-: SJC you want...
(Faintly speaking)
-: [Chief Justice Budd] Okay, and Attorney Daniels,
we'll have you go ahead. But I just wanna say,
I know that Justice Kafker will have questions on this case.
And so I'm gonna invite him to jump
in whenever he wants to do that.
Okay.
Josh Daniels: Thank you, Your Honor,
may it please the court.
My name is Josh Daniels and I am Pro Bono Counsel
for GreenRoots, an organization dedicated
to pursuing environmental justice in East Boston.
For three reasons, we are asking you
to set aside the citing board's decision,
approving a high voltage substation in the heart of east
Boston's environmental justice community on the Chelsea
Creek, across the street from two of its only green spaces.
First, the board abused its discretion in refusing
to re-examine its prior determination that
the substation is needed,
particularly given its prior failure
to follow statutory public hearing requirements.
Second, that the board failed
to create a substantially accurate and complete
record because it continually failed to provide
adequate meaningful opportunities for East Boston's
substantial non-English speaking population to participate.
And finally, that the board's evaluation of the flood risks
associated with the site now chosen for the substation,
do not square with the evidentiary
record developed before it, by way of a roadmap time.
Justice Cypher: When you say the evidentiary record
developed before it,
are, what are you talking about?
Are you talking about those new information or
the information that was in the record is inadequate?
What are you saying?
Josh Daniels: So on flood risk,
the jumping to that argument for a second,
the thrust of the argument essentially is that the board's
decision to truncate its risk analysis at 2070,
just doesn't square with the nature of the evidence that was
developed both about how long the facility is likely to be
at the site chosen and also the magnitude of the risk that
it will be facing by that time. And there's just, no...
Justice Cypher: You're only referring
to information that was before the board?
Josh Daniels: Correct. That was developed
in the project change proceeding below.
Just as a roadmap time permitting,
I plan to focus on the first and the third issues,
recognizing that there is some overlap in the process
argument on the first and the second.
Beginning with reopener, there are essentially
three basic components to GreenRoots' reopener argument.
First is the inherent authority of the board to take account
of new information, showing that applicable
on the ground facts may have changed
and that can happen at any time,
even after the final decision issues.
I don't think anyone seriously disputes the existence of
that authority at that point.
The second is as we brief that new evidence credibly shows
that things have indeed changed,
unless there are sort of technical questions,
I'd really like to focus more on the third component,
which is that the finality,
the strength of the finality interest and the prior
determination have really been diminished,
given the process failures in the underlying proceeding.
Justice Lowy: I do have a technical question.
-: Yes?
-: Which is what are we talking about?
Are we talking about the 2017 hearing?
And let's talk about...
...specifically the statute that says
the hearing should be in each locality?
Josh Daniels: Yep.
-: So...
the hearing was in East Boston in 2017.
-: So that was the final hearing and vote of the board in the
underlying proceeding, but what we take issue
with the initial public comment hearing,
which has to be held in each locality where a facility would
be located in the language of 69J.
And that hearing back in 2015,
I believe it was, was held in Chelsea,
which we contend is not.
There was only one public hearing.
There were facilities located in,
I believe, it was Chelsea Revere and East Boston. And we
say that all of those affected communities or localities
should have had an initial public comment hearing.
Justice Lowy: And doesn't there have
to be an objection to that?
You weren't even a party. I think our case law,
there's a case...
with energy facilities sitting board back in...
...2015 I believe
that requires an objection at the time and by a party.
Josh Daniels: So we were not a party
to the underlying proceeding,
mostly because it's basically all as a practical matter,
almost impossible to effectively participate
as a party without council. And until I came along in 2019,
GreenRoots was unable to find,
or its predecessor organization at the time was unable
to find council to represent them.
But I think going more to the thrust of your question,
Justice Lowy,
we do not think that the failure to abide by the board's
statutorily required procedures is utterly without
consequence when the board is now seeking to in essence,
stand on what it decided in the underlying proceeding.
The strength of finality,
I think, in almost any context is a function of the fairness
of the process through which that finality was achieved.
They think the board's own precedent speaks to whether the
prior determination was fully unfairly litigated.
And so we think that's how that failure to hold a public
hearing in East Boston comes into play.
Going to the language of the statute, they mean
the statute they think is sort of clearly imposes as a more
stringent requirement than the regulation that the board has
purported to promulgate in furtherance of the statute.
But the regulation says is a public hearing shall be held
in one or more of the affected cities and towns.
And the statute is more strange.
And it said that the board must hold a initial public
comment hearing in each locality
where a facility would be located.
Even my friends on the other side's
own dictionary, definitions,
locality encompasses neighborhood community.
It means at most, I think the same city, your town, but...
Judge Lowy: I don't know if
the black flood dictionary definition is a small area of a
city county or state vicinity neighborhood community.
Josh Daniels: Right.
And the thrust of that entire definition is a small area.
As I read the other side's briefs,
what they seem to be saying is, well,
it's for the board to determine essentially, draw a circle
around the effective communities.
And that can be the relevant locality on sort of a case like
case by case basis.
I'm not sure how you square that with either the definition
of locality,
which sort of looks at the smallest at sort of the smallest
units, including the neighborhood or the community.
And also how it squares with the word each,
because the statute by using the word each already
contemplates that in many cases, there are,
there's going to be more than one community affected.
And so there's going to be a need for more
than one public hearing.
And yet, the regulation purports to make a different choice
than the statute, which is essentially,
to try and minimize the board's public hearing obligations
by saying, well, it's fine if you hold one per petition.
The statute doesn't say that you
should only hold one per petition.
It says you should hold one in each affected locality.
I think there's also, it's worth emphasizing how sort
of half dependent the initial public comment hearing is.
I think as Eversource points out in their brief,
the public comment hearing at the
beginning has cascading effects.
It sort of shapes what the proceeding looks like that
follows because the comments that are received at the public
comment hearing, may inform not just who intervenes,
but also what issues get explored either by interveners or
by board staff.
And so the board never got, because
we think, based on the record, you know...
...only seven people commented at that initial public
comment hearing in Chelsea in 2015.
Justice Georges: Counsel, could I go
backwards for a minute?
-: Yes.
Justice Georges: Is this an issue of locality or notice?
What I'm asking is if they were to announce and notify the
residents in East Boston of that are in the affected
locality, that this public hearing is going to be held at
this time and place in Chelsea?
Whereas they've got plenty of notice of where it is and then
only seven people show up.
I'm wondering what's the thrust of what you
say the locality issue is?
It it proximity to the public hearing,
or is it notice of the public hearing?
Josh Daniels: I think it's proximity
to the public hearing.
I think the statute makes a policy decision,
which is that we want to make it easier for the people
who are closest to the proposed action,
who are closest to the site where this project is going up,
who will have to live next to this thing in their
neighborhood to make it easy for them to come and be heard.
Justice Georges: Is that your interpretation of it,
or are relying on something explicit that says that?
-: It is my interpretation to my knowledge,
this particular provision of 69J
has not yet been interpreted.
And so that will be a task for you.
I think also one thing I just wanna mention off before I
move on to sort of the flood risk analysis
is a big thrust of the board's decision below
about the importance of finality
has this sort of flavor of, well,
if we re-litigate the need determination at this stage,
there's going to be this awful parade of horribles and,
you know, Pandora's box will be reopened
and will never close it again.
Justice Cypher: Right.
Well, let me ask you about that parade of horribles.
Wouldn't one of them be that there
would never be finality?
And these could be opened all the time, reopened constantly.
-: I mean, I think that parade of horribles
brings a little bit hollering now
since finality actually has been re-litigated in the new
proceeding that's still pending before the board below.
And that's probably going
to be coming to you a year from now,
which is the company ever source sought a 69K certificate
to essentially override other state and
local permitting requirements.
As part of that proceeding,
the issue of need was slated for adjudication.
It has been litigated,
we're awaiting a tentative decision on that proceeding.
Justice Cypher: But how does that affect this?
-: I mean, basically the argument is sort of,
you could have re-lit, we could have re-litigated
this three years ago because we're re-litigating it now.
Justice Cypher: But how does that
re-litigation affect this appeal?
-: I don't think it directly does.
I just thought the court would be interesting to know.
Justice Cypher: It's interesting to know that.
So the whole hearing's being redone?
-: There have been new evidentiary hearings,
I believe eight days of them.
I should say, I'm not directly involved in those hearings.
-: I'm just trying to make sure are you getting
the same remedy somewhere else that you're seeking here?
Josh Daniels: Not exactly, because
I think what we would've wanted is a chance to
re-litigate the issue of need before the final construction
at the new site was approved, rather than after when,
you know, when now we're in the position of having
to challenge that final construction on appeal.
I don't think we're any longer asking for the chance to
re-litigate me because we've already had that chance as a
practical matter.
But I think it just goes to show that the finale...
Justice Gaziano: But if you win,
it goes back for rehearing?
-: If we win, which?
-: Here.
-: If we win here,
the decision gets set aside and it gets remanded to the
board for the proceedings.
-: Which is... now ongoing.
Josh Daniels: Right. I, I suppose there is a bit of
there's a bit of, you know, mootness
in the sense that we no longer have to...
Justice Cypher: The senator sensed a mootness vibe here.
-: Yeah. A vibe definitely.
-: Maybe we should explore that.
We're no longer in the position
of having to ask for the chance to re-litigate me
because we've now gotten that chance through other moots.
But I think it would still suggest that the decision here
should be set aside because the board abused its discretion
in saying, well, there's no way
we can re-litigate, we can re-litigate me
when we're already re-litigating me.
And, you know, if we can re-litigate it this year,
we could have re-litigate it three years ago.
Justice Cypher: And how does that re-litigation
of need affect the other two issues in the case?
-: So I don't think it does.
I think flood is pretty well cabin.
The flood risk issue is pretty well cabined to itself.
Justice Cypher: We'll be considering that.
Josh Daniels: Pardon?
-: They won't be considering that or
any of the evidence about hundred years versus...
-: I don't... I don't know,
to what extent I've been mostly focused on the new
proceeding in terms of its effect on the need issue.
I'm not...
I can't really speak to how much they've re-litigated flood.
Although, I suspect there might
have been some re-litigation.
Justice W: But Counsel, I'm completely confused now.
Are you saying that the number one issue that you're
spending oral argument on has already been...
you've already achieved a re-litigation of the need issue?
-: In essence, yes,
but we are still unhappy with the approval of the
construction at the new site and would like that approval
set aside for the reasons that we have briefed.
I think at this time, if there are no further questions.
(Justice Kafker faintly speaking)
Yes.
(Justice Kafker's faint speaking continues)
-: It is below the MEPA thresholds that are delineated in the
environmental justice policy. Yes, is my understanding.
(Justice Kafker faintly speaking)
-: I mean, I think the letter, I think, you know we're...
...so I think it's still important to hold,
that the public participation requirements that are
embodied in the board statutes and regulations
include a requirement that those opportunities
be meaningful, including
for people with limited English proficiency.
(Justice Kafker faintly speaking)
-: I mean, they think they're obligated
under other legal requirements
beyond the environmental justice policy.
I don't think that the public participation requirements are
there just for justice essentially for window dressing.
I do think they do have to be meaningful.
(Justice Kafker faintly speaking)
-: I... could you repeat?
I'm not sure I quite follow the question.
(Justice Kafker faintly speaking)
-: I, I mean I don't,
I think just sort of taking a step back at the public
participation requirements that exist by statute and
regulation, what those contemplate is,
the public will actually have a meaningful opportunity to
weigh in and be heard on the project.
And what that looks like, in some ways,
depends on the nature of who is seeking to participate in
what needs they have.
And I think it would be it's, at least consistent with the
department's language access policy from 2018 that you take
a holistic look at whether the accommodations of the
services provided are up to the level necessary to
facilitate that meaningful participation that the statute
and the regulations contemplate. I mean,
if somebody is limitating their English proficient,
they need interpretation and that interpretation needs to be
adequate to allow them to understand what's going on and
contribute effectively to the discussion.
(Justice Kafker faintly speaking)
-: I mean, I suspect they may well be.
I think, sort of, the way that I sort of approach
that particular issue and that particular aspect
of this issue is
just because we may need
to think a lot about what we're going to do as a city,
to face the daunting challenge of climate change into the
next century. Doesn't sort of give us a pass to,
from the obligation to sort select a site,
select the best...
...the best site.
That's the most that's as resilient as we reasonably can.
And based on the record that the board is developed,
I don't think there's any serious dispute about two things.
One is that this substation is likely to keep operating
until the 2100 timeframe.
There's evidence in the record that some of their
substations have been in service for upwards of a century.
And two...
(Justice Kafker faintly speaking)
-: Well,
I think the standard of review on substantial evidence takes
account on whether on, you know,
what the evidence developed before them looks like,
and whether it tends substantially towards the inference
that they chose or the opposite inference that they chose.
And the main reason why they decided to cut off their risk
analysis at 2070. And instead instigate this five year...
...every five year review process is they think for a reason
that I can't find in the record and no one has really cited
to us that the projection's out to 2100 are somehow less
usable than the projections out to 2070,
that they're more uncertain.
I don't think if you read the BRAG report,
you will find anything like that in any statement of that
effect in the BRAG report.
I also don't think that any witness below test with
expertise testified. Eversource's witnesses admitted
to me when I question them, that they do
not have expertise in any of the science or principles that
the BRAG report is applying.
They're not modelers, they are engineers.
And I respectfully think the board also...
...what climate driven
sea level rise is likely to look like over the next century
is getting pretty farfield of its core competence,
which I think is at best sort of how to engineer
a substation to withstand a certain magnitude of the risk,
but not necessarily to understand what the risk profile is,
if that makes sense.
Justice Cypher: Can I ask one?
-: [Chief Justice Budd] Yeah, of course.
Justice W: So I thought the record supported
the proposition that...
...one of the considerations of the siding board was...
...2070s good enough,
because we're not sure how
we're gonna be meeting our energy needs in the future.
Right, that there are developing technologies,
and while flood may be an issue,
we may no longer be meeting our energy needs in this way
after 20, 70, 50 years from now.
So that's good enough with the five year reviews.
Josh Daniels: Well, I have some thoughts
on that intuition,
which is, one,
I think it's sort of interesting that the technology that
we're talking about is technology that, you know,
the same fundamental technology was in use a century ago.
There were substations in the early 20th century,
even in the late 19th century.
I'm sure those policymakers may well have at that time, may
have imagined that we would be having different transmission
technologies now than we do then.
And just to some extent, that's not,
hasn't really proven to be the case.
And second, they think, you know, while we would
welcome the move towards say, decision.
Justice W: Isn't that the problem
that's leading to global warming?
I mean,
I guess we've learned a lot in the last century
and why can't...
...or why shouldn't this court defer to experts
in this area to say 20, 70, that's reasonable
because we're at a place right now
where business as usual, has led us
to the place we're at right now.
And we have all these national and state policies that are
leading us to different ways of meeting our energy needs.
Josh Daniels: I mean, I think...
-: So why are we gonna build this behemoth
that goes all the way to a century when, at year 50,
we should be moving on to some other technology?
And we probably will.
Josh Daniels: Well, I think that we probably will.
Thing is definitely really contested,
I mean particularly since the utility companies.
I think it's not unfair to say that they are doing a lot of
whatever they can to resist that move to these other models.
They resisted that move back in.
Justice W: But now you're making a factual-based
argument, and my standard of review, isn't
I get to make the decision,
my standard is, you know,
is there substantial evidence, arbitrary and capricious?
-: Right, and I do recognize that.
I mean, I think the sort of problem
with the approach that the board took
is we're basically deciding to build this substation now
based on an incomplete analysis of, sort of,
what the overall risk profile of this facilities.
Justice Cypher: Can I ask you a question about that?
Is the board hearing that's going on now hearing evidence
regarding this issue?
-: I think they may have heard some 70.
Justice Cypher: Or the 2100?
Josh Daniels: I am not sure about that particular nuance.
I know that they are...
I think that they have heard some evidence about flood risk,
but I'm not sure.
Justice Cypher: Okay. So I don't understand.
And this just may be me right now cause, we're back.
It's our first day. How is your case not moot?
-: So it's not moot because we are challenging the project
change decision approving construction,
and we that... and we are aggrieved by that decision.
Justice Cypher: But you have...
-: And the proceeding...
All of your arguments as to why that is wrong are
being heard by the board.
Josh Daniels: Right, but the outcome
of the new proceeding is not whether
to approve construction.
It's whether to grant the permitting overrides
that would otherwise be required under chapter 91.
Justice Cypher: It's not the same hearing.
-: It's not a hearing, it's not the same hearing.
It's not seeking the same...
...relief as the project change proceeding, which was,
we would like approval to build this substation
on this new site.
The new hearing is sort of related to that,
but more specifically about the permitting overrides for
chapter 91 and otherwise.
[Justice Cypher] You say it's related to that.
How much?
Josh Daniels: So, it will not change.
I don't think the construction approval
that the board issues under 69J
what it would do or not is
to affect whether the substation receives a substitute
for otherwise required chapter 91 or other permits.
-: [Chief Justice Budd] Okay.
-: Thank you.
-: [Chief Justice Budd] Thank you.
Attorney Ramos.
Adam Ramos: Thank you, Madam Chief Justice,
and may it please the court.
Adam Ramos as special assistant attorney general
on behalf of the energy facilities citing board.
As this court recognized in the town of Sudbury
decision last year,
reliable electricity service is essential to the health and
wellbeing of all residents of the Commonwealth.
The project at issue in this appeal is a critical
reliability project that was fully approved in 2017
in the original proceeding.
I think the court pointed out a critical distinction that we
need to make here as to whether we're talking about the
original proceeding, or the project change
proceeding on this appeal.
There was no appeal from the final decision
in the original proceeding.
And this is an appeal from the limited and narrow scope of
the project change.
And the project change answered only one question.
What impact, if any,
is there of moving this substation in East Boston,
190 feet to the west on the same par slope land,
from which it was already approved?
That's important because GreenRoots,
although not a participant in the initial proceeding,
did not appeal from that proceeding, nor did anybody else.
They have only appealed from the project change proceeding
and that project change proceeding litigated and led to a
final decision that occurred more than three years later.
GreenRoots' appeal really is primarily an improper attempt
to revisit the original proceeding.
And this court should not credit GreenRoots after the fact
complaints about process, or give GreenRoots a second bite
at the apple,
because it now wishes that it participated
fully in the original proceeding.
Doing so would upend administrative
process and the critical role of regulatory finality.
And it would hamstring the board's ability to perform
efficiently, and effectively, its critical role in reviewing
projects like this one,
that are, will help the Commonwealth transition
to an ever more electrified and decarbonized
energetic future fueled by renewable generation.
It would also deprive the communities
of Chelsea and East Boston,
the reliability benefits that would come from this project.
In addition to the other benefits that flow from it,
including soil remediation at the project site and the
community benefits agreement that will benefit the entirety
of the community.
Justice Cypher: Council, may I ask you
if we agree with you, say we agreed with you,
what would happen if the board comes to a different
conclusion in the present hearing?
(indistinct)
Justice Cypher: Adjust or a change?
Adam Ramos: So this is an appeal
from a decision as to whether or not you approve
the move of the, from one site to the other.
There would still be an approved project
at the original site.
And...
...presumably, the company would seek to build at that site,
or take other steps to move forward with the project.
But the...
...as the record reflects,
there has been a land swap and currently the company does
not have the land rights to the original site,
but, so there is some uncertainty around whether the
project would move forward.
But from the board's perspective,
there's an approved project, either...
...an affirmance at the new location,
or if the court were to go in the other direction
at the previously approved unhealed location
from the final decision.
Justice Lowy: So I think what GreenRoots would say is,
it's true that the 2017...
...hearing did take place in the locality.
The issue, depending on how you interpret each locality,
but not having the ability during that initial hearing
for people in East Boston,
to be able to contest what was going on, impacts whether or
not this issue of moving 175 yards down the road
should really result in a reopening
of the 2017 decision to move.
Adam Ramos: So your honor,
I think GreenRoots has argued with respect to locality that
the public comment hearing in the original proceeding
should have taken place in East Boston
and the...
...upshot of that, well,
I guess I have two answers to that.
One, as I think, Your Honor
pointed out during Attorney Daniel's argument,
there was no appeal taken from that.
There was no objection to that at the time.
Number two,
the board has historically interpreted the requirements for
the locality...
...and has determined that it requires
the public hearing in one or more of the
municipalities where the project is located.
Justice Lowy: Just assume that's all that's...
the reg can't be stronger than the statute.
Adam Ramos: Right.
-: Okay, so, but, so assume that...
...that point's well taken, they didn't appeal.
They weren't even a party,
but the fact that it didn't take place in arguably
the host community,
does that impact whether it should have been reopened?
Adam Ramos: It does not, Your Honor.
It does not for multiple reasons.
One is, that...
the notion of the original proceeding infecting
the project change proceeding, relies on the notion that
there was a lack of opportunity during the project change
proceeding to develop the record on the issues that were
being raised before the board GreenRoots participated fully
in the project change proceeding, on the question of need,
it was given an opportunity to develop a evidence that it
could present to the board in order to try and demonstrate,
carry the burden that it had
to show that the question of need
should be reopened, and was not denied the opportunity to
receive any evidence.
It got everything that it asked for,
it presented that evidence,
the board evaluated that evidence,
and determined that it did not
meet the threshold on the standard,
which it applied the good cause standard,
which is really the lowest of the least demanding standard.
It could have applied to determine whether that shouldn't
mean that the question of need should be reopened,
and determine that it should not be reopened.
That the evidence that green roots presented,
which was in fact, the very same type of evidence
that the parties to the original proceeding
presented on the question of need did not change
and would not change the board's view
on the question of need.
And I think it's important to talk about what that evidence
was for just a moment.
The...
...board relied on localized forecasts for the particular
needs of East Boston and Chelsea communities,
and determine that there was a need for this substation to
provide reliability to those communities.
The...
...evidence that was put on in the original proceeding,
and that was put on from GreenRoots in the project change
proceeding, was...
regional, broader
forecast that did not speak specifically
to the specific needs in this community
and why there was a need for this project in
Chelsea and East Boston.
(Justice Kafker faintly speaking)
-: That is...
That's exactly right.
The location of that initial public comment hearing was
located approximately one mile from
the community of East Boston.
And it was in fact, attended
by members of the East Boston community,
that the number of attendees is not indicative of a lack of
notice or opportunity to be present.
In fact,
Green... Chelsea and East Boston,
this area right around the Creek and across the river is
essentially a community. And it is a single community.
It happens to be in two municipalities.
(Justice Kafker faintly speaking)
-: In this type of area.
-: Well, I follow that exactly, Your Honor.
And I certainly intended to mean it more geographically,
as opposed to politically.
There are certainly areas of East Boston that would've been
less accessible to members approximately adjacent to the
project than the Chelsea, the Chelsea senior center,
where the public comment hearing was held.
(Justice Kafker faintly speaking)
-: If I may respond to the question, Madam Chief Justice.
-: Absolutely.
-: Yes. GreenRoots is located in Chelsea,
their predecessor organization that, Chelsea collaborative,
was a participant in the original proceeding.
I do take the position that GreenRoots has in effect waived,
and has not really even articulated any harm from
almost any of its arguments.
The ability to participate, GreenRoots hasn't pointed to any
individual who was unable to participate.
Any information specific information that would've come into
the record, that did not get into the record, because of the
alleged lack of the ability to participate. And in fact,
GreenRoots was fully participated in the project change
proceeding and participated to the degree that its
predecessor elected to as a limited participant
in the original proceeding.
(Justice Kafker faintly speaking)
-: Sure.
(Justice Kafker faintly speaking)
-: The siting board's view is that the enhanced outreach and
enhanced analysis procedures under the environmental justice
policy did not apply here because
it did not the project did not rise
to the level of the
Massachusetts Environmental Protection Act triggers.
The citing board takes the position.
(Justice Kafker faintly speaking)
So it's in the environmental...
...for the justice policy.
I believe it's sections 16 and 17,
and I'm not gonna be able to point right now to the specific
place where that appears in the appendix, but...
that it is...
...it does expressly set out
what the enhanced procedures are,
what the enhanced outreach is,
and then what the Massachusetts Environmental Protection Act
triggers are. And then I believe it's...
section 20, if I'm remembering it correctly,
where it says in energy facilities,
citing board proceedings, if they meets the MEPA triggers,
then the enhanced procedures and enhanced outreach apply.
But as I said earlier,
this is not...
...a circumstance where those enhanced procedures,
enhanced outreach apply.
So for compliance with the...
(Justice Kafker faintly speaking)
I think that you're exactly right, Justice Kafker.
The benefits that will flow from this project happening and
being located in East Boston are significant
to the communities of East Boston and Chelsea.
Justice Lowy: The issue is whether or not it should move
190 yards
west farther away from the Chelsea Cypher.
That's really the issue, right?
-: That is the issue that is the subject of this appeal
and the project change proceeding.
Justice Lowy: Right.
And as I've mentioned.
Justice Cypher: It's not though, is it because didn't,
they not apply appeal from that decision?
Adam Ramos: No. They only appealed from
the project change decision.
-: The project change, but not the original siting decision.
Adam Ramos: That's correct.
-: Right. Okay.
(Justice Kafker faintly speaking)
-: Well, it's in the board's...
...charge to balance the interests of
reliability cost and environmental impact.
And the board took in the evidence during the project change
proceeding related to each of those issues
specifically as to how they applied
to the 190 foot shift,
evaluating the question of what it meant for it to be closer
to the park and closer to the Creek,
as opposed to...
the prior location,
which was slightly further away and determined that the
additional environmental benefits that would come from the
soil remediation,
and not a significant increase in potential or speculative
environmental harms.
Further, there was an extensive study
regarding things like EMF showing that there's not
any sort of...
...risk of adverse effects just
from being close to the substation from an EMF perspective.
And substations fundamentally are not particularly
dangerous.
And adverse source can speak to some of the wave that
substations function,
but it was a reason determination subject to the board's
discretion that in the balancing of the factors that the
move on balance satisfied its statutory obligation to weigh
reliability, cost and environmental impact.
-: Okay. We're all set.
-: Thank you.
Attorney Rosenzweig wants to make sure
he doesn't lose his chance. Come on up.
-: Good morning, Madam Chief Justice,
may I please the court.
David Rosenzweig,
appearing on behalf of NSTAR Electric Eversource,
who was an intervener in this appeal,
but was the project proponent and the petition before the
siting board and the proceedings below turning directly
to the arguments you've heard this morning.
We agree with Attorney Ramos and some of the questions
from the bench that any attempt by GreenRoots
to reach back to the original proceeding
has been waived.
They actually had noticed,
and they actually participated as a limited participants,
what it's called before the siting board.
And they had no appeal rights.
And even if they had appeal rights, which they did not,
that appeal period has lapsed by several years.
So reaching back to the original proceeding to challenge
need issues, to challenge the locality issue,
are not properly before the court.
If the court wanted to reach the issue of locality,
they should defer to the sighting board's interpretation of
that statutory term. It's not a plain word.
It doesn't have a clear cut, meaning that is locality,
and...
Justice Lowy: Just say, well, first of all,
I agree with the first part
-: Yes.
Justice Lowy: With the waiver, and
but I don't know. It doesn't just say locality.
It says each locality.
-: It does Your Honor,
but each applies to the locality and the siting board
reasonably construed the statute as East Boston,
Chelsea, and Everett,
the three communities in which this project exists are
essentially one locality.
They're only a mile or two away from each other.
And that it is not a disparate area that's covered by,
let's say, 20 miles where the siting board very likely
would've had a couple of public hearings
or several public hearings.
If it was the type of project that was
on in a tightly compact,
densely, located area,
that where the facilities were in proximity to the adjacent
communities and the public common hearing was easily
accessible to all residents that would be interested in the
public common hearing.
But getting to the issue of the project itself.
One important issue in this addresses Justice Kafker's
question is the citing board among all the benefits here.
This is very much a needed substation.
This is an underserved community.
It might be an environmental justice issue
ff the company were not allowed to build a substation.
Not having a reliable electric supply could cause profound
damage to the community.
The health and welfare and the economy of that area is
dependent on a reliable energy supply.
Justice Lowy: But let me ask you the same question,
because I might be missing something.
The issue is not whether East Boston's not going to get
the energy that it should and that it needs, it's whether,
it should be 190 feet
to the west closer to the park and the Creek.
-: [David Rosenzsweig] That's correct.
That's what the project change proceeding is about.
It's about a 60 yard shift at the location of the
substation.
And that issue was fully investigated by the siting board.
And one of the questions that Justice Kafker asked was
on regarding environmental justice,
an important component of the siting board's decision as
they required the company to enter into a negotiation with
the community residents,
to engage in discussion for a community benefits agreement,
which has been done with part of a compliance filing
with the citing board.
And that community benefits agreement was designed to
achieve greater energy and environmental benefits to that
community by enhancing access to the parks,
by cleaning up certain areas by providing energy programs.
Justice Cypher: Is that East Boston and
Chelsea and Everett?
When you talk about that?
-: [David Rosenzweig] It was tied to the substation area
and it is more directly to the East Boston community.
And those are very targeted programs that the company was
required to end into to benefit that community to ensure an
equitable distribution of energy and environmental benefits.
So that adds to the protections that are in the siting
board's order: to balance all of those issues of cost,
reliability and environmental impact,
and to make sure that the residents of East Boston,
which is, as I said, an underserved community,
is not only getting the,
shall I say, the impacts of the substation,
but is getting much more in terms of reliability and other
programs to mitigate and offset the environmental impacts of
that station.
(Justice Kafker faintly speaking)
Justice Kafker, I would have to check on that.
It's a matter of public record.
It was part of the siting board proceedings in terms of a
compliance filing made after the final decision.
And I can check on that and provide that at any post
argument letter to you. If that would be helpful.
One other point on sea level rise,
we disagree with GreenRoots.
The great wealth of the evidence in the case was clearly in
favor of this conservatism of the company's estimate for sea
level rise and that there was adequate margins added
into the substation height to ensure
that there would not be risks of flood
or sea level rise that would adversely affect
the station for its likely useful life of the equipment.
Ongoing studies would be conducted all the time to ensure
that equipment is safe and resilient to sea level rise and
to flooding events.
It's in the company's interest to do that on behalf of its
customers. And it's a belt and suspenders,
the citing board impose conditions,
Y and Z in its siting board order,
which is part of the order to ensure that these issues are
revisited on a periodic basis.
And when more refined and concrete information is available
on sea level rise,
that the company is required to submit studies as to the
state of the art science on sea level rise.
(Justice Kafker faintly speaking)
-: That is Logan Airport.
-: Logan Airport is dependent on power from East Boston.
They do not have their own independent supply.
They are supplied as a customer by Eversource. And they,
along with others in the East Boston and Chelsea community,
rely on the same power supply.
And it would have dire consequences if there were outages
that affected not only just East Boston itself, but
Logan Airport is a very significant customer in the region.
So unless the court has it for the questions, we rest on our
briefs and we ask court to affirm the decision.