-: Okay,
let's call the next case.
Man: SJC12997,
Town of Sudbury
The Energy Facility Citing Board
-: Attorney Bernstein.
-: Thank you, your honor.
Good morning.
May it please the court,
my name is Jeffrey Bernstein,
and I represent the appellate
town of Sudbury,
I appreciate the opportunity,
to appear this morning.
I'd like to focus on
the citing board's determination
of need for the proposed project,
the board's comparison of the project,
and non-transmission alternatives, or NTAs,
and in particular its denial
of the town's motion
to reopen the proceedings.
Counsel for protect Sudbury
will focus on the
citing board's analysis
of the cost of the project,
as compared to alternatives,
and the environmental impacts,
also as compared to alternatives..
This case-
-: Now, counsel, before
you get into the issues,
can you help me out
as far as this world
that you'll live in,
that someone that doesn't practice this,
find it unique.
-: We have forecasts
from ISO new England,
that go from 2013, 2016,
then we have a board decision in 2019,
and part of the issues
in this case now has to do
with the time that passes
in the forecast that task,
but is this something that's usual,
in these citing cases
as far as the time delays?
or is this unusual?
-: Well, this, I think
this is somewhat unusual
in terms of the length
of the case your honor,
and there were different forecasts used
for different purposes,
on the record,
there were 16 days
of adjudicatory hearings, I believe,
and then a considerable amount
of time passed well over a year,
after the conclusion of briefing,
and the boards, bent to decisions.
So there were much more recent forecasts,
which is why the town
filed its motion seeking
to reopen the record
in June of 2019.
-: And I'll ask the same questions
of the appellate as well,
so to say your full warrant,
-: please continue Mr. Bernstein.
-: Thank you very much.
I'd submit the case arises
in a very important crossroads,
for the citing of energy
facilities in the Commonwealth.
The siting board in Eversource
and the Amicus new England power,
present a doom and gloom scenario,
If this court does anything
other than simply affirm
the siting boards decision,
in fact nothing could be
further from the truth.
The reality is that
the dated and inflexible framework,
the siting board has applied here,
is inconsistent with the legislative,
and other recent policies,
of the Commonwealth to protect,
preserve and enhance
our environmental resources,
encourage resilience
to climate change and other events,
and facilitate the transition
to a clean energy future.
This project's a 20th century solution,
who are highly theoretical problem,
positing a series of multiple
simultaneous transmission failures,
which has never occurred,
and which the demand forecast,
including the most...
-: I mean, you know,
we don't want them
to occur either, right?
-: Absolutely.
-: I mean, Texas is a good example
of what happens when you
don't do what you're supposed to do,
which is plan ahead,
and plan for worst case scenarios.
Mr. Bernstein, one thing
that would really help me,
if you could identify
what legal errors, you know,
if this is a balancing test,
of these three different factors,
you know, I understand it
but could you tell me
what legal errors are made here
as precisely as you can
because we owe a lot of deference
in terms of how you balance
these considerations.
So help me out.
-: Thank you, your honor.
Absolutely. I agree that
the court does
tremendous deference,
to the siting board,
but I'd submit that deference
is not unlimited.
So starting with the determination
of whether there's a need,
or the project before
the court has to be able to discern
from the board's findings,
not just the recitals of evidence,
the siting board,
writes long decisions,
and they're very good,
at summarizing the evidence,
that the parties presented.
But they have to determine the facts,
about the forecasting methodologies,
that the board
found to be true and reliable.
Now without those found,
the Packard mills case,
not a siting board case of course,
stands for that proposition.
So that's one of the
-: Okay, but again,
help me out Mr. Bernstein,
you say that there needs to be
a need for the project.
Did they apply the wrong legal standard,
for determining need,
or do they just disagree
with your view of need?
-: They didn't make findings
based on these forecasts.
If you use forecasts,
if you elect to use forecasts,
which ever sorts did,
the siting board,
has to make specific findings,
there are a series of changing inputs.
I couldn't agree more
about the need or conservatism,
but the inputs change,
and before we approve
a hundred million dollar project,
that has significant environmental impacts,
as compared to available alternatives,
we need to look at
the situation on the ground
because it is a constantly
changing situation,
and in the 21st century,
we're looking for resilience,
thinking about what happened in Texas,
we want solutions,
whether they're new transmission lines,
or non-transmissional alternatives like
(coughs)
big battery storage,
or additional, Wendlandt: Mr Bernstein,
can I ask you to be more precise?
You know, what do you mean
the inputs changed?
What is the legal error,
that the siting board committed
on the needs assessment?
Because it seems to me,
they relied on ISO new England's assessment,
of today's needs,
including the projections
for tomorrow, or is that incorrect?
-: No, that's not correct your honor,
the primary forecasts
that were being used,
date back to 2013,
and if we look at these ISO forecasts,
we see that they constantly change,
and that they, it's obviously
you can't constantly
revise the record
because new forecasts are coming out,
and you have to have some closure.
And this court,
and the siting board
have recognized that,
but you also need to have inputs there,
10 years out of date
because what's happened,
is things have changed dramatically,
and here we're positing the need
for a new transmission line,
based on this N one one,
the series of sequential failures,
which every forecast
after that 2013,
shows a decrease,
and in fact,
the town and its motion to reopen,
offered an affidavit
from its expert,
that the number of potential violations,
the number of conditions,
that could lead
to a transmission failure,
was significantly reduced,
and at the rate it was going by 2025,
It may well be zero.
The Eversource came back and responded.
-: Again, can I, just to
justice Wendlandt question,
which is the same as mine,
which I still don't have an answer to.
So what is the legal error on?
Can you precisely define
the legal error?
Was it that they relied
on stale information?
The 2000, was it improper
to rely on the 2013 study?
What is the legal error?
-: Well, one legal error is,
the siting board
didn't make its own findings,
that allow the parties,
and allow this court,
to who specifically determine,
we have a whole host
of different studies and forecast.
But you cannot figure out,
on the setting ports findings
because the findings are so thin,
which findings they are relying on,
you can't just say,
well, back in 2013,
there was a theoretical
massive transmission failure,
which we all agree
would be a terrible thing.
The findings don't exist.
Another one is,
that given the passage of time
there was no prejudice,
updating the record,
and including the new ISO forecast,
the new self reports,
the capacity,
energy,
and load and transmission reports.
So there are two significant
errors there your honor.
-: Well, Mr. Bernstein,
if I could ask you
for a moment to sort of differentiate,
in your arguments,
the abuse of discretion
on the motion to reopen
from the overall issue
of the enhanced priority
of reliability while demand
is going down.
-: Right?
-: Because as I understand
your argument is
that we've got data
that's getting old,
and that your position is that,
there's not enough findings
or documentation,
that despite the forecast methodology,
that there's still this need.
And here's my problem
to be Frank about it.
I can read what you wrote,
and I can to some extent,
understand it,
but trying to get into eighth
ISO new England
forecast methodology,
and trying to figure out
whether the documentation
at the motion to reopen,
explains Eversource
new forecast methodology,
seems to be the type of thing,
where I'm going to say, okay,
board, what do you think of that?
How am I gonna bring to bear,
the ability to discern
whether that argument is right.
-: Your honor, a couple of things.
First, if you're using forecasts,
they have to be reviewable
and reliable.
And we don't have the findings
that allow anybody
to determine that.
As to the motion to reopen,
the board denied the town's motion,
based on extra record evidence,
and based on a study,
that Eversource put together,
attempting to refute
-: Wasn't the motion
to reopen extra record?
That's the nature of a motion to reopen.
-: Well, we have to show,
right, we have to show
good cause your honor,
and the siting board in defeating,
and saying that
good cause doesn't exist,
relies on something
that we have no opportunity
to cross examine,
no opportunity to do any discovery.
-: So you want the other side to just lay
down like a dog,
when you file should be open.
-: No, not at all,
but what the other side filed,
shows that there's
a significant factual dispute,
and I think under
the Boston Edison versus DPU case,
there has to be,
there has to be at least
a reasonable opportunity
who resolved those
significant factual disputes
particularly where we've shown,
and made a primal phase showing,
that based on these new forecasts,
there may be no need at all,
or that in fact
the ability of non-transmission alternatives
to serve the need is much greater,
and the record in this case
shows that over the couple of years,
every sources original prediction,
of how much injection,
how many new,
how many new megawatts of generation,
or savings from energy efficiency
went down more than 300%.
It went from well over 200 to 80,
by Eversource his own estimate,
at the time of the motion to reopen.
-: Mr Bernstein can i ask you
to finish the thought there,
what does it mean
that it went down by over 300%?
Are you suggesting that
there was no longer a need?
-: No, I'm suggesting that,
-: What is the conclusion
I'm to draw.
-: The conclusion that,
sorry your honor
-: Increasing megawatts,
-: What you, is that the feasibility,
of alternatives,
of non-transmission alternatives,
which is something
that by the siting board
own decisions,
is something they're supposed to encouraged,
and in fact,
I would submit is more consistent
with building resiliency,
that is the problem
that has to be solved,
is radically different,
than the problem that
Eversource presented,
in its original petition.
That's the conclusion you should draw.
And that in fact,
what the siting board,
-: I'm sorry council,
I don't understand what you mean
when you say that,
that it's radically different.
-: The number of the amount of megawatts,
the size of the alternatives,
the cost of the alternatives
to the proposed transmission line,
has changed so radically,
so that the original contention,
that we can't possibly replace
the transmission line,
with solar or solar and storage,
or energy efficiency,
or other measures,
has to be looked at
because it's a completely different problem
than what Eversource presented,
back in 2017.
-: Okay. Thank you very much.
We'll move on to attorney Kenoff.
Mr. Kenoff,
-: May I please the court,
I'm Richard Kenoff.
I represent protect Sudbury incorporated,
and I'm going to focus my remarks,
on two aspects of
general law chapter 164 H,
with respect to minimum impact
on the environment,
and lowest possible costs.
There are two points
I wanna make with respect
to those elements.
First, the board aired
in using conceptual estimates
to assess lowest possible cost,
for the project
and for the alternatives.
Second, the board aired
in its finding that they
all street ruled,
and the underground MBTA ruled,
for the project,
And for the alternatives,
were comparable.
And I wanna start with cost.
With respect to cost,
the company submitted,
what we refer to,
and what they refer
to as conceptual estimates.
These estimates have
a wide variability in terms
of their scope.
So conceptual estimates for example,
are a range of minus
-: Conceptual estimates council
traditionally used,
at this stage
because he actually
haven't built it,
It's not worth the cost
in getting granular
on some hypothetical.
It's just a ballpark estimate.
-: Right?
-: You know, some science behind it,
but it really has to be,
necessarily a ballpark estimate.
-: Our contention is, your honor,
that a ballpark estimate,
under the standard,
of lowest possible cost,
is inadequate and that the companies,
-: And what is your legal authority,
for that proposition.
-: The legal authority is that,
this court has interpreted the
forecast and the information
that accompany and the,
has to submit and the board
has to assess that,
is that, let me say it this way,
that provides enough data,
for that assessment to be made.
And that's in return in Bedford,
versus energy facility
siting board in 1992,
for the court interpreted,
by chapter 164 H.
The fundamental legal point is that,
if you have conceptual estimates
with these variable ranges,
wide ranges,
then you try to compare projects
related to each other,
with those ranges,
you don't have the data,
to make that comparison.
The randoms,
-: You're suggesting any time,
these kinds of conceptual
cost estimates are used,
It's unacceptable under the statute.
-: That's correct.
And there is,
-: You have a sense,
cause I don't do this day to day.
Do you have a sense of how many
of these projects
are based on conceptual costs,
like they are here.
-: They have traditionally inciting board.
I think references as in the decision
and the company certainly
does in their brief,
they have posited,
that these conceptual estimates,
are standard in these cases
and that they therefore
should be relied upon.
This is really one of the first,
-: That's my problem.
I guess you've identified the crux of it.
If these are the kinds of costs,
that are standard to be used,
are you suggesting that
they're always inappropriate?
-: No. What I'm suggesting is,
this is I think the first time,
that this court has
really looked at this issue
and I wanna put a little bit
of context here,
as part of my answer to your question,
If you'll indulge me.
Many of the projects
over the last 10 years
if not all of them,
have involved transmission lines,
that are under streets
or on existing rights away.
So the comparison,
whether it's conceptual estimates
or as we would,
essentially recommend
planning estimates,
where for the same type
of transmission facility,
under street or on an existing right away,
this is a very different case.
Here you have a transmission line,
basically on all of,
all elements,
you have one under the street,
you have one on a right away
that hasn't been used,
and you have one under
an existing right away.
The ability to refine estimates,
for those projects,
on the basis of conceptual standards,
isn't consistent with what the court,
has said is required
as sufficient data.
And I wanna also just
make a point that the ISO itself,
doesn't necessarily
use conceptual estimates
for this level of decision-making.
They certainly use
conceptual estimates,
there's no question about that,
they use it as part of their
planning and assessment process,
but they talk about
conceptual estimates
as simplified in study estimates.
They don't talk about them
as things that you're
gonna actually use to make a decision.
And in fact,
as you go through their process,
when they make a decision,
they rely upon the more
refined planning estimates.
And our point in this case,
with respect to estimates
this asked the level
of refinement that this court
should insist that,
the citing word used,
as part of its determination
under the statute,
and as part of its determination,
consistent with the new Bedford case.
And I also wanna,
-: Let me just interrupt you for a moment
because I wanna just ask a question
where you started,
to make sure that,
I have the right standard
to be applying here,
if you mentioned
minimum environmental impact,
and lowest possible cost.
And I think that we're going
to hear from the board,
that you look at
all three factors,
reliability,
environmental
and costs,
and you do a balancing,
and that the board
doesn't have to find,
the minimum environmental impact,
and it doesn't have to find,
the lowest possible cost.
Is that argument wrong?
-: I think the argument
has to be put in context
with what we're saying about costs.
You have to at least in assessing costs
whether you assess it,
balance it and make comparisons,
you at least have to have
a metric that establishes
-: Absolutely.
Does it have to be
the lowest possible cost?
-: The metric that you use,
the measurement,
My point is that
the metric that you use
to establish lowest possible cost,
has to be a reasonable calculation,
and using conceptual estimates
with a wide range of
minus 25 to plus 50%,
doesn't do that.
-: No, I get all that,
and I certainly get
the expense year to year
the least to the MBTA.
I'm asking so much more
of a basic point,
which is in doing this analysis,
does the board have to do
what you said?
Find the lowest possible cost,
or the minimum environmental impact.
-: What the board,
I think it does.
And I think that what the board does
in his decision is,
it takes a look at each one
of these factors individually,
and in assessing costs,
for example, it takes a look
at the different costs
as presented by the company,
which are based upon
conceptual estimates,
and it just compares them.
And it says,
option A is lower than option B,
option A wins.
And we're saying,
the analysis that goes into
that point reference,
that specific number,
that determines the basis
for the EFSPs comparison,
is too broad.
You can't just take
a single number
based on that estimate and compare.
-: Are you asking us to change all
of the traditional standards?
Isn't this how it's been done.
That they use conception?
Let me frame the question,
and then you can respond.
That they use these
conceptual EPS estimates,
and they do a balancing,
and you may not like that.
And you may think that's not precise
and scientific enough,
but you're, it seems like
you're asking us to change
the legal standards here.
I just wanna make,
and when you can, that's what,
we're in the business of sometimes.
But I just wanna clarify,
are you saying that
the wall was misapplied,
or that you want the wall improved?
-: I think that this is
the first case that has come up,
where the issue of
what the appropriate cost standard,
and the lowest possible cost means,
and therefore,
-: Isn't that incorrect.
Hasn't this ISO methodology
been employed in the past,
and the conceptual cost
counting has been used
in the past in all of these cases,
and you want us to change it?
You can be upfront about that,
but what you can't do for us is,
not tell us what's
legally wrong here,
or where we're gonna be befuddled.
Go ahead.
-: So yes, the short answer is that,
from what the EFSB has done
in the past,
where it has used
conceptual estimates,
and it has allowed the company
to refine conceptual estimates,
to a planning rate standard,
plus or minus 25%,
and make a comparison
of the debt estimate,
with the alternatives.
It has done that consistently,
with a couple exceptions however,
and I think this is really key,
to our ask of this court
to take another look at this
or to take even a look at it
as a first reality.
And I wanted just to point you
to what the board itself has said
about conceptual estimates,
as it has reviewed them,
by Eversource and by the other,
utility in this case,
nearly in power.
The board itself has said
that these estimates,
should be refined in the future,
to quote, incorporate a narrower range,
than 25% to 50%,
in order to quote,
provide a greater certainty,
about the true cost of the project.
They've also said that
the provision with this refinement,
of timely high quality,
and reliable cost estimates,
is essential for effective review
of project alternatives.
So we're just echoing,
some of the concerns,
and some of the criticisms,
that the board itself
has recognized,
in its assessment over time,
of the estimates.
They're just too broad,
they're not accurate,
they're not meaningful,
they don't allow a detail
comparison or a specific,
-: Council could I interrupt
you on one point
because I think there's
a little bit of
an amalgam of all of the justices
points to you,
but I'd like you to answer for me.
Your brother council talked about,
that we should not necessarily defer,
to the agency or the board's
determinations in these.
And isn't this exactly
the reason why we've had
this jurisprudence
because in this particular situation,
you're talking about us
doing a granular dive
into the cost estimates.
But this is in the larger
in the smaller context
of what happened here
in this regulatory proceeding.
Are we to do this
in all administrative
proceedings like this?
Where people could come in and say,
let's get down into the weeds
of all of the determination,
and all of the factors
that the board has
in front of them,
to kind of revise the way
they've done things
over the years.
Isn't this exactly
the reason why we defer
to the experience
and the expertise of the board?
-: Your honor,
there's a balance between
deference that's due to the board,
and there's a obligation
of the court,
on some levels review
the specific interpretations
that the board has made.
In this particular case,
with this particular analysis,
involving the standard
that as low as possible cost,
and involvement of requirement
of sufficient data,
we believe that
this case is appropriate
on the issue of conceptual cost,
as applied here,
through this court's review.
I understand the deference,
but that's the bottom line on that.
-: So council, Oh, go ahead sorry.
Budd: You have a question,
-: I was just going to ask,
it sounds to me
that you really want us
to change this,
you know, you're not arguing
there's particular error
in the findings they made,
that you don't like
the model they use,
that you want a wholesale change of that.
Is that accurate?
-: We believe,
that the model that they used,
with conceptual estimates
as part of their comparative assessment,
doesn't comport with
the statutory requirement,
or the sufficient data.
So I guess the short answer
to your question is yes,
but I also just wanna point out,
that we're just taking
what the board itself recognized
as deficiencies, and these estimates,
to conclusion that
is wholly appropriate,
given how inaccurate
and meaningless they are,
for the type of review that's required.
Budd: Everybody all set.
Okay. Thank you very much.
Attorney Cray.
-: Thank you.
Excuse me, may it please the court,
pierce Cray, assistant attorney general,
for the energy
facility siting board.
On the need issue,
at points, the appellants
have seemed to ask
for a specific new
standard to be applied,
or at least that the
so-called worst case standard not be,
the board submits is a fully
appropriate conservative standard,
consistent with what the operator
or the regional electric system,
ISO new England uses,
and it's appropriate here.
In this case,
and this gets to all
the questions about forecasts.
In this case,
there was a lot about forecasts
but the board also made,
a separate critically important finding.
And that is that there already
exists a need,
that that existing need,
dates back to 2013,
and that as of the time
of the boards 2019 decision,
that need still existed.
There've been a lot of issues
raised about forecasts,
but you don't need to get
to what can happen in the future.
If already there is a need,
the appellants have never explained,
why that separate determination
of an already existing need,
is wrong.
I'd specifically appoint the board,
to the towns of main brief
at page 35,
and its reply brief
at page 11,
where it alludes
to this separate finding
of an already existing need,
but then provides no argument,
as to why it was wrong.
-: What you're saying,
I think councilor,
I think what's going on here,
is they're saying,
well we have a motion to reopen,
the there's no doubt
this project need
is at least reduced,
from the ICO new England data,
that the non-transmission
alternative data
is better than it was in 2013,
and that we want
an evidentiary hearing
as a result of that,
to test the methodology
that you're using
in response to the decreasing need.
-: Yes, your honor,
but that is their arguments,
but in the motion
to reopen ruling itself,
the board specifically found,
that the issue of
already existing need,
had not been rebutted,
and as a result,
the standard for reopening
these extended proceedings,
have clearly shown good cause,
was not met because again,
you can have all
the forecasts in the world,
but if there right now
is a present problem,
which the appellants have not rebutted,
before this court,
or explained why the board's finding
of that was wrong,
and the board's finding
was based on evidence
specifically provided to it,
by the regional operator
of the entire new England grid,
that there already,
is an existing problem,
but that's was sufficient
to deny the motion to reopen,
particularly whereas the town points out,
you're already quite well
into an extended case,
that the statute 69 J,
has language indicating
it should be completed,
within 12 months.
Now, the courts previously held
that 12 month language,
is directory not mandatory,
and these proceedings
are immensely complicated,
here there were four intervenes,
more than 60 other interested parties,
more than 25 witnesses,
more than 1800 exhibits,
16 days of highly complicated hearings.
and so it has taken longer.
What the plaintiff's
appellants are asking for,
is for the court to rule
than it is to take a good deal longer,
have it reopened,
so we continue to assess,
where things may
or may not be in the future.
We don't need to get
to where things may
or may not be in the future,
if there is a finding
of already existing need
right now that has not been rebutted,
in the briefs that are submitted
to the court.
If I could turn to the,
-: Is that because the future need
is only gonna go up,
so that the existing
need right now is a base?
-: No, I believe the already existing need,
is a separate determination.
The forecast go to what may be happening
in the future,
and is what was Mr. Bernstein
indicated an argument,
and as the board noted,
in the motion to reopen,
their expert witness,
submitted an affidavit saying
basically the closest
even under these forecasts,
if they continue to go down,
that the existing need,
would be resolved would be 2025,
but the board had before it.
And I would defer to exactly
what Mr Bernstein said,
but that was the thrust
of what I understood he was saying.
But the board
looked at the issue of,
was the finding the prior
evidence of existing need,
was it rebutted,
by what was being put in.
And it considered
two sets of affidavits,
from the town,
two sets of memoranda
of principle and a reply,
as well as material
discussing the same
sets of forecast by Eversource.
And it found that that standard
wasn't met of good cause,
and that there was
not sufficient reason,
to reopen a proceeding,
that already was well over
for better or for worse,
the 12 month period,
that the legislature
would like these
important matters resolved by.
That's the kind of
discretionary determination
the boards previously indicated
in the box case,
one of the alliance cases,
that are motions to reopen,
there is broad discretion in the board.
Alright, and I would submit
that this was given
all the factors,
that this was sufficient.
-: Well, considering the deference
that the board has,
including, I guess you're right,
the deference to reopen,
I mean, wouldn't we be more comfortable
with that deference,
if there was some sort of
hearing that explained other sources
forecast methodology,
and explained why
despite the decrease in need,
that nonetheless,
we need to go forward
with this project?
-: Well, it actually wasn't,
your honor Eversource forecasting.
It was forecasts again
by ISO new England,
that the town itself,
in its motion,
put before the court,
along with an affidavit,
as to why those forecasts
were significant.
Eversource came back
with a rebuttal affidavit,
saying, no they aren't
actually significant,
and then the town
over other sources objection,
had the right,
and did submit,
a reply memorandum
and reply affidavit
arguing sort of the contrary.
The board looked at it,
it found that
based on the papers before it,
there was not enough
to change the issue
of the already existing need,
again, 2025 which was what
Mr. Bernstein talked about
if trends continue,
the need will be resolved,
that was six years
from the time when the board
was deciding this in 2019,
and it has to legislature
wants it to address existing needs.
Not necessarily wait
for six years to see
if the needs go away.
I may be overstating
-: Mr. Cray, everything seems
to be lagging though, right?
So during the original proceedings,
you're using 2013 data, right?
-: Yes, sir.
As supplemented with 2016 ISO data.
But those are the two core years.
Yes, your honor.
-: During the original proceeding
as opposed to the motion to reopen,
were there objections
that the data was stale
at the time?
Or did this just come up
in a motion to reopen,
that suddenly the plaintiffs
were not happy
with the statistics
that they were working from?
-: I don't know the precise answer,
or whether it was,
I would defer to Mr. Rosensweig to answer,
whether it was
specifically brought up before.
But regardless of whether it was
or wasn't brought up,
the standard in the regulations
to reopen is clearly show good cause.
It's an appropriate standard,
given the legislature's
preference to expedite
these proceedings are possible,
and the fact that they do
inevitably take a long time.
And,
-: Can I ask one other question,
maybe Mr. Rosenzweig,
rather than you Mr. Cray,
but opposing counsel says
that the board was I'm switching
to conceptual cost for a second.
-: Absolutely. Your honor.
-: Your opposing counsel says
that the board has criticized
its own reliance
on conceptual costs.
Is that true?
Or is there more nuance that point?
Can you respond to that one?
-: Nuance was exactly the adjective
I was going to use your honor,
the board would prefer
in an ideal world,
more detail, more development,
rather than less.
So it certainly has statements
in its decisions, encouraging that.
The board does not require it though.
And for a very good reason,
two reasons I should say
both of which are grounded in the text,
of section 69 J itself.
The first reason
is a requirement in the 69 J,
that, or a prohibition,
on any state agency,
from issuing a construction permit
for a project,
until the board first,
has approved the petition
that the court is currently,
has under review now
because the board proceeding
must come first,
if necessarily you're at
the early stage
that some of the
other justices alluded to,
and that's naturally
estimates are gonna be
more preliminary at that point.
The second,
-: Can I pose, can I just,
because it's gonna display
my ignorance for a second.
So you say there's followup proceedings,
for construction permits.
Are there also followup
environmental proceedings,
or does this,
I mean, we normally
require, or, you know
section 61 commitments
and other things
in the environmental process,
will that still have to be met by this?
-: Yes, absolutely your honor,
when I said construction permits,
I was referring to precisely
the environmental permits
that your honor just referred to.
-: So there'll be an
environmental process
after this signing process,
that they have to go through.
-: I believe that it starts
on the time of the issuance
of the board's decision,
and does not continue to be told
during the course of this review,
Mr. Rosenzweig can address it.
I believe matters have progressed,
in terms of those
other permitting,
but at my understanding is,
at least the statute's written,
you don't get to,
at least the issuance,
of those other environmental permits,
until the board
has issued it's decision.
That it has to come first.
As the result
because the board proceeding comes first,
you're at an early stage,
the second reason
in the text of the statute,
is again the 12 month language,
it needs to be resolved
within 12 months,
these as both the Amica
into England power,
and these has illustrated
and Eversource as well,
going from conceptual level,
to planning level,
takes a lot of time.
I just conclude by noting the,
-: So just so I can summarize for myself.
So, there's gonna be
an environmental process,
where they have to
make determination of
all of the environmental impacts,
on the proposed permit,
which often also considers alternatives.
So this is not the only game
in town on this thing.
-: Absolutely not your honor,
and I know Mr. Rosenzweig
has details on that,
if the court is interested.
But just my final point
on the part why the court,
we are urging the court,
not to require
as a mandatory per se rule.
In every case,
moving to this planning over cost,
is the time.
Protect Sudbury in its own briefs twice.
Say it would take 10 to 12 months,
for its preferred alternative,
to be pushed to the planning level.
When the statute itself says 12 months,
it's entirely irreconcilable with it,
for there'll be a fixed
per se rule to impose,
you have to go to a certain level.
So the board would prefer things,
in the ideal world,
more detailed,
but it also respects the reality,
the statute is operating under,
it doesn't require them,
and do just the court
not to require them either.
Wendlandt: Okay, thank you very much.
Attorney Rosensweig.
-: Good morning, your honor.
May it please the court.
David Rosensweig appearing
on behalf of instar electric
who was the petitioner,
and project proponent
before the siting board
in the underlying proceeding.
I would first start by
joining argument with
assistant attorney general Cray,
on the issues of need,
and the motion to reopen.
I think the critical
data point here is,
that the need for this project,
is not based on load growth,
or load forecasts,
in and of themselves.
Although each and every one
of the load forecast
that were reviewed
by the siting board
and the proceeding,
were consistent with
ISO new England related studies,
in the siting board properly said
that they give great weight
to the ISO new England
given their expertise in this area,
and their role as the
regional system operator in new England.
But the key point
that I was alluding to
was that the need
for this project exists
at load levels,
that have already been experienced,
and none of the forecasts
that were presented
during the proceeding,
indicated that loads were dropping
to an extent that,
that historical load level,
would not trigger
a contingency on the company system.
If there were consequences
with regard to other generators,
or transmission lines,
Ally in the Texas situation
that would give rise
to a series of customer outages,
and enrolling blackouts and the like.
The standard of siting board
applies is under its statute,
that reliability is sacrosanct,
and that the legislature
has declared that
the health and safety
of the Commonwealth its citizens,
its economy is dependent
on reliable supply of electricity,
that's the same stand
that Eversource has held to
as a transmission owner,
under state and federal standards.
So it's very important
for the company
to have in place
resources to address
load situations that may occur
on its system,
at the same time
that there is an unavailability
of transmission
or supply of the resources,
to meet customer needs.
That's a fundamental requirement
on the company,
and it's the standard
the siting board applies
under its statute.
With regard to the question of
whether the claim of the staleness
of the data was made
during the underlying proceeding,
it was not,
and that's my recollection.
There were a series
of forecasts that were presented
during the proceeding,
starting as early as 2013
going till 2016,
where the 2016 self report
there was also some evidence
on the 2017 self report
and each and every one
of the forecasts
that the company presented
were ISO related forecasts,
and the siting board
did find that
each of those forecasts
were reviewable,
reliable and inappropriate.
And while the historical,
law level on 2013
would support the need
for this project in and of itself,
the citing boards evidence,
was detailed on all
of those issues
and its findings comport
with its precedent
of relying on siting board, excuse me,
ISO new England forecasts,
to demonstrate need
for the project.
So we believe that
the citing board's order
is well supported
by substantial evidence.
They made the requisite
subsidiary findings
and should be affirmed
by the court.
With regards to the use
of conceptual cost estimates.
It is indeed the case
that those are the level
of cost estimates
that ISO new England uses,
to make project comparisons
and what's called a solutions report,
the company endeavors
to refine its analysis
with cost estimates
during the proceeding
and presenting its preferred project
to the siting board,
and did so here it to a level
of plus or minus 25%,
which is called
the planning grade estimate.
But for purposes of
doing a cost comparison,
it is completely in accordance
with siting board standards,
to compare projects
at a conceptual cost estimate level.
Those are point estimates,
which represent the best estimates,
the best record evidence in the case,
and it allows
for an apples to apples comparison,
without looking at
the uncertainty range,
the siting board looks at
the most likely cost figure,
within that confidence level,
and compares the project costs
to alternatives in order
to determine which facility
would have the lower cost
impact on customers.
Here, the company's project
was found to be superior
to the alternatives
that were presented,
at least that our issue here,
particularly the
-: Mr. Rosenzweig
So I trust that the sighting board
knows the energy world.
I'm not sure,
I trust them quite as much
on the environmental world,
so that when they're doing
that balancing considerations,
I know they don't wanna have
like a Texas situation.
They wanna make sure
they got transmission lines
and they're gonna go around the side
of getting the transmission lines
that they're not like
the people in Texas
about the be, you know,
publicly humiliated.
But is there a subsequent
environmental process here
where we double check
whether this is the, you know,
appropriate from an
environmental perspective?
How does that work?
Once you get
a siting board approval,
do you have to go
through the normal
state environmental process
to approve this project?
-: Absolutely, your honor,
and I can describe that.
I would say the siting board
does have considerable expertise
in environmental matters,
given the number of proceedings
and halves, but,
-: I understand they have expertise,
but they may have,
when they do that balancing,
I'm not sure that
the environmental was quite,
you know, the same to them
as it is when it is in form of DEP,
and the environmental regulators.
So go ahead.
-: So as attorney general,
assistant attorney general Cray
mentioned the project does need
to undergo considerable state,
and local review.
The state review occurs,
subsequent to the citing board,
proceeding because by statute,
the siting board is the first
state permit to be issued,
but the project has subsequently
been through the MEPA process,
has successfully received
a MEPA certificate,
that the project adequately
and complies adequately,
and appropriately complies
with the requirements
of the MEPA.
MEPA issued what a called section
61 findings that you alluded to,
those section one 61 findings
will guide other state agencies
in the review process.
The project requires
a chapter 91 license
from DEP for some of the bridge work
along the MBTA underground right away,
that review was underway.
All of the other state permits
follow from the siting board review,
and on the local level,
there are permits
that are being sought
in Hudson and in Sudbury,
for grants a location,
for a conservation commission approvals.
In fact, in the last few weeks,
the company has received
a conservation commission
order of conditions,
a favorable review
for its wetland impacts
on the MBTA underground right away.
All of this happens
subsequent to the siting board review,
-: Mr. Rose, again
because I'm more of
an environmental person
than an energy person
who may understand that better,
when they did the
environmental review here,
were these alternatives
that were presented here.
Part of the environmental review too?
That the,
if we look up
the environmental permit here,
will they be comparing
the three different options here
in the environmental process?
Or was it, were they just looking
at the actual signing board proposal?
-: The environmental permits
to a large extent
that follow are based on
the project specific
preferred approach
the company has presents
to the state agency
MEPA does look at alternatives,
so I can tell you
that is part of their analysis.
But,
-: If I look at these
particular alternatives,
is part of that or not,
I'm just trying,
again I'm not saying they needed to,
I'm just trying to understand,
you know, how much of this
is duplicative,
is duplicated to the environmental process.
-: There is deference by MEPA
to the siting board,
and in the conduct
of its alternatives review
but part of the reporting
of a D E I R, and an F E I R,
which is a draft
environmental impact report,
you know, final environmental impact report,
looks at alternatives
provides the environmental characteristics
of the laws,
those alternatives,
and MEPA and the siting board
tend to try to
coordinate their reviews
to make sure that there's no overlap
between the two agencies.
And in here,
there was a very detailed review
of the 240 pages
of the siting boards order,
at least two thirds of that order,
govern issues on
environmental impacts
either in the routing analysis,
or the comparative impacts
of the project to alternatives.
So it's a very comprehensive review,
as Mr. Cray said,
there's thousands of exhibits,
in days of hearings that went
into very fine detail
on all of these environmental impacts.
And before the siting board found
that the company's proposed
project was superior.
It adequately reviewed all
of those impacts
as well as the cost
to performance balancing
of reliability, cost
and environmental impact.
So on that basis,
we would ask the court
to affirm the siting boards order.
-: Thank you very much.
Thank you council,
for all parties.