PA Commonwealth Court Lessens Burden on Utility Companies To Prove or Establish Environmental Impact Associated With Proposed Projects

February 2012Articles In the Zone

In a January 13, 2012, decision by the Commonwealth Court of Pennsylvania (Board of Supervisors of Springfield Township v. Pennsylvania Public Utility Commission (2012)1 ), the court affirmed the decision of the PA Public Utility Commission (PUC) granting a certificate of public convenience to PPL Electric Utility Corporation (PPL) to construct a new high voltage electric transmission line and substation. In the opinion, the court supported the PUC determination based in large part on the court’s strict reading and interpretation of the applicable statutes and regulations, particularly the court’s interpretation of the term “available alternatives.”

In the case in question, PPL determined that it needed to significantly upgrade its electric transmission network in the Lehigh Valley area. In order to provide the needed upgrade, PPL identified and studied two possible configurations and selected one, known as the “PPL Functional Configuration.”21 The primary reasons PPL selected that configuration were cost and that it provided the most flexibility for future system expansion. After selecting the PPL Functional Configuration, PPL personnel performed a general review of the relevant area, including preliminary consideration of the environmental impact. As the PPL team determined that there would be no significant environmental impact, PPL then identified possible alternative routes for the transmission lines to implement the configuration. PPL analyzed three possible route options and selected the one known as the “Cross Country Corridor.”

On February 14, 2008, PPL filed its application with the PUC for approval of the PPL Functional Configuration and the Cross Country Corridor, among other things, including approval to exercise the power of eminent domain to acquire rights of way and easements for the proposed construction. Springfield Township and numerous other parties filed protests to the application and petitions to intervene based largely on environmental concerns. Four public hearings were held before an administrative law judge (ALJ) who recommended to the PUC that PPL’s application be approved. In so doing, the ALJ took issue with the township’s position and stated “there exists no regulation, statute or case precedent requiring PPL to consider the environmental impacts of the [alternative] configuration.” The PUC adopted the ALJ’s recommendation and granted PPL’s application. The township then filed a petition to the court for review of the PUC’s decision.

The township’s primary concern was that PPL did not evaluate the environmental impacts of the three proposed routes and the PPL Configuration created more of an adverse environmental impact than the alternative “Springfield Functional Configuration.” The primary issue for the ALJ, the PUC and ultimately the court was whether PPL and the PUC were required by the applicable regulations to consider the potential environmental impacts of the Springfield Functional Configuration as that was not the configuration selected by PPL and submitted as the proposed configuration in PPL’s application. Pursuant to 52 Pa. Code §57.76(a)(4): “The Commission will not grant the application, either as proposed or as modified, unless it finds and determines [that] the proposed HV Line ……will have minimum adverse environmental impact, considering the electric power needs of the public, the state of available technology and the available alternatives.” The court held that PPL was not obligated to do an analysis of the environmental impact of the Springfield Configuration because the applicable regulations require the PUC to consider only the “proposed HV line” (i.e., configuration), not alternative configurations. The court did not interpret the words “available alternatives” to mean alternative configurations but rather alternative routes only. Since PPL’s application was for approval of the PPL Functional Configuration, the PUC has no obligation to consider evidence of any other configuration. In support of its holding, the court cited several places in the regulations that specifically reference the “proposed HV line,” including 52 Pa. Code §57.76(a)(4) and 52 Pa. Code §57.72(c) dealing with the form and content of the application.

The court took a strict reading of the regulations by limiting the PUC review to the proposed configuration, notwithstanding the words “available alternatives.” The court emphatically stated this point in holding that “contrary to the Township’s contention that the Commission is required to consider alternative configurations, nowhere in this regulation [57.72(c)] is there a requirement that the Commission consider anything but the proposed HV line.” Because the PUC determined that the proposed PPL Functional Configuration met its regulations, the court would not substitute its discretion for the discretion exercised by the PUC and therefore affirmed the PUC’s decision.

The dissenting opinion disagreed with the court’s finding, particularly as it related to the PUC’s obligation to consider “available alternatives.” The dissent’s reading of the regulations and the intent of the drafters in writing the regulations was that “available alternatives” did not mean “alternative routes” but should be read more broadly. The dissent argued that the court’s limited definition of “available alternatives” gives utilities an “easy, and somewhat perverse, path around the regulation’s command.” Without considering available alternatives under a broader definition, the dissent held that the PUC can not really determine if the proposed configuration will have a minimum adverse environmental impact. As the dissent points out, while the PUC regulations clearly require that the environmental impact be considered, the court’s holding essentially limits that requirement and “creates the illusion of environmental protection.”

The key issue in this case is that the regulations applicable to the PUC have been interpreted by the Commonwealth Court in a way that is favorable to the utility companies. By taking a narrow view of what the PUC is to consider when reviewing an application from the utility company, the court has lessened the burden on the utility company to prove or establish the environmental impact associated with its proposed project. The case is on appeal to the Pennsylvania Supreme Court.

For more information, please contact Brian J. Levin.

  1. As of the date this article was written, only the Westlaw citation is available.
  2. A “functional configuration” is simply an electrical solution that addresses reliability issues. It does not identify or evaluate possible locations or routes for the transmission lines.