WEBVTT
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Okay,
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let's call the next case.
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SJC12997,
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Town of Sudbury
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The Energy Facility Citing Board
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Attorney Bernstein.
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Thank you, your honor.
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Good morning.
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May it please the court,
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my name is Jeffrey Bernstein,
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and I represent the appellate
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town of Sudbury,
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I appreciate the opportunity,
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to appear this morning.
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I'd like to focus on
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the citing board's determination
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of need for the proposed project,
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the board's comparison of the project,
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and non-transmission alternatives, or NTAs,
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and in particular its denial
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of the town's motion
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to reopen the proceedings.
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Counsel for protect Sudbury
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will focus on the
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citing board's analysis
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of the cost of the project,
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as compared to alternatives,
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and the environmental impacts,
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also as compared to alternatives..
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This case-
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Now, counsel, before
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you get into the issues,
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can you help me out
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as far as this world
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that you'll live in,
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that someone that doesn't practice this,
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find it unique.
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We have forecasts
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from ISO new England,
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that go from 2013, 2016,
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then we have a board decision in 2019,
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and part of the issues
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in this case now has to do
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with the time that passes
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in the forecast that task,
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but is this something that's usual,
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in these citing cases
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as far as the time delays?
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or is this unusual?
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Well, this, I think
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this is somewhat unusual
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in terms of the length
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of the case your honor,
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and there were different forecasts used
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for different purposes,
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on the record,
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there were 16 days
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of adjudicatory hearings, I believe,
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and then a considerable amount
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of time passed well over a year,
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after the conclusion of briefing,
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and the boards, bent to decisions.
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So there were much more recent forecasts,
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which is why the town
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filed its motion seeking
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to reopen the record
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in June of 2019.
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And I'll ask the same questions
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of the appellate as well,
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so to say your full warrant,
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please continue Mr. Bernstein.
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Thank you very much.
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I'd submit the case arises
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in a very important crossroads,
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for the citing of energy
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facilities in the Commonwealth.
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The siting board in Eversource
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and the Amicus new England power,
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present a doom and gloom scenario,
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If this court does anything
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other than simply affirm
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the siting boards decision,
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in fact nothing could be
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further from the truth.
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The reality is that
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the dated and inflexible framework,
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the siting board has applied here,
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is inconsistent with the legislative,
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and other recent policies,
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of the Commonwealth to protect,
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preserve and enhance
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our environmental resources,
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encourage resilience
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to climate change and other events,
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and facilitate the transition
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to a clean energy future.
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This project's a 20th century solution,
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who are highly theoretical problem,
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positing a series of multiple
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simultaneous transmission failures,
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which has never occurred,
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and which the demand forecast,
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including the most...
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I mean, you know,
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we don't want them
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to occur either, right?
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Absolutely.
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I mean, Texas is a good example
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of what happens when you
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don't do what you're supposed to do,
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which is plan ahead,
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and plan for worst case scenarios.
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Mr. Bernstein, one thing
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that would really help me,
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if you could identify
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what legal errors, you know,
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if this is a balancing test,
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of these three different factors,
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you know, I understand it
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but could you tell me
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what legal errors are made here
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as precisely as you can
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because we owe a lot of deference
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in terms of how you balance
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these considerations.
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So help me out.
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Thank you, your honor.
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Absolutely. I agree that
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the court does
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tremendous deference,
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to the siting board,
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but I'd submit that deference
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is not unlimited.
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So starting with the determination
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of whether there's a need,
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or the project before
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the court has to be able to discern
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from the board's findings,
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not just the recitals of evidence,
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the siting board,
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writes long decisions,
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and they're very good,
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at summarizing the evidence,
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that the parties presented.
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But they have to determine the facts,
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about the forecasting methodologies,
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that the board
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found to be true and reliable.
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Now without those found,
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the Packard mills case,
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not a siting board case of course,
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stands for that proposition.
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So that's one of the
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Okay, but again,
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help me out Mr. Bernstein,
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you say that there needs to be
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a need for the project.
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Did they apply the wrong legal standard,
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for determining need,
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or do they just disagree
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with your view of need?
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They didn't make findings
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based on these forecasts.
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If you use forecasts,
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if you elect to use forecasts,
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which ever sorts did,
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the siting board,
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has to make specific findings,
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there are a series of changing inputs.
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I couldn't agree more
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about the need or conservatism,
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but the inputs change,
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and before we approve
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a hundred million dollar project,
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that has significant environmental impacts,
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as compared to available alternatives,
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we need to look at
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the situation on the ground
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because it is a constantly
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changing situation,
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and in the 21st century,
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we're looking for resilience,
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thinking about what happened in Texas,
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we want solutions,
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whether they're new transmission lines,
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or non-transmissional alternatives like
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(coughs)
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big battery storage,
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or additional,
Mr Bernstein,
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can I ask you to be more precise?
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You know, what do you mean
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the inputs changed?
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What is the legal error,
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that the siting board committed
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on the needs assessment?
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Because it seems to me,
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they relied on ISO new England's assessment,
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of today's needs,
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including the projections
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for tomorrow, or is that incorrect?
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No, that's not correct your honor,
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the primary forecasts
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that were being used,
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date back to 2013,
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and if we look at these ISO forecasts,
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we see that they constantly change,
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and that they, it's obviously
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you can't constantly
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revise the record
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because new forecasts are coming out,
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and you have to have some closure.
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And this court,
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and the siting board
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have recognized that,
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but you also need to have inputs there,
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10 years out of date
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because what's happened,
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is things have changed dramatically,
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and here we're positing the need
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for a new transmission line,
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based on this N one one,
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the series of sequential failures,
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which every forecast
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after that 2013,
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shows a decrease,
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and in fact,
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the town and its motion to reopen,
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offered an affidavit
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from its expert,
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that the number of potential violations,
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the number of conditions,
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that could lead
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to a transmission failure,
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was significantly reduced,
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and at the rate it was going by 2025,
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It may well be zero.
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The Eversource came back and responded.
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Again, can I, just to
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justice Wendlandt question,
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which is the same as mine,
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which I still don't have an answer to.
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So what is the legal error on?
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Can you precisely define
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the legal error?
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Was it that they relied
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on stale information?
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The 2000, was it improper
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to rely on the 2013 study?
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What is the legal error?
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Well, one legal error is,
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the siting board
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didn't make its own findings,
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that allow the parties,
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and allow this court,
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to who specifically determine,
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we have a whole host
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of different studies and forecast.
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But you cannot figure out,
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on the setting ports findings
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because the findings are so thin,
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which findings they are relying on,
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you can't just say,
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well, back in 2013,
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there was a theoretical
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massive transmission failure,
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which we all agree
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would be a terrible thing.
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The findings don't exist.
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Another one is,
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that given the passage of time
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there was no prejudice,
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updating the record,
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and including the new ISO forecast,
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the new self reports,
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the capacity,
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energy,
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and load and transmission reports.
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So there are two significant
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errors there your honor.
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Well, Mr. Bernstein,
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if I could ask you
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for a moment to sort of differentiate,
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in your arguments,
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the abuse of discretion
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on the motion to reopen
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from the overall issue
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of the enhanced priority
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of reliability while demand
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is going down.
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Right?
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Because as I understand
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your argument is
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that we've got data
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that's getting old,
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and that your position is that,
296
00:09:30.285 --> 00:09:31.850
there's not enough findings
297
00:09:31.850 --> 00:09:33.553
or documentation,
298
00:09:35.803 --> 00:09:39.073
that despite the forecast methodology,
299
00:09:40.763 --> 00:09:43.430
that there's still this need.
300
00:09:43.430 --> 00:09:44.620
And here's my problem
301
00:09:44.620 --> 00:09:46.010
to be Frank about it.
302
00:09:46.010 --> 00:09:47.873
I can read what you wrote,
303
00:09:49.988 --> 00:09:51.260
and I can to some extent,
304
00:09:51.260 --> 00:09:52.570
understand it,
305
00:09:52.570 --> 00:09:55.590
but trying to get into eighth
306
00:09:56.560 --> 00:09:58.130
ISO new England
307
00:09:58.130 --> 00:09:59.720
forecast methodology,
308
00:09:59.720 --> 00:10:01.480
and trying to figure out
309
00:10:01.480 --> 00:10:03.540
whether the documentation
310
00:10:05.221 --> 00:10:07.590
at the motion to reopen,
311
00:10:07.590 --> 00:10:09.310
explains Eversource
312
00:10:09.310 --> 00:10:11.640
new forecast methodology,
313
00:10:11.640 --> 00:10:13.920
seems to be the type of thing,
314
00:10:13.920 --> 00:10:17.210
where I'm going to say, okay,
315
00:10:17.210 --> 00:10:20.040
board, what do you think of that?
316
00:10:20.040 --> 00:10:22.630
How am I gonna bring to bear,
317
00:10:22.630 --> 00:10:24.020
the ability to discern
318
00:10:24.020 --> 00:10:25.583
whether that argument is right.
319
00:10:26.700 --> 00:10:28.360
Your honor, a couple of things.
320
00:10:28.360 --> 00:10:30.790
First, if you're using forecasts,
321
00:10:30.790 --> 00:10:32.220
they have to be reviewable
322
00:10:32.220 --> 00:10:33.460
and reliable.
323
00:10:33.460 --> 00:10:35.100
And we don't have the findings
324
00:10:35.100 --> 00:10:36.650
that allow anybody
325
00:10:36.650 --> 00:10:37.940
to determine that.
326
00:10:37.940 --> 00:10:39.873
As to the motion to reopen,
327
00:10:41.825 --> 00:10:44.183
the board denied the town's motion,
328
00:10:45.336 --> 00:10:48.870
based on extra record evidence,
329
00:10:48.870 --> 00:10:50.640
and based on a study,
330
00:10:50.640 --> 00:10:52.420
that Eversource put together,
331
00:10:52.420 --> 00:10:53.800
attempting to refute
332
00:10:56.240 --> 00:10:57.073
Wasn't the motion
333
00:10:57.073 --> 00:10:59.183
to reopen extra record?
334
00:11:01.810 --> 00:11:04.403
That's the nature of a motion to reopen.
335
00:11:04.403 --> 00:11:06.107
Well, we have to show,
336
00:11:06.107 --> 00:11:07.480
right, we have to show
337
00:11:07.480 --> 00:11:08.670
good cause your honor,
338
00:11:08.670 --> 00:11:11.520
and the siting board in defeating,
339
00:11:11.520 --> 00:11:12.353
and saying that
340
00:11:12.353 --> 00:11:14.060
good cause doesn't exist,
341
00:11:14.060 --> 00:11:15.290
relies on something
342
00:11:15.290 --> 00:11:16.780
that we have no opportunity
343
00:11:16.780 --> 00:11:17.820
to cross examine,
344
00:11:17.820 --> 00:11:20.250
no opportunity to do any discovery.
345
00:11:20.250 --> 00:11:22.680
So you want the other side to just lay
346
00:11:22.680 --> 00:11:24.806
down like a dog,
347
00:11:24.806 --> 00:11:26.170
when you file should be open.
348
00:11:26.170 --> 00:11:27.250
No, not at all,
349
00:11:27.250 --> 00:11:29.190
but what the other side filed,
350
00:11:29.190 --> 00:11:30.023
shows that there's
351
00:11:30.023 --> 00:11:32.130
a significant factual dispute,
352
00:11:32.130 --> 00:11:32.963
and I think under
353
00:11:32.963 --> 00:11:36.470
the Boston Edison versus DPU case,
354
00:11:36.470 --> 00:11:37.833
there has to be,
355
00:11:39.550 --> 00:11:40.470
there has to be at least
356
00:11:40.470 --> 00:11:42.420
a reasonable opportunity
357
00:11:42.420 --> 00:11:43.650
who resolved those
358
00:11:43.650 --> 00:11:46.004
significant factual disputes
359
00:11:46.004 --> 00:11:48.190
particularly where we've shown,
360
00:11:48.190 --> 00:11:50.700
and made a primal phase showing,
361
00:11:50.700 --> 00:11:53.650
that based on these new forecasts,
362
00:11:53.650 --> 00:11:55.921
there may be no need at all,
363
00:11:55.921 --> 00:11:56.920
or that in fact
364
00:11:58.980 --> 00:12:01.850
the ability of non-transmission alternatives
365
00:12:01.850 --> 00:12:03.760
to serve the need is much greater,
366
00:12:03.760 --> 00:12:05.440
and the record in this case
367
00:12:05.440 --> 00:12:09.103
shows that over the couple of years,
368
00:12:10.333 --> 00:12:12.640
every sources original prediction,
369
00:12:12.640 --> 00:12:14.490
of how much injection,
370
00:12:14.490 --> 00:12:16.220
how many new,
371
00:12:16.220 --> 00:12:18.510
how many new megawatts of generation,
372
00:12:18.510 --> 00:12:20.350
or savings from energy efficiency
373
00:12:20.350 --> 00:12:22.540
went down more than 300%.
374
00:12:22.540 --> 00:12:25.920
It went from well over 200 to 80,
375
00:12:25.920 --> 00:12:29.250
by Eversource his own estimate,
376
00:12:29.250 --> 00:12:31.050
at the time of the motion to reopen.
377
00:12:33.900 --> 00:12:35.000
Mr Bernstein can i ask you
378
00:12:35.000 --> 00:12:36.030
to finish the thought there,
379
00:12:36.030 --> 00:12:36.863
what does it mean
380
00:12:36.863 --> 00:12:38.900
that it went down by over 300%?
381
00:12:38.900 --> 00:12:39.733
Are you suggesting that
382
00:12:39.733 --> 00:12:41.650
there was no longer a need?
383
00:12:41.650 --> 00:12:44.050
No, I'm suggesting that,
384
00:12:44.050 --> 00:12:44.980
What is the conclusion
385
00:12:44.980 --> 00:12:46.580
I'm to draw.
386
00:12:46.580 --> 00:12:48.170
The conclusion that,
387
00:12:48.170 --> 00:12:49.250
sorry your honor
388
00:12:49.250 --> 00:12:51.410
Increasing megawatts,
389
00:12:51.410 --> 00:12:54.470
What you, is that the feasibility,
390
00:12:54.470 --> 00:12:55.710
of alternatives,
391
00:12:55.710 --> 00:12:58.490
of non-transmission alternatives,
392
00:12:58.490 --> 00:12:59.323
which is something
393
00:12:59.323 --> 00:13:00.460
that by the siting board
394
00:13:00.460 --> 00:13:01.740
own decisions,
395
00:13:01.740 --> 00:13:04.230
is something they're supposed to encouraged,
396
00:13:04.230 --> 00:13:05.063
and in fact,
397
00:13:05.063 --> 00:13:06.530
I would submit is more consistent
398
00:13:06.530 --> 00:13:08.920
with building resiliency,
399
00:13:08.920 --> 00:13:10.850
that is the problem
400
00:13:10.850 --> 00:13:12.300
that has to be solved,
401
00:13:12.300 --> 00:13:14.390
is radically different,
402
00:13:14.390 --> 00:13:15.740
than the problem that
403
00:13:15.740 --> 00:13:16.930
Eversource presented,
404
00:13:16.930 --> 00:13:18.330
in its original petition.
405
00:13:18.330 --> 00:13:20.940
That's the conclusion you should draw.
406
00:13:20.940 --> 00:13:22.340
And that in fact,
407
00:13:22.340 --> 00:13:23.260
what the siting board,
408
00:13:23.260 --> 00:13:24.150
I'm sorry council,
409
00:13:24.150 --> 00:13:25.350
I don't understand what you mean
410
00:13:25.350 --> 00:13:27.163
when you say that,
411
00:13:27.163 --> 00:13:28.993
that it's radically different.
412
00:13:30.386 --> 00:13:33.410
The number of the amount of megawatts,
413
00:13:33.410 --> 00:13:35.050
the size of the alternatives,
414
00:13:35.050 --> 00:13:37.070
the cost of the alternatives
415
00:13:37.070 --> 00:13:39.403
to the proposed transmission line,
416
00:13:40.807 --> 00:13:42.987
has changed so radically,
417
00:13:42.987 --> 00:13:44.100
so that the original contention,
418
00:13:44.100 --> 00:13:47.040
that we can't possibly replace
419
00:13:47.040 --> 00:13:48.523
the transmission line,
420
00:13:52.240 --> 00:13:54.570
with solar or solar and storage,
421
00:13:54.570 --> 00:13:55.870
or energy efficiency,
422
00:13:55.870 --> 00:13:57.650
or other measures,
423
00:13:57.650 --> 00:13:58.910
has to be looked at
424
00:13:58.910 --> 00:14:01.050
because it's a completely different problem
425
00:14:01.050 --> 00:14:03.140
than what Eversource presented,
426
00:14:03.140 --> 00:14:05.003
back in 2017.
427
00:14:08.210 --> 00:14:10.670
Okay. Thank you very much.
428
00:14:10.670 --> 00:14:13.587
We'll move on to attorney Kenoff.
429
00:14:22.870 --> 00:14:23.703
Mr. Kenoff,
430
00:14:25.550 --> 00:14:26.480
May I please the court,
431
00:14:26.480 --> 00:14:27.630
I'm Richard Kenoff.
432
00:14:27.630 --> 00:14:31.640
I represent protect Sudbury incorporated,
433
00:14:31.640 --> 00:14:34.550
and I'm going to focus my remarks,
434
00:14:34.550 --> 00:14:36.240
on two aspects of
435
00:14:37.230 --> 00:14:40.310
general law chapter 164 H,
436
00:14:40.310 --> 00:14:43.480
with respect to minimum impact
437
00:14:43.480 --> 00:14:44.560
on the environment,
438
00:14:44.560 --> 00:14:46.363
and lowest possible costs.
439
00:14:47.500 --> 00:14:48.457
There are two points
440
00:14:48.457 --> 00:14:49.450
I wanna make with respect
441
00:14:49.450 --> 00:14:51.083
to those elements.
442
00:14:53.330 --> 00:14:55.030
First, the board aired
443
00:14:55.030 --> 00:14:57.710
in using conceptual estimates
444
00:14:57.710 --> 00:15:00.250
to assess lowest possible cost,
445
00:15:00.250 --> 00:15:01.083
for the project
446
00:15:01.083 --> 00:15:02.513
and for the alternatives.
447
00:15:03.390 --> 00:15:04.740
Second, the board aired
448
00:15:04.740 --> 00:15:06.450
in its finding that they
449
00:15:06.450 --> 00:15:07.920
all street ruled,
450
00:15:07.920 --> 00:15:10.353
and the underground MBTA ruled,
451
00:15:11.730 --> 00:15:12.613
for the project,
452
00:15:14.064 --> 00:15:16.590
And for the alternatives,
453
00:15:16.590 --> 00:15:18.303
were comparable.
454
00:15:19.390 --> 00:15:21.163
And I wanna start with cost.
455
00:15:22.230 --> 00:15:23.790
With respect to cost,
456
00:15:23.790 --> 00:15:25.480
the company submitted,
457
00:15:25.480 --> 00:15:26.860
what we refer to,
458
00:15:26.860 --> 00:15:27.780
and what they refer
459
00:15:27.780 --> 00:15:30.350
to as conceptual estimates.
460
00:15:30.350 --> 00:15:32.423
These estimates have
461
00:15:32.423 --> 00:15:34.710
a wide variability in terms
462
00:15:34.710 --> 00:15:36.313
of their scope.
463
00:15:38.150 --> 00:15:39.950
So conceptual estimates for example,
464
00:15:40.802 --> 00:15:42.370
are a range of minus
465
00:15:42.370 --> 00:15:45.420
Conceptual estimates council
466
00:15:45.420 --> 00:15:47.270
traditionally used,
467
00:15:47.270 --> 00:15:48.990
at this stage
468
00:15:48.990 --> 00:15:49.920
because he actually
469
00:15:49.920 --> 00:15:50.870
haven't built it,
470
00:15:50.870 --> 00:15:52.540
It's not worth the cost
471
00:15:52.540 --> 00:15:54.040
in getting granular
472
00:15:54.040 --> 00:15:55.580
on some hypothetical.
473
00:15:55.580 --> 00:15:58.173
It's just a ballpark estimate.
474
00:15:59.120 --> 00:16:00.010
Right?
475
00:16:00.010 --> 00:16:01.530
You know, some science behind it,
476
00:16:01.530 --> 00:16:02.920
but it really has to be,
477
00:16:02.920 --> 00:16:05.503
necessarily a ballpark estimate.
478
00:16:07.375 --> 00:16:09.890
Our contention is, your honor,
479
00:16:09.890 --> 00:16:12.270
that a ballpark estimate,
480
00:16:12.270 --> 00:16:13.840
under the standard,
481
00:16:13.840 --> 00:16:16.280
of lowest possible cost,
482
00:16:16.280 --> 00:16:19.370
is inadequate and that the companies,
483
00:16:19.370 --> 00:16:21.950
And what is your legal authority,
484
00:16:21.950 --> 00:16:23.510
for that proposition.
485
00:16:23.510 --> 00:16:25.080
The legal authority is that,
486
00:16:25.080 --> 00:16:27.670
this court has interpreted the
487
00:16:27.670 --> 00:16:29.490
forecast and the information
488
00:16:29.490 --> 00:16:30.900
that accompany and the,
489
00:16:30.900 --> 00:16:32.210
has to submit and the board
490
00:16:32.210 --> 00:16:34.693
has to assess that,
491
00:16:37.821 --> 00:16:39.050
is that, let me say it this way,
492
00:16:39.050 --> 00:16:40.870
that provides enough data,
493
00:16:40.870 --> 00:16:42.600
for that assessment to be made.
494
00:16:42.600 --> 00:16:45.410
And that's in return in Bedford,
495
00:16:45.410 --> 00:16:47.270
versus energy facility
496
00:16:47.270 --> 00:16:49.420
siting board in 1992,
497
00:16:49.420 --> 00:16:51.060
for the court interpreted,
498
00:16:51.060 --> 00:16:53.600
by chapter 164 H.
499
00:16:53.600 --> 00:16:56.120
The fundamental legal point is that,
500
00:16:56.120 --> 00:16:58.010
if you have conceptual estimates
501
00:16:58.010 --> 00:16:59.600
with these variable ranges,
502
00:16:59.600 --> 00:17:01.010
wide ranges,
503
00:17:01.010 --> 00:17:03.681
then you try to compare projects
504
00:17:03.681 --> 00:17:05.770
related to each other,
505
00:17:05.770 --> 00:17:07.060
with those ranges,
506
00:17:07.060 --> 00:17:09.670
you don't have the data,
507
00:17:09.670 --> 00:17:11.570
to make that comparison.
508
00:17:11.570 --> 00:17:12.403
The randoms,
509
00:17:12.403 --> 00:17:13.840
You're suggesting any time,
510
00:17:13.840 --> 00:17:15.280
these kinds of conceptual
511
00:17:15.280 --> 00:17:18.380
cost estimates are used,
512
00:17:18.380 --> 00:17:21.690
It's unacceptable under the statute.
513
00:17:21.690 --> 00:17:22.720
That's correct.
514
00:17:22.720 --> 00:17:23.553
And there is,
515
00:17:23.553 --> 00:17:24.510
You have a sense,
516
00:17:24.510 --> 00:17:26.030
cause I don't do this day to day.
517
00:17:26.030 --> 00:17:28.460
Do you have a sense of how many
518
00:17:28.460 --> 00:17:31.110
of these projects
519
00:17:31.110 --> 00:17:34.010
are based on conceptual costs,
520
00:17:34.010 --> 00:17:35.920
like they are here.
521
00:17:35.920 --> 00:17:39.460
They have traditionally inciting board.
522
00:17:39.460 --> 00:17:42.750
I think references as in the decision
523
00:17:42.750 --> 00:17:44.390
and the company certainly
524
00:17:44.390 --> 00:17:45.523
does in their brief,
525
00:17:47.197 --> 00:17:49.370
they have posited,
526
00:17:49.370 --> 00:17:51.920
that these conceptual estimates,
527
00:17:51.920 --> 00:17:54.980
are standard in these cases
528
00:17:54.980 --> 00:17:56.290
and that they therefore
529
00:17:56.290 --> 00:17:57.890
should be relied upon.
530
00:17:57.890 --> 00:18:01.066
This is really one of the first,
531
00:18:01.066 --> 00:18:02.660
That's my problem.
532
00:18:02.660 --> 00:18:05.020
I guess you've identified the crux of it.
533
00:18:05.020 --> 00:18:07.600
If these are the kinds of costs,
534
00:18:07.600 --> 00:18:10.340
that are standard to be used,
535
00:18:10.340 --> 00:18:11.680
are you suggesting that
536
00:18:11.680 --> 00:18:14.340
they're always inappropriate?
537
00:18:14.340 --> 00:18:16.370
No. What I'm suggesting is,
538
00:18:16.370 --> 00:18:18.013
this is I think the first time,
539
00:18:18.013 --> 00:18:19.240
that this court has
540
00:18:19.240 --> 00:18:20.950
really looked at this issue
541
00:18:20.950 --> 00:18:22.020
and I wanna put a little bit
542
00:18:22.020 --> 00:18:22.950
of context here,
543
00:18:22.950 --> 00:18:24.840
as part of my answer to your question,
544
00:18:24.840 --> 00:18:26.399
If you'll indulge me.
545
00:18:26.399 --> 00:18:28.040
Many of the projects
546
00:18:28.040 --> 00:18:29.110
over the last 10 years
547
00:18:29.110 --> 00:18:30.290
if not all of them,
548
00:18:30.290 --> 00:18:31.980
have involved transmission lines,
549
00:18:31.980 --> 00:18:33.040
that are under streets
550
00:18:33.040 --> 00:18:34.850
or on existing rights away.
551
00:18:34.850 --> 00:18:37.380
So the comparison,
552
00:18:37.380 --> 00:18:39.200
whether it's conceptual estimates
553
00:18:39.200 --> 00:18:40.543
or as we would,
554
00:18:42.690 --> 00:18:44.860
essentially recommend
555
00:18:44.860 --> 00:18:46.233
planning estimates,
556
00:18:47.190 --> 00:18:49.370
where for the same type
557
00:18:49.370 --> 00:18:51.233
of transmission facility,
558
00:18:52.147 --> 00:18:54.690
under street or on an existing right away,
559
00:18:54.690 --> 00:18:55.863
this is a very different case.
560
00:18:55.863 --> 00:18:58.943
Here you have a transmission line,
561
00:19:00.640 --> 00:19:02.470
basically on all of,
562
00:19:02.470 --> 00:19:03.310
all elements,
563
00:19:03.310 --> 00:19:04.840
you have one under the street,
564
00:19:04.840 --> 00:19:06.430
you have one on a right away
565
00:19:06.430 --> 00:19:07.710
that hasn't been used,
566
00:19:07.710 --> 00:19:08.543
and you have one under
567
00:19:08.543 --> 00:19:10.180
an existing right away.
568
00:19:10.180 --> 00:19:12.840
The ability to refine estimates,
569
00:19:12.840 --> 00:19:14.590
for those projects,
570
00:19:14.590 --> 00:19:17.343
on the basis of conceptual standards,
571
00:19:18.623 --> 00:19:22.173
isn't consistent with what the court,
572
00:19:22.173 --> 00:19:24.160
has said is required
573
00:19:24.160 --> 00:19:25.997
as sufficient data.
574
00:19:25.997 --> 00:19:27.810
And I wanna also just
575
00:19:27.810 --> 00:19:30.140
make a point that the ISO itself,
576
00:19:30.140 --> 00:19:31.630
doesn't necessarily
577
00:19:32.850 --> 00:19:35.113
use conceptual estimates
578
00:19:35.113 --> 00:19:38.190
for this level of decision-making.
579
00:19:38.190 --> 00:19:39.023
They certainly use
580
00:19:39.023 --> 00:19:40.030
conceptual estimates,
581
00:19:40.030 --> 00:19:41.730
there's no question about that,
582
00:19:41.730 --> 00:19:44.487
they use it as part of their
583
00:19:44.487 --> 00:19:47.450
planning and assessment process,
584
00:19:47.450 --> 00:19:48.650
but they talk about
585
00:19:49.810 --> 00:19:51.040
conceptual estimates
586
00:19:51.040 --> 00:19:53.500
as simplified in study estimates.
587
00:19:53.500 --> 00:19:54.670
They don't talk about them
588
00:19:54.670 --> 00:19:55.880
as things that you're
589
00:19:55.880 --> 00:19:58.920
gonna actually use to make a decision.
590
00:19:58.920 --> 00:19:59.753
And in fact,
591
00:19:59.753 --> 00:20:01.340
as you go through their process,
592
00:20:01.340 --> 00:20:03.030
when they make a decision,
593
00:20:03.030 --> 00:20:05.120
they rely upon the more
594
00:20:05.120 --> 00:20:07.070
refined planning estimates.
595
00:20:07.070 --> 00:20:08.420
And our point in this case,
596
00:20:08.420 --> 00:20:10.060
with respect to estimates
597
00:20:10.060 --> 00:20:11.430
this asked the level
598
00:20:11.430 --> 00:20:14.070
of refinement that this court
599
00:20:14.070 --> 00:20:15.960
should insist that,
600
00:20:15.960 --> 00:20:18.320
the citing word used,
601
00:20:18.320 --> 00:20:19.880
as part of its determination
602
00:20:19.880 --> 00:20:20.870
under the statute,
603
00:20:20.870 --> 00:20:22.560
and as part of its determination,
604
00:20:22.560 --> 00:20:24.670
consistent with the new Bedford case.
605
00:20:24.670 --> 00:20:25.503
And I also wanna,
606
00:20:25.503 --> 00:20:27.330
Let me just interrupt you for a moment
607
00:20:27.330 --> 00:20:29.940
because I wanna just ask a question
608
00:20:29.940 --> 00:20:30.773
where you started,
609
00:20:30.773 --> 00:20:31.813
to make sure that,
610
00:20:32.720 --> 00:20:34.310
I have the right standard
611
00:20:34.310 --> 00:20:35.950
to be applying here,
612
00:20:35.950 --> 00:20:37.180
if you mentioned
613
00:20:37.180 --> 00:20:39.293
minimum environmental impact,
614
00:20:40.459 --> 00:20:43.010
and lowest possible cost.
615
00:20:43.010 --> 00:20:44.210
And I think that we're going
616
00:20:44.210 --> 00:20:45.583
to hear from the board,
617
00:20:46.858 --> 00:20:49.140
that you look at
618
00:20:49.140 --> 00:20:50.720
all three factors,
619
00:20:50.720 --> 00:20:52.820
reliability,
620
00:20:52.820 --> 00:20:53.670
environmental
621
00:20:53.670 --> 00:20:54.950
and costs,
622
00:20:54.950 --> 00:20:56.950
and you do a balancing,
623
00:20:56.950 --> 00:20:57.880
and that the board
624
00:20:57.880 --> 00:20:59.930
doesn't have to find,
625
00:20:59.930 --> 00:21:02.190
the minimum environmental impact,
626
00:21:02.190 --> 00:21:04.490
and it doesn't have to find,
627
00:21:04.490 --> 00:21:06.720
the lowest possible cost.
628
00:21:06.720 --> 00:21:08.970
Is that argument wrong?
629
00:21:08.970 --> 00:21:11.040
I think the argument
630
00:21:11.040 --> 00:21:12.440
has to be put in context
631
00:21:12.440 --> 00:21:14.680
with what we're saying about costs.
632
00:21:14.680 --> 00:21:16.960
You have to at least in assessing costs
633
00:21:16.960 --> 00:21:17.950
whether you assess it,
634
00:21:17.950 --> 00:21:20.510
balance it and make comparisons,
635
00:21:20.510 --> 00:21:21.940
you at least have to have
636
00:21:21.940 --> 00:21:24.678
a metric that establishes
637
00:21:24.678 --> 00:21:25.663
Absolutely.
638
00:21:27.660 --> 00:21:28.493
Does it have to be
639
00:21:28.493 --> 00:21:30.063
the lowest possible cost?
640
00:21:30.970 --> 00:21:32.750
The metric that you use,
641
00:21:32.750 --> 00:21:33.920
the measurement,
642
00:21:33.920 --> 00:21:34.753
My point is that
643
00:21:34.753 --> 00:21:35.850
the metric that you use
644
00:21:35.850 --> 00:21:37.883
to establish lowest possible cost,
645
00:21:38.980 --> 00:21:42.900
has to be a reasonable calculation,
646
00:21:42.900 --> 00:21:44.690
and using conceptual estimates
647
00:21:44.690 --> 00:21:45.670
with a wide range of
648
00:21:45.670 --> 00:21:48.110
minus 25 to plus 50%,
649
00:21:48.110 --> 00:21:49.171
doesn't do that.
650
00:21:49.171 --> 00:21:50.950
No, I get all that,
651
00:21:50.950 --> 00:21:52.300
and I certainly get
652
00:21:52.300 --> 00:21:53.830
the expense year to year
653
00:21:54.761 --> 00:21:57.190
the least to the MBTA.
654
00:21:57.190 --> 00:21:58.610
I'm asking so much more
655
00:21:58.610 --> 00:22:00.670
of a basic point,
656
00:22:00.670 --> 00:22:02.930
which is in doing this analysis,
657
00:22:02.930 --> 00:22:04.220
does the board have to do
658
00:22:04.220 --> 00:22:05.700
what you said?
659
00:22:05.700 --> 00:22:08.733
Find the lowest possible cost,
660
00:22:09.578 --> 00:22:11.930
or the minimum environmental impact.
661
00:22:11.930 --> 00:22:13.300
What the board,
662
00:22:13.300 --> 00:22:14.580
I think it does.
663
00:22:14.580 --> 00:22:16.300
And I think that what the board does
664
00:22:16.300 --> 00:22:17.310
in his decision is,
665
00:22:17.310 --> 00:22:19.210
it takes a look at each one
666
00:22:19.210 --> 00:22:21.540
of these factors individually,
667
00:22:21.540 --> 00:22:23.400
and in assessing costs,
668
00:22:23.400 --> 00:22:25.010
for example, it takes a look
669
00:22:25.010 --> 00:22:26.240
at the different costs
670
00:22:26.240 --> 00:22:27.600
as presented by the company,
671
00:22:27.600 --> 00:22:28.520
which are based upon
672
00:22:28.520 --> 00:22:30.010
conceptual estimates,
673
00:22:30.010 --> 00:22:31.470
and it just compares them.
674
00:22:31.470 --> 00:22:32.900
And it says,
675
00:22:32.900 --> 00:22:35.280
option A is lower than option B,
676
00:22:35.280 --> 00:22:36.500
option A wins.
677
00:22:36.500 --> 00:22:37.650
And we're saying,
678
00:22:37.650 --> 00:22:39.080
the analysis that goes into
679
00:22:39.080 --> 00:22:40.640
that point reference,
680
00:22:40.640 --> 00:22:42.740
that specific number,
681
00:22:42.740 --> 00:22:45.040
that determines the basis
682
00:22:45.040 --> 00:22:48.283
for the EFSPs comparison,
683
00:22:49.177 --> 00:22:50.500
is too broad.
684
00:22:50.500 --> 00:22:52.030
You can't just take
685
00:22:52.030 --> 00:22:53.150
a single number
686
00:22:53.150 --> 00:22:55.373
based on that estimate and compare.
687
00:22:56.815 --> 00:22:58.990
Are you asking us to change all
688
00:22:58.990 --> 00:23:00.460
of the traditional standards?
689
00:23:00.460 --> 00:23:03.030
Isn't this how it's been done.
690
00:23:03.030 --> 00:23:04.710
That they use conception?
691
00:23:04.710 --> 00:23:05.710
Let me frame the question,
692
00:23:05.710 --> 00:23:07.040
and then you can respond.
693
00:23:07.040 --> 00:23:07.960
That they use these
694
00:23:07.960 --> 00:23:10.614
conceptual EPS estimates,
695
00:23:10.614 --> 00:23:12.713
and they do a balancing,
696
00:23:13.750 --> 00:23:15.910
and you may not like that.
697
00:23:15.910 --> 00:23:19.890
And you may think that's not precise
698
00:23:19.890 --> 00:23:21.100
and scientific enough,
699
00:23:21.100 --> 00:23:22.780
but you're, it seems like
700
00:23:22.780 --> 00:23:24.010
you're asking us to change
701
00:23:24.010 --> 00:23:25.810
the legal standards here.
702
00:23:25.810 --> 00:23:27.490
I just wanna make,
703
00:23:27.490 --> 00:23:28.710
and when you can, that's what,
704
00:23:28.710 --> 00:23:30.950
we're in the business of sometimes.
705
00:23:30.950 --> 00:23:32.300
But I just wanna clarify,
706
00:23:32.300 --> 00:23:33.550
are you saying that
707
00:23:33.550 --> 00:23:34.880
the wall was misapplied,
708
00:23:34.880 --> 00:23:37.023
or that you want the wall improved?
709
00:23:37.880 --> 00:23:38.827
I think that this is
710
00:23:38.827 --> 00:23:41.040
the first case that has come up,
711
00:23:41.040 --> 00:23:42.830
where the issue of
712
00:23:42.830 --> 00:23:44.400
what the appropriate cost standard,
713
00:23:44.400 --> 00:23:47.620
and the lowest possible cost means,
714
00:23:47.620 --> 00:23:48.700
and therefore,
715
00:23:48.700 --> 00:23:49.853
Isn't that incorrect.
716
00:23:50.810 --> 00:23:53.440
Hasn't this ISO methodology
717
00:23:53.440 --> 00:23:55.810
been employed in the past,
718
00:23:55.810 --> 00:23:58.920
and the conceptual cost
719
00:23:58.920 --> 00:24:01.030
counting has been used
720
00:24:01.030 --> 00:24:03.253
in the past in all of these cases,
721
00:24:04.498 --> 00:24:06.490
and you want us to change it?
722
00:24:06.490 --> 00:24:08.140
You can be upfront about that,
723
00:24:08.140 --> 00:24:11.170
but what you can't do for us is,
724
00:24:11.170 --> 00:24:12.580
not tell us what's
725
00:24:12.580 --> 00:24:14.030
legally wrong here,
726
00:24:14.030 --> 00:24:17.423
or where we're gonna be befuddled.
727
00:24:19.180 --> 00:24:20.013
Go ahead.
728
00:24:20.013 --> 00:24:22.120
So yes, the short answer is that,
729
00:24:22.120 --> 00:24:24.200
from what the EFSB has done
730
00:24:24.200 --> 00:24:25.033
in the past,
731
00:24:25.033 --> 00:24:25.866
where it has used
732
00:24:25.866 --> 00:24:26.933
conceptual estimates,
733
00:24:27.794 --> 00:24:29.030
and it has allowed the company
734
00:24:29.030 --> 00:24:30.810
to refine conceptual estimates,
735
00:24:30.810 --> 00:24:33.250
to a planning rate standard,
736
00:24:33.250 --> 00:24:34.901
plus or minus 25%,
737
00:24:34.901 --> 00:24:36.540
and make a comparison
738
00:24:36.540 --> 00:24:39.580
of the debt estimate,
739
00:24:39.580 --> 00:24:41.300
with the alternatives.
740
00:24:41.300 --> 00:24:44.140
It has done that consistently,
741
00:24:44.140 --> 00:24:45.840
with a couple exceptions however,
742
00:24:45.840 --> 00:24:47.200
and I think this is really key,
743
00:24:47.200 --> 00:24:49.540
to our ask of this court
744
00:24:49.540 --> 00:24:51.170
to take another look at this
745
00:24:51.170 --> 00:24:52.830
or to take even a look at it
746
00:24:52.830 --> 00:24:55.180
as a first reality.
747
00:24:55.180 --> 00:24:57.120
And I wanted just to point you
748
00:24:57.120 --> 00:24:59.170
to what the board itself has said
749
00:24:59.170 --> 00:25:01.350
about conceptual estimates,
750
00:25:01.350 --> 00:25:04.020
as it has reviewed them,
751
00:25:04.020 --> 00:25:07.160
by Eversource and by the other,
752
00:25:07.160 --> 00:25:08.390
utility in this case,
753
00:25:08.390 --> 00:25:09.750
nearly in power.
754
00:25:09.750 --> 00:25:11.970
The board itself has said
755
00:25:11.970 --> 00:25:14.053
that these estimates,
756
00:25:16.410 --> 00:25:19.640
should be refined in the future,
757
00:25:19.640 --> 00:25:22.320
to quote, incorporate a narrower range,
758
00:25:22.320 --> 00:25:25.260
than 25% to 50%,
759
00:25:25.260 --> 00:25:27.010
in order to quote,
760
00:25:27.010 --> 00:25:29.440
provide a greater certainty,
761
00:25:29.440 --> 00:25:31.800
about the true cost of the project.
762
00:25:31.800 --> 00:25:33.030
They've also said that
763
00:25:33.030 --> 00:25:35.610
the provision with this refinement,
764
00:25:35.610 --> 00:25:37.200
of timely high quality,
765
00:25:37.200 --> 00:25:39.320
and reliable cost estimates,
766
00:25:39.320 --> 00:25:41.030
is essential for effective review
767
00:25:41.030 --> 00:25:42.740
of project alternatives.
768
00:25:42.740 --> 00:25:44.400
So we're just echoing,
769
00:25:44.400 --> 00:25:45.510
some of the concerns,
770
00:25:45.510 --> 00:25:46.840
and some of the criticisms,
771
00:25:46.840 --> 00:25:47.910
that the board itself
772
00:25:47.910 --> 00:25:49.820
has recognized,
773
00:25:49.820 --> 00:25:53.010
in its assessment over time,
774
00:25:53.010 --> 00:25:56.115
of the estimates.
775
00:25:56.115 --> 00:25:57.990
They're just too broad,
776
00:25:57.990 --> 00:25:59.210
they're not accurate,
777
00:25:59.210 --> 00:26:00.740
they're not meaningful,
778
00:26:00.740 --> 00:26:02.950
they don't allow a detail
779
00:26:02.950 --> 00:26:04.610
comparison or a specific,
780
00:26:04.610 --> 00:26:05.870
Council could I interrupt
781
00:26:05.870 --> 00:26:06.703
you on one point
782
00:26:06.703 --> 00:26:07.730
because I think there's
783
00:26:07.730 --> 00:26:08.563
a little bit of
784
00:26:08.563 --> 00:26:10.590
an amalgam of all of the justices
785
00:26:10.590 --> 00:26:11.423
points to you,
786
00:26:11.423 --> 00:26:14.040
but I'd like you to answer for me.
787
00:26:14.040 --> 00:26:16.370
Your brother council talked about,
788
00:26:16.370 --> 00:26:20.050
that we should not necessarily defer,
789
00:26:20.050 --> 00:26:22.150
to the agency or the board's
790
00:26:22.150 --> 00:26:24.080
determinations in these.
791
00:26:24.080 --> 00:26:25.230
And isn't this exactly
792
00:26:25.230 --> 00:26:26.640
the reason why we've had
793
00:26:26.640 --> 00:26:28.170
this jurisprudence
794
00:26:28.170 --> 00:26:30.650
because in this particular situation,
795
00:26:30.650 --> 00:26:31.770
you're talking about us
796
00:26:31.770 --> 00:26:33.570
doing a granular dive
797
00:26:33.570 --> 00:26:35.610
into the cost estimates.
798
00:26:35.610 --> 00:26:37.110
But this is in the larger
799
00:26:37.110 --> 00:26:38.680
in the smaller context
800
00:26:38.680 --> 00:26:40.320
of what happened here
801
00:26:40.320 --> 00:26:42.700
in this regulatory proceeding.
802
00:26:42.700 --> 00:26:43.540
Are we to do this
803
00:26:43.540 --> 00:26:44.790
in all administrative
804
00:26:44.790 --> 00:26:46.210
proceedings like this?
805
00:26:46.210 --> 00:26:47.680
Where people could come in and say,
806
00:26:47.680 --> 00:26:49.250
let's get down into the weeds
807
00:26:49.250 --> 00:26:51.190
of all of the determination,
808
00:26:51.190 --> 00:26:52.190
and all of the factors
809
00:26:52.190 --> 00:26:53.023
that the board has
810
00:26:53.023 --> 00:26:53.856
in front of them,
811
00:26:53.856 --> 00:26:55.450
to kind of revise the way
812
00:26:55.450 --> 00:26:56.300
they've done things
813
00:26:56.300 --> 00:26:57.620
over the years.
814
00:26:57.620 --> 00:26:58.830
Isn't this exactly
815
00:26:58.830 --> 00:27:00.220
the reason why we defer
816
00:27:00.220 --> 00:27:01.053
to the experience
817
00:27:01.053 --> 00:27:03.423
and the expertise of the board?
818
00:27:06.610 --> 00:27:07.443
Your honor,
819
00:27:09.050 --> 00:27:10.950
there's a balance between
820
00:27:10.950 --> 00:27:14.040
deference that's due to the board,
821
00:27:14.040 --> 00:27:16.440
and there's a obligation
822
00:27:18.324 --> 00:27:19.243
of the court,
823
00:27:21.120 --> 00:27:22.660
on some levels review
824
00:27:22.660 --> 00:27:25.480
the specific interpretations
825
00:27:25.480 --> 00:27:26.840
that the board has made.
826
00:27:26.840 --> 00:27:29.300
In this particular case,
827
00:27:29.300 --> 00:27:32.190
with this particular analysis,
828
00:27:32.190 --> 00:27:33.380
involving the standard
829
00:27:33.380 --> 00:27:35.760
that as low as possible cost,
830
00:27:35.760 --> 00:27:38.220
and involvement of requirement
831
00:27:38.220 --> 00:27:39.890
of sufficient data,
832
00:27:39.890 --> 00:27:41.390
we believe that
833
00:27:41.390 --> 00:27:43.020
this case is appropriate
834
00:27:43.020 --> 00:27:44.800
on the issue of conceptual cost,
835
00:27:44.800 --> 00:27:45.633
as applied here,
836
00:27:45.633 --> 00:27:47.723
through this court's review.
837
00:27:47.723 --> 00:27:49.620
I understand the deference,
838
00:27:49.620 --> 00:27:52.281
but that's the bottom line on that.
839
00:27:52.281 --> 00:27:55.540
So council, Oh, go ahead sorry.
840
00:27:55.540 --> 00:27:57.150
You have a question,
841
00:27:57.150 --> 00:27:58.470
I was just going to ask,
842
00:27:58.470 --> 00:27:59.920
it sounds to me
843
00:27:59.920 --> 00:28:01.330
that you really want us
844
00:28:01.330 --> 00:28:02.250
to change this,
845
00:28:02.250 --> 00:28:03.660
you know, you're not arguing
846
00:28:03.660 --> 00:28:05.370
there's particular error
847
00:28:05.370 --> 00:28:06.880
in the findings they made,
848
00:28:06.880 --> 00:28:07.780
that you don't like
849
00:28:07.780 --> 00:28:08.930
the model they use,
850
00:28:08.930 --> 00:28:11.530
that you want a wholesale change of that.
851
00:28:11.530 --> 00:28:13.023
Is that accurate?
852
00:28:15.425 --> 00:28:16.640
We believe,
853
00:28:16.640 --> 00:28:18.570
that the model that they used,
854
00:28:18.570 --> 00:28:20.110
with conceptual estimates
855
00:28:20.110 --> 00:28:23.220
as part of their comparative assessment,
856
00:28:23.220 --> 00:28:25.160
doesn't comport with
857
00:28:25.160 --> 00:28:27.010
the statutory requirement,
858
00:28:27.010 --> 00:28:28.740
or the sufficient data.
859
00:28:28.740 --> 00:28:30.440
So I guess the short answer
860
00:28:30.440 --> 00:28:31.640
to your question is yes,
861
00:28:31.640 --> 00:28:33.913
but I also just wanna point out,
862
00:28:35.241 --> 00:28:36.760
that we're just taking
863
00:28:36.760 --> 00:28:38.780
what the board itself recognized
864
00:28:38.780 --> 00:28:42.480
as deficiencies, and these estimates,
865
00:28:42.480 --> 00:28:45.190
to conclusion that
866
00:28:46.310 --> 00:28:48.250
is wholly appropriate,
867
00:28:48.250 --> 00:28:49.920
given how inaccurate
868
00:28:49.920 --> 00:28:51.070
and meaningless they are,
869
00:28:51.070 --> 00:28:53.263
for the type of review that's required.
870
00:28:55.560 --> 00:28:57.206
Everybody all set.
871
00:28:57.206 --> 00:28:59.070
Okay. Thank you very much.
872
00:29:00.110 --> 00:29:00.963
Attorney Cray.
873
00:29:01.860 --> 00:29:03.040
Thank you.
874
00:29:03.040 --> 00:29:04.610
Excuse me, may it please the court,
875
00:29:04.610 --> 00:29:06.740
pierce Cray, assistant attorney general,
876
00:29:06.740 --> 00:29:07.573
for the energy
877
00:29:07.573 --> 00:29:09.053
facility siting board.
878
00:29:11.050 --> 00:29:12.883
On the need issue,
879
00:29:13.860 --> 00:29:15.350
at points, the appellants
880
00:29:15.350 --> 00:29:16.740
have seemed to ask
881
00:29:16.740 --> 00:29:18.190
for a specific new
882
00:29:18.190 --> 00:29:19.950
standard to be applied,
883
00:29:19.950 --> 00:29:21.350
or at least that the
884
00:29:21.350 --> 00:29:23.865
so-called worst case standard not be,
885
00:29:23.865 --> 00:29:26.080
the board submits is a fully
886
00:29:26.080 --> 00:29:28.800
appropriate conservative standard,
887
00:29:28.800 --> 00:29:30.560
consistent with what the operator
888
00:29:30.560 --> 00:29:32.773
or the regional electric system,
889
00:29:33.943 --> 00:29:36.120
ISO new England uses,
890
00:29:36.120 --> 00:29:37.640
and it's appropriate here.
891
00:29:37.640 --> 00:29:38.560
In this case,
892
00:29:38.560 --> 00:29:39.900
and this gets to all
893
00:29:39.900 --> 00:29:42.310
the questions about forecasts.
894
00:29:42.310 --> 00:29:43.143
In this case,
895
00:29:43.143 --> 00:29:44.650
there was a lot about forecasts
896
00:29:44.650 --> 00:29:46.830
but the board also made,
897
00:29:46.830 --> 00:29:49.450
a separate critically important finding.
898
00:29:49.450 --> 00:29:51.610
And that is that there already
899
00:29:51.610 --> 00:29:53.880
exists a need,
900
00:29:53.880 --> 00:29:55.810
that that existing need,
901
00:29:55.810 --> 00:29:58.460
dates back to 2013,
902
00:29:58.460 --> 00:29:59.610
and that as of the time
903
00:29:59.610 --> 00:30:02.493
of the boards 2019 decision,
904
00:30:03.670 --> 00:30:06.231
that need still existed.
905
00:30:06.231 --> 00:30:08.130
There've been a lot of issues
906
00:30:08.130 --> 00:30:09.450
raised about forecasts,
907
00:30:09.450 --> 00:30:10.640
but you don't need to get
908
00:30:10.640 --> 00:30:12.853
to what can happen in the future.
909
00:30:14.418 --> 00:30:16.593
If already there is a need,
910
00:30:18.320 --> 00:30:21.860
the appellants have never explained,
911
00:30:21.860 --> 00:30:24.690
why that separate determination
912
00:30:24.690 --> 00:30:27.030
of an already existing need,
913
00:30:27.030 --> 00:30:28.480
is wrong.
914
00:30:28.480 --> 00:30:31.370
I'd specifically appoint the board,
915
00:30:31.370 --> 00:30:33.180
to the towns of main brief
916
00:30:33.180 --> 00:30:34.340
at page 35,
917
00:30:34.340 --> 00:30:35.470
and its reply brief
918
00:30:35.470 --> 00:30:36.840
at page 11,
919
00:30:36.840 --> 00:30:37.750
where it alludes
920
00:30:37.750 --> 00:30:39.600
to this separate finding
921
00:30:39.600 --> 00:30:41.540
of an already existing need,
922
00:30:41.540 --> 00:30:43.540
but then provides no argument,
923
00:30:43.540 --> 00:30:45.630
as to why it was wrong.
924
00:30:45.630 --> 00:30:46.650
What you're saying,
925
00:30:46.650 --> 00:30:47.860
I think councilor,
926
00:30:47.860 --> 00:30:48.693
I think what's going on here,
927
00:30:48.693 --> 00:30:49.570
is they're saying,
928
00:30:49.570 --> 00:30:52.178
well we have a motion to reopen,
929
00:30:52.178 --> 00:30:53.400
the there's no doubt
930
00:30:53.400 --> 00:30:55.390
this project need
931
00:30:55.390 --> 00:30:56.610
is at least reduced,
932
00:30:56.610 --> 00:31:00.300
from the ICO new England data,
933
00:31:00.300 --> 00:31:02.040
that the non-transmission
934
00:31:02.040 --> 00:31:03.570
alternative data
935
00:31:04.520 --> 00:31:08.670
is better than it was in 2013,
936
00:31:08.670 --> 00:31:10.680
and that we want
937
00:31:10.680 --> 00:31:12.210
an evidentiary hearing
938
00:31:12.210 --> 00:31:14.130
as a result of that,
939
00:31:14.130 --> 00:31:16.030
to test the methodology
940
00:31:16.030 --> 00:31:17.240
that you're using
941
00:31:17.240 --> 00:31:21.073
in response to the decreasing need.
942
00:31:22.810 --> 00:31:23.643
Yes, your honor,
943
00:31:23.643 --> 00:31:25.860
but that is their arguments,
944
00:31:25.860 --> 00:31:27.890
but in the motion
945
00:31:27.890 --> 00:31:29.700
to reopen ruling itself,
946
00:31:29.700 --> 00:31:31.870
the board specifically found,
947
00:31:31.870 --> 00:31:32.800
that the issue of
948
00:31:32.800 --> 00:31:34.570
already existing need,
949
00:31:34.570 --> 00:31:35.850
had not been rebutted,
950
00:31:35.850 --> 00:31:37.360
and as a result,
951
00:31:37.360 --> 00:31:39.750
the standard for reopening
952
00:31:39.750 --> 00:31:41.500
these extended proceedings,
953
00:31:41.500 --> 00:31:44.020
have clearly shown good cause,
954
00:31:44.020 --> 00:31:46.230
was not met because again,
955
00:31:46.230 --> 00:31:47.063
you can have all
956
00:31:47.063 --> 00:31:48.610
the forecasts in the world,
957
00:31:48.610 --> 00:31:50.000
but if there right now
958
00:31:50.000 --> 00:31:51.880
is a present problem,
959
00:31:51.880 --> 00:31:54.970
which the appellants have not rebutted,
960
00:31:54.970 --> 00:31:55.970
before this court,
961
00:31:55.970 --> 00:31:57.900
or explained why the board's finding
962
00:31:57.900 --> 00:31:58.920
of that was wrong,
963
00:31:58.920 --> 00:31:59.930
and the board's finding
964
00:31:59.930 --> 00:32:01.670
was based on evidence
965
00:32:01.670 --> 00:32:03.320
specifically provided to it,
966
00:32:03.320 --> 00:32:04.590
by the regional operator
967
00:32:04.590 --> 00:32:06.440
of the entire new England grid,
968
00:32:06.440 --> 00:32:08.300
that there already,
969
00:32:08.300 --> 00:32:10.100
is an existing problem,
970
00:32:10.100 --> 00:32:12.190
but that's was sufficient
971
00:32:12.190 --> 00:32:14.780
to deny the motion to reopen,
972
00:32:14.780 --> 00:32:18.670
particularly whereas the town points out,
973
00:32:18.670 --> 00:32:20.250
you're already quite well
974
00:32:20.250 --> 00:32:22.370
into an extended case,
975
00:32:22.370 --> 00:32:25.380
that the statute 69 J,
976
00:32:25.380 --> 00:32:26.620
has language indicating
977
00:32:26.620 --> 00:32:28.030
it should be completed,
978
00:32:28.030 --> 00:32:29.170
within 12 months.
979
00:32:29.170 --> 00:32:31.160
Now, the courts previously held
980
00:32:31.160 --> 00:32:32.750
that 12 month language,
981
00:32:32.750 --> 00:32:35.200
is directory not mandatory,
982
00:32:35.200 --> 00:32:36.260
and these proceedings
983
00:32:36.260 --> 00:32:38.430
are immensely complicated,
984
00:32:38.430 --> 00:32:40.080
here there were four intervenes,
985
00:32:40.080 --> 00:32:42.750
more than 60 other interested parties,
986
00:32:42.750 --> 00:32:44.680
more than 25 witnesses,
987
00:32:44.680 --> 00:32:47.000
more than 1800 exhibits,
988
00:32:47.000 --> 00:32:50.270
16 days of highly complicated hearings.
989
00:32:50.270 --> 00:32:53.950
and so it has taken longer.
990
00:32:53.950 --> 00:32:55.037
What the plaintiff's
991
00:32:55.037 --> 00:32:57.190
appellants are asking for,
992
00:32:57.190 --> 00:32:58.460
is for the court to rule
993
00:32:58.460 --> 00:33:01.120
than it is to take a good deal longer,
994
00:33:01.120 --> 00:33:02.550
have it reopened,
995
00:33:02.550 --> 00:33:05.480
so we continue to assess,
996
00:33:05.480 --> 00:33:06.330
where things may
997
00:33:06.330 --> 00:33:07.820
or may not be in the future.
998
00:33:07.820 --> 00:33:09.130
We don't need to get
999
00:33:09.130 --> 00:33:10.320
to where things may
1000
00:33:10.320 --> 00:33:11.950
or may not be in the future,
1001
00:33:11.950 --> 00:33:13.460
if there is a finding
1002
00:33:13.460 --> 00:33:15.730
of already existing need
1003
00:33:15.730 --> 00:33:18.780
right now that has not been rebutted,
1004
00:33:18.780 --> 00:33:21.310
in the briefs that are submitted
1005
00:33:21.310 --> 00:33:22.933
to the court.
1006
00:33:25.759 --> 00:33:27.487
If I could turn to the,
1007
00:33:29.264 --> 00:33:31.120
Is that because the future need
1008
00:33:31.120 --> 00:33:32.970
is only gonna go up,
1009
00:33:32.970 --> 00:33:33.920
so that the existing
1010
00:33:33.920 --> 00:33:36.300
need right now is a base?
1011
00:33:36.300 --> 00:33:39.443
No, I believe the already existing need,
1012
00:33:40.330 --> 00:33:43.630
is a separate determination.
1013
00:33:43.630 --> 00:33:46.200
The forecast go to what may be happening
1014
00:33:46.200 --> 00:33:47.203
in the future,
1015
00:33:48.307 --> 00:33:50.770
and is what was Mr. Bernstein
1016
00:33:50.770 --> 00:33:51.787
indicated an argument,
1017
00:33:51.787 --> 00:33:53.510
and as the board noted,
1018
00:33:53.510 --> 00:33:55.210
in the motion to reopen,
1019
00:33:55.210 --> 00:33:57.170
their expert witness,
1020
00:33:57.170 --> 00:33:58.900
submitted an affidavit saying
1021
00:33:58.900 --> 00:34:00.040
basically the closest
1022
00:34:00.040 --> 00:34:01.960
even under these forecasts,
1023
00:34:01.960 --> 00:34:03.710
if they continue to go down,
1024
00:34:03.710 --> 00:34:05.333
that the existing need,
1025
00:34:06.439 --> 00:34:09.360
would be resolved would be 2025,
1026
00:34:09.360 --> 00:34:12.550
but the board had before it.
1027
00:34:12.550 --> 00:34:14.010
And I would defer to exactly
1028
00:34:14.010 --> 00:34:15.190
what Mr Bernstein said,
1029
00:34:15.190 --> 00:34:16.700
but that was the thrust
1030
00:34:16.700 --> 00:34:19.550
of what I understood he was saying.
1031
00:34:19.550 --> 00:34:20.710
But the board
1032
00:34:20.710 --> 00:34:23.003
looked at the issue of,
1033
00:34:24.941 --> 00:34:26.750
was the finding the prior
1034
00:34:28.200 --> 00:34:30.120
evidence of existing need,
1035
00:34:30.120 --> 00:34:31.710
was it rebutted,
1036
00:34:31.710 --> 00:34:33.450
by what was being put in.
1037
00:34:33.450 --> 00:34:35.930
And it considered
1038
00:34:35.930 --> 00:34:38.300
two sets of affidavits,
1039
00:34:38.300 --> 00:34:39.363
from the town,
1040
00:34:40.370 --> 00:34:42.100
two sets of memoranda
1041
00:34:42.100 --> 00:34:43.800
of principle and a reply,
1042
00:34:43.800 --> 00:34:44.990
as well as material
1043
00:34:44.990 --> 00:34:46.640
discussing the same
1044
00:34:46.640 --> 00:34:49.427
sets of forecast by Eversource.
1045
00:34:49.427 --> 00:34:51.030
And it found that that standard
1046
00:34:51.030 --> 00:34:53.020
wasn't met of good cause,
1047
00:34:53.020 --> 00:34:54.732
and that there was
1048
00:34:54.732 --> 00:34:56.571
not sufficient reason,
1049
00:34:56.571 --> 00:34:57.404
to reopen a proceeding,
1050
00:34:57.404 --> 00:34:58.680
that already was well over
1051
00:34:58.680 --> 00:35:00.140
for better or for worse,
1052
00:35:00.140 --> 00:35:02.400
the 12 month period,
1053
00:35:02.400 --> 00:35:03.620
that the legislature
1054
00:35:03.620 --> 00:35:04.453
would like these
1055
00:35:04.453 --> 00:35:06.530
important matters resolved by.
1056
00:35:06.530 --> 00:35:07.760
That's the kind of
1057
00:35:07.760 --> 00:35:09.470
discretionary determination
1058
00:35:09.470 --> 00:35:10.910
the boards previously indicated
1059
00:35:10.910 --> 00:35:12.270
in the box case,
1060
00:35:12.270 --> 00:35:13.740
one of the alliance cases,
1061
00:35:13.740 --> 00:35:15.350
that are motions to reopen,
1062
00:35:15.350 --> 00:35:17.370
there is broad discretion in the board.
1063
00:35:17.370 --> 00:35:19.040
Alright, and I would submit
1064
00:35:19.040 --> 00:35:19.920
that this was given
1065
00:35:19.920 --> 00:35:21.103
all the factors,
1066
00:35:21.980 --> 00:35:24.080
that this was sufficient.
1067
00:35:24.080 --> 00:35:25.423
Well, considering the deference
1068
00:35:25.423 --> 00:35:26.810
that the board has,
1069
00:35:26.810 --> 00:35:28.490
including, I guess you're right,
1070
00:35:28.490 --> 00:35:29.903
the deference to reopen,
1071
00:35:32.300 --> 00:35:34.060
I mean, wouldn't we be more comfortable
1072
00:35:34.060 --> 00:35:35.010
with that deference,
1073
00:35:35.010 --> 00:35:36.730
if there was some sort of
1074
00:35:36.730 --> 00:35:39.330
hearing that explained other sources
1075
00:35:39.330 --> 00:35:41.070
forecast methodology,
1076
00:35:41.070 --> 00:35:43.010
and explained why
1077
00:35:44.276 --> 00:35:46.883
despite the decrease in need,
1078
00:35:48.501 --> 00:35:50.390
that nonetheless,
1079
00:35:50.390 --> 00:35:51.410
we need to go forward
1080
00:35:51.410 --> 00:35:53.330
with this project?
1081
00:35:53.330 --> 00:35:54.970
Well, it actually wasn't,
1082
00:35:54.970 --> 00:35:58.230
your honor Eversource forecasting.
1083
00:35:58.230 --> 00:36:00.010
It was forecasts again
1084
00:36:00.010 --> 00:36:01.870
by ISO new England,
1085
00:36:01.870 --> 00:36:03.980
that the town itself,
1086
00:36:03.980 --> 00:36:05.450
in its motion,
1087
00:36:05.450 --> 00:36:07.050
put before the court,
1088
00:36:07.050 --> 00:36:08.580
along with an affidavit,
1089
00:36:08.580 --> 00:36:10.810
as to why those forecasts
1090
00:36:10.810 --> 00:36:12.250
were significant.
1091
00:36:12.250 --> 00:36:13.170
Eversource came back
1092
00:36:13.170 --> 00:36:14.780
with a rebuttal affidavit,
1093
00:36:14.780 --> 00:36:16.660
saying, no they aren't
1094
00:36:18.321 --> 00:36:20.270
actually significant,
1095
00:36:20.270 --> 00:36:21.450
and then the town
1096
00:36:21.450 --> 00:36:23.330
over other sources objection,
1097
00:36:23.330 --> 00:36:24.360
had the right,
1098
00:36:24.360 --> 00:36:25.240
and did submit,
1099
00:36:25.240 --> 00:36:26.450
a reply memorandum
1100
00:36:26.450 --> 00:36:27.570
and reply affidavit
1101
00:36:27.570 --> 00:36:29.830
arguing sort of the contrary.
1102
00:36:29.830 --> 00:36:32.060
The board looked at it,
1103
00:36:32.060 --> 00:36:34.130
it found that
1104
00:36:34.130 --> 00:36:35.883
based on the papers before it,
1105
00:36:35.883 --> 00:36:37.370
there was not enough
1106
00:36:38.212 --> 00:36:39.940
to change the issue
1107
00:36:39.940 --> 00:36:42.373
of the already existing need,
1108
00:36:43.715 --> 00:36:46.370
again, 2025 which was what
1109
00:36:46.370 --> 00:36:48.170
Mr. Bernstein talked about
1110
00:36:48.170 --> 00:36:49.423
if trends continue,
1111
00:36:49.423 --> 00:36:51.640
the need will be resolved,
1112
00:36:51.640 --> 00:36:53.090
that was six years
1113
00:36:53.090 --> 00:36:54.490
from the time when the board
1114
00:36:55.582 --> 00:36:57.880
was deciding this in 2019,
1115
00:36:57.880 --> 00:37:00.190
and it has to legislature
1116
00:37:00.190 --> 00:37:03.090
wants it to address existing needs.
1117
00:37:03.090 --> 00:37:04.770
Not necessarily wait
1118
00:37:04.770 --> 00:37:06.040
for six years to see
1119
00:37:06.040 --> 00:37:07.050
if the needs go away.
1120
00:37:07.050 --> 00:37:08.170
I may be overstating
1121
00:37:09.691 --> 00:37:11.760
Mr. Cray, everything seems
1122
00:37:11.760 --> 00:37:13.530
to be lagging though, right?
1123
00:37:13.530 --> 00:37:16.300
So during the original proceedings,
1124
00:37:16.300 --> 00:37:19.403
you're using 2013 data, right?
1125
00:37:20.820 --> 00:37:21.653
Yes, sir.
1126
00:37:21.653 --> 00:37:25.230
As supplemented with 2016 ISO data.
1127
00:37:25.230 --> 00:37:26.860
But those are the two core years.
1128
00:37:26.860 --> 00:37:27.760
Yes, your honor.
1129
00:37:27.760 --> 00:37:29.400
During the original proceeding
1130
00:37:29.400 --> 00:37:31.130
as opposed to the motion to reopen,
1131
00:37:31.130 --> 00:37:32.350
were there objections
1132
00:37:32.350 --> 00:37:33.740
that the data was stale
1133
00:37:33.740 --> 00:37:34.660
at the time?
1134
00:37:34.660 --> 00:37:36.630
Or did this just come up
1135
00:37:36.630 --> 00:37:38.660
in a motion to reopen,
1136
00:37:38.660 --> 00:37:40.950
that suddenly the plaintiffs
1137
00:37:40.950 --> 00:37:41.783
were not happy
1138
00:37:41.783 --> 00:37:42.871
with the statistics
1139
00:37:42.871 --> 00:37:44.750
that they were working from?
1140
00:37:44.750 --> 00:37:46.230
I don't know the precise answer,
1141
00:37:46.230 --> 00:37:47.063
or whether it was,
1142
00:37:47.063 --> 00:37:49.240
I would defer to Mr. Rosensweig to answer,
1143
00:37:49.240 --> 00:37:50.073
whether it was
1144
00:37:50.073 --> 00:37:52.530
specifically brought up before.
1145
00:37:52.530 --> 00:37:54.410
But regardless of whether it was
1146
00:37:54.410 --> 00:37:56.245
or wasn't brought up,
1147
00:37:56.245 --> 00:37:58.260
the standard in the regulations
1148
00:37:58.260 --> 00:38:01.620
to reopen is clearly show good cause.
1149
00:38:01.620 --> 00:38:03.460
It's an appropriate standard,
1150
00:38:03.460 --> 00:38:04.780
given the legislature's
1151
00:38:04.780 --> 00:38:06.090
preference to expedite
1152
00:38:06.090 --> 00:38:07.860
these proceedings are possible,
1153
00:38:07.860 --> 00:38:09.330
and the fact that they do
1154
00:38:09.330 --> 00:38:11.583
inevitably take a long time.
1155
00:38:11.583 --> 00:38:12.810
And,
1156
00:38:12.810 --> 00:38:13.840
Can I ask one other question,
1157
00:38:13.840 --> 00:38:15.130
maybe Mr. Rosenzweig,
1158
00:38:15.130 --> 00:38:16.490
rather than you Mr. Cray,
1159
00:38:16.490 --> 00:38:18.550
but opposing counsel says
1160
00:38:18.550 --> 00:38:20.400
that the board was I'm switching
1161
00:38:20.400 --> 00:38:22.470
to conceptual cost for a second.
1162
00:38:22.470 --> 00:38:23.720
Absolutely. Your honor.
1163
00:38:24.810 --> 00:38:26.270
Your opposing counsel says
1164
00:38:26.270 --> 00:38:28.776
that the board has criticized
1165
00:38:28.776 --> 00:38:30.230
its own reliance
1166
00:38:30.230 --> 00:38:31.690
on conceptual costs.
1167
00:38:31.690 --> 00:38:33.605
Is that true?
1168
00:38:33.605 --> 00:38:36.240
Or is there more nuance that point?
1169
00:38:36.240 --> 00:38:39.710
Can you respond to that one?
1170
00:38:39.710 --> 00:38:41.950
Nuance was exactly the adjective
1171
00:38:41.950 --> 00:38:43.630
I was going to use your honor,
1172
00:38:43.630 --> 00:38:45.210
the board would prefer
1173
00:38:45.210 --> 00:38:47.100
in an ideal world,
1174
00:38:47.100 --> 00:38:48.820
more detail, more development,
1175
00:38:48.820 --> 00:38:49.653
rather than less.
1176
00:38:49.653 --> 00:38:51.300
So it certainly has statements
1177
00:38:51.300 --> 00:38:54.470
in its decisions, encouraging that.
1178
00:38:54.470 --> 00:38:57.320
The board does not require it though.
1179
00:38:57.320 --> 00:38:58.840
And for a very good reason,
1180
00:38:58.840 --> 00:39:00.320
two reasons I should say
1181
00:39:00.320 --> 00:39:02.700
both of which are grounded in the text,
1182
00:39:02.700 --> 00:39:05.460
of section 69 J itself.
1183
00:39:05.460 --> 00:39:06.500
The first reason
1184
00:39:06.500 --> 00:39:08.853
is a requirement in the 69 J,
1185
00:39:09.912 --> 00:39:11.180
that, or a prohibition,
1186
00:39:11.180 --> 00:39:12.880
on any state agency,
1187
00:39:12.880 --> 00:39:14.880
from issuing a construction permit
1188
00:39:15.750 --> 00:39:16.820
for a project,
1189
00:39:16.820 --> 00:39:19.080
until the board first,
1190
00:39:19.080 --> 00:39:21.210
has approved the petition
1191
00:39:21.210 --> 00:39:23.090
that the court is currently,
1192
00:39:23.090 --> 00:39:25.470
has under review now
1193
00:39:25.470 --> 00:39:27.180
because the board proceeding
1194
00:39:27.180 --> 00:39:29.580
must come first,
1195
00:39:29.580 --> 00:39:31.800
if necessarily you're at
1196
00:39:31.800 --> 00:39:32.730
the early stage
1197
00:39:32.730 --> 00:39:33.890
that some of the
1198
00:39:33.890 --> 00:39:35.980
other justices alluded to,
1199
00:39:35.980 --> 00:39:37.829
and that's naturally
1200
00:39:37.829 --> 00:39:39.110
estimates are gonna be
1201
00:39:39.110 --> 00:39:42.630
more preliminary at that point.
1202
00:39:42.630 --> 00:39:43.463
The second,
1203
00:39:43.463 --> 00:39:45.070
Can I pose, can I just,
1204
00:39:45.070 --> 00:39:46.570
because it's gonna display
1205
00:39:46.570 --> 00:39:47.950
my ignorance for a second.
1206
00:39:47.950 --> 00:39:50.423
So you say there's followup proceedings,
1207
00:39:51.960 --> 00:39:53.130
for construction permits.
1208
00:39:53.130 --> 00:39:54.300
Are there also followup
1209
00:39:54.300 --> 00:39:55.630
environmental proceedings,
1210
00:39:55.630 --> 00:39:56.573
or does this,
1211
00:39:57.460 --> 00:39:59.600
I mean, we normally
1212
00:39:59.600 --> 00:40:01.010
require, or, you know
1213
00:40:01.010 --> 00:40:02.366
section 61 commitments
1214
00:40:02.366 --> 00:40:03.240
and other things
1215
00:40:03.240 --> 00:40:04.870
in the environmental process,
1216
00:40:04.870 --> 00:40:07.583
will that still have to be met by this?
1217
00:40:09.080 --> 00:40:10.350
Yes, absolutely your honor,
1218
00:40:10.350 --> 00:40:11.930
when I said construction permits,
1219
00:40:11.930 --> 00:40:13.840
I was referring to precisely
1220
00:40:13.840 --> 00:40:15.779
the environmental permits
1221
00:40:15.779 --> 00:40:18.371
that your honor just referred to.
1222
00:40:18.371 --> 00:40:19.360
So there'll be an
1223
00:40:19.360 --> 00:40:20.750
environmental process
1224
00:40:20.750 --> 00:40:22.620
after this signing process,
1225
00:40:22.620 --> 00:40:24.340
that they have to go through.
1226
00:40:24.340 --> 00:40:26.360
I believe that it starts
1227
00:40:26.360 --> 00:40:28.000
on the time of the issuance
1228
00:40:28.000 --> 00:40:28.833
of the board's decision,
1229
00:40:28.833 --> 00:40:31.320
and does not continue to be told
1230
00:40:31.320 --> 00:40:32.590
during the course of this review,
1231
00:40:32.590 --> 00:40:34.770
Mr. Rosenzweig can address it.
1232
00:40:34.770 --> 00:40:36.870
I believe matters have progressed,
1233
00:40:36.870 --> 00:40:38.140
in terms of those
1234
00:40:38.140 --> 00:40:39.483
other permitting,
1235
00:40:41.439 --> 00:40:43.860
but at my understanding is,
1236
00:40:43.860 --> 00:40:45.010
at least the statute's written,
1237
00:40:45.010 --> 00:40:46.870
you don't get to,
1238
00:40:46.870 --> 00:40:48.270
at least the issuance,
1239
00:40:48.270 --> 00:40:50.200
of those other environmental permits,
1240
00:40:50.200 --> 00:40:51.710
until the board
1241
00:40:51.710 --> 00:40:53.963
has issued it's decision.
1242
00:40:53.963 --> 00:40:55.580
That it has to come first.
1243
00:40:55.580 --> 00:40:56.820
As the result
1244
00:40:56.820 --> 00:40:59.150
because the board proceeding comes first,
1245
00:40:59.150 --> 00:41:00.610
you're at an early stage,
1246
00:41:00.610 --> 00:41:02.340
the second reason
1247
00:41:02.340 --> 00:41:04.020
in the text of the statute,
1248
00:41:04.020 --> 00:41:06.730
is again the 12 month language,
1249
00:41:06.730 --> 00:41:07.880
it needs to be resolved
1250
00:41:07.880 --> 00:41:09.710
within 12 months,
1251
00:41:09.710 --> 00:41:11.723
these as both the Amica
1252
00:41:11.723 --> 00:41:13.113
into England power,
1253
00:41:14.100 --> 00:41:16.180
and these has illustrated
1254
00:41:16.180 --> 00:41:17.950
and Eversource as well,
1255
00:41:17.950 --> 00:41:19.810
going from conceptual level,
1256
00:41:19.810 --> 00:41:20.710
to planning level,
1257
00:41:20.710 --> 00:41:22.530
takes a lot of time.
1258
00:41:22.530 --> 00:41:25.150
I just conclude by noting the,
1259
00:41:25.150 --> 00:41:28.070
So just so I can summarize for myself.
1260
00:41:28.070 --> 00:41:30.360
So, there's gonna be
1261
00:41:30.360 --> 00:41:31.770
an environmental process,
1262
00:41:31.770 --> 00:41:32.603
where they have to
1263
00:41:32.603 --> 00:41:34.950
make determination of
1264
00:41:34.950 --> 00:41:37.270
all of the environmental impacts,
1265
00:41:37.270 --> 00:41:38.750
on the proposed permit,
1266
00:41:38.750 --> 00:41:41.900
which often also considers alternatives.
1267
00:41:41.900 --> 00:41:43.900
So this is not the only game
1268
00:41:43.900 --> 00:41:45.480
in town on this thing.
1269
00:41:45.480 --> 00:41:46.890
Absolutely not your honor,
1270
00:41:46.890 --> 00:41:48.710
and I know Mr. Rosenzweig
1271
00:41:48.710 --> 00:41:50.510
has details on that,
1272
00:41:50.510 --> 00:41:52.320
if the court is interested.
1273
00:41:52.320 --> 00:41:54.150
But just my final point
1274
00:41:54.150 --> 00:41:56.146
on the part why the court,
1275
00:41:56.146 --> 00:41:57.630
we are urging the court,
1276
00:41:57.630 --> 00:41:58.910
not to require
1277
00:41:58.910 --> 00:42:01.120
as a mandatory per se rule.
1278
00:42:01.120 --> 00:42:02.350
In every case,
1279
00:42:02.350 --> 00:42:04.540
moving to this planning over cost,
1280
00:42:04.540 --> 00:42:05.603
is the time.
1281
00:42:07.265 --> 00:42:09.273
Protect Sudbury in its own briefs twice.
1282
00:42:10.839 --> 00:42:13.080
Say it would take 10 to 12 months,
1283
00:42:13.080 --> 00:42:14.980
for its preferred alternative,
1284
00:42:14.980 --> 00:42:18.153
to be pushed to the planning level.
1285
00:42:20.135 --> 00:42:23.190
When the statute itself says 12 months,
1286
00:42:23.190 --> 00:42:25.720
it's entirely irreconcilable with it,
1287
00:42:25.720 --> 00:42:26.880
for there'll be a fixed
1288
00:42:27.799 --> 00:42:29.480
per se rule to impose,
1289
00:42:29.480 --> 00:42:31.030
you have to go to a certain level.
1290
00:42:31.030 --> 00:42:33.003
So the board would prefer things,
1291
00:42:34.456 --> 00:42:36.150
in the ideal world,
1292
00:42:36.150 --> 00:42:37.170
more detailed,
1293
00:42:37.170 --> 00:42:38.546
but it also respects the reality,
1294
00:42:38.546 --> 00:42:40.850
the statute is operating under,
1295
00:42:40.850 --> 00:42:41.969
it doesn't require them,
1296
00:42:41.969 --> 00:42:43.250
and do just the court
1297
00:42:43.250 --> 00:42:44.623
not to require them either.
1298
00:42:46.430 --> 00:42:48.170
Okay, thank you very much.
1299
00:42:48.170 --> 00:42:49.700
Attorney Rosensweig.
1300
00:42:55.131 --> 00:42:55.964
Good morning, your honor.
1301
00:42:55.964 --> 00:42:56.797
May it please the court.
1302
00:42:56.797 --> 00:42:58.250
David Rosensweig appearing
1303
00:42:58.250 --> 00:43:00.030
on behalf of instar electric
1304
00:43:00.030 --> 00:43:01.370
who was the petitioner,
1305
00:43:01.370 --> 00:43:02.900
and project proponent
1306
00:43:02.900 --> 00:43:03.850
before the siting board
1307
00:43:03.850 --> 00:43:06.020
in the underlying proceeding.
1308
00:43:06.020 --> 00:43:07.305
I would first start by
1309
00:43:07.305 --> 00:43:08.940
joining argument with
1310
00:43:08.940 --> 00:43:11.060
assistant attorney general Cray,
1311
00:43:11.060 --> 00:43:13.140
on the issues of need,
1312
00:43:13.140 --> 00:43:14.810
and the motion to reopen.
1313
00:43:14.810 --> 00:43:15.880
I think the critical
1314
00:43:15.880 --> 00:43:17.450
data point here is,
1315
00:43:17.450 --> 00:43:19.340
that the need for this project,
1316
00:43:19.340 --> 00:43:20.920
is not based on load growth,
1317
00:43:20.920 --> 00:43:22.100
or load forecasts,
1318
00:43:22.100 --> 00:43:23.790
in and of themselves.
1319
00:43:23.790 --> 00:43:25.260
Although each and every one
1320
00:43:25.260 --> 00:43:26.290
of the load forecast
1321
00:43:26.290 --> 00:43:27.123
that were reviewed
1322
00:43:27.123 --> 00:43:28.298
by the siting board
1323
00:43:28.298 --> 00:43:29.131
and the proceeding,
1324
00:43:29.131 --> 00:43:30.300
were consistent with
1325
00:43:30.300 --> 00:43:33.390
ISO new England related studies,
1326
00:43:33.390 --> 00:43:35.010
in the siting board properly said
1327
00:43:35.010 --> 00:43:36.130
that they give great weight
1328
00:43:36.130 --> 00:43:38.080
to the ISO new England
1329
00:43:38.080 --> 00:43:40.590
given their expertise in this area,
1330
00:43:40.590 --> 00:43:42.120
and their role as the
1331
00:43:42.120 --> 00:43:44.680
regional system operator in new England.
1332
00:43:44.680 --> 00:43:45.870
But the key point
1333
00:43:45.870 --> 00:43:46.810
that I was alluding to
1334
00:43:46.810 --> 00:43:47.643
was that the need
1335
00:43:47.643 --> 00:43:48.890
for this project exists
1336
00:43:48.890 --> 00:43:50.100
at load levels,
1337
00:43:50.100 --> 00:43:52.090
that have already been experienced,
1338
00:43:52.090 --> 00:43:53.220
and none of the forecasts
1339
00:43:53.220 --> 00:43:54.053
that were presented
1340
00:43:54.053 --> 00:43:55.140
during the proceeding,
1341
00:43:55.140 --> 00:43:56.870
indicated that loads were dropping
1342
00:43:56.870 --> 00:43:58.200
to an extent that,
1343
00:43:58.200 --> 00:43:59.970
that historical load level,
1344
00:43:59.970 --> 00:44:00.803
would not trigger
1345
00:44:00.803 --> 00:44:03.260
a contingency on the company system.
1346
00:44:03.260 --> 00:44:04.580
If there were consequences
1347
00:44:04.580 --> 00:44:06.120
with regard to other generators,
1348
00:44:06.120 --> 00:44:08.020
or transmission lines,
1349
00:44:08.020 --> 00:44:09.833
Ally in the Texas situation
1350
00:44:09.833 --> 00:44:11.410
that would give rise
1351
00:44:11.410 --> 00:44:14.260
to a series of customer outages,
1352
00:44:14.260 --> 00:44:17.230
and enrolling blackouts and the like.
1353
00:44:17.230 --> 00:44:18.990
The standard of siting board
1354
00:44:18.990 --> 00:44:21.560
applies is under its statute,
1355
00:44:21.560 --> 00:44:23.916
that reliability is sacrosanct,
1356
00:44:23.916 --> 00:44:25.540
and that the legislature
1357
00:44:25.540 --> 00:44:26.373
has declared that
1358
00:44:26.373 --> 00:44:27.660
the health and safety
1359
00:44:27.660 --> 00:44:29.480
of the Commonwealth its citizens,
1360
00:44:29.480 --> 00:44:30.870
its economy is dependent
1361
00:44:30.870 --> 00:44:33.510
on reliable supply of electricity,
1362
00:44:33.510 --> 00:44:34.343
that's the same stand
1363
00:44:34.343 --> 00:44:35.550
that Eversource has held to
1364
00:44:35.550 --> 00:44:37.480
as a transmission owner,
1365
00:44:37.480 --> 00:44:39.750
under state and federal standards.
1366
00:44:39.750 --> 00:44:41.240
So it's very important
1367
00:44:41.240 --> 00:44:42.073
for the company
1368
00:44:42.073 --> 00:44:43.290
to have in place
1369
00:44:43.290 --> 00:44:45.070
resources to address
1370
00:44:45.070 --> 00:44:46.940
load situations that may occur
1371
00:44:46.940 --> 00:44:47.773
on its system,
1372
00:44:47.773 --> 00:44:48.606
at the same time
1373
00:44:48.606 --> 00:44:50.440
that there is an unavailability
1374
00:44:50.440 --> 00:44:51.273
of transmission
1375
00:44:51.273 --> 00:44:52.560
or supply of the resources,
1376
00:44:52.560 --> 00:44:54.170
to meet customer needs.
1377
00:44:54.170 --> 00:44:55.640
That's a fundamental requirement
1378
00:44:55.640 --> 00:44:56.670
on the company,
1379
00:44:56.670 --> 00:44:57.510
and it's the standard
1380
00:44:57.510 --> 00:44:58.660
the siting board applies
1381
00:44:58.660 --> 00:45:00.693
under its statute.
1382
00:45:02.870 --> 00:45:04.100
With regard to the question of
1383
00:45:04.100 --> 00:45:05.980
whether the claim of the staleness
1384
00:45:05.980 --> 00:45:07.390
of the data was made
1385
00:45:07.390 --> 00:45:09.040
during the underlying proceeding,
1386
00:45:09.040 --> 00:45:10.320
it was not,
1387
00:45:10.320 --> 00:45:12.170
and that's my recollection.
1388
00:45:12.170 --> 00:45:13.060
There were a series
1389
00:45:13.060 --> 00:45:14.380
of forecasts that were presented
1390
00:45:14.380 --> 00:45:15.460
during the proceeding,
1391
00:45:15.460 --> 00:45:17.720
starting as early as 2013
1392
00:45:19.411 --> 00:45:20.610
going till 2016,
1393
00:45:20.610 --> 00:45:22.670
where the 2016 self report
1394
00:45:22.670 --> 00:45:23.780
there was also some evidence
1395
00:45:23.780 --> 00:45:26.210
on the 2017 self report
1396
00:45:27.380 --> 00:45:28.500
and each and every one
1397
00:45:28.500 --> 00:45:29.333
of the forecasts
1398
00:45:29.333 --> 00:45:30.410
that the company presented
1399
00:45:30.410 --> 00:45:32.900
were ISO related forecasts,
1400
00:45:32.900 --> 00:45:34.190
and the siting board
1401
00:45:34.190 --> 00:45:35.023
did find that
1402
00:45:35.023 --> 00:45:36.010
each of those forecasts
1403
00:45:36.010 --> 00:45:37.150
were reviewable,
1404
00:45:37.150 --> 00:45:38.840
reliable and inappropriate.
1405
00:45:38.840 --> 00:45:40.737
And while the historical,
1406
00:45:40.737 --> 00:45:41.950
law level on 2013
1407
00:45:42.830 --> 00:45:43.663
would support the need
1408
00:45:43.663 --> 00:45:45.550
for this project in and of itself,
1409
00:45:45.550 --> 00:45:47.690
the citing boards evidence,
1410
00:45:47.690 --> 00:45:48.810
was detailed on all
1411
00:45:48.810 --> 00:45:49.643
of those issues
1412
00:45:49.643 --> 00:45:50.550
and its findings comport
1413
00:45:50.550 --> 00:45:51.940
with its precedent
1414
00:45:51.940 --> 00:45:53.890
of relying on siting board, excuse me,
1415
00:45:53.890 --> 00:45:55.400
ISO new England forecasts,
1416
00:45:55.400 --> 00:45:56.390
to demonstrate need
1417
00:45:56.390 --> 00:45:57.263
for the project.
1418
00:45:58.170 --> 00:45:59.260
So we believe that
1419
00:45:59.260 --> 00:46:00.640
the citing board's order
1420
00:46:00.640 --> 00:46:01.930
is well supported
1421
00:46:01.930 --> 00:46:03.050
by substantial evidence.
1422
00:46:03.050 --> 00:46:03.910
They made the requisite
1423
00:46:03.910 --> 00:46:05.430
subsidiary findings
1424
00:46:05.430 --> 00:46:06.570
and should be affirmed
1425
00:46:06.570 --> 00:46:07.403
by the court.
1426
00:46:09.370 --> 00:46:10.410
With regards to the use
1427
00:46:10.410 --> 00:46:12.410
of conceptual cost estimates.
1428
00:46:12.410 --> 00:46:13.660
It is indeed the case
1429
00:46:13.660 --> 00:46:15.150
that those are the level
1430
00:46:15.150 --> 00:46:16.190
of cost estimates
1431
00:46:16.190 --> 00:46:17.810
that ISO new England uses,
1432
00:46:17.810 --> 00:46:19.220
to make project comparisons
1433
00:46:19.220 --> 00:46:21.930
and what's called a solutions report,
1434
00:46:21.930 --> 00:46:22.980
the company endeavors
1435
00:46:23.893 --> 00:46:25.760
to refine its analysis
1436
00:46:25.760 --> 00:46:26.770
with cost estimates
1437
00:46:26.770 --> 00:46:27.750
during the proceeding
1438
00:46:27.750 --> 00:46:29.900
and presenting its preferred project
1439
00:46:29.900 --> 00:46:31.210
to the siting board,
1440
00:46:31.210 --> 00:46:32.940
and did so here it to a level
1441
00:46:32.940 --> 00:46:34.874
of plus or minus 25%,
1442
00:46:34.874 --> 00:46:35.707
which is called
1443
00:46:35.707 --> 00:46:37.359
the planning grade estimate.
1444
00:46:37.359 --> 00:46:38.870
But for purposes of
1445
00:46:38.870 --> 00:46:40.100
doing a cost comparison,
1446
00:46:40.100 --> 00:46:41.613
it is completely in accordance
1447
00:46:41.613 --> 00:46:43.660
with siting board standards,
1448
00:46:43.660 --> 00:46:44.689
to compare projects
1449
00:46:44.689 --> 00:46:47.223
at a conceptual cost estimate level.
1450
00:46:48.350 --> 00:46:49.780
Those are point estimates,
1451
00:46:49.780 --> 00:46:52.010
which represent the best estimates,
1452
00:46:52.010 --> 00:46:53.840
the best record evidence in the case,
1453
00:46:53.840 --> 00:46:54.950
and it allows
1454
00:46:54.950 --> 00:46:57.170
for an apples to apples comparison,
1455
00:46:57.170 --> 00:46:58.003
without looking at
1456
00:46:58.003 --> 00:46:58.970
the uncertainty range,
1457
00:46:58.970 --> 00:46:59.820
the siting board looks at
1458
00:46:59.820 --> 00:47:02.570
the most likely cost figure,
1459
00:47:02.570 --> 00:47:05.310
within that confidence level,
1460
00:47:05.310 --> 00:47:07.490
and compares the project costs
1461
00:47:07.490 --> 00:47:08.680
to alternatives in order
1462
00:47:08.680 --> 00:47:10.410
to determine which facility
1463
00:47:10.410 --> 00:47:11.770
would have the lower cost
1464
00:47:11.770 --> 00:47:13.570
impact on customers.
1465
00:47:13.570 --> 00:47:15.100
Here, the company's project
1466
00:47:15.100 --> 00:47:16.640
was found to be superior
1467
00:47:16.640 --> 00:47:17.610
to the alternatives
1468
00:47:17.610 --> 00:47:18.560
that were presented,
1469
00:47:18.560 --> 00:47:20.150
at least that our issue here,
1470
00:47:20.150 --> 00:47:21.870
particularly the
1471
00:47:21.870 --> 00:47:22.703
Mr. Rosenzweig
1472
00:47:23.551 --> 00:47:26.110
So I trust that the sighting board
1473
00:47:26.110 --> 00:47:28.560
knows the energy world.
1474
00:47:28.560 --> 00:47:29.880
I'm not sure,
1475
00:47:29.880 --> 00:47:31.130
I trust them quite as much
1476
00:47:31.130 --> 00:47:32.670
on the environmental world,
1477
00:47:32.670 --> 00:47:33.680
so that when they're doing
1478
00:47:33.680 --> 00:47:37.330
that balancing considerations,
1479
00:47:37.330 --> 00:47:38.830
I know they don't wanna have
1480
00:47:38.830 --> 00:47:40.380
like a Texas situation.
1481
00:47:40.380 --> 00:47:41.430
They wanna make sure
1482
00:47:41.430 --> 00:47:43.580
they got transmission lines
1483
00:47:43.580 --> 00:47:45.050
and they're gonna go around the side
1484
00:47:45.050 --> 00:47:47.390
of getting the transmission lines
1485
00:47:47.390 --> 00:47:48.480
that they're not like
1486
00:47:48.480 --> 00:47:49.520
the people in Texas
1487
00:47:49.520 --> 00:47:51.100
about the be, you know,
1488
00:47:51.100 --> 00:47:53.540
publicly humiliated.
1489
00:47:53.540 --> 00:47:55.860
But is there a subsequent
1490
00:47:55.860 --> 00:47:57.450
environmental process here
1491
00:47:57.450 --> 00:47:59.330
where we double check
1492
00:47:59.330 --> 00:48:02.670
whether this is the, you know,
1493
00:48:02.670 --> 00:48:03.600
appropriate from an
1494
00:48:03.600 --> 00:48:05.280
environmental perspective?
1495
00:48:05.280 --> 00:48:06.667
How does that work?
1496
00:48:06.667 --> 00:48:07.540
Once you get
1497
00:48:07.540 --> 00:48:08.930
a siting board approval,
1498
00:48:08.930 --> 00:48:09.763
do you have to go
1499
00:48:09.763 --> 00:48:10.596
through the normal
1500
00:48:10.596 --> 00:48:11.950
state environmental process
1501
00:48:11.950 --> 00:48:14.650
to approve this project?
1502
00:48:14.650 --> 00:48:16.460
Absolutely, your honor,
1503
00:48:16.460 --> 00:48:17.690
and I can describe that.
1504
00:48:17.690 --> 00:48:18.610
I would say the siting board
1505
00:48:18.610 --> 00:48:20.100
does have considerable expertise
1506
00:48:20.100 --> 00:48:21.140
in environmental matters,
1507
00:48:21.140 --> 00:48:22.880
given the number of proceedings
1508
00:48:22.880 --> 00:48:23.713
and halves, but,
1509
00:48:23.713 --> 00:48:25.650
I understand they have expertise,
1510
00:48:25.650 --> 00:48:27.350
but they may have,
1511
00:48:27.350 --> 00:48:28.850
when they do that balancing,
1512
00:48:28.850 --> 00:48:30.350
I'm not sure that
1513
00:48:30.350 --> 00:48:32.748
the environmental was quite,
1514
00:48:32.748 --> 00:48:34.730
you know, the same to them
1515
00:48:34.730 --> 00:48:37.487
as it is when it is in form of DEP,
1516
00:48:37.487 --> 00:48:41.071
and the environmental regulators.
1517
00:48:41.071 --> 00:48:42.000
So go ahead.
1518
00:48:42.000 --> 00:48:44.140
So as attorney general,
1519
00:48:44.140 --> 00:48:45.210
assistant attorney general Cray
1520
00:48:45.210 --> 00:48:46.590
mentioned the project does need
1521
00:48:46.590 --> 00:48:48.610
to undergo considerable state,
1522
00:48:48.610 --> 00:48:49.683
and local review.
1523
00:48:50.710 --> 00:48:52.600
The state review occurs,
1524
00:48:52.600 --> 00:48:55.753
subsequent to the citing board,
1525
00:48:55.753 --> 00:48:57.450
proceeding because by statute,
1526
00:48:57.450 --> 00:48:58.790
the siting board is the first
1527
00:48:58.790 --> 00:49:00.270
state permit to be issued,
1528
00:49:00.270 --> 00:49:01.570
but the project has subsequently
1529
00:49:01.570 --> 00:49:03.330
been through the MEPA process,
1530
00:49:03.330 --> 00:49:05.100
has successfully received
1531
00:49:05.100 --> 00:49:06.220
a MEPA certificate,
1532
00:49:06.220 --> 00:49:08.090
that the project adequately
1533
00:49:08.090 --> 00:49:09.890
and complies adequately,
1534
00:49:09.890 --> 00:49:12.660
and appropriately complies
1535
00:49:12.660 --> 00:49:13.493
with the requirements
1536
00:49:13.493 --> 00:49:14.690
of the MEPA.
1537
00:49:14.690 --> 00:49:16.190
MEPA issued what a called section
1538
00:49:16.190 --> 00:49:18.068
61 findings that you alluded to,
1539
00:49:18.068 --> 00:49:20.800
those section one 61 findings
1540
00:49:20.800 --> 00:49:22.960
will guide other state agencies
1541
00:49:22.960 --> 00:49:24.530
in the review process.
1542
00:49:24.530 --> 00:49:25.530
The project requires
1543
00:49:25.530 --> 00:49:27.580
a chapter 91 license
1544
00:49:27.580 --> 00:49:29.440
from DEP for some of the bridge work
1545
00:49:29.440 --> 00:49:32.100
along the MBTA underground right away,
1546
00:49:32.100 --> 00:49:33.496
that review was underway.
1547
00:49:33.496 --> 00:49:36.200
All of the other state permits
1548
00:49:36.200 --> 00:49:38.230
follow from the siting board review,
1549
00:49:38.230 --> 00:49:39.800
and on the local level,
1550
00:49:39.800 --> 00:49:40.633
there are permits
1551
00:49:40.633 --> 00:49:42.098
that are being sought
1552
00:49:42.098 --> 00:49:43.230
in Hudson and in Sudbury,
1553
00:49:43.230 --> 00:49:45.130
for grants a location,
1554
00:49:45.130 --> 00:49:47.090
for a conservation commission approvals.
1555
00:49:47.090 --> 00:49:49.080
In fact, in the last few weeks,
1556
00:49:49.080 --> 00:49:50.070
the company has received
1557
00:49:50.070 --> 00:49:52.430
a conservation commission
1558
00:49:52.430 --> 00:49:53.263
order of conditions,
1559
00:49:53.263 --> 00:49:54.600
a favorable review
1560
00:49:54.600 --> 00:49:55.940
for its wetland impacts
1561
00:49:55.940 --> 00:49:57.730
on the MBTA underground right away.
1562
00:49:57.730 --> 00:49:58.870
All of this happens
1563
00:49:58.870 --> 00:50:00.973
subsequent to the siting board review,
1564
00:50:01.930 --> 00:50:02.982
Mr. Rose, again
1565
00:50:02.982 --> 00:50:04.360
because I'm more of
1566
00:50:04.360 --> 00:50:05.410
an environmental person
1567
00:50:05.410 --> 00:50:06.260
than an energy person
1568
00:50:06.260 --> 00:50:08.757
who may understand that better,
1569
00:50:12.100 --> 00:50:13.150
when they did the
1570
00:50:13.150 --> 00:50:14.563
environmental review here,
1571
00:50:15.630 --> 00:50:17.330
were these alternatives
1572
00:50:17.330 --> 00:50:18.750
that were presented here.
1573
00:50:18.750 --> 00:50:21.190
Part of the environmental review too?
1574
00:50:21.190 --> 00:50:22.133
That the,
1575
00:50:23.000 --> 00:50:23.900
if we look up
1576
00:50:23.900 --> 00:50:26.220
the environmental permit here,
1577
00:50:26.220 --> 00:50:28.030
will they be comparing
1578
00:50:29.642 --> 00:50:31.820
the three different options here
1579
00:50:31.820 --> 00:50:33.262
in the environmental process?
1580
00:50:33.262 --> 00:50:34.570
Or was it, were they just looking
1581
00:50:34.570 --> 00:50:37.823
at the actual signing board proposal?
1582
00:50:39.210 --> 00:50:40.680
The environmental permits
1583
00:50:40.680 --> 00:50:41.590
to a large extent
1584
00:50:41.590 --> 00:50:42.900
that follow are based on
1585
00:50:42.900 --> 00:50:44.523
the project specific
1586
00:50:44.523 --> 00:50:45.860
preferred approach
1587
00:50:45.860 --> 00:50:47.260
the company has presents
1588
00:50:47.260 --> 00:50:48.310
to the state agency
1589
00:50:48.310 --> 00:50:50.200
MEPA does look at alternatives,
1590
00:50:50.200 --> 00:50:51.390
so I can tell you
1591
00:50:51.390 --> 00:50:53.070
that is part of their analysis.
1592
00:50:53.070 --> 00:50:54.020
But,
1593
00:50:54.020 --> 00:50:54.853
If I look at these
1594
00:50:54.853 --> 00:50:55.920
particular alternatives,
1595
00:50:55.920 --> 00:50:57.100
is part of that or not,
1596
00:50:57.100 --> 00:50:57.933
I'm just trying,
1597
00:50:57.933 --> 00:50:59.030
again I'm not saying they needed to,
1598
00:50:59.030 --> 00:51:00.530
I'm just trying to understand,
1599
00:51:01.636 --> 00:51:02.640
you know, how much of this
1600
00:51:02.640 --> 00:51:04.160
is duplicative,
1601
00:51:04.160 --> 00:51:06.470
is duplicated to the environmental process.
1602
00:51:06.470 --> 00:51:08.000
There is deference by MEPA
1603
00:51:08.000 --> 00:51:08.870
to the siting board,
1604
00:51:08.870 --> 00:51:10.000
and in the conduct
1605
00:51:10.000 --> 00:51:11.390
of its alternatives review
1606
00:51:11.390 --> 00:51:13.230
but part of the reporting
1607
00:51:13.230 --> 00:51:15.810
of a D E I R, and an F E I R,
1608
00:51:15.810 --> 00:51:16.643
which is a draft
1609
00:51:16.643 --> 00:51:17.990
environmental impact report,
1610
00:51:17.990 --> 00:51:20.680
you know, final environmental impact report,
1611
00:51:20.680 --> 00:51:22.900
looks at alternatives
1612
00:51:22.900 --> 00:51:24.720
provides the environmental characteristics
1613
00:51:24.720 --> 00:51:25.553
of the laws,
1614
00:51:25.553 --> 00:51:26.610
those alternatives,
1615
00:51:26.610 --> 00:51:28.410
and MEPA and the siting board
1616
00:51:28.410 --> 00:51:29.300
tend to try to
1617
00:51:29.300 --> 00:51:30.450
coordinate their reviews
1618
00:51:30.450 --> 00:51:31.970
to make sure that there's no overlap
1619
00:51:31.970 --> 00:51:33.780
between the two agencies.
1620
00:51:33.780 --> 00:51:35.410
And in here,
1621
00:51:35.410 --> 00:51:37.240
there was a very detailed review
1622
00:51:37.240 --> 00:51:38.820
of the 240 pages
1623
00:51:38.820 --> 00:51:40.190
of the siting boards order,
1624
00:51:40.190 --> 00:51:43.840
at least two thirds of that order,
1625
00:51:43.840 --> 00:51:44.700
govern issues on
1626
00:51:44.700 --> 00:51:45.680
environmental impacts
1627
00:51:45.680 --> 00:51:47.300
either in the routing analysis,
1628
00:51:47.300 --> 00:51:48.700
or the comparative impacts
1629
00:51:48.700 --> 00:51:50.800
of the project to alternatives.
1630
00:51:50.800 --> 00:51:53.330
So it's a very comprehensive review,
1631
00:51:53.330 --> 00:51:54.360
as Mr. Cray said,
1632
00:51:54.360 --> 00:51:56.090
there's thousands of exhibits,
1633
00:51:56.090 --> 00:51:57.660
in days of hearings that went
1634
00:51:57.660 --> 00:51:59.120
into very fine detail
1635
00:51:59.120 --> 00:52:00.930
on all of these environmental impacts.
1636
00:52:00.930 --> 00:52:02.350
And before the siting board found
1637
00:52:02.350 --> 00:52:04.010
that the company's proposed
1638
00:52:04.010 --> 00:52:05.380
project was superior.
1639
00:52:05.380 --> 00:52:06.820
It adequately reviewed all
1640
00:52:06.820 --> 00:52:07.653
of those impacts
1641
00:52:07.653 --> 00:52:08.869
as well as the cost
1642
00:52:08.869 --> 00:52:10.870
to performance balancing
1643
00:52:10.870 --> 00:52:12.367
of reliability, cost
1644
00:52:12.367 --> 00:52:14.100
and environmental impact.
1645
00:52:14.100 --> 00:52:14.933
So on that basis,
1646
00:52:14.933 --> 00:52:16.360
we would ask the court
1647
00:52:16.360 --> 00:52:18.060
to affirm the siting boards order.
1648
00:52:19.560 --> 00:52:20.393
Thank you very much.
1649
00:52:20.393 --> 00:52:21.600
Thank you council,
1650
00:52:21.600 --> 00:52:22.633
for all parties.