-: SJC_13521.
Conservation Law Foundation et al
versus Energy Facilities Siting Board.
-: Okay, whenever you're ready Attorney Turner.
-: Good morning. May it please the court.
My name is Phelps Turner,
I'm here with my colleague Angela Mile, we represent
Appellant's Conservation Law Foundation and GreenRoots.
This is no ordinary permitting dispute.
This is a case of first impression
involving the environmental justice mandates of the 2021--
-: It's actually a case second impression,
we did this two years ago.
-: Respectfully, I disagree.
There was a case--
-: One thing that would be very helpful for me
is when you make your arguments this time
to make it clear where we're dealing with a different issue
than the one we decided recently.
Turner: Absolutely.
-: 'Cause a lot of this seems to be rehash.
I understand there's some differences
but it'll be very useful for you to focus
on where there's a difference in the record
that we need to answer.
-: Absolutely Your Honor,
and that is my plan for today.
Kafker: Good.
-: The reason I say it's a case of first impression
is because this case unlike the last case
that was before you,
is governed in part
by the Roadmap Law and the Environmental Justice mandates
contained therein, sections 56 through 60.
The law that was enacted,
the Roadmap law is a landmark piece of legislation
that was enacted--
-: How's the law different from...
We did an environmental justice analysis last time.
How is the law different
and is it just the MEPA issue,
the DEP issue?
Be specific.
-: There are several new issues before you,
legal issues before you.
The environmental justice mandates define several terms,
including environmental burdens
and environmental benefits.
But I think most importantly,
the statute codifies the state's
environmental justice principles,
which before only appeared in policies and executive orders,
now it's in the statute--
-: So how did the board violate
these equal environmental justice mandates?
-: Yeah, absolutely. So I think the analysis starts
and ends in the definitions and the statutory provisions
concerning the environmental justice.
I mentioned there are definitions for environmental burdens
and environmental benefits--
-: But not energy benefits.
-: Not energy benefits, that's correct.
But I think one of the most important provisions
is in section 60 of the Roadmap Law
that talks about the requirement
that the board consider environmental justice principles,
and it defines those principles.
There are two key components.
One, the meaningful involvement of all people
in the development implementation
and enforcement of environmental laws.
And I think more importantly,
ensuring the equitable distribution
of environmental and energy benefits--
-: My memory may be dim
but I believe those are the same principles
that we interpreted previously,
except there is an issue possibly about DEP in here.
Aren't the principles the same?
-: The principles are similar,
but I would urge that the court consider that
before you the last time
the case was argued around the environmental justice policy
and not an environmental justice statute.
The legislature is--
-: Right, but the principles are the same
as far as I can tell.
It's that the application may differ at least on this issue
of water dependent use.
Does this really boil down to that issue?
-: No, not at all.
One thing that the statute does
is define environmental burdens.
And I wanna read a couple of quick excerpts
from that definition
that the policy never defined
environmental benefits and burdens.
And the statute, the legislature saw fit
to enshrine in the law
definitions of environmental burdens,
including activities that limit access to natural resources
and constructed outdoor recreational facilities and venues.
In this case, I'd like to highlight
some of the burdens that are relevant.
In this instance,
the Siting Board has approved a permit
for an electric substation
in an environmental justice population.
East Boston meets all the criteria for
environmental justice populations
including race, income and--
-: Again, we said that last time, we agree
-: That's right.
-: And this property is heavily contaminated, right?
The property itself can't be a park, correct?
-: In fact Your Honor,
the record indicates that the site was previously planned
to be open space.
And we highlight this in our reply brief,
and it is now planned obviously to be a substation.
-: But the city recognized it was gonna be incredibly costly,
and how much was it gonna cost to turn this into a park?
And they had no money to do the remediation.
And this is actually gonna result
in the remediation of that property, right?
-: The property Your Honor was remediated
to a level suitable for a substation.
I can't comment--
-: To remediate to a level of a park would be...
How much would it cost to remediate
to the level of a substation?
-: Well, I don't have the figures
off the top of my head.
-: Just really getting to specifics would be really helpful.
Go ahead.
-: Sure. So I highlighted
this excerpt in the environmental burdens definition,
and I wanna highlight that this substation
will contribute to and exacerbate
environmental burdens in East Boston.
That's what's relevant here.
East Boston as we know from the record,
and from reliable evidence,
is host to numerous polluting and industrial sites
including Logan Airport and supporting facilities
that cause air and noise pollution.
It's host entrances and exits
to two tunnels causing air pollution.
It also hosts petroleum terminals and shipping terminals,
which cause air and water pollution.
It lacks green space and has very low tree canopy rates
that leave its residents
more susceptible to the heat island effect,
flooding and air pollution.
And as the amicus pointed out in its brief,
70% of the state substations
are disproportionately located within one mile
or inside environmental justice populations.
And this substation adds to
and exacerbates the burdens faced
by the environmental justice population in East Boston.
Now, despite these demonstrated burdens,
the Siting Board in his decision
found that the burdens associated with this project are,
"construction related, short-lived,
"minor and fully mitigated".
And if you look at the record
and you read our briefs,
you'll see that this finding was arbitrary and capricious
based on the evidence in the record,
-: Would you agree that the statute
requires the board to consider
environmental principles,
but it doesn't eliminate
the board's responsibility
to balance competing factors
in ultimately making its decision?
Turner: Yes. I--
-: So it's a mandate to consider,
it's not a mandate that overrides
all other considerations, correct?
-: Yeah, that's right.
I would urge the court--
-: So ultimately the board's decision,
balancing decision is subject to what level of review?
-: I would urge the court to consider though
that unlike some traditional environmental frameworks
that require an agency or a board
to weigh project benefits and burdens,
here the board was tasked with considering
and advancing the equitable distribution
of benefits and burdens,
so it's a different exercise.
And we believe that the court,
excuse me, the board failed to fully comply with that.
-: Sure. I understand your position,
but what is the standard of review
that we are to employ
when reviewing the board's balancing
of these competing considerations?
-: Well, I think based on this court's case law,
with respect to energy facility Siting Board decisions,
that there are a couple things.
One, with respect to statutory interpretation,
there is substantial deference given to the agency.
But we feel here that the interpretation of key terms
and provisions in the statute were incorrect,
that's the first--
Wendlandt: What was incorrect?
-: I'm sorry?
-: What was incorrect about their
interpretation of the statute?
-: Well, what was incorrect
was they disregarded evidence
that squarely fit within the definition.
-: But that sounds like a factual question.
You're suggesting though, that as a matter of law,
they misinterpreted the statute?
What is the question?
-: Well, I think it's both.
It's a mixed question of fact and law here,
because as we allege in our briefs,
they misconstrued the statute
to not include certain benefits and burdens.
And then they misapplied the statute with respect to that.
-: Could you be, again,
as Justice Kafker was suggesting more specific.
-: More specific about the?
-: Yeah, you're saying they misinterpreted the statute in--
Kafker: Give us an example.
-: Ignoring some benefits or burdens.
Turner: Sure. -: What was--
-: Absolutely. So as I mentioned,
their findings with respect to burdens,
actually in a 199 page decision
there is one sentence about burdens.
And I've already--
-: That's just not true.
I read through this.
One, they present each side's argument
in tremendous detail, painful detail.
They go through each one of your arguments,
and then they talk about these things.
It's not a sentence on burdens, they discuss--
-: Respectfully Your Honor, they don't--
-: Well, let me finish.
'Cause I find that it's really hard to figure out
what you're complaining about when you do that.
Give us an example.
I understand very precisely your argument
about water dependent use,
but to say that they don't address burden,
they only have one sentence
addressing environmental burdens is just incorrect
when you read...
I mean, I read through this thing this morning,
it's painfully detailed.
Go ahead.
-: It is detailed, it is lengthy, but I--
-: It addresses every argument you make.
It responds to them.
It does every argument they make,
it's for state government work
it's exceptionally comprehensive.
-: It is detailed and it is lengthy,
but other than our recitation of arguments,
if you look at the analysis and findings section,
there is very little discussion about burdens,
which is the key issue here under the environmental--
-: One thing you say in your brief
is that if the community somehow pays for cleanup,
if it affects their rates,
that is inappropriate to consider.
Is there any support for that in the law
that if it affects your rates...
This results in an AUL on this property, right?
This is something the environmental community
pushes hard to clean up sites.
You say that doesn't count
for anything in the burden analysis
because the community, like the rest of us
will be paying for it.
Is there support in the law for that?
-: No, it doesn't.
It is actually on the benefits side
they claim that this is a benefit,
that this site was cleaned up,
and no, the argument that we made in our initial brief,
in our reply brief,
is it's a common sense argument about the fact that you,
that if someone gives you something
and then asks you to pay for it later,
it can't be considered a benefit.
-: But if it results in a cleaner world,
it does result in a benefit.
Even we all pay taxes so.
-: That's fair.
Regardless of what was gonna happen on this site,
it was gonna need to be cleaned up.
-: But no one was stepping forward to clean it up, right?
The city didn't wanna clean it up.
It didn't have the money, right?
And you want Massport,
you wanna build this on Massport's property,
but Massport doesn't want it.
They're refusing to provide the property,
so is that a real option?
-: Well, we assert that
that wasn't fully litigated in this case.
-: That Massport was willing to give up the property?
So is that an error of analysis in this
that we can point out?
-: Absolutely.
-: So tell me why.
-: I'll tell you a little bit more about that.
In its final decision.
Kafker: Based on the record.
-: Sure. In its decision
the Siting Board says that alternative sites
are outside of the scope of the certificate proceeding.
We think that is legally inaccurate.
If you look at the Roadmap Law--
-: They say that you did not identify
another reasonable site,
your proposal to put it on Massport,
common in permitting in East Boston. I get it.
But they don't wanna give up the property.
Massport's a constrained site too.
It's operating an international airport in a tight...
If they're not willing to give up the property,
why is that a reasonable alternative?
-: Your Honor, this was not fully litigated.
This is one of the reasons the case needs to be remanded
to the board because this issue of alternative sites
was not fully litigated.
I can read from the final decision,
alternative sites were ruled
outside the scope of the proceeding
and so there's no record--
-: Isn't that because that was part two of this saga.
Turner: Sorry, part two of this--
-: Part two of the saga.
I mean, so part one you had a initial site
and then it moved, I think 190 feet
and that's the case that came to us.
-: Yes. I appreciate the question
the location was at issue previously,
but I'll give you two reasons
why siting an alternative sites
should have been before the board
and should be before this court today.
One, under the Roadmap Law,
the environmental justice principle
is called for the equitable distribution
of environmental and energy benefits and burdens.
And part of ensuring that there is an equitable distribution
involves assessing where the site is located
relative to other sites.
-: But that's again, specifically
is Justice Wendlandt point.
In stage one, there was an extensive analysis
of possible sites, right?
Extensive. Then there's a request to move at 190 feet.
And there's an extensive analysis of that.
Now you're asking to do it a third time.
-: No, we feel it's required.
The second provision I'll state,
in addition to the roadmap law is section 69H.
And the board cites in its brief,
the town of Winchester versus Energy Facility Siting Board.
And that case involved a transmission line
but it is relevant here because it talks about...
The appeals court talks about the board's mandate
under section 69J and section 69H of chapter 164.
And 69H governs in part this proceeding.
And the court there talks about how
the Siting Board assessed
two different routes using a multifactor comparison
under section 69H.
And section 69H, which talks about
the three pillars of reliability,
cost and environmental impact
does in part govern this proceeding.
I see that my time is up, I would ask--
-: Can you address the DEP issue?
'Cause that's the one substantive issue
that seems quite new.
For independent use issue.
-: Yeah, absolutely.
-: And in answering that question,
just they are gonna get up and say,
your Weymouth site is different.
This is fact specific.
They're also gonna say DEP,
which normally is not aligned with the Energy Department.
They're protecting the environment.
They both agree this is a water dependent use.
So explain how you still win in that context.
-: Sure. As we argue in our brief,
we believe that this case is,
this substation is non-water dependent.
And I will note that this is a new part of--
-: Is that a question of law,
fact or a mixed question of law and fact?
-: I would say it's mixed because it does involve--
-: Our standard of review is?
-: Well, I think the standard
that the court has to apply
is based on prior precedent
involving incorrect interpretation.
Because we do believe there is an incorrect interpretation
here of the waterways law and regulations.
So whether the board's findings were abusive discretion
or arbitrary and capricious
in interpreting the water waste law and the regulations.
-: Can I ask one?
Is this case decided this DEP issue yet?
You wrote your briefs
I can't remember how many months ago.
Do we have a resolution of this case?
Has this gone on to appeal the DEP decision here
or is that all held in advance for this
and the Weymouth one, what is its status?
-: I don't believe we have a decision
in the case involving Weymouth,
which is the cases that were argued for you by us.
-: So that hasn't gone on appeal yet?
-: Not to my knowledge.
Kafker: It's back to DEP.
-: That's right. Not to my knowledge.
-: And DEP, from what I understand from the briefing,
the last decision in DEP said
is in favor of the,
that it's a water dependent user.
Is that incorrect or is it still unresolved?
-: It's unresolved because it was sent back by the court.
It was remanded by the superior court and so it's--
-: So they haven't.
I understand there was a preliminary decision
by one decision maker at DEP.
It went up to another decision maker.
That decision maker is not issued
a second decision outta DEP?
-: Not to my knowledge.
Not to my knowledge.
I would just close by saying if the Roadmap Law
and the environmental justice mandates in it
are to have any meaning
and to move the commonwealth away from business
as usual permitting in environmental justice populations,
then the decision must be vacated and remanded.
Thank you for your time.
-: Okay, thank you. Attorney Ramos.
-: Good morning, and may it please the court.
Adam Ramos, Special Assistant Attorney General
on behalf of the Energy Facility Siting Board.
I think some of the questions
from the court this morning to Attorney Turner
sort of hit the nail on the head.
This is a case where the Energy Facilities Siting Board
fulfilled its statutory obligation.
The Energy Facilities Siting Board exists
because the Commonwealth recognized
the need for an expert agency
with statewide perspective
to consider all of the relevant factors
that go into a determination
of where energy infrastructure should be sited
in order to ensure that every population
in the state receives reliable energy.
-: As Justice Wendlandt and Justice Kafker pointed out,
this is the third time through the ringer
on this particular project for the Siting Board,
and the second time that it has come to this court.
It is important to point out that this time
we are here on an appeal from a decision
from the Siting Board's certificate authority.
And the certificate authority
is doing something very specific.
It's taking a look at a project
that has already been approved,
determined to be needed to provide reliable energy.
It is on a particular site,
and it is coming back before the board
because the local permitting agencies
have somehow impaired the ability
of the construction to go forward
so that the Siting Board exercising its expertise
can determine whether to stand in the shoes
of those permitting agencies
and issue those permits through a certificate.
In this particular instance--
-: Although there does seem to be a fair amount
of new evidence presented.
It wasn't sort of limited to a narrow question of law there,
the agency because of the passage of time
takes into account a bunch of new information, right?
-: That is absolutely correct Justice Kafker,
the agency refreshes the record
on a variety of issues,
including the question of need.
And in this particular case,
it even went so far as to do an analysis
of alternative technologies given the passage of time
and compared the feasibility
of those alternative technologies
against the project to ensure
that it was making a decision
that still stood the test of time essentially
as it did when it made its initial determination of need.
I do wanna point out another thing
and I think that--
-: Can you address before you move,
the environmental justice arguments,
what is your sense of what is new
and what is not there?
'Cause we did an environmental justice analysis,
we looked at a lot of these principles,
we drew a distinction between when MEPA requires
the first step in their process and when they don't.
So I'm trying to understand,
is there anything new from this Roadmap Law
that you think require consideration
besides this issue of water dependent use?
-: There was no new evidence
or no evidence that was any different
from what was presented before
regarding environmental justice
and the weighing of burdens and benefits--
-: Just as you said, they take into account
some new technologies and new batteries
and new electrical advances.
So there is some of that going on in this decision,
which relates to environmental justice issues, right?
-: It relates to it, but it wasn't done directly
because of environmental justice issues.
It was the overall assessment of whether or not
the need determination stands up.
And it also relates to the question
of whether or not it was appropriate
to build the substation at all.
And it was determined that it was,
they refreshed the evidence on need of the Roadmap Act.
-: It does seem to me that East Boston bears its,
at least at a superficial level,
a disproportionate share of the costs and burdens,
environmental burdens of energy.
And I'm wondering how this decision,
which I understand is just about
getting the certificates in place
isn't more of what your opposing counsel said,
business as usual.
How is siting this substation in East Boston
that already bears the disproportionate share
of these burdens consistent
with the equal justice mandates of the new law.
-: Thank you Justice.
To begin, East Boston is actually the only neighborhood
in the city of Boston that does not have
a substation at present.
And this particular substation
is needed particularly to provide
energy reliability benefits to the population of East Boston
Wendlandt: And Chelsea.
-: And Chelsea, absolutely.
And the Siting Board strongly considered
all of the benefits and burdens
associated with the substation.
The evidence showed that there, for example,
the visual burdens will be mitigated
because of the community benefits agreement
that the Siting Board directed,
needed to be negotiated with the neighborhood
so that it will not be an eyesore, for example.
They'll be getting the benefits as Justice Kafker
I think highlighted during questioning of Attorney Turner
that of remediating a contaminated site.
The evaluation of--
-: It's across the street from a playground, right?
Ramos: It is.
-: Okay.
Can you address that aspect of this?
-: It is across the street from--
-: I'm sure the kids won't see it,
but are there issues associated
with siting an electrical substation in East Boston
across the street from one of the only
playgrounds in the town?
-: I wouldn't say that there...
I mean, I suppose there are issues.
Those issues are considered.
All of the protections that are associated with
the development of this substation
are such to avoid safety issues
for example, the Siting Board is required
that a site specific safety plan be developed
with respect to this substation.
And I mentioned the visual issues,
but there was an evaluation
of other types of health impacts
that might come from a substation such as EMF exposure
and things like that.
And it was determined that
there would not be increased levels of EMF exposure
at a distance as far away
as the playground is from the substation.
The Siting Board takes very seriously
the concerns around environmental justice
and making sure that the populations
that are going to be impacted by this construction
are protected from undue burdens
as that would be associated with this.
And their role is to take into account
what the benefits are that will come
and what the burdens are that will come from it
and determine whether or not this is the appropriate place
at the appropriate time to put this--
-: And does that benefits and burdens calculus
consider the existing burdens to the community
or is it benefits and burdens of this particular project?
-: I would say it does in some respects
and in some respects it doesn't.
So there are certain types of projects
that require a--
-: Let's just stick with this project.
I mean, in weighing the benefits
and burdens of this project,
is the existing burden on East Boston already considered?
-: It definitely weighs into the calculus.
-: And where is that in the board's decision?
-: I think it's reflected through the entirety
of the evaluation of the benefits and burdens.
There's a recognition of what community this is in.
-: Don't you, you don't start?
It's the trigger.
I mean that's, you wouldn't do
the environmental justice analysis if this was Wellesley,
you do it because it's East Boston.
I think, isn't that recognized?
That's right up front.
You're doing this because East Boston
fits within the definition
of environmental justice community, right?
-: That's exactly right.
Environmental justice community in and of itself
is one that is by definition overburdened and that--
-: Can I ask can you consider...
I mean one of the often low income
environmental justice communities have lack of power too.
They're the first ones that go out when the storm hits.
Is that appropriate consideration
in the environmental justice analysis as well?
-: Yes, it is. That's something that
ensuring energy reliability is an energy benefit
that the Siting Board considered.
And I feel it's appropriate to point out
that the amicus brief
submitted by the Union of Concerned Scientists,
which was ostensibly opposed to the project
pointed out in two places.
I think it's worth reading the quotes.
One, lack of access to reliable energy
is an energy injustice.
And two, access to reliable energy
is a benefit and a key component of energy justice.
And those are things that the Siting Board
certainly considered with respect to determining
that this should be placed in the...
It was appropriate to issue the certificate
in this proceeding.
I do see that I'm out of time.
-: One last question on the 100 year survey.
The flooding issue and whether you have to consider
100 years versus 75 years.
Is there something new here?
We dealt with this issue last time.
I'm just trying to get a sense
is there something new we have to resolve on that issue?
'Cause there's some new information
presented on that or am I wrong on that?
-: There's not new information presented
on the flooding issue.
It was still a question of
what time frame you're looking at.
-: So that one we can write a sentence saying
you decided that issue or is there--
-: I think so, yes.
You could on that one, yes.
-: Okay. Thank you. -: Thank you
-: Attorney Rosenzweig.
-: Good morning Your Honors. May it please the court.
David Rosenzweig appearing on behalf of
Nstar Electric Company
doing businesses with Eversource Energy.
Turning directly to the questions that were asked
with respect to the Roadmap Act,
it imposes two obligations on the Siting Board.
One of them I don't believe is at issue
which was already decided by the court
in the first Green Roots decision a year and a half ago.
And that is whether the Siting Board's procedures
allow for a meaningful opportunity
for the public participation EJ populations in its review.
I don't think there's a serious argument there.
The argument comes down to whether the Siting Board
conducted a reasonable analysis
in considering the energy benefits, environmental benefits,
and weighing those against the environmental burdens
and the Siting Board's analysis here was extensive.
They very reasonably construed the statute
including in that equation the reliability benefits
of a reliable energy supply,
which is critically important for all communities
but particularly EJ communities.
And here they found a very acute time-sensitive need,
particularly given the delays
associated with permitting this facility.
And they included within that analysis,
the benefits of the community benefits agreement
which provided significant tree canopy
enhanced funding for--
-: Was it really significant or was there...
I thought it was like five trees or something like that.
-: I had a list of things,
but tree canopies was one of the items funding--
-: The trees are kind of not a lot, right?
You're not really relying on tree cover.
-: They were gonna be at the playground
to help screen the playground and provide more shade
and cover to the users of the recreational area
that's adjacent across the street from the substation site.
But the community benefits agreement in total
has about a million and a half dollars of benefits
that include funding for recreational use
and enhancing the urban wild
that's adjacent to the substation site
is a direct benefits to the community.
And while they talk about the costs
and they have concerns about that on the appellant side,
those costs will actually be born and shared
and spread across the Eversource territory,
so they are not receiving
an inequitable share of those costs.
-: So summarize for me
the environmental benefits to the community
as you understand it.
It's the cleaning up of the property
which would otherwise not be cleaned up.
It's this tree canopy.
It's what else?
-: It's the remediation of the site,
which is separate from the community benefits agreement
by removing essentially 10,000 tons of contaminated soil
as well as thousands of gallons
of contaminated groundwater
that was at a cost of $5 million roughly.
Justice Kafker asked that earlier.
Those are very significant benefits
that were not materializing
when the property was in the hands of the city of Boston.
So those are very important
significant benefits, environmental benefits.
-: Can I ask the effect,
I have some knowledge of AULs and remediation,
but so you've got, as Justice Wendlandt points out
a park next to this, how does...
When you clean up that neighboring property to an AUL level,
what's that effect on the...
Is that making it safer for the people in the park
or how does that work?
-: Well, it ensures that some of those contaminated soils
do not escape off site by removing them from the site.
The remediation here was to remediate it
to a level that would accommodate a substation
if it was going to be a recreational use,
and it had never been a recreational use.
It had longstanding use by the city of Boston
as a Department of Public Works Depot.
And it would not be a recreational use without
significantly additional remediation
that the city was not intending to perform.
-: So go ahead, keep going.
The environmental benefits of the property,
are what else?
-: Also is within the definition
of environmental benefits is access
to clean renewable energy
that's within the definition that's provided by statute.
Without a reliable energy supply,
without transmission, without a substation,
this community would be foreclosed
from being able to access renewable energy,
green energy to serve its energy needs,
that's a very important consideration to the Siting Board.
-: Okay. So opposing counsel says
you didn't do enough reasonable alternative analysis.
Massport is always at East Boston.
Massport should be the one,
so what's your answer to that?
-: That issue is fully and fairly litigated
in the prior proceedings.
and this Siting Board's policy
as well as this courts affirm that those issues--
-: So was there nothing...
I just wanna make sure.
Is there nothing new on alternative analysis?
Did again, I skimmed through this 220 page decision.
I haven't read it yet fully,
but is there anything there
re-upping the alternative site analysis?
-: There was no new evidence other than a confirmation
that Logan Airport was not available as a site
that was reconfirmed during the proceeding.
It was part of the record of the proceeding.
And the Siting Board made the finding that
there was no location outside of Tidelands.
This is the sole location that was available
for this substation use.
In fact, it was earmarked by the city of Boston
through an RFP as part of a land swap where the city had,
as one of the conditions for its RFP,
that the use of the property
would go to the beneficial interest
of the residents of East Boston,
where reliability and substation
is a key component of that.
-: Before we lose you, the DEP issue,
so it's, we don't have a definitive decision
out of DEP in the other case.
I understand that your agency,
his agency is empowered to make this determination
with or without DEP.
Here it's a lot easier when DEP agrees with you.
So far DEP agrees with you in your case, right?
But it hasn't resolved the other case.
-: That's correct, Your Honor.
The other case is different.
It's materially different.
The facility is different.
It's not defined as an ancillary facility,
unlike a substation.
There was evidence in the Weymouth case that I--
-: I thought the Weymouth case also has...
It wasn't an ancillary facility in Weymouth as well.
-: It is not within the definition of DEPs
waterways regulations at 310 CMR 9.02.
A substation is, it's the first listed facility.
-: What is this?
Could you slow that down, 310 what?
-: 310, Code of Mass Regulations 9.02.
There is no mention of a gas compressor station.
The evidence was that the gas pipeline there
was working effectively without a compressor station.
Juxtapose the facts here.
Without the substation the transmission lines
that are already licensed by DEP
would not work and serve their intended purpose
as other issues such as
the siting of that gas compressor station.
The evidence in the Waymouth case
is that there were locations out of Tidelands
that would accommodate that use,
that's squarely not the case here.
So the facts are materially different.
But to get right to the heart of your question,
DEP is not resolved that issue
and it's still pending.
But DEP in this case had affirmative testimony
from their head of their waterways licensing division
that they agreed with the...
They three times found that this facility
was water dependent and agreed
with the Siting Board rolling it
into for purposes of the substation.
I see my time is up.
Unless the court has a further questions,
we rest on our briefs.