In re Narragansett Elec. Co.
| Decision Date | 17 June 2022 |
| Docket Number | 2018-40-M.P. |
| Parties | In re Narragansett Electric Company d/b/a National Grid E-183 115 kV Transmission Line Relocation Project. |
| Court | Rhode Island Supreme Court |
Energy Facility Siting Board
For Petitioners: Patrick C. Lynch, Esq. Jeffrey B. Pine, Esq.
For Respondents: W. Mark Russo, Esq. Steven J. Boyajian, Esq. Marc DeSisto, Esq.
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
This Court issued a writ of certiorari to review an order of the Energy Facility Siting Board (the board or EFSB) concerning the relocation of power lines across the Providence and Seekonk Rivers. The petitioners, the City of Providence Friends of India Point Park (FIPP); Procaccianti Companies Inc. d/b/a The Hilton Garden Inn (Hilton); and McMac, Inc. d/b/a The R.I. Seafood Festival (Seafood Festival), seek review of the board's January 17, 2018 order determining that the so-called "underground alignment" and the "bridge alignment north" were not feasible, and approving the "bridge alignment south." The respondents, EFSB; the City of East Providence; and Narragansett Electric Company d/b/a National Grid (National Grid), allege that three of the petitioners do not have standing and that review of the board's decisions is not timely. For the reasons stated herein, we affirm the order of the EFSB.
In April 2003, National Grid filed a notice-of-intent application with the board requesting approval for the relocation of an approximately 6, 200-foot portion of the power line designated as E-183 between Franklin Square in Providence and Bold Point in East Providence. In its application, National Grid explained that the project was required by the Rhode Island Department of Transportation to facilitate the relocation of I-195. National Grid asserted that the new alignment would not substantially differ from the alignment in use at the time, and it therefore proposed that the application was appropriate for abbreviated review under Rule 1.6(f) of the board's Rules of Practice and Procedure. See 445 RICR 00-00-1.6(f). Shortly after National Grid filed its notice-of-intent application, the City of Providence, the City of East Providence, and the Rhode Island Attorney General separately intervened in the matter pursuant to Rule 1.10(a)(1) of the board's Rules of Practice and Procedure. See 445 RICR 00-00-1.10(a)(1), (d)(2).
Rule 1.6(f) sets out the requirements for filing a notice of intent to, among other things, relocate an existing power line. 445 RICR 00-00-1.6(f). Once that notice of intent is filed, the board is required to hold a public hearing in one or more of the cities or towns affected by the application. Id. at 1.6(g). The board must then "determine whether the project may result in a significant impact on the environment or the public health, safety and welfare[.]" Id. at 1.6(h). If the board so determines, the project is treated as an alteration and a full review is necessary; otherwise, the project receives abbreviated review. Id. From early June through early August 2003, the board held several public hearings to determine whether the proposed relocation would result in a significant impact, "thereby, requiring a full EFSB review."
In September 2003, National Grid and three intervenors, the Attorney General, Providence, and East Providence, entered into a stipulation and consent order regarding further proceedings (the stipulation). The parties agreed that the case could continue as an abbreviated, rather than a full proceeding, but with certain modifications, such as requesting advisory opinions from several agencies and allowing National Grid and the intervenors to submit testimony. In October 2003, the board largely approved the stipulation, and issued an order incorporating most of the stipulation's terms, with several minor modifications (the 2003 order). Importantly, the 2003 order incorporated the parties' agreement that "the standard which the [b]oard shall apply in making its decision on Narragansett's application is that provided in R.I.G.L. § 42-98-11(b)." In relevant part, G.L. 1956 § 42-98-11(b) states that:
The 2003 order also required advisory opinions from the Department of Health, Department of Environmental Management, Statewide Planning Program, Public Utilities Commission (PUC), the Providence Planning Board, and the East Providence Planning Board.
In May 2004, National Grid, East Providence, Providence, and the Attorney General entered into a settlement agreement regarding the outcome of the relocation project (the settlement agreement). The agreement split the relocation project into two phases. Phase I, which involved overhead relocation of a portion of the E-183 power line through Providence, would be completed in 2005 to allow for the I-195 relocation project. Phase II consisted of the relocation of the remaining power line, beginning in Franklin Square in Providence and ending in East Providence.
The settlement agreement contemplated five alternative alignments for the Phase II power line relocation and ranked them by preference. The underground alignment, which would relocate the power line underground between Franklin Square and a new transition station in East Providence, was the preferred alignment; thus, it was to be constructed as long as it was not "too costly" or "not feasible (in light of such factors as engineering considerations, property rights or licensing issues)[.]"[1] If the underground alignment could not be constructed because it was too costly or was not feasible, the next preferred alignment was the bridge alignment north. If the bridge alignment north could not be constructed because it was deemed too costly or not feasible, the bridge alignment south was next preferred. If the bridge alignment south was too costly or not feasible, the final preferred alignment was the "Tockwotton alignment." If none of the preferred alignments could be constructed, National Grid was to complete the relocation according to its original plan, as explained in its notice-of-intent application, referred to in the settlement agreement as the "original alignment."
The settlement agreement also outlined how the determination would be made to move from one preferred alignment to the next preferred alignment. In the event that National Grid found that an alignment was not feasible, it was to file either a stipulation, in which all parties consented to moving on to the next preferred alignment, or a report "presenting in detail the justifications for pursuing the alternative alignment[.]" If the latter option was used, the other parties could then file objections to the report, to which National Grid could respond. Subsequently, the board would conduct a hearing and "approve, modify or reject the [r]eport."
In the settlement agreement, Providence, East Providence, and the Attorney General principally agreed "not to appeal or otherwise contest a decision of the EFSB * * * which approves the project contemplated by this agreement." These parties also agreed not to contest before the EFSB, or any other governmental authority, a relocation made pursuant to the terms of the settlement agreement. However, an exception was carved out that allowed the parties to contest a decision by the board "rendered in proceedings pursuant to" determining the feasibility of an alignment, as discussed supra.
After conducting a hearing regarding the settlement agreement, the board issued a report and order on October 29, 2004, which approved and incorporated the settlement agreement (the 2004 order). In the 2004 order, the board considered whether the various alignments as stated in the settlement agreement met the standard for approval specified in § 42-98-11(b). The board referenced that the PUC found, in its advisory opinion, that there was a need to relocate the power line between Franklin Square and East Providence, but the board did not itself make a specific finding that the project was necessary. The board went on to find that the relocation was cost-justified "whether it is constructed overhead * * * or underground[.]" The board also found that using any of the alignments as provided in the settlement agreement would "enhance the socio-economic fabric of the state and minimize the impact on the environment." In adopting the settlement agreement, the board also stated in the 2004 order that all "parties have agreed that the E-183 Line will be relocated underground unless it is determined that this is not feasible."
In October 2016, National Grid and East Providence filed a joint report and motion asking the board to approve the use of the bridge alignment south for the relocation project.[2] In this filing, National Grid and East Providence asserted that the underground alignment was not...
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