Town of Sudbury v. Energy Facilities Siting Bd.

• Decision Date: 25 June 2021
• Docket Number: SJC-12997
• Parties: TOWN OF SUDBURY v. ENERGY FACILITIES SITING BOARD & another (and a consolidated case ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

487 Mass. 737

169 N.E.3d 1157

TOWN OF SUDBURY

v.ENERGY FACILITIES SITING BOARD & another¹ (and a consolidated case ² ).

SJC-12997

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 1, 2021.

Decided June 25, 2021.

Jeffrey M. Bernstein, Newton, for town of Sudbury.

Richard A. Kanoff, Boston, for Protect Sudbury, Inc.

Pierce O. Cray, Assistant Attorney General, for Energy Facilities Siting Board.

David S. Rosenzweig, Boston, for NSTAR Electric Company.

The following submitted briefs for amici curiae:

Kin K. Gee, pro se.

Andrew M. Fischer, Boston, for Massachusetts Bicycle Coalition & others.

Mark R. Rielly, Waltham & Rachel C. Thomas for New England Power Company.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

KAFKER, J.

The town of Sudbury (town) and Protect Sudbury, Inc. (Protect Sudbury), challenge a decision of the Energy Facilities Siting Board (board) that approved a proposal by NSTAR Electric Company, doing business as Eversource Energy (Eversource), under G. L. c. 164, § 69J, to construct a new electrical transmission line between substations in Sudbury and Hudson (project). Eversource sought to construct the new transmission line after assessments revealed that this area needed additional energy supply to withstand certain contingencies, posing a risk to 72,000 customers. The board's mandate under G. L. c. 164, § 69H, when considering such projects, is to "provide a reliable energy supply for the commonwealth with a minimum impact on the environment at the lowest possible cost." The town and Protect Sudbury (collectively, petitioners) raise a number of challenges to the manner in which the board applied these three statutory considerations in this case.

We conclude that there was no error in the board's assessment and approval of the project. We first explain that the board's obligation is to balance the reliability, cost, and environmental impact of each proposal before it. No one factor is determinative, and the board has wide discretion to balance the factors from case to case to achieve its statutory mandate. Many of the petitioners’ arguments are little more than disagreement with how the board interpreted its statutory mandate or balanced these considerations. Our role is not to substitute our judgment or the petitioners’ judgment for that of the board, however, and we see no legal basis for disturbing the board's careful and reasoned decision in this case. Accordingly, for the reasons described infra, we affirm the board's approval of the project.³

1. Background. a. Energy Facilities Siting Board. The board is an independent board within the Department of Public Utilities charged by the Legislature with administering the provisions contained in G. L. c. 164, §§ 69H - 69Q. See G. L. c. 164, § 69H. "The approval of the board is required prior to the commencement of construction of any ‘facility’ ... 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." Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 448 Mass. 45, 46-47, 858 N.E.2d 294 (2006) ( Alliance I ), quoting G. L. c. 164, §§ 69J, 69J 1/4. Its "governing mandate ... is to ‘provide a reliable energy supply for the commonwealth with a minimum impact on the environment at the lowest possible cost.’ " Alliance I, supra at 47, 858 N.E.2d 294, quoting G. L. c. 164, § 69H. To accomplish this, the board reviews "the need for, cost of, and environmental impacts of transmission lines," and "[s]uch reviews shall be conducted consistent with ... [§] 69J." G. L. c. 164, § 69H. Also, "[i]n order to site a new electric transmission line, [the utility provider] is required to demonstrate to the [board] ... that the project ‘will or does serve the public convenience and is consistent with the public interest’ and is ‘reasonably necessary for the convenience or welfare of the public.’ " Sudbury v. Massachusetts Bay Transp. Auth., 485 Mass. 774, 786, 152 N.E.3d 1101 (2020), citing G. L. c. 164, § 72, and G. L. c. 40A, § 3.

More specifically, in this case, the board evaluated Eversource's application based on the following five requirements:

"(1) that additional energy resources are needed ...;

"(2) that, on balance, the proposed project is superior to alternative approaches in terms of reliability, cost, and environmental impact, and in its ability to address the identified need ...;

"(3) that the applicant has considered a reasonable range of practical facility siting alternatives and that the proposed facilities are sited in locations that minimize costs and environmental impacts while ensuring a reliable energy supply ...;

"(4) that environmental impacts of the project are minimized and the project achieves an appropriate balance among conflicting environmental concerns as well as among environmental impacts, cost, and reliability ...; and

"(5) that plans for construction of the proposed facilities are consistent with the current health, environmental protection, and resource use and development policies of the Commonwealth."

b. Eversource's site-selection process. Eversource sought to site a new 115 kilovolt underground transmission line between one of its substations in Sudbury and the Hudson light and power department's substation in Hudson.⁴ Eversource conducted a thorough site-finding process before determining its preferred plan for the project, detailed infra.

i. Identification of need. Eversource proposed the transmission line to address reliability concerns that were identified by ISO New England Inc. (ISO-NE). ISO-NE is "a private, nonprofit entity that runs the region's power grid and its restructured wholesale energy market." Strategic Energy, LLC v. Western Mass. Elec. Co., 529 F. Supp. 2d 226, 229 (D. Mass. 2008). It is entrusted under Federal law with operating a safe and reliable transmission system in New England, administering "a regional network that coordinates the movement of wholesale electricity in all or parts of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont." Beyond Nuclear v. U.S. Nuclear Regulatory Comm'n, 704 F.3d 12, 16 (1st Cir. 2013). Its "system ... transmits energy through high-voltage lines to local distribution lines that serve consumers." Alliance to Protect Nantucket Sound, Inc. v. Department of Pub. Utils., 461 Mass. 166, 180 n.26, 959 N.E.2d 413 (2011) ( Alliance III ). ISO-NE also "oversees the markets for wholesale electricity in the New England region." PNE Energy Supply LLC v. Eversource Energy, 974 F.3d 77, 80 (1st Cir. 2020). As most relevant here, the board explained that ISO-NE "carries out a regional system planning process, wherein it conducts periodic needs assessments on a system-wide or specific-area basis, and develops an annual regional transmission plan using a ten-year planning horizon" as part of its role as the independent system operator of New England.

As such, when conducting needs assessments, ISO-NE analyzes how a particular grid or subarea will perform in the event of several contingencies. A "contingency" in this context is an event causing the loss of transmission system elements. A single contingency is referred to as an "N-1" contingency, and an "N-1-1" contingency occurs when there is a subsequent loss of a transmission element following an N-1 event. As the board explained, an "N-1-1 contingency" is "a particularly adverse event where two separate and unrelated parts of a transmission system fail." ISO-NE uses these criteria to ensure that a transmission system can reliably deliver power even during stressed conditions and the loss of one or more transmission elements.

In 2015, ISO-NE issued the "Greater Boston Area Updated Transmission Needs Assessment" (2015 needs assessment). The 2015 needs assessment used "summer peak 90/10 load" forecasts⁵ of customer demand and other assumptions from ISO-NE's then most current 2013 capacity, energy, loads, and transmission (CELT) report to assess the reliability of the existing transmission lines.

Eversource relied on the 2015 needs assessment and 2013 CELT forecasts from ISO-NE for its determination of need. The 2015 needs assessment found that the existing transmission system in the Marlborough subarea⁶ is inadequate to reliably serve current and future customer load.

Specifically, the 2015 assessment identified numerous postcontingency "thermal overloads" and "low-voltage violations" in the Marlborough subarea following certain N-1 and N-1-1 contingencies. Eversource stated that although the N-1 violations identified in the area would be addressed by other planned transmission system investments, N-1-1 postcontingency thermal overloads and low voltage violations would remain unresolved, leaving a risk that more than 72,000 customers in the subarea could lose power.

Eversource also presented the board with its internal updated analysis undertaken in 2016 and 2016 ISO-NE CELT forecast data that Eversource considered as part of the updated analysis. Eversource claimed that its updated analysis confirmed the need for the project as identified in the 2015 needs assessment, demonstrating a risk of "post-contingency thermal overloads" and "low voltage violations" in the Marlborough subarea. Based on all of this information, Eversource concluded that there was a need for additional energy supply in the Marlborough subarea.

ii. Facility and route selection. To select a proposed location for the project, Eversource identified a study area, reviewed potential routes between the Sudbury and Hudson substations, and narrowed the list of potential routes. As part of this process, Eversource met with Federal, State, and municipal officials; petitioner Protect Sudbury; residents; business owners; and other stakeholders to discuss route options and to obtain input.

Eversource considered multiple alternatives in addition to a new transmission line to address...