Opinion
19-P-300
07-09-2020
TOWN OF WINCHESTER v. ENERGY FACILITIES SITING BOARD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This consolidated appeal arises out of two related decisions of the Energy Facilities Siting Board (siting board) that approved a proposed underground, 8.5-mile electric transmission line running from Woburn to Wakefield, also passing through the towns of Winchester and Stoneham. The appellant, the town of Winchester (Winchester, or the town), intervened in both proceedings. On appeal, Winchester seeks to overturn the approval and argues (1) that the siting board failed to comply with State environmental justice requirements, (2) that the siting board erred in approving the route proposed by the project proponents (two energy companies), rather than the alternative Winchester favored, (3) that the siting board approved the use of an inferior cable technology, and (4) that the siting board erred in granting a certificate under G. L. c. 164, §§ 69K-69O, essentially bypassing the local permitting processes and allowing construction of the line. We affirm.
Background. 1. The siting board. Under Massachusetts law the siting board must approve any proposal to construct a new electric transmission line in Massachusetts. G. L. c. 164, §§ 69G, 69J; Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 448 Mass. 45, 46 (2006) (Alliance I). In addressing such proposals, "[t]he board's governing mandate . . . is to 'provide a reliable energy supply for the commonwealth with a minimum impact on the environment at the lowest possible cost.'" Id. at 47, citing G. L. c. 164, § 69H. The issues the siting board addresses are necessarily highly technical; they include consideration of complex technology, the engineering tradeoffs in the design, construction, and cost of such technology, and the broad range of environmental issues that arise from energy facilities. See, e.g., Brockton v. Energy Facilities Siting Bd., 469 Mass. 196, 204-214 (2014); Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 457 Mass. 663, 695-698 (2010) (Alliance II). The siting board has expertise in these specialized areas. Alliance I, supra at 51.
2. Original proceeding. In September of 2015, NSTAR Electric Company (Eversource) and New England Power Company (National Grid) (collectively, companies) petitioned the siting board for approval to construct a new, 345 kilovolt underground transmission line, to run through the four aforementioned towns. (We refer to the proposed undertaking as a whole as the project.) A public hearing on the project was held in November of 2015, following weeks of notice to the affected communities. Winchester intervened. After thirteen days of evidentiary hearings and subsequent briefing, which dealt with several contested, technical issues, the siting board issued a final decision in February of 2018 approving the project, subject to conditions (original decision).
3. Certificate proceeding. In December of 2017 Eversource petitioned the Woburn city council for a permit to build the portion of the line to be located in Woburn. The permit, which is called a "grant of location" (GOL), would, if granted, have authorized Eversource to construct the transmission line under certain public ways in Woburn. The following April, Eversource similarly petitioned Winchester for a GOL to build under the public ways in that town. In May of 2018, the Woburn city council denied the Eversource petition. Then, before Winchester acted, Eversource instead went to the siting board, and sought a so-called "certificate of environmental impact and public interest" (certificate), pursuant to G. L. c. 164, §§ 69K-69O. Under that statute, the siting board is granted the power, under defined circumstances, to allow utilities to bypass local permitting processes by issuing the equivalent of a GOL. Winchester again intervened. After conducting an evidentiary hearing and receiving subsequent briefing, in March of 2019 the siting board issued a final decision granting the requested certificates, subject to conditions (certificate decision).
4. Subsequent procedure. Winchester appealed each decision to a single justice of the Supreme Judicial Court. The companies intervened. The two appeals were transferred to this court, and consolidated.
The consolidated case was assigned to this panel. The panel then determined that, because the case was within the jurisdiction of the Supreme Judicial Court single justice pursuant to G. L. c. 25, § 5, and G. L. c. 164, § 69P, and was transferred to this court pursuant to G. L. c. 211, § 4A, it was properly heard by a single justice of this court. Rule 2:01 of the Rules of the Appeals Court, as amended, 3 Mass. App. Ct. 805 (1975). Accordingly, the case was remanded to the single justice of this court, who then, without objection from the parties, reserved and reported it for panel determination.
Discussion. 1. Standard of review. A court reviewing a siting board decision considers whether the decision is consistent with the siting board's statutory authority, supported by substantial evidence, and whether it is arbitrary and capricious or an abuse of discretion. Alliance I, 448 Mass. at 51, citing G. L. c. 164, § 69P. Not surprisingly, given the issues involved, "we give great deference to the board's expertise and experience." Alliance I, supra. Winchester's burden on appeal "is a heavy one" (citation omitted). Id.
2. Environmental justice. Winchester first argues that the siting board's process ran afoul of the Commonwealth's environmental justice policy. That policy, which is promulgated by the Executive Office of Environmental Affairs, directs various State agencies to provide members of "environmental justice populations," as defined in the policy, with enhanced opportunities to "participate in environmental decision-making." Environmental Justice Policy of the Executive Office of Energy and Environmental Affairs 4, 11 (2017) (2017 EJ Policy). Both the current version of the policy, promulgated in 2017, and the prior version, which was in effect at the start of the original proceeding, apply to the siting board. See id.. See also Brockton, 469 Mass. at 199-204. In particular, the policy requires enhanced public participation procedures if a project satisfies two criteria: (1) the project is located within one mile of an environmental justice population, and (2) the project exceeds certain environmental impact thresholds under the Massachusetts Environmental Policy Act (MEPA) for air, solid and hazardous waste, or wastewater and sewage. 2017 EJ Policy, supra at 10.
An "environmental justice population" is defined as a "low income" neighborhood, or one whose population is at least one-quarter "Minority, Foreign Born, or Lacking English Language Proficiency." 2017 EJ Policy 3.
Winchester claims that in the original proceeding, the companies failed to implement the environmental justice policy's enhanced public participation procedures. The procedures were required here, according to the town, because the approved route comes within one mile of an environmental justice population -- specifically, a minority neighborhood within Winchester.
Winchester's argument fails, however, because it cannot identify any error in the siting board's determination that the project does not exceed any of the applicable MEPA thresholds. As the original decision states, the project's MEPA review showed that the project does not exceed the environmental impact thresholds necessary to trigger the application of the enhanced participation procedures. The project's MEPA certificate, which is contained in our record, fully supports the siting board's conclusion. Accordingly, the policy's enhanced public participation requirements did not apply, and the siting board found that the companies gave sufficient notice of the public hearing to the affected communities.,
The companies gave notice through direct mail to residents, newspaper publication, and posting notices for viewing in public libraries, among other means.
On appeal, Winchester appears to contend that the Commonwealth's environmental justice policy does not apply to the siting board, but that the policy's procedural requirements somehow apply nonetheless. The argument is utterly without merit.
3. Route selection and analysis. Winchester next argues that the siting board erred in approving the companies' proposed route for the transmission line. In particular, Winchester claims that the so-called "Green Street alternative" route should have been selected. The Green Street alternative runs through Woburn, rather than Winchester.
The siting board is charged with ensuring that all proposals demonstrate sufficient consideration of alternatives to the proposed route, as required by two separate statutory sections. First, G. L. c. 164, § 69J, requires petitioners to describe alternatives to the proposed project, including "other site locations." Pursuant to that statute, the siting board requires petitioners (1) to identify at least two alternative routes, and (2) to demonstrate that the petitioners have "not overlooked" any "clearly superior" alternative routes. Second, the siting board requires petitioners to demonstrate the superiority of the proposed route with respect to the siting board's § 69H mandate -- to "provide a reliable energy supply . . . with a minimum impact on the environment at the lowest possible cost."
On appeal, Winchester appears to contend that the siting board's approval of the project's primary route was not supported by substantial evidence, because the Green Street alternative was superior. Winchester advances a variety of factual arguments in that regard, as if seeking de novo review by this court.
Nothing in the siting board's route selection analysis warrants reversal. Route selection is, of course, a complex, multifactored analysis. The factors include environmental, construction, and reliability issues, as well as cost. As to the consideration of alternate routes as required by § 69J, here the siting board systematically reviewed the parties' analyses, and found that the companies "used a logical, methodical, and appropriate process" by which they identified an initial set of six candidate routes, and then selected a primary route that "minimize[s] cost and environmental impacts."
Likewise, we see no error in the siting board's analysis of route alternatives under § 69H. The siting board took the two leading options identified by its § 69J analysis, and then conducted a multifactor comparison of the two with respect to reliability, cost, and seven categories of environmental impact. Ultimately the siting board found that the primary route was superior, and that the alternative Winchester favored "offer[ed] no compelling advantage." This conclusion is at the heart of the siting board's expertise, and is entitled to deference. See Alliance II, 457 Mass. at 690. While Winchester asserts various purported flaws in the siting board's analysis -- focusing, in particular, on the testimony of its own expert, which was hotly contested -- upon review of the record we are not persuaded. Winchester has failed to satisfy its "heavy burden" on appeal.
4. Cable technology. Winchester next challenges the type of transmission line cable that the siting board approved for the project. Winchester proposed a single line of "high pressure fluid-filled pipe-type" (HPFF-PTC) cable, while the electric companies proposed, and the siting board approved, a "high-voltage extruded dielectric" (HVED) cable. The siting board found HVED to be superior with respect to capacity, cost, environmental impact, and reliability.
On appeal, Winchester appears to argue that the siting board misapprehended, or misanalyzed, the evidence regarding the cable technologies. Again, we are not persuaded. In particular, the companies point to the evidence that, because it has a different impedance than HVED, the single HPFF-PTC cable proposed by Winchester would not be able to meet transmission capacity requirements. Accordingly, two HPFF-PTC cables would be required, rather than the single cable proposed by Winchester. The siting board so found and, of course, that finding is entitled to substantial deference. Moreover, a two-cable HPFF-PTC solution would not be superior to a single-cable HVED line, as it would pose greater environmental and reliability risks, and cost at least $34 million more.
Winchester also claims that the HVED cable would have up to fifty times greater magnetic field strengths, which the town suggests could have potential public health consequences. The siting board found, however, that the health effects of the HVED cable "would be minimized." The siting board made subsidiary findings that the predicted magnetic field strengths from the HVED cable fall below those of previously approved projects, and also that the companies had proposed appropriate magnetic field mitigation measures. Moreover, evidence before the siting board showed that the predicted magnetic fields here fall well below the safety thresholds established by an international standards-setting organization. Winchester does not directly confront the siting board's reasoning, and in particular, it does not point to evidence that the predicted field strengths for the HVED cable pose a health risk.
Even after determining the predicted magnetic fields to be safe, the siting board directed the companies to further evaluate feasible mitigation measures.
5. The certificate decision. Finally, Winchester challenges the siting board's grant of the "certificate of environmental impact and public interest" with respect to the project. The certificate, which is authorized by G. L. c. 164, §§ 69K-69O, in essence substitutes for the local permits required to build an energy facility. Winchester argues that the siting board failed to follow proper procedures and to hold a public hearing, and also that the certificate is at odds with a private agreement between Winchester and Eversource regarding the construction of a different transmission line in the town.
To begin, the siting board had the power to issue the certificate. Chapter 164, § 69K, identifies multiple criteria that allow the siting board to act. One criterion is a local or State agency's imposition of "a burdensome condition or limitation on any license or permit which has a substantial impact on the [siting] board's responsibilities." Id. Here, the siting board found that criterion met by Woburn's action in denying the permit application for the project in that town. To invoke the certificate process it was not necessary to show that Winchester also imposed a burdensome condition or limitation, or met one or the other § 69K criteria; once any State or local permitting agency has done so, the siting board is authorized by § 69K to "stand in the shoes of any and all State and local agencies with permitting authority over a proposed 'facility'" (emphasis added). Alliance II, 457 Mass. at 678. See G. L. c. 164, § 69K; 980 Code Mass. Regs. §§ 6.02(2)(c)-(f). Furthermore, the siting board provided public notice of, and then held, three days of evidentiary hearings on the certificate, in which Winchester participated. No additional "public hearing" was required by the statute.
We thus need not discuss the siting board's findings that Eversource also met three other independent criteria for consideration of a § 69K petition for a certificate.
Lastly, there is no merit to Winchester's suggestion that Eversource was using the certificate process to circumvent two private agreements between Eversource and the town. The first agreement, executed in 2017, apparently contains a commitment by Eversource not to concurrently construct two transmission line projects in the town. Winchester does not, however, direct us to anything in the record showing that the certificate interferes with this 2017 contractual obligation, which exists independently of the certificate. See City Council of Agawam v. Energy Facilities Siting Bd., 437 Mass. 821, 830 (2002) (where board issued certificate, and did not address whether certificate was consistent with recipient's obligations under separate, private contract, board "did nothing to interfere with anyone's" contractual rights, and parties remained free to pursue remedies under contract). The second agreement, executed in 2018, commits Winchester to rendering a decision on Eversource's GOL application "in an expeditious and good faith manner." Nowhere does the agreement bar Eversource from seeking a certificate from the siting board.
It has not escaped our attention that Winchester's briefs contain multiple factual assertions that lack accompanying citation to the record. We disregard such assertions, as they violate Mass. R. A. P. 16 (e), as appearing in 481 Mass. 1628 (2019). See Kusy v. Millbury, 417 Mass. 765, 766 n.3 (1994). Additionally, on page seventeen of its principal brief Winchester includes a quote, which it claims comes from the original decision. The purported quote does not appear anywhere in that document, however, and we know nothing of the source of the quote. This, too, constitutes a violation of the rule, and is perhaps cause for even greater concern. We emphasize that rule 16 (e) "is not an idle technical requirement." Lynn v. Thompson, 435 Mass. 54, 56 n.4 (2001).
Decision of February 28, 2018, affirmed.
Decision of March 7, 2019, affirmed.
By the Court (Sacks, Ditkoff & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 9, 2020.