Greenroots, Inc. v. Energy Facilities Siting Bd.
| Docket Number | SJC-13233 |
| Decision Date | 04 November 2022 |
| Parties | GREENROOTS, INC. v. ENERGY FACILITIES SITING BOARD & another. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Joshua M. Daniels for the petitioner.
Adam M. Ramos, Special Assistant Attorney General (Sara J. Stankus also present) for the respondent.
David S. Rosenzweig, Boston, (Catherine J. Keuthen & Cheryl A. Blaine, Boston, also present) for the intervener.
Anxhela Mile, Phelps Turner, & Heather Friedman, for Conservation Law Foundation, amicus curiae, submitted a brief.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
GreenRoots, Inc. (GreenRoots), a nonprofit dedicated to improving the urban environment, challenges the approval by the Energy Facilities Siting Board (board) of a project change petition filed by NSTAR Electric Company, doing business as Eversource Energy (Eversource), that would move the boundaries of an electric substation 190 feet from the location previously approved. GreenRoots argues that the board should have reopened its initial determination that the substation was needed. GreenRoots also contends that the community was denied meaningful participation in the decision in violation of statutory and regulatory requirements and the Commonwealth's commitment to environmental justice. Finally, GreenRoots argues that the substation's location puts it at risk from sea level rise due to climate change.
We conclude that the board did not err in approving the project change. We discern no error in the board's determination that GreenRoots did not satisfy the applicable legal standard for the reopening of a completed adjudicatory proceeding. The board considered the new evidence GreenRoots submitted, and the board's determination, based in particular on location-specific needs, that the new evidence would not have a significant impact on its prior conclusion that there was a need for an additional substation in the load area for Chelsea and the East Boston neighborhood of Boston is entitled to deference. The board also complied with the statutory and regulatory requirements regarding public participation and environmental justice. Finally, the board's determination that Eversource reasonably addressed risks from future sea level rise, considering the forty-year design life of the substation equipment, is supported by substantial evidence. Accordingly, we affirm the board's order.2
1. Background. a. Board's approval process. Board approval is required before a utility can construct a new facility. G. L. c. 164, § 69J. The board reviews "the need for, cost of, and environmental impacts" of such facilities in order "to provide a reliable energy supply for the commonwealth with a minimum impact on the environment at the lowest possible cost." G. L. c. 164, § 69H.
As part of the approval procedures, anyone "substantially and specifically affected by the proceeding" may intervene as a party. 980 Code Mass. Regs. § 1.05(1) (2010). In addition, the board must provide opportunities for public involvement. G. L. c. 164, § 69J (). Public comment hearings are held "in one or more of the affected cities or towns ... as soon as practicable after the commencement of a proceeding." 980 Code Mass. Regs. § 1.04(5) (2010). The board must also comply with environmental justice requirements. In this case, the board was subject to the 2017 Environmental Justice Policy issued by the Executive Office of Energy and Environmental Affairs (EEA).
b. Procedural history. On December 23, 2014, Eversource petitioned the board to build a substation at 338 East Eagle Street in East Boston (East Eagle Substation) and two transmission lines to connect the site to substations in Everett and Chelsea. The project was intended to resolve reliability and capacity issues arising from the region's dependence on the Chelsea substation.3
The board held a public comment hearing regarding the project at the Chelsea Senior Center on July 29, 2015. Subsequently, Channel Fish, a fish-processing company just east of the proposed site, intervened to contest the location of the substation. GreenRoots did not intervene, as it was organized during the pendency of the proceeding. Another environmental group, the Chelsea Collaborative, whose associate executive director would later become the executive director of GreenRoots, was given limited participant status,4 as were four East Boston residents, including several who would become members of GreenRoots. As the review of the project continued, GreenRoots submitted written comments on the proposed decision. At the final hearing on November 30, 2017, the executive director of GreenRoots and two of its employees spoke. The board issued its final decision on December 1, 2017, approving the project, but subject to a condition that the company "enter into discussions with the City of Boston" to "relocate the East Eagle Substation" to the other side of the parcel, away from Channel Fish. The board extended the period for appeal until June 1, 2018, to allow Channel Fish and Eversource to negotiate over the location. No one appealed.
Pursuant to the condition, Eversource swapped its property on the east side of the parcel for the city's property on the west side. The two sites were separated by 190 feet, and the new site is about sixty percent larger -- 27,389 square feet rather than 16,800 square feet. The company filed a project change petition on November 15, 2018, regarding the new location.
The board held a public comment hearing to receive feedback on the change at East Boston High School on February 5, 2019. On April 5, 2019, the presiding officer granted intervener status to GreenRoots. In doing so, she limited the scope of the proceeding to "potential impacts of the proposed change" and other issues relating to the board's statutory mandate.
On July 5, 2019, GreenRoots moved to "reopen or reconsider" the finding in the initial decision that the substation was needed, due to more recent regional projections showing lower peak electricity demand. Later that month, the presiding officer denied the motion. GreenRoots renewed its request for reopener in its briefing before the board and in comments on the board's tentative decision.
As explained more fully infra, the board approved the change at a public meeting on February 22, 2021. In the final decision, the board denied GreenRoots's motion to reopen.
GreenRoots sought judicial review of the board's February 2021 decision pursuant to G. L. c. 164, § 69P, and G. L. c. 25, § 5. A single justice allowed Eversource to intervene in the appeal and reserved and reported the case to the full court.
2. Discussion. We will sustain the board's decision if it is constitutional, in accordance with the statute and applicable regulations, "supported by substantial evidence of record in the board's proceedings," and not "arbitrary, capricious or an abuse of the board's discretion." G. L. c. 164, § 69P. In this inquiry, we "defer[ ] to the board's expertise and experience." Sudbury v. Energy Facilities Siting Bd., 487 Mass. 737, 747, 169 N.E.3d 1157 (2021), quoting Brockton Power Co. v. Energy Facilities Siting Bd., 469 Mass. 215, 223, 13 N.E.3d 955 (2014).
GreenRoots makes three arguments in support of its contention that the board's order should be overruled. First, it argues that the board abused its discretion by declining to reopen its 2017 determination that the project was needed. Second, it argues that the order is invalid because of the inadequacy of the board's public process, including subpar efforts to address environmental justice. Third, GreenRoots argues that the board's determination that Eversource's plans adequately mitigate risk from sea level rise was unsupported by substantial evidence. We address each in turn.
a. Declining to reopen need determination. The board decided in 2017 that the substation was needed. Recognizing that the determination of need was separate from the location-change issue raised by the project change petition, the board considered the issues separately. This was appropriate, as GreenRoots's challenge to the determination of need addressed an issue that had already been decided in a completed proceeding from which no appeal had been taken, while the project change proceeding relating to substation site location presented both new legal issues and new evidence.
Movants who seek to reopen a record after a final decision face a high bar on review. Ordinarily, "absent compelling circumstances, the Department [of Public Utilities] will not reopen a proceeding after a final decision has been rendered." National Grid, D.P.U. 10-54A, at 13 (2011) (). See Alliance to Protect Nantucket Sound, Inc. v. Department of Pub. Utils. (No. 2), 461 Mass. 190, 195, 959 N.E.2d 408 (2011), quoting Covell v. Department of Social Servs., 42 Mass. App. Ct. 427, 433, 677 N.E.2d 1158 (1997), S.C., 439 Mass. 766, 791 N.E.2d 877 (2003) ().
However, in this case, the board, in its discretion, applied a more lenient standard to GreenRoots's request to revisit the need determination, requiring GreenRoots only to show "good cause" to reopen the record. 980 Code Mass. Regs. § 1.09(1) (2010). Expressly applicable only before the board issues a final decision, id., the "good cause" standard requires that new evidence "would be likely to have a significant impact on the board's decision." Sudbury, 487 Mass. at 744, 169 N.E.3d 1157.
To support its request, GreenRoots offered a report from ISO New England, the regional transmission operator, showing declining peak loads in the region. The board found that those forecasts would "not likely have a significant impact" on its determination that the East...
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