Tofias v. Energy Facilities Siting Bd.
| Decision Date | 14 November 2001 |
| Docket Number | 08313 |
| Parties | ARNOLD B. TOFIAS, trustee,(FN1) vs. ENERGY FACILITIES SITING BOARD & another.(FN2)Massachusetts Supreme Court |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
County: Suffolk.
Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, & Sosman, JJ.
Summary: Energy Facilities Siting Board. Public Utilities, Electrical transmission line, Intervention. Practice, Civil, Standing.
Civil action commenced in the Supreme Judicial Court for the county of Suffolk on April 7, 2000.
The case was reserved and reported by Ireland, J.
Michael D. Vhay (Laura H. Pawle with him) for the plaintiff.
Peter T. Wechsler, Assistant Attorney General, for Energy Facilities Siting Board.
David S. Rosenzweig (John K. Habib & Cheryl A. Blaine with him) for Brockton Power, LLC.
Arnold B. Tofias, trustee of the Julius Tofias Realty Trust (trust), has appealed from the decision of the Energy Facilities Siting Board (board) approving the proposal of Brockton Power, LLC (Brockton Power), to construct a power plant in an industrial park in Brockton. G. L. c. 164, § 69P. The trust does not challenge any aspect of the proposal for the actual power generating facility, but objects to the proposed overhead transmission lines that would connect the plant to an existing electric company transmission line. The route for those transmission lines abuts the trust's property, and the trust claims that the lines would adversely affect the property by the emission of electromagnetic fields (EMF). On appeal, the trust complains that the board erred in denying its motion to intervene as a party in the proceedings and limiting the trust's status to that of an "interested person." G. L. c. 30A, § 10 (4).3 The matter was reserved and reported to us by a single justice of this court. For the reasons set forth below, we conclude that the trust is not a "party in interest aggrieved by a decision of the board" and thus lacks standing to pursue an appeal of the board's decision. G. L. c. 164, § 69P.
1. Background. Pursuant to G. L. c. 164, § 69J 1/4, Brockton Power petitioned the board for approval of a proposed 270 megawatt natural gas-fired generating facility to be located on a thirteen-acre parcel in an industrial park in Brockton. Electric output from the proposed facility would be carried by a new overhead 115 kilovolt transmission line running along a railroad right of way a distance of 3,500 feet, where it would then connect with an existing transmission line. The new transmission line would consist of three high-voltage power cables hung on seventy-four-foot transmission towers, spaced every 400 feet along the route.
The trust owns a vacant twenty-one acre parcel of land in Brockton. An existing 115 kilovolt power line runs across a corner near the southern boundary of the trust parcel. On its eastern boundary is an active railroad line. The area is zoned for industry, and various industrial uses are in the immediate vicinity of the trust's vacant parcel. The trust parcel does not abut the site on which Brockton Power proposes to build its generating facility. However, in its original application, Brockton Power proposed to run a portion of the connecting transmission line (approximately 1,360 feet) immediately adjacent to the eastern boundary of the trust property.
On March 10, 1999, the deadline for filing any petition to intervene or to participate as an interested person in the proceedings on Brockton Power's application, the trust sought leave to intervene as a party. After identifying the trust's ownership of its parcel and explaining its location in relation to the proposed transmission line, the trust's petition to intervene identified its interest in the proceedings as follows: No other basis for intervention was identified in the trust's petition.4
On April 8, 1999, a board hearing officer denied the trust's petition to intervene. The hearing officer noted that the petition to intervene contained nothing beyond the trust's conclusory assertion that it would be substantially and specifically affected by the project, and that the trust "does not identify existing or likely future uses of its property that would be affected by environmental impacts from the transmission interconnection line." The mere reference to the line's generation of EMF "does not provide a nexus sufficient to establish substantial and specific effect" on the trust parcel, and alleged adverse effect on the value of the trust parcel did not come within the ambit of the statute. See G. L. c. 164, § 69J 1/4. Finally, the hearing officer noted that the board had, in the past, allowed intervention by abutters to proposed power plants because "[p]ower plants are typically large structures with many potential attendant environmental impacts." While the statutory definition of "generating facility" includes "transmission . . . interconnections," transmission lines alone "do not automatically pose the same environmental impacts on abutters as might inure to abutters to the power plant itself."5
Although denying the trust's petition to intervene as a party, the hearing officer allowed the trust (and several other entities) to participate in the proceedings as "interested persons." As an "interested person," the trust was allowed to (and did) present argument, file briefs, and submit comment on the hearing officer's tentative decision. Lacking status as a party, the trust was not allowed to conduct discovery, present evidence at the hearing, or cross-examine witnesses.
Prior to the hearing, the board had asked Brockton Power to consider whether modifications to the route for the transmission line might minimize the impacts (both visual and EMF) on nearby residential areas. In response, Brockton Power submitted an alternative route that would keep the line further from (and far less visible to) existing residences. At the hearing, Brockton Power expressed a willingness to make such a modification to the route if the board preferred that alternative.
Based on the fact that the alternative, if adopted, would run an additional segment of the line (another 518 feet in length) set back fifty feet from the northern boundary of the trust property, the trust filed a renewed petition to intervene. In that renewed petition, the trust alleged that, in other properties it had developed, it had had to set buildings back from transmission lines, and that the placement of the proposed transmission line adjacent to two boundaries of the trust property (in combination with the existing transmission line on its southern boundary) would "substantially shrink the environmentally safe building 'envelope' on the [trust] Parcel." The trust claimed that "[e]mployers will be reluctant to place employees underneath or near high-voltage lines, and companies will be unwilling to place sensitive electronic equipment on the site."
The hearing officer treated the trust's renewed petition as a motion for reconsideration, granted reconsideration in light of the potential change in the transmission line route, and again denied the petition to intervene. The hearing officer reasoned that the alleged claim of being substantially and specifically affected was speculative:
Moreover, even that speculative theory of how it would be impacted by the transmission lines was, as in the original petition, still "grounded primarily upon economic concerns that are outside of the [board's] mandate."6
The trust remained in the proceedings as an "interested person," argued against the transmission line aspects of the proposal, submitted briefs, and submitted comments on the hearing officer's tentative decision.7 The trust took issue with the EMF projections submitted by Brockton Power, and argued that the EMF and visual impacts associated with the transmission line should be minimized by requiring Brockton Power to bury the transmission cables underground.
In its final decision, the board approved the Brockton Power project, with the proposed partial relocation of the transmission line so as to move it farther away from residential areas. The board found the EMF impacts associated with this project to be well within acceptable limits that had been approved for prior projects. Based on the fact that the scientific evidence still did not substantiate the existence of human health risks resulting from EMF exposure, the board concluded that the significantly increased cost of underground cables was not justified. This appeal followed.
2. Discussion. The trust's sole contention is that the board abused its discretion in denying the trust's motion to intervene. Had it been allowed to intervene, the trust argues that it would have presented evidence concerning EMF...
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