Alliance to Protect Nantucket v. Energy Bd.

• Decision Date: 18 December 2006
• Citation: 858 N.E.2d 294,448 Mass. 45
• Parties: ALLIANCE TO PROTECT NANTUCKET SOUND, INC. v. ENERGY FACILITIES SITING BOARD & another.<SMALL><SUP>1</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 294

858 N.E.2d 294

448 Mass. 45

ALLIANCE TO PROTECT NANTUCKET SOUND, INC. v. ENERGY FACILITIES SITING BOARD & another.¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued November 9, 2006.

Decided December 18, 2006.

Edward J. DeAngelo, Special Assistant Attorney General, for the defendant.

David S. Rosenzweig, Boston (Erika J. Hafner with him) for the intervener.

Susan M. Reid, for Conservation Law Foundation, Inc., amicus curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

GREANEY, J.

The Energy Facilities Siting Board (board) conditionally approved a petition filed jointly by Cape Wind Associates, LLC (Cape Wind), and Commonwealth Electric Company, doing business as NSTAR Electric (NSTAR) (together, applicants), to build and operate two 115 kilovolt underground and undersea electric transmission lines approximately eighteen miles in length. The transmission lines would connect an offshore wind-powered energy generating facility (wind farm) proposed for construction by Cape Wind in Federal waters off Nantucket Sound with the existing New England regional electric power grid. The board conditioned its approval on the submission by Cape Wind of copies of all Federal, State, and local permits necessary to begin building the wind farm. The Alliance to Protect Nantucket Sound, Inc. (Alliance), intervener in the administrative proceedings below, appealed from the board's decision to a single justice of this court, pursuant to G.L. c. 25, § 5, and G.L. c. 164, § 69P. The single justice reserved and reported the case without decision to the full court.² We affirm the decision of the board.

1. The background necessary to decide this appeal is as follows. The board is an independent review board established within the department of telecommunications and energy and charged by the Legislature with administering the provisions contained in G.L. c. 164, §§ 69H through 69Q. See G.L. c. 164, § 69H. The approval of the board is required prior to the commencement of construction of any "facility"³ or "generating facility"⁴ in the Commonwealth, and no State agency may issue a construction permit for any such facility unless the petition to construct the facility has already received approval from the board. See G.L. c. 164, §§ 69J, 69J 1/4. The board's governing mandate, set forth in § 69H, is to "provide a reliable energy supply for the commonwealth with a minimum impact on the environment at the lowest possible cost." To accomplish this purpose, on the receipt of a petition for approval of construction of an energy facility at a site, the board is obliged to

"review the need for, cost of, and environmental impacts of transmission lines, natural gas pipelines, facilities for the manufacture and storage of gas, and oil facilities; provided, however, that the board shall review only the environmental impacts of generating facilities, consistent with the [C]ommonwealth's policy of allowing market forces to determine the need for and cost of such facilities. Such reviews shall be conducted consistent with [§ 69J 1/4] for generating facilities and with [§ 69J] for all other facilities."

G.L. c. 164, § 69H.

The Legislature significantly altered the scope of the board's governing mandate when it enacted St.1997, c. 164 (1997 Restructuring Act). Prior to that time, the board was charged to "provide a necessary energy supply for the [C]ommonwealth with a minimum impact on the environment at the lowest possible cost." G.L. c. 164, § 69H, as amended through St.1992, c. 141, § 9. Consistent with this charge, the board's review typically focused on whether there was a "need" for the proposed energy facilities. In 1988, the board developed an analysis specific to determining the "need" for transmission lines that connect to generating facilities that fall outside the board's jurisdiction. That standard, set forth in the board's decision relative to a petition to construct a 1.2 mile overhead electric transmission line submitted by Turners Falls Limited Partnership, directed the board to consider whether the energy from the new generator was needed to improve the reliability of the power supply system, or to increase economic efficiency, by analyzing (1) whether there was a need within New England for the power generated by the non-jurisdictional generating facility, and (2) whether the transmission lines would provide benefits to Massachusetts. (We shall refer to this standard, as do the parties and the board, as the Turner Falls standard.)

As indicated, in 1997, the Legislature eliminated language in § 69H requiring the board to review the "need" for power to be generated by proposed facilities. The 1997 Restructuring Act also added a new provision to G.L. c. 164 to govern the board's review of proposed generating facilities. That provision, § 69J 1/4, explicitly states that "[n]othing in this chapter shall be construed as requiring the board to make findings regarding the need for, the cost of, or alternative sites for a generating facility" (except in limited circumstances not relevant here) and prohibits the board from seeking data relative to "the necessity for, or cost of, [a] proposed generating facility."

2. We now recite the facts leading to this appeal. On September 17, 2002, the applicants filed the joint petition to construct and operate transmission lines consisting of two parallel electrical circuits, each made up of two cables and six conductors. The transmission lines would begin at an existing 115 kilovolt switching station in Barnstable and run underground through Barnstable and Yarmouth. The lines then would run under the sea floor from Lewis Bay in Yarmouth, through Nantucket Sound, to the site of the proposed wind farm. The route is approximately eighteen miles in length. Approximately twelve miles of each circuit would be undersea, buried in a trench in the sea bottom about twenty feet apart. At landfall, both circuits would feed into a single underground duct bank for the remainder of the route (approximately six miles), which would terminate at the utility switching station in Barnstable. About half of the undersea portion of the transmission lines would be located outside the three-mile offshore Massachusetts boundary and so under waters controlled by the United States government.

The area in which the wind farm itself is proposed to be built is located in Federal waters and, thus, falls beyond the scope of the board's jurisdiction and this case. As described in the record, the wind farm would consist of 130 wind turbine generators and an electrical service platform. The wind turbines each would be approximately 420 feet in height from the water to the top of the blade. The wind turbines would be sited over approximately twenty-four square miles of Horseshoe Shoal in Nantucket Sound and connected, by undersea cables, to a service platform which would house an electric transformer. The closest land locations in different directions from the wind farm include Point Gammon in Yarmouth, 4.7 miles to the north; Cape Poge on Martha's Vineyard, 5.5 miles to the southwest; and points in Nantucket approximately eleven miles to the south and southeast.

On December 20, 2002, the board granted intervener status to five entities, including the Alliance.⁵ The board accepted prefiled testimony and held twenty-one days of evidentiary hearings, which concluded on October 21, 2003. After the close of the evidentiary hearings, the board sought comments and arguments from the parties on the proper standard of review to be applied to the petition in light of changes to the language of § 69H, and the addition of § 69J 1/4, effected by the 1997 Restructuring Act. In response, the parties submitted briefs indicating their respective positions on appropriate revisions to the Turner Falls standard. On December 18, 2003, the board closed the evidentiary record. On July 2, 2004, the board's presiding officer issued a tentative decision for board approval, and the parties, and the public, were given an opportunity for comment. The board entered its final decision on May 11, 2005.

In its decision, the board concluded that the applicants had successfully demonstrated that (1) the transmission lines will be needed if the wind farm is built; (2) the proposed transmission line project was superior to alternative approaches in terms of cost, environmental impact, reliability, and ability to address the identified needs; and (3) the proposed primary route was superior to the alternative routes in terms of cost, environmental impact, and reliability of supply. Only the first conclusion, concerning the need for the transmission lines, is at issue.

With respect to that conclusion, the board found that "the total capacity of all existing transmission cable in Nantucket Sound would be insufficient to transmit the output of the proposed wind farm, even if they would be totally dedicated to that purpose." Recognizing that the wind farm proposal was still in the initial stages of permitting, however, the board could not "find that the wind farm will be available to contribute to the regional energy supply." In order to ensure that the transmission lines are not built unnecessarily, the board determined that construction on the lines could not begin until Cape Wind had successfully obtained permits required to begin construction of the wind farm. Accordingly, the board approved the petition to construct the transmission lines subject to compliance by the applicants with the condition that, prior to the commencement of construction, "Cape Wind shall submit to the [board] copies of all permits required for Cape Wind to begin installation of wind farm equipment in Nantucket Sound." The board clarified that, "[b]ecause the issues addressed in this [d]ecision relative to this facility are subject to change over time, construction of the proposed facility must commence within...