studies which had evidence that is more convincing, even been made as to the projected environ- amount, the smallest than the evidence mental impact of the HV line as presented by the party. other O’Toole v. posed and of the efforts which have been Borough of Braddock, 562, 564, 155 397 Pa. and which will be made to minimize the (1959). A.2d impact of upon the HV line the environ- upon ment and scenic and historic ar- alsoWe note that the PUC’s eas .... Code, interpretations of the the statute for (8) which it has responsibility, enforcement A description of the efforts of the regulations and its own are applicant entitled to identify to locate and archaeo- great deference and should not logic, historic, be re geologic, scenic or wilder- clearly versed unless erroneous. Popow significance ness areas of within 2 miles sky v. Pennsylvania Public Utility, 550 of the proposed right-of-way and the 14. We rearranged have the order of ECC’s involved. arguments for ease of resolution of the issues perform report these studies and identity of the areas discov- Co. location the results to the PUC. The PUC further by the applicant. ered
directed TrAIL Co. to file all the re- permits environmental from state quired of reason- general description A agencies prior and federal with proposed routes to the able alternative beginning of TrAIL Co.’s construction line, including description HV (PUC 46.) Facilities.15 atOp. of the 502 methodology, a com- planning corridor (c)(8) Similarly, subsection does not re- of the merits and detriments parison contends, quire, applicant as ECC route, of the rea- each and a statement historic, identify archeologic, certain sce- line selecting sons for HV miles; rather, nic, etc. sites within two it route. *14 the to applicant ap- describe the requires (10). 57.72(c)(7),(8), § and 52 Pa.Code identify to locate and such plicant’s efforts regulation, this ECC as- Paraphrasing 57.72(c)(8). § Again, sites. 52 Pa.Code to for an HV trans- serts that an Applications extent the did not (1) studies of mission line must: contain im- satisfy requirement, this the conditions impacts environmental of projected by require TrAIL posed PUC Co. to lines, 52 Pa.Code proposed PUC, HV prior beginning advise the to the of (2) 57.72(e)(7); identify archeological, § Facilities, of the 502 construction stud- historical, geological, scenic or wilderness involving topics along these miti- ies with (PUC proposed two miles of the necessary. areas -within where gation plans, Op. 57.72(c)(8); 46.) line, § 52 Accordingly, Pa.Code we conclude that the alter- description vide a of the reasonable not err in that TrAIL finding PUC did line, proposed complied, comply, for the HV or will with 52 Pa.Code native routes 57.72(c)(7) (c)(8). § including description planning a methodology, comparison a of the merits also conclude that We alternatives, a and detriments of the TrAIL approving PUC did not err Co.’s choosing pre- reasons for statement of to 52 Application siting pursuant for route 57.72(c)(10). route, § ferred 52 Pa.Code 57.72(c)(10). § involving In cases Pa.Code 60.) (ECC’s ECC, According Br. at challenges utility’s siting to a lines HV Applications fail to include zoning exemption for eminent domain satisfy reg- these necessary information purposes, our courts have held that “it is are, therefore, ulatory requirements and designation settled law that (ECC’s 61.) defective. Br. at procedurally line a matter for [a HV] [is] route disagree. We utility’s] management determination [a instance, utility’s]
Contrary paraphrasing, sub- in the first [the ECC’s (c)(7) unless shown to require upheld does not that studies conclusion will be section rather, requires capricious.” it be wanton or Stone v. Penn actually performed; be Commission, that, Utility 192 performed, sylvania if those studies have been Public (1960). 18, 573, 162 A.2d 21 provide description Pa.Super. must a applicant Thus, where the record establishes that Appli- To the extent that the the studies. reasonable, studies, utility’s route selection was such cations did not include factors, all the its route be considering will requiring issued conditions 1103(a) just reasonable.” 66 Pa.C.S. specifically the Code be 15. Section PUC, certificate, 1103(a). granting § authorizes the may "impose as it deem to such conditions 480 Sufficiency v. Pennsylvania Paxtowne Public C. of TrAIL Co.’s Envi-
upheld. Commission, 646, 40 Pa.Cmwlth. ronmental Evidence Utility (1979). The mere exis 398 A.2d 1. Evidence Submitted route in tence of an alternative does not Hearings at the utility’s judgment. validate the O’Connor argues ECC next that TrAIL Co. Public v. Commis failed to introduce the evidence of the envi sion, 136 Pa.Cmwlth. A.2d ronmental impacts of the 502 Facilities as (1990). reasoning equally This 57.75(e). § required by 52 Pa.Code The considering utility whether a sound when 57.75(e) regulation at 52 Pa.Code out complied has with Pa.Code type lines what of evidence the PUC will 57.72(c)(10), required as the information accept during hearing and consider on an goes establishing this section towards application. HV transmission line This utility’s the reasonableness of the route regulation provides, in part: relevant selection. (e) section, hearings At held under this Here, TrAIL Co. set forth its evaluation accept the Commission will evidence routes in the LRE Re- and in upon, its determination of the through testimony. well port, as *15 consider, alia, application it will inter Report eight LRE identified alternative following the matters: miles, 1.2 ranging routes from miles to 13.4 (1) The present necessity and future routes, of descriptions offers the and the proposed of HV line in furnishing principal deciding states that the factor public. service to the align was the decision to the route to the (2) safety The HV west Morgantown, Virginia. West line. (LRE 3, 6, 23, 27-28, 43, Report at R.R. at 237a.) 197a, 200a, 217a, 221a-22a, impact TrAIL and the which efforts witness, have been Halpern, Co.’s Jack described the and will be made to mini- route, alia, preferred indicating, impact, any, mize the if inter that route, posed it: line upon following: was the shortest at 1.2 miles HV long; quarter would cross a mile of steep (i) (ii) use[;] Land Soil and sedi- slopes; only one required small stream (iii) mentation[;] Plant and wildlife wetlands; crossing and would cross no and (iv) habitats[;] Terrain[;] (v) Hydrol- required only slightly more than one mile (vi) (vii) ogy[;] Landseape[;] Archeo- (TrAIL of forest to be cleared. Co. State- areas[;] (viii) areas[;] logic Geologic 6, 15, 175a, 184a.) ment 5 at R.R. at Mr. (ix) (x) areas[;] Historic Scenic ar- Halpern also stated that there only were (xi) eas[;] (xii) areas[;] Wilderness two residences within 500 feet of the cen- Scenic rivers. terline and that there were no historic (4) The availability of reasonable al- (architectural) sites within quarter mile ternative routes. (TrAIL of the route. Co. Statement 5 at 57.75(e) added). § (emphasis Pa.Code 6, 15, 184a.) 175a, R.R. at This evidence clearly supports finding the PUC’s that argues requires ECC that this section TrAIL Co. considered alternate analyze routes and the PUC to the environmental that the route impact chosen was reasonable and of the 502 using Facilities the fac- does not appear 57.75(e)(3), to be capri- wanton or tors set forth in Section cious. Accordingly, the PUC’s decision that TrAIL Applications Co.’s and evi- approving upheld. this route is dence: failed to include a soil and sedimen- Applications may tent not have identify locations plan; failed tation section, roads; TrAIL this expressly complied not detail how with did private and surface wa- ground TrAIL submitted additional evidence protect would Co. Co. sources; a detailed present and did not Seg- ter the route selected for the 502 stream, would minimize water on how it plan only ment crossed one small the construction pollution wetlands, air from only no would cross one crossed point, last Project. On this soils, steep mile of that there were quarter may potential pollution on the focuses only two residences within 500 feet of the Project, the overall TrAIL result from centerline, that there were no historic plants resulting power new coal-fired (architectural) quarter within one sites western,PJM main- Region. ECC Finally, of the route. im- mile PUC, itself, these recognized tains that the requiring numerous conditions posed but, nonetheless, granted the deficiencies additional studies perform con- with conditions. ECC Applications report results those studies imposition of condi- tends that the PUC’s beginning construction on the 502 before inadequacy tions does not resolve Accordingly, Facilities. we are satisfied “it is too late to Applications because Applications that TrAIL and evi- impact after assess environmental the[] dence, along imposed with the conditions has been chosen.” specific line route PUC, satisfy requirements of 52 (ECC’s original).) (emphasis Br. at 67 57.75(e). Pa.Code Again, disagree. we Sufficiency of the Evidence of assertions, 52 Pa. Contrary to ECC’s Minimum Adverse Environmental 57.75(e) require does not the PUC Code Impact impact of the analyze the environmental *16 Rather, correctly assert- 502 Facilities. as that the ECC also contends PUC PUC, type it the of by ed the describes did not and could not assess the environ accept evidence that the PUC will impacts mental that would occur from the deciding grant in whether to or consider the 502 Facilities because construction of deny application. an HV transmission line Applica of the deficiencies in TrAIL Co.’s its upon To the extent that ECC relies Therefore, according tions and evidence. findings the ALJs’ of own evidence and ECC, in,finding that the the PUC erred allegations of deficien- support fact to 502 Facilities would have a minimum ad evi- Applications cies in TrAIL Co.’s impact required by verse environmental as dence, that the is the ulti- we note PUC 57.76(a)(4). Moreover, § 52 Pa.Code 335(a) the mate fact finder. See Section of finding states that the PUC based its 335(a) that, Code, (stating § 66 Pa.C.S. impact minimum adverse environmental on law reviewing after an administrative line, miles, the 1.2 and nei length the decision, initial has all the judge’s PUC Code, regulations ther the nor the create powers making which it would have exception siting from the and construc decision); Pennsylvania initial Power requirements length tion based on the Pennsylvania v. Public Company Again, disagree. the line. we Commission, Pa.Cmwlth. (1993) finding that (holding that “an A.2d route, H, miles, at 1.2 would have a Route may always be overruled ALJ’s decision impact, environmental minimum adverse contrary findings by the PUC upon based particularly with the conditions if are based on sub- findings the PUC’s evidence”). Moreover, supported by substantial evi- imposed, to the ex- stantial There is substantial evidence in Letter of notification in lieu application dence. indicating preferred that the record ... A may letter of notification be filed route was the shortest and most direct with the applica- Commission lieu of the route and minimizes the environmental im- §§ process tion set forth in 57.71-57.76for Segment. of the 502 pacts (vi) following ... having An HV line preferred submitted evidence proposed route of 2 miles less.” Under only quarter route would cross one mile of process, the letter of notification appli- soils, stream, cross one small steep would cant any does not have to submit environ- wetlands, any required would not cross impact mental approval studies to obtain only slightly more than one mile of for an HV transmission line that is less forest would be cleared as a ROW than length. two miles in See 52 Pa.Code that, eight alternative routes consid- 57.72(d)(4) (outlining what a letter of ranging from 1.2 ered miles to 13.4 miles contain). notification must If the PUC route length, this was chosen to mini- approves notification, a letter of the HV mize the of Pennsylvania effects resources line shall be located and constructed with- developments and to avoid extensive im- out the process set forth in this mediately Pennsylvania south of 57.72(d)(5). subchapter. 52 Pa.Code (TrAIL Morgantown, Virginia West area. By exempting HV lines of less than two 6, 14-15, 175a, Co. Statement 5 at R.R. at length miles in application pro- from the 183a-84a.) Moreover, regulations do cess, including requirements provid- “no impact” by project; demand ing information impacts, on environmental rather, requires it a “minimum” impact. regulation this presumption raises the Co., The evidence submitted and an HV line less than two in length, miles PUC, credited establishes that the here, like the one involved has a minimum proposed route was the shortest of those adverse impact. environmental considered and was chosen to minimize impacts. environmental Additionally, the D. Public Need conditions imposed the PUC requiring Constitutional TrAIL Co. to perform additional studies Considerations studies, and submit the results of those *17 well all environmental permits obtained next ECC asserts the government from federal and state agen- obligations PUC violated its under article cies, to the before commencing PUC con- I, section 27 of the Constitu struction on the 502 Facilities ensure the 57.76, § tion and 52 Pa.Code which is a minimization of the environmental impact codification of Section per Proposed Re Segment. of the 502 Accordingly, we con- Regulation, Electric 49 Pa. P.U.C. 712 clude that the did not err in finding (1976), by finding that there was a that TrAIL Co. has satisfied require- this need for the 502 Facilities based on the ment. criteria reliability NERC violations set
Moreover, forth in the we 2006 RTEP. conclude that it ECC asserts ap- was propriate that the 2006 for the RTEP did not consider any PUC to consider the length of the 502 non-transmission alternative solutions Facilities when determin- be ing whether concluding the HV line fore the TrAIL Project would have mini- mum adverse impact. required environmental was to resolve the NERC criteria regulation 57.72(d)(l)(vi), § reliability ECC, at 52 According Pa.Code violations. to part which is a in regu- prove HV order to for the Facili need lations, “(d) provides, in part: 57.76(a)(1), § relevant pursuant ties to 52 Pa.Code v. De- regulations, to Presock apply that it had also to demonstrate had TrAIL Co. Military and Veterans partment Facili- to the 502 alternatives considered Af- (Pa.Cmwlth.2004), 855 A.2d fairs, would not these alternatives ties and that object interpretation of all In its state that reliability problems. resolve and effectuate the intention of brief, TrAIL to ascertain takes issue with ECC reply or, instance, Assembly this only need the General that the PUC argument 1921(a) Statutory Section alternatives” the PUC. at the “available look 1972, 1 impact mini- Act of Pa.C.S. “environmental Construction context of the 1921(a). regula- § to the route evalua- the words of the respect mization” with When ambiguity, con- from route selection. ECC tion are clear and free tion and final raises form over argument disregarded it is not to be under tends that this letter of the intent of spirit. and misconstrues 1 Pa. pretext pursuing substance 57.76(a)(1) carry 1921(b). out 52 Pa.Code “form over sub- ECC’s C.S. un- constitutional mandate statutory and argument requests the stance” Court adopted. was regulation which the der unambiguous the clear and lan- ignore that, Thus, because the 57.76(a)(1) maintains ECC so guage of Sections any failed to assess non-trans- 2006 RTEP spirit may be met. regulation’s alternatives, Co. failed to 1921(b) TrAIL mission However, as Section of the Statu- proving public need.16 satisfy its burden clear, Act of 1972 makes tory Construction requests should not be entertained. such are allegations of error ECC’s Moreover, balancing of the environ- of Section reading on an incorrect based impact mental of the HV lines with the 57.76(a)(1), there only requires that which need for the HV lines is to be done as Here, HV line. be a need 57.76(a)(4) described Section after graft language contained attempts for the lines has been shown in Sec- need 57.76(a)(4), which includes Section 57.76(a)(1). tion environmental phrase “minimum adverse 57.76(a)(1), event, any presented evi- which Co. impact,” onto Section indicating that non-transmission al- modifying language. Ac dence contains no such issues, reliability ternatives to resolve the interpretation, this cording ECC’s ECC, were suggested to consider envi such as those require would the PUC PJM, found to be determining when considered but were ronmental factors reli- to resolve the documented project, inadequate there is a need for the whether (not (See, here, e.g., TrAIL Co. St. ability problems. Facilities the TrAIL 2-5, 905a-08a; whole). 2R at R.R. at Project as a The rules of statuto 9-11, 1070a-72a; TrAIL which St. 3RJ at R.R. at ry interpretation, construction and *18 finding co-equal weight TrAIL argues of sufficient to refute ECC that the PUC’s 16. further Morrissey ECC. v. proposed by ECC were Co.’s evidence shifted to that the alternatives 87, 92, Department Highways, Pa. improperly shifted the burden of Com. not viable of (1967) (holding that the 225 A.2d 897-98 proof demonstrate that the alternatives to it to would, fact, proof party reliability burden of but, remains on the same in issues. resolve that, prima although party that meets its argues it bears the once TrAIL Co. facie case, involving weight evidence meet of the prove to that the 502 Facilities burden credibility persuasive quality of the evi- regulations, the PUC's the standards of may produced during a trial shift from TrAIL Co. dence production of is shared. burden agree proceeds). We meet side to side as the trial produced once it evidence to asserts that issue, that the burden that shifted with TrAIL Co. prima case on an such facie production, not the here was the burden of were feasible alternatives to whether there Facilities, proof. produce to evidence burden the burden 93a; [PUC], R.R. at TrAIL The Pennsylvania at Co. electric utili- Co. St. 3R 3-6, R.R. at 1092a- Rejoinder St. 20RJ suppliers ties and all electric shall work 95a.) Thus, apparent from the record it is Government, with the Federal other did, fact, in consider alter- that Co. in region, states the North Ameri- Project natives to the TrAIL and the 502 Reliability can Electnc Council Accordingly, reject we Facilities. ECC’s (NERC) regional coordinating [ and its ] had assertion that to demon- eouncils[, PJM,] successors, like or their strate that it examined non-transmission power interstate pools, indepen- and the Project, alternatives to the TrAIL as a system operator dent or its functional whole, public to need for prove order equivalent to ensure the continued the 502 Facilities. vision adequate, and reliable safe electric to service the citizens and busi- Regional Reliability 2. nesses this Commonwealth. argues next ECC that the PUC 2805(a) added). (emphasis 66 Pa.C.S. public a finding erred in need for the 502 argues PUC erred and on the Facilities based PUC’s consider Pennsylvania violated the Constitution reliability regional ation of needs under approving the 502 Facilities based on the 2805(a) Code, Section 66 Pa.C.S. that, PUC’s mistaken belief under Section 2805(a) 2805(a). Code, In Section 2805(a), obligation it had “an to [enhance Assembly recognized the General the im regional reliability,] mitigate transmission pact deregulation that the of the electric constraints congestion and reduce for rate- utility industry regions would have on the payers Pennsylvania adjacent juris- and, surrounding Pennsylvania in that sec (ECC’s 32.) dictions.” Br. at ECC con- tion, regionalism addressed and the need tends that this is not the correct standard reciprocity respect with to interstate for finding need under the Code 2805(a) power pools.17 electric Section and, therefore, regulations and PUC con- states, pertinent part: stitutes an equates error of law. ECC Regionalism reciprocity, § 2805. alleged error here with that found (a) Other states. —The [PUC] shall L, this Court in PP & in which we held necessary appropriate steps take all applied the PUC legal incorrect encourage power pools interstate denying standard in an HV transmission competition complement enhance and to line utility because the failed to industry restructuring regional on a ba- prove that there was an “engineering Commonwealth, sis. The the [PUC] L, need” for the line. PP & 696 A.2d at Pennsylvania electric utilities shall Government, work with the Federal oth- er PUC did not err or region states in the and interstate commit an power pools accomplish finding public abuse discretion in goals need for the 502 restructuring regional and to establish Facilities based on indepen- system operators reliability dent or their factors. The Code does not de- function- need; however, al equivalents operate fine transmis- courts system sion pools. recognized interstate have power there is a need for *19 2805(a) 17. Chapter utility industry Section found in encourage 28 of the electric Code, deregulated the Pennsylvania’s greater which competition in the wholesale electric market). utility industry. electric Chapter See Section 2802 of 28 of the Code is known as Code, § the (Announcing Electricity 66 Pa.C.S. 2802 the the Generation Customer Choice to, alia, policy deregulate declaration Competition § of inter and Act. 66 Pa.C.S. 2801. maintenance, tions, repair and reliability inspection, and a electric service regional system. enforce those regional replacement transmission standards and reliable 19-21; 2802(20). v. Penn Stone, § at Dunk 162 A.2d Sec- standards. 66 Pa.C.S. Commission, 210 Public sylvania “reliability” the defines tion 2803 of Code A.2d 234-35 Pa.Super. as: Moreover, (1967).18 Assembly General the security. As adequacy Includes and ensuring of importance the recognized has definition, “adequacy” in this used sys transmission reliability of electric the gener- provision means the of sufficient tems, sys transmission including regional ation, distribution ca- transmission and tems, of sufficient elec provision the and supply aggregate so as to the pacity an affordable rate. For trical power power energy requirements electric and 2802(12) of the Code example, Section consumers, talcing into account of the electric service is of states: “[Reliable outages and scheduled unscheduled of health, safety to the importance utmost “security” system facilities; and means of the citizens of Common and welfare and a designing, maintaining operating restructuring industry Electric
wealth.
that it
system
emergen-
so
can handle
reliability of the inter
should ensure the
safely
continuing
operate.
cies
while
system by maintaining
electric
connected
added).
(emphasis
Fi-
66 Pa.C.S.
sys
transmission ...
efficiency
nally,
recognizes
Section 2805
the need for
2802(12) (emphasis
66 Pa.C.S.
tem.”
utilities to
2802(20)
added).
pro
of the Code
Section
compa-
generators,
work with
transmission
alia,
vides,
ensuring the reliabil
inter
nies,
in the sur-
companies
and distribution
depends on conscien
ity of electric service
the Federal
rounding region, as well as
systems,
transmission
tious maintenance of
agents to ensure safe
Government and its
system operators
independent
and that
set,
Accordingly,
reliable electric service.
through regulá-
and the PUC shall
i.e.,
line,]
tion[,
Stone,
will enable
Superior
transmission
In
Court considered
appeal
greater
landowner from a determination
systems
of a
economies of
both
to obtain
Philadelphia
granting utility, the
Furthermore,
the PUC
a
system
operation.
will
each
(PECO), approval
Company
to exer
Electric
meet, adequately
safely,
its
be able to
acquiring
right
domain in
cise a
of eminent
demands,
varying
growing
load
and to
right-of-way
farm to
across the landowner’s
voltage, frequency stabili-
maintain constant
construct, operate, and maintain a 220 kV
ty,
reliability
Last
service-
but
Stone,
line.
jections relating to projected twelve reliability NERC standard violations for ECC next asserts that the PUC erred in the PJM Region Project, if the TrAIL basing finding need for the including Facilities, the 502 is not con- 502 Facilities on the need to reduce con- essentially 19. ECC any discounts all of this evi- er there supports is evidence which dence, evidence, focusing on its own which finding.” Mulberry fact-finder’s factual Mar- supports the conclusion that the TrAIL ket, Pro- City Philadelphia, Inc. v. Board Li- ject is reliability not needed to resolve the Review, Inspection cense 735 A.2d However, violations. "in a substantial evi- (Pa.Cmwlth.1999). Moreover, to the ex- analysis dence parties present where both evi- findings tent that ECC refers to the ALJs’ dence, it does not matter that there is evi- conclusions, fact and as well as its own evi- dence supports in the record which a factual dence, PUC, ALJs, not the is the ultimate finding contrary to that made the fact- fact finder. finder, rather, pertinent inquiry wheth- *21 issues, ORDER economic con- which is an gestión “reliability” issues. than on cept, rather NOW, 6, 2010, the order of the May testimony points to the support, For ECC in Pennsylvania Public Commission Herling, Steven who TrAIL witness of Co. above-captioned hereby matter is AF- occurs when the congestion that stated FIRMED. cannot generation cost electric lowest of electricity because requested vide the by Judge OPINION DISSENTING expen- and more system,
constraints LEAVITT. has to be used to service generation sive (ECC’s Reply Br. at 11 the load instead. I Respectfully, dissent. Public Util- Herling’s testimony, Tr. at (citing Steven ity adopted regulations Commission has 1296a).) contends that R.R. ECC place significant upon that a burden a utili- interchangeable with is not “congestion” yet ty high that seeks add another proper not a basis on “reliability” and is Pennsylvania’s voltage transmission line to finding public of need.
which to base a landscape. agree I with the Vice Chair- TrAIL points out that the entire ECC man, Christy, TrAIL Tyrone J. that reliability proposed any before Project was disagree did not meet this burden. I also and, were identified criteria infractions regulations that the Commission’s have re- therefore, apparent it is laxed the environmental standards a Project was driven economics. Howev- long. line less than two miles er, ignores making arguments, in Indeed, high voltage transmission line on both “con- the fact that the PUC relied degrades environment whether it is reliability gestion” issues documented long long. two miles or two hundred miles finding public in need for the 502 issues stated, previously As Facilities. vote, By approved a 3-2 the Commission finding public need for the 502 PUC’s TrAIL Co.’s construction of a future Facilities based on documented high voltage new electric transmission line violations, and reliability criteria NERC and an electric substation violations, is consequences of those they reason that will serve a for the stated evidence in the supported by substantial regional, opposed Pennsylvania, to a Thus, even if the PUC erred record. so, doing need.1 Commissioners issues, congestion we affirm considering the conclusion of the two admin- reversed finding need judges to the case assigned istrative law reliability grounds.20 502 Facilities on the presented by the evidence TrAIL Co. project. a need for the affirm. did not demonstrate Accordingly, we i.e., issues,] Moreover, reliability por- appears much of the the southern it congestion costs was re- PUC’s discussion Allegheny Power transmission tion of the alternative solu- lated to its discussion timely in a cost-effective and manner. zone reliability proposed by ECC for the is- tions added).) (PUC Op. (emphasis at 35 example, the PUC stated: sues. For view, the record is clear that the our [i]n Tyrone Christy 1. Vice Chairman J. filed a heavily line is con- Mount Storm to Doubs dissenting to the Commission's statement alternatives, gested recon- and that such as Wayne Opinion and Order. Commissioner E. raising ductoring, retensioning, or otherwise concurring with the Gardner filed a statement improve height clear- [ROW] approving Commission’s vote Co.'s likely impose heavy congestion ance are dissenting appeal but on here Conversely, the rec- on consumers. costs approval Greene the Commission’s [502 Facilities] ord also indicates that the overloads[, agreement. County projected settlement will resolve all *22 lengthy over a presided hearing upon The ALJs found the models to be based “an conservative, experts overly witnesses belt-and-suspenders at which numerous and reports approach system plan- and extensive were exam- to transmission testified proposal ning.” ALJs’ opposed ined. TrAIL Co.’s was Recommended Decision at intervenors, 115. For including example, numerous rate- the models did not payers people output generators and who live near the include the that are line; posed Rep. transmission H. William under construction adding pow- and will be DeWeese; Staff; regional the Office of Trial er to the grid before Advocate; Energy year Office of in which predict Consumer PJM’s models Pennsylvania, reliability Conservation Council of onset of issues. The ALJs fur- petitioner appeal. pointed in this ther out that modeling in the Regional designed yield Plan was to only opportu- The ALJs found that business solutions; transmission accordingly, reliability, nity, impetus not was the for TrAIL Co. did not evaluate other technolo- proposal high TrAIL to build a volt- Co.’s gies prevent that would in decline relia- age By way service transmission line. bility environmentally and be less intru- TrAIL Pennsylvania, Co. seeks to move its sive. Specifically, the ALJs found that relatively inexpensive power electrical TrAIL Co. did not “facility up- consider Virginia County, Virgi- West to Loudoun grades line, or tweaks to the 765 PATH kV nia, power where that can command a transmission dispatch, constrained high- higher price. The ALJs found that TrAIL (HVDC) voltage lines, direct current up- proposal company’s served the need grades repairs existing or to transmission profits for but no real consumer public or facilities, any non-transmission solu- rejected need. The ALJs TrAIL Co.’s tions.” Id. at 116. proffered justification for the construction of a new In Pennsylvania, response transmission line to the ALJs’ conclusion that 1.e., reliability grid to secure and to Co.’s evidence did not establish a congestion reliability problem, ease in the eastern service part of the Commis- PJM’s sion region, summarily unfounded.2 reversed.4 It stated: Here, we find that the record establishes example,
For the ALJs criticized the high voltage [the transmission lines computer models used develop PJM’s and substations needed to are] address (Re- regional expansion plan reliability issues and the best alter- [are] Plan) gional which TrAIL Co. used as its native available to achieve that result. central evidence in support of its claim the project was needed to resolve Adjudication Commission’s at 36. The reliability problems.3 future The provided ALJs Commission specific no citations solution, i.e., 2. regional PJM Interconnection is a building generators transmis- closer to the organization sion that coordinates the move- places where the need for electric service electricity region ment of wholesale in a exists. ranging includes 13 states from Illinois to Jersey Michigan New to North Carolina. opaque 4.The reliability Commission is on the granting basis for aCo. certificate of Notably, reliability was not even studied un- public "Reliability” justify convenience. can til after PJM plan announced its to address grant of a certificate of conven- part service needs in the eastern of the 13- any every proposed high ience voltage Ohio, region by building generators state because, theoretically, any transmission line Kentucky Virginia, place West the easiest grid improve reliability. addition to the will them, distributing to build electrical ser- vice from there. It did not consider a local notification, conclusory support this the letter the Commis- record may approve the On the application. the ALJs’ sion It did refute statement. hand, the may respond other Commission or an- findings and detailed well-supported requiring application. the letter a full alyze legal Com- their conclusions. case, any filing proce- this abbreviated simply leaped to a different missioners not alter dure does stan- substantive conclusion. *23 any by proposed high voltage dards which regulation states that the majority The line is It is a transmission evaluated. high a transmission presumes voltage that here chose point moot because length presents two miles in line less than full-fledged the not the application, file impact upon a the envi- minimum adverse notification.” “letter of interpreta- with disagree ronment. I regulation. regula- It is true that the 57 of the Chapter tion of the Commission’s tions, Service,” application process is less burdensome “Electric pro- entitled was line proposed will be less than mulgated where the under Section 501 of the Public Code, length, in but that does not § two miles Utilities 66 Subchap- Pa.C.S. 501. regulate the standards the Chapter mean that of ter G “Commission Review placement high voltage and of Siting construction of Electric Construction of been, be, Lines,” lines have or can transmission Transmission the sub- establishes any agency the administrative for approval relaxed stantive standards charged with the enforcement of these high voltage line. proposed regulations standards. These are on the binding Com- mission and have the effect of force and utility may A not construct a new trans- v. Pennsylvania law. Sierra Club Public length any line of without the ex- mission Commission, 702 A.2d press approval of the Commission. Where (Pa.Cmwlth.1997). n. 5 a line two utility proposes shorter than miles, approval a may regulations provide it seek means of The that when an submitted, notification.” application hearing “letter 52 Pa.Code a is re- 57.72(d)(1)(vi).5 57.75(a).6 § § quired. Based the content upon 52 Pa.Code At these (ii) anticipated 5. Section 57.72 authorizes the abbreviated The com- construction proposed mencement date in- applica- "letter of notification” lieu of the project. service date of high voltage transmission lines less tion (iii) size, Evidence to show charac- length. regulation pro- than two miles The ter, design configuration of the vides, part: in relevant proposed [high voltage] line will not (1) may letter of filed with A notification be substantially right-of-way alter Commission in lieu para- where the letter is filed under §§ process set forth in for the 57.71-57.76 (l)(i)-(v). graph following: (iv) filing identifying A statement date filing which the on of the letter of noti- made, together was fication or is to be (vi) high voltage] having pro- line [A language substantially with set posed route of miles less. (5). paragraph forth in Further, 57.72(d)(l)(vi). 52 Pa.Code a let- 57.72(d)(4). filing applicant Pa.Code An shall ter of notification contain: pro- a letter of notification does not need to (i)The information described subsection impact study environmental with that duce an (5) (6) (c)(1) (3), [namely, applicant — However, may re- letter. Commission name; recipients; general notice route filing study. quest the of such need; general description; statement of states, part, safety in relevant considerations]. and statement It as follows: (1) accept must hearings, Commission That there is a need for high [the on, alia, voltage evidence inter the follow- consider transmission line]. ing matters: (2) That it will not create an unreason- (1) necessity The and future present able danger risk of to the health and [high voltage transmis- safety of the public. in furnishing line service to the sion] (3) That it is in compliance applica- with public. ble regulations provid- statutes and (2) safety proposed [high The ing protection of the natural voltage line. transmission] resources of this Commonwealth. (3) impact and the which efforts it will That have minimum adverse and will be to mini- have been made environmental impact, considering if impact, any, mize the *24 power the electric pub- needs of the posed [high voltage line transmission] lic, the state of available technology upon following: the and the available alternatives. (i) Land use.
(ii) 57.76(a)(l)-(4). § Soil and sedimentation. Pa.Code (iii) Plant and wildlife habitats. sum, Subehapter presumes G that a (iv) Terrain. high voltage degrades transmission line (v) Hydrology. the environment. The regulation does not (vi) lines, ban new requires but it the Landscape. utility to make a compelling case for their construc- (vii) Archeologic areas. requires tion. It the Commission to find (viii) Geologic areas. unequivocally that the new line “will have (ix) Historic areas. a minimum adverse impact, environmental (x) Scenic areas. ... considering available technology and (xi) Wilderness areas. the available alternatives.” 52 Pa.Code (xii) Scenic rivers. 57.76(a)(4) added). § (emphasis availability The of reasonable alter- The Commission not is satisfied that native routes. these standards have been met. Accord- 57.75(e)(l)-(4). § 52 Pa.Code After the ingly, it has post- directed TrAIL to do received, evidence is may Commission approval studies, impact environmental grant deny application or a condition approval. However, to the posed high voltage line with these studies should have been submitted or “conditions modifications [to] loca- with application and then reviewed and tion, construction, operation or mainte- challenged in the course of the administra- 57.76(a). nance of the line.” 52 Pa.Code hearing tive on TrAIL proposal. Co.’s may The grant Commission not the appli- cation, conditions, with or without unless it The ALJs found that TrAIL appli- Co.’s determines: cation was defective because it lacked the
Upon filing application, of an the Com- description proposed [high a brief of the line, location, place voltage] mission will set the time and for hear- its a statement of the ing date, hearings application of the place hearing and will time and of thereupon require applicant purpose to cause its and a statement as to where and weekly publication copy application for two consecutive when a is available hearing.... weeks of a notice of The no- for examination. 57.75(a). tice hearing publication shall contain 52 Pa.Code First, adjudication is suggests it for its evaluation. necessary information meaning a “final order” within the not explained ALJs Law, 2 Agency the Administrative Pa.C.S. asking this Commission TrAIL Co is 501-508, §§ 701-704. This means that the things after right to do all of the trust it jurisdiction so has retained Commission basically concept a what is approving ap- or even revoke its modify that it can fully that is rather than one project expose problems should the studies proval, that this suggest Com- developed. We or even anticipated by the Commission shirking oversight would be mission Accordingly, the TrAIL Co. Commis- it to do so. duty review were re- interlocutory, order is and our sion’s at 190. Recommended Decision ALJs’ premature. view is that TrAIL agree The Commissioners hand, if the On the other Commission Their ad- incomplete. order,” has issued a “final then the burden over expressed concern judication shifted, improperly, ap- been from the has descriptions” route “lack of alternative plicant seeking approval of new trans- appli- “lack of information” general approval mission line. To have the re- Adjudication at cation. Commission’s on the basis of post- voked or modified Nevertheless, ap- Commission approval ap- amendments to TrAIL Co.’s conditioned on proved applications plication proceeding may means that a new *25 in- missing submission of the Co.’s approval have to be instituted to have the “prior commencing to construc- formation rescinded or modified should the amend- tion.” Id. at 47. yield ments not the desired information. will placed upon The burden be Com- Utility the Public Code nor Neither to upon prove mission or Intervenors Pennsylvania au- Chapter 57 of the Code grounds for a revocation or modification. the issuance of a certificate of thorizes however, applicant utility, It is the which the submission public convenience before proving properly bears burden merits of a of information relevant to the public need for a certificate of conven- high volt- utility’s proposal to construct ience.7 age transmission line. The Commissioners approve to an incom-
are not authorized quick The are to con- Commissioners alone, plete application. For that reason ability gratulate themselves for their to adjudication should be the Commission’s beyond parochial look interests of addition, reversed. the Commission’s regional Pennsylvania in favor of interests. to the approval conditional does violence job The is not to advance Commission’s every application for for process required job precise Its is a broad-mindedness. public certificate of convenience. To allow statutes Pennsylvania one: to enforce completed Nothing Subchapter to be after the in G of regulations. is that the public granted regulation suggests certificate of convenience Commis- problematic regional is for two reasons. sion should consider interests Co., identify process to alternatives 7. The settlement between TrAIL West collaborative Facilities, Company County Prexy part Penn Power and Greene because TrAIL to "Prexy proposed eliminated the Facilities” technological Co. did not consider alterna- origi- project, part which of TrAIL Co.’s was high to a new substation and new volt- tives appeal. application, part nal and is not of this By logic, age line. transmission prove The AOs found that TrAIL Co. did not part have denied that Commission should Prexy a need for the Facilities. The Commis- appeal proposal on here. TrAIL Co.’s parties participate directed the in a sion ing TrAIL grant exceptions a certifí- Co.’s to the recom- deciding when whether for the construc- mended decision ALJs. cate of convenience high voltage substation and tion of a new Pennsylvania. line Re- in the
gionalism is addressed Public
Code, way understood but not majority Commissioners. Com- others, required to work with
mission is American Electric Re-
including the North Council, liability to ensure continued “ade- MILNER, Cleo Petitioner reliable electric service to quate, safe and v. the citizens and businesses this Com- (em- 2805(a) monwealth.” 66 Pa.C.S. WORKERS’ COMPENSATION AP- added). There no phasis Loudoun (MAIN PEAL BOARD LINE ENDOS- County in this Commonwealth. CENTER), Respondent. COPY Indeed, allegiance the Commissioners’ Pennsylvania. Commonwealth Court to have regional appears trumped interests Submitted on Briefs March 2010. allegiance their consumers and landowners. May Decided high voltage new transmission line will up energy drive the cost of West Penn’s territory.
service These customers “will pay generation
have to after the 502 line
Junction to Loudoun is built [and]
they required pay will be increased costs.” Vice Chairman
Christy’s Dissenting Statement at 4.
West Penn customers alone will be respon- per year
sible for million in addition- $14.5
al costs attributed to the various TrAIL lines, including million $10
part of the in Pennsylvania. line located Virginia, those property West owners high
burdened voltage new trans- will compensated, part,
mission lines be long
with free electric service so as the place.
lines remain in No such deal was Pennsylvania
struck for landowners. As Christy noted,
Vice aptly Chairman
Pennsylvania imposes line all of the costs segment
and none of the benefits on one public: Western consum-
ers. reasons, foregoing
For the I would re-
verse the adjudication grant- Commission’s