WEBVTT
1
00:00:00.330 --> 00:00:03.510
SJC_13521.
2
00:00:03.510 --> 00:00:05.730
Conservation Law Foundation et al
3
00:00:05.730 --> 00:00:07.953
versus Energy Facilities Siting Board.
4
00:00:24.660 --> 00:00:27.903
Okay, whenever you're ready Attorney Turner.
5
00:00:29.280 --> 00:00:31.470
Good morning. May it please the court.
6
00:00:31.470 --> 00:00:32.460
My name is Phelps Turner,
7
00:00:32.460 --> 00:00:34.860
I'm here with my colleague Angela Mile, we represent
8
00:00:34.860 --> 00:00:37.950
Appellant's Conservation Law Foundation and GreenRoots.
9
00:00:37.950 --> 00:00:40.350
This is no ordinary permitting dispute.
10
00:00:40.350 --> 00:00:42.300
This is a case of first impression
11
00:00:42.300 --> 00:00:45.780
involving the environmental justice mandates of the 2021--
12
00:00:45.780 --> 00:00:47.370
It's actually a case second impression,
13
00:00:47.370 --> 00:00:49.533
we did this two years ago.
14
00:00:50.820 --> 00:00:53.010
Respectfully, I disagree.
15
00:00:53.010 --> 00:00:53.843
There was a case--
16
00:00:53.843 --> 00:00:55.800
One thing that would be very helpful for me
17
00:00:55.800 --> 00:00:57.840
is when you make your arguments this time
18
00:00:57.840 --> 00:01:01.350
to make it clear where we're dealing with a different issue
19
00:01:01.350 --> 00:01:03.180
than the one we decided recently.
20
00:01:03.180 --> 00:01:04.013
Absolutely.
21
00:01:04.013 --> 00:01:07.410
'Cause a lot of this seems to be rehash.
22
00:01:07.410 --> 00:01:08.820
I understand there's some differences
23
00:01:08.820 --> 00:01:11.670
but it'll be very useful for you to focus
24
00:01:11.670 --> 00:01:14.580
on where there's a difference in the record
25
00:01:14.580 --> 00:01:16.740
that we need to answer.
26
00:01:16.740 --> 00:01:17.640
Absolutely Your Honor,
27
00:01:17.640 --> 00:01:19.470
and that is my plan for today.
28
00:01:19.470 --> 00:01:20.303
Good.
29
00:01:21.420 --> 00:01:23.070
The reason I say it's a case of first impression
30
00:01:23.070 --> 00:01:24.930
is because this case unlike the last case
31
00:01:24.930 --> 00:01:26.190
that was before you,
32
00:01:26.190 --> 00:01:27.420
is governed in part
33
00:01:27.420 --> 00:01:30.060
by the Roadmap Law and the Environmental Justice mandates
34
00:01:30.060 --> 00:01:33.333
contained therein, sections 56 through 60.
35
00:01:34.890 --> 00:01:37.020
The law that was enacted,
36
00:01:37.020 --> 00:01:40.290
the Roadmap law is a landmark piece of legislation
37
00:01:40.290 --> 00:01:41.277
that was enacted--
38
00:01:43.440 --> 00:01:45.780
How's the law different from...
39
00:01:45.780 --> 00:01:49.740
We did an environmental justice analysis last time.
40
00:01:49.740 --> 00:01:51.180
How is the law different
41
00:01:51.180 --> 00:01:54.303
and is it just the MEPA issue,
42
00:01:55.587 --> 00:01:57.390
the DEP issue?
43
00:01:57.390 --> 00:01:58.770
Be specific.
44
00:01:58.770 --> 00:02:00.990
There are several new issues before you,
45
00:02:00.990 --> 00:02:02.760
legal issues before you.
46
00:02:02.760 --> 00:02:05.460
The environmental justice mandates define several terms,
47
00:02:05.460 --> 00:02:06.990
including environmental burdens
48
00:02:06.990 --> 00:02:08.460
and environmental benefits.
49
00:02:08.460 --> 00:02:10.230
But I think most importantly,
50
00:02:10.230 --> 00:02:12.990
the statute codifies the state's
51
00:02:12.990 --> 00:02:14.880
environmental justice principles,
52
00:02:14.880 --> 00:02:18.660
which before only appeared in policies and executive orders,
53
00:02:18.660 --> 00:02:19.493
now it's in the statute--
54
00:02:19.493 --> 00:02:21.270
So how did the board violate
55
00:02:21.270 --> 00:02:25.593
these equal environmental justice mandates?
56
00:02:27.180 --> 00:02:29.370
Yeah, absolutely. So I think the analysis starts
57
00:02:29.370 --> 00:02:32.820
and ends in the definitions and the statutory provisions
58
00:02:32.820 --> 00:02:34.110
concerning the environmental justice.
59
00:02:34.110 --> 00:02:37.110
I mentioned there are definitions for environmental burdens
60
00:02:37.110 --> 00:02:37.943
and environmental benefits--
61
00:02:37.943 --> 00:02:39.480
But not energy benefits.
62
00:02:39.480 --> 00:02:41.670
Not energy benefits, that's correct.
63
00:02:41.670 --> 00:02:44.010
But I think one of the most important provisions
64
00:02:44.010 --> 00:02:47.250
is in section 60 of the Roadmap Law
65
00:02:47.250 --> 00:02:49.170
that talks about the requirement
66
00:02:49.170 --> 00:02:54.170
that the board consider environmental justice principles,
67
00:02:54.570 --> 00:02:55.830
and it defines those principles.
68
00:02:55.830 --> 00:02:57.000
There are two key components.
69
00:02:57.000 --> 00:02:59.550
One, the meaningful involvement of all people
70
00:02:59.550 --> 00:03:01.470
in the development implementation
71
00:03:01.470 --> 00:03:04.140
and enforcement of environmental laws.
72
00:03:04.140 --> 00:03:06.360
And I think more importantly,
73
00:03:06.360 --> 00:03:08.250
ensuring the equitable distribution
74
00:03:08.250 --> 00:03:10.290
of environmental and energy benefits--
75
00:03:10.290 --> 00:03:11.640
My memory may be dim
76
00:03:11.640 --> 00:03:14.490
but I believe those are the same principles
77
00:03:14.490 --> 00:03:16.950
that we interpreted previously,
78
00:03:16.950 --> 00:03:21.950
except there is an issue possibly about DEP in here.
79
00:03:21.960 --> 00:03:24.660
Aren't the principles the same?
80
00:03:24.660 --> 00:03:27.060
The principles are similar,
81
00:03:27.060 --> 00:03:29.980
but I would urge that the court consider that
82
00:03:30.834 --> 00:03:33.270
before you the last time
83
00:03:33.270 --> 00:03:37.170
the case was argued around the environmental justice policy
84
00:03:37.170 --> 00:03:39.030
and not an environmental justice statute.
85
00:03:39.030 --> 00:03:39.974
The legislature is--
86
00:03:39.974 --> 00:03:42.660
Right, but the principles are the same
87
00:03:42.660 --> 00:03:44.280
as far as I can tell.
88
00:03:44.280 --> 00:03:49.280
It's that the application may differ at least on this issue
89
00:03:49.290 --> 00:03:51.613
of water dependent use.
90
00:03:51.613 --> 00:03:54.330
Does this really boil down to that issue?
91
00:03:54.330 --> 00:03:56.520
No, not at all.
92
00:03:56.520 --> 00:03:58.980
One thing that the statute does
93
00:03:58.980 --> 00:04:00.360
is define environmental burdens.
94
00:04:00.360 --> 00:04:02.550
And I wanna read a couple of quick excerpts
95
00:04:02.550 --> 00:04:03.690
from that definition
96
00:04:03.690 --> 00:04:05.040
that the policy never defined
97
00:04:05.040 --> 00:04:06.750
environmental benefits and burdens.
98
00:04:06.750 --> 00:04:09.450
And the statute, the legislature saw fit
99
00:04:09.450 --> 00:04:12.390
to enshrine in the law
100
00:04:12.390 --> 00:04:14.460
definitions of environmental burdens,
101
00:04:14.460 --> 00:04:18.150
including activities that limit access to natural resources
102
00:04:18.150 --> 00:04:21.363
and constructed outdoor recreational facilities and venues.
103
00:04:22.830 --> 00:04:25.230
In this case, I'd like to highlight
104
00:04:25.230 --> 00:04:28.170
some of the burdens that are relevant.
105
00:04:28.170 --> 00:04:29.823
In this instance,
106
00:04:30.870 --> 00:04:32.820
the Siting Board has approved a permit
107
00:04:32.820 --> 00:04:34.230
for an electric substation
108
00:04:34.230 --> 00:04:36.120
in an environmental justice population.
109
00:04:36.120 --> 00:04:38.790
East Boston meets all the criteria for
110
00:04:38.790 --> 00:04:40.530
environmental justice populations
111
00:04:40.530 --> 00:04:42.360
including race, income and--
112
00:04:42.360 --> 00:04:45.390
Again, we said that last time, we agree
113
00:04:45.390 --> 00:04:46.920
That's right.
114
00:04:46.920 --> 00:04:50.880
And this property is heavily contaminated, right?
115
00:04:50.880 --> 00:04:53.643
The property itself can't be a park, correct?
116
00:04:55.620 --> 00:04:57.483
In fact Your Honor,
117
00:04:58.410 --> 00:05:01.710
the record indicates that the site was previously planned
118
00:05:01.710 --> 00:05:02.543
to be open space.
119
00:05:02.543 --> 00:05:05.040
And we highlight this in our reply brief,
120
00:05:05.040 --> 00:05:07.647
and it is now planned obviously to be a substation.
121
00:05:07.647 --> 00:05:12.647
But the city recognized it was gonna be incredibly costly,
122
00:05:13.680 --> 00:05:17.850
and how much was it gonna cost to turn this into a park?
123
00:05:17.850 --> 00:05:21.000
And they had no money to do the remediation.
124
00:05:21.000 --> 00:05:22.770
And this is actually gonna result
125
00:05:22.770 --> 00:05:24.963
in the remediation of that property, right?
126
00:05:26.010 --> 00:05:29.160
The property Your Honor was remediated
127
00:05:29.160 --> 00:05:31.263
to a level suitable for a substation.
128
00:05:32.430 --> 00:05:33.630
I can't comment--
129
00:05:33.630 --> 00:05:36.720
To remediate to a level of a park would be...
130
00:05:36.720 --> 00:05:38.340
How much would it cost to remediate
131
00:05:38.340 --> 00:05:40.500
to the level of a substation?
132
00:05:40.500 --> 00:05:41.850
Well, I don't have the figures
133
00:05:41.850 --> 00:05:43.740
off the top of my head.
134
00:05:43.740 --> 00:05:48.740
Just really getting to specifics would be really helpful.
135
00:05:51.510 --> 00:05:52.343
Go ahead.
136
00:05:52.343 --> 00:05:54.300
Sure. So I highlighted
137
00:05:54.300 --> 00:05:56.580
this excerpt in the environmental burdens definition,
138
00:05:56.580 --> 00:05:59.340
and I wanna highlight that this substation
139
00:05:59.340 --> 00:06:01.950
will contribute to and exacerbate
140
00:06:01.950 --> 00:06:04.080
environmental burdens in East Boston.
141
00:06:04.080 --> 00:06:06.420
That's what's relevant here.
142
00:06:06.420 --> 00:06:08.310
East Boston as we know from the record,
143
00:06:08.310 --> 00:06:09.780
and from reliable evidence,
144
00:06:09.780 --> 00:06:12.240
is host to numerous polluting and industrial sites
145
00:06:12.240 --> 00:06:14.700
including Logan Airport and supporting facilities
146
00:06:14.700 --> 00:06:16.860
that cause air and noise pollution.
147
00:06:16.860 --> 00:06:18.990
It's host entrances and exits
148
00:06:18.990 --> 00:06:21.060
to two tunnels causing air pollution.
149
00:06:21.060 --> 00:06:25.140
It also hosts petroleum terminals and shipping terminals,
150
00:06:25.140 --> 00:06:26.940
which cause air and water pollution.
151
00:06:26.940 --> 00:06:30.480
It lacks green space and has very low tree canopy rates
152
00:06:30.480 --> 00:06:31.680
that leave its residents
153
00:06:34.182 --> 00:06:36.330
more susceptible to the heat island effect,
154
00:06:36.330 --> 00:06:37.980
flooding and air pollution.
155
00:06:37.980 --> 00:06:41.040
And as the amicus pointed out in its brief,
156
00:06:41.040 --> 00:06:43.200
70% of the state substations
157
00:06:43.200 --> 00:06:45.330
are disproportionately located within one mile
158
00:06:45.330 --> 00:06:48.060
or inside environmental justice populations.
159
00:06:48.060 --> 00:06:51.870
And this substation adds to
160
00:06:51.870 --> 00:06:54.330
and exacerbates the burdens faced
161
00:06:54.330 --> 00:06:57.870
by the environmental justice population in East Boston.
162
00:06:57.870 --> 00:06:59.910
Now, despite these demonstrated burdens,
163
00:06:59.910 --> 00:07:02.100
the Siting Board in his decision
164
00:07:02.100 --> 00:07:04.777
found that the burdens associated with this project are,
165
00:07:04.777 --> 00:07:07.927
"construction related, short-lived,
166
00:07:07.927 --> 00:07:10.617
"minor and fully mitigated".
167
00:07:11.640 --> 00:07:13.800
And if you look at the record
168
00:07:13.800 --> 00:07:15.390
and you read our briefs,
169
00:07:15.390 --> 00:07:18.537
you'll see that this finding was arbitrary and capricious
170
00:07:18.537 --> 00:07:20.640
based on the evidence in the record,
171
00:07:20.640 --> 00:07:23.460
Would you agree that the statute
172
00:07:23.460 --> 00:07:26.070
requires the board to consider
173
00:07:26.070 --> 00:07:27.630
environmental principles,
174
00:07:27.630 --> 00:07:31.800
but it doesn't eliminate
175
00:07:31.800 --> 00:07:35.340
the board's responsibility
176
00:07:35.340 --> 00:07:37.830
to balance competing factors
177
00:07:37.830 --> 00:07:40.500
in ultimately making its decision?
178
00:07:40.500 --> 00:07:41.790
Yes. I--
179
00:07:41.790 --> 00:07:44.190
So it's a mandate to consider,
180
00:07:44.190 --> 00:07:47.250
it's not a mandate that overrides
181
00:07:47.250 --> 00:07:49.593
all other considerations, correct?
182
00:07:50.460 --> 00:07:51.300
Yeah, that's right.
183
00:07:51.300 --> 00:07:52.133
I would urge the court--
184
00:07:52.133 --> 00:07:54.540
So ultimately the board's decision,
185
00:07:54.540 --> 00:07:58.920
balancing decision is subject to what level of review?
186
00:07:58.920 --> 00:08:01.050
I would urge the court to consider though
187
00:08:01.050 --> 00:08:04.200
that unlike some traditional environmental frameworks
188
00:08:04.200 --> 00:08:06.240
that require an agency or a board
189
00:08:06.240 --> 00:08:08.760
to weigh project benefits and burdens,
190
00:08:08.760 --> 00:08:12.540
here the board was tasked with considering
191
00:08:12.540 --> 00:08:15.240
and advancing the equitable distribution
192
00:08:15.240 --> 00:08:17.100
of benefits and burdens,
193
00:08:17.100 --> 00:08:18.780
so it's a different exercise.
194
00:08:18.780 --> 00:08:20.940
And we believe that the court,
195
00:08:20.940 --> 00:08:24.460
excuse me, the board failed to fully comply with that.
196
00:08:24.460 --> 00:08:26.550
Sure. I understand your position,
197
00:08:26.550 --> 00:08:29.700
but what is the standard of review
198
00:08:29.700 --> 00:08:32.070
that we are to employ
199
00:08:32.070 --> 00:08:34.350
when reviewing the board's balancing
200
00:08:34.350 --> 00:08:36.870
of these competing considerations?
201
00:08:36.870 --> 00:08:40.110
Well, I think based on this court's case law,
202
00:08:40.110 --> 00:08:43.260
with respect to energy facility Siting Board decisions,
203
00:08:43.260 --> 00:08:44.460
that there are a couple things.
204
00:08:44.460 --> 00:08:46.760
One, with respect to statutory interpretation,
205
00:08:49.161 --> 00:08:51.240
there is substantial deference given to the agency.
206
00:08:51.240 --> 00:08:55.050
But we feel here that the interpretation of key terms
207
00:08:55.050 --> 00:08:57.330
and provisions in the statute were incorrect,
208
00:08:57.330 --> 00:08:58.980
that's the first--
209
00:08:58.980 --> 00:09:00.600
What was incorrect?
210
00:09:00.600 --> 00:09:01.433
I'm sorry?
211
00:09:01.433 --> 00:09:02.490
What was incorrect about their
212
00:09:02.490 --> 00:09:04.830
interpretation of the statute?
213
00:09:04.830 --> 00:09:07.200
Well, what was incorrect
214
00:09:07.200 --> 00:09:09.270
was they disregarded evidence
215
00:09:09.270 --> 00:09:10.557
that squarely fit within the definition.
216
00:09:10.557 --> 00:09:13.020
But that sounds like a factual question.
217
00:09:13.020 --> 00:09:15.810
You're suggesting though, that as a matter of law,
218
00:09:15.810 --> 00:09:17.940
they misinterpreted the statute?
219
00:09:17.940 --> 00:09:19.307
What is the question?
220
00:09:19.307 --> 00:09:20.310
Well, I think it's both.
221
00:09:20.310 --> 00:09:22.560
It's a mixed question of fact and law here,
222
00:09:22.560 --> 00:09:25.443
because as we allege in our briefs,
223
00:09:26.572 --> 00:09:28.022
they misconstrued the statute
224
00:09:29.430 --> 00:09:31.950
to not include certain benefits and burdens.
225
00:09:31.950 --> 00:09:35.197
And then they misapplied the statute with respect to that.
226
00:09:35.197 --> 00:09:36.570
Could you be, again,
227
00:09:36.570 --> 00:09:40.020
as Justice Kafker was suggesting more specific.
228
00:09:40.020 --> 00:09:41.640
More specific about the?
229
00:09:41.640 --> 00:09:44.640
Yeah, you're saying they misinterpreted the statute in--
230
00:09:44.640 --> 00:09:45.473
Give us an example.
231
00:09:45.473 --> 00:09:47.271
Ignoring some benefits or burdens.
232
00:09:47.271 --> 00:09:48.390
Sure.
What was--
233
00:09:48.390 --> 00:09:51.090
Absolutely. So as I mentioned,
234
00:09:51.090 --> 00:09:53.250
their findings with respect to burdens,
235
00:09:53.250 --> 00:09:55.500
actually in a 199 page decision
236
00:09:55.500 --> 00:09:57.570
there is one sentence about burdens.
237
00:09:57.570 --> 00:09:58.470
And I've already--
238
00:09:58.470 --> 00:09:59.883
That's just not true.
239
00:10:00.720 --> 00:10:01.710
I read through this.
240
00:10:01.710 --> 00:10:04.350
One, they present each side's argument
241
00:10:04.350 --> 00:10:07.260
in tremendous detail, painful detail.
242
00:10:07.260 --> 00:10:09.420
They go through each one of your arguments,
243
00:10:09.420 --> 00:10:11.613
and then they talk about these things.
244
00:10:12.690 --> 00:10:14.941
It's not a sentence on burdens, they discuss--
245
00:10:14.941 --> 00:10:16.500
Respectfully Your Honor, they don't--
246
00:10:16.500 --> 00:10:17.520
Well, let me finish.
247
00:10:17.520 --> 00:10:21.180
'Cause I find that it's really hard to figure out
248
00:10:21.180 --> 00:10:24.180
what you're complaining about when you do that.
249
00:10:24.180 --> 00:10:25.200
Give us an example.
250
00:10:25.200 --> 00:10:28.260
I understand very precisely your argument
251
00:10:28.260 --> 00:10:30.390
about water dependent use,
252
00:10:30.390 --> 00:10:32.550
but to say that they don't address burden,
253
00:10:32.550 --> 00:10:33.930
they only have one sentence
254
00:10:33.930 --> 00:10:37.470
addressing environmental burdens is just incorrect
255
00:10:37.470 --> 00:10:38.427
when you read...
256
00:10:38.427 --> 00:10:39.870
I mean, I read through this thing this morning,
257
00:10:39.870 --> 00:10:42.480
it's painfully detailed.
258
00:10:42.480 --> 00:10:44.130
Go ahead.
259
00:10:44.130 --> 00:10:47.760
It is detailed, it is lengthy, but I--
260
00:10:47.760 --> 00:10:49.830
It addresses every argument you make.
261
00:10:49.830 --> 00:10:50.880
It responds to them.
262
00:10:50.880 --> 00:10:52.920
It does every argument they make,
263
00:10:52.920 --> 00:10:54.990
it's for state government work
264
00:10:54.990 --> 00:10:58.110
it's exceptionally comprehensive.
265
00:10:58.110 --> 00:11:01.140
It is detailed and it is lengthy,
266
00:11:01.140 --> 00:11:05.100
but other than our recitation of arguments,
267
00:11:05.100 --> 00:11:07.530
if you look at the analysis and findings section,
268
00:11:07.530 --> 00:11:10.650
there is very little discussion about burdens,
269
00:11:10.650 --> 00:11:13.380
which is the key issue here under the environmental--
270
00:11:13.380 --> 00:11:15.600
One thing you say in your brief
271
00:11:15.600 --> 00:11:20.160
is that if the community somehow pays for cleanup,
272
00:11:20.160 --> 00:11:21.960
if it affects their rates,
273
00:11:21.960 --> 00:11:24.450
that is inappropriate to consider.
274
00:11:24.450 --> 00:11:28.270
Is there any support for that in the law
275
00:11:29.726 --> 00:11:31.670
that if it affects your rates...
276
00:11:32.910 --> 00:11:36.210
This results in an AUL on this property, right?
277
00:11:36.210 --> 00:11:38.100
This is something the environmental community
278
00:11:38.100 --> 00:11:41.220
pushes hard to clean up sites.
279
00:11:41.220 --> 00:11:42.570
You say that doesn't count
280
00:11:42.570 --> 00:11:44.490
for anything in the burden analysis
281
00:11:44.490 --> 00:11:47.160
because the community, like the rest of us
282
00:11:47.160 --> 00:11:48.360
will be paying for it.
283
00:11:48.360 --> 00:11:50.310
Is there support in the law for that?
284
00:11:50.310 --> 00:11:51.270
No, it doesn't.
285
00:11:51.270 --> 00:11:53.100
It is actually on the benefits side
286
00:11:53.100 --> 00:11:55.500
they claim that this is a benefit,
287
00:11:55.500 --> 00:11:56.640
that this site was cleaned up,
288
00:11:56.640 --> 00:12:00.900
and no, the argument that we made in our initial brief,
289
00:12:00.900 --> 00:12:02.640
in our reply brief,
290
00:12:02.640 --> 00:12:06.090
is it's a common sense argument about the fact that you,
291
00:12:06.090 --> 00:12:08.370
that if someone gives you something
292
00:12:08.370 --> 00:12:09.870
and then asks you to pay for it later,
293
00:12:09.870 --> 00:12:11.610
it can't be considered a benefit.
294
00:12:11.610 --> 00:12:13.650
But if it results in a cleaner world,
295
00:12:13.650 --> 00:12:15.000
it does result in a benefit.
296
00:12:15.000 --> 00:12:17.190
Even we all pay taxes so.
297
00:12:17.190 --> 00:12:18.120
That's fair.
298
00:12:18.120 --> 00:12:19.800
Regardless of what was gonna happen on this site,
299
00:12:19.800 --> 00:12:21.550
it was gonna need to be cleaned up.
300
00:12:23.520 --> 00:12:26.370
But no one was stepping forward to clean it up, right?
301
00:12:26.370 --> 00:12:27.930
The city didn't wanna clean it up.
302
00:12:27.930 --> 00:12:30.153
It didn't have the money, right?
303
00:12:31.110 --> 00:12:32.790
And you want Massport,
304
00:12:32.790 --> 00:12:35.460
you wanna build this on Massport's property,
305
00:12:35.460 --> 00:12:38.338
but Massport doesn't want it.
306
00:12:38.338 --> 00:12:40.830
They're refusing to provide the property,
307
00:12:40.830 --> 00:12:43.050
so is that a real option?
308
00:12:43.050 --> 00:12:45.150
Well, we assert that
309
00:12:45.150 --> 00:12:48.099
that wasn't fully litigated in this case.
310
00:12:48.099 --> 00:12:50.880
That Massport was willing to give up the property?
311
00:12:50.880 --> 00:12:53.640
So is that an error of analysis in this
312
00:12:53.640 --> 00:12:55.020
that we can point out?
313
00:12:55.020 --> 00:12:56.160
Absolutely.
314
00:12:56.160 --> 00:12:57.330
So tell me why.
315
00:12:57.330 --> 00:12:59.310
I'll tell you a little bit more about that.
316
00:12:59.310 --> 00:13:00.210
In its final decision.
317
00:13:00.210 --> 00:13:01.350
Based on the record.
318
00:13:01.350 --> 00:13:03.420
Sure. In its decision
319
00:13:03.420 --> 00:13:05.280
the Siting Board says that alternative sites
320
00:13:05.280 --> 00:13:08.280
are outside of the scope of the certificate proceeding.
321
00:13:08.280 --> 00:13:11.100
We think that is legally inaccurate.
322
00:13:11.100 --> 00:13:12.960
If you look at the Roadmap Law--
323
00:13:12.960 --> 00:13:16.020
They say that you did not identify
324
00:13:16.020 --> 00:13:18.360
another reasonable site,
325
00:13:18.360 --> 00:13:21.300
your proposal to put it on Massport,
326
00:13:21.300 --> 00:13:25.830
common in permitting in East Boston. I get it.
327
00:13:25.830 --> 00:13:28.110
But they don't wanna give up the property.
328
00:13:28.110 --> 00:13:31.170
Massport's a constrained site too.
329
00:13:31.170 --> 00:13:34.350
It's operating an international airport in a tight...
330
00:13:34.350 --> 00:13:35.730
If they're not willing to give up the property,
331
00:13:35.730 --> 00:13:38.823
why is that a reasonable alternative?
332
00:13:40.380 --> 00:13:43.170
Your Honor, this was not fully litigated.
333
00:13:43.170 --> 00:13:45.270
This is one of the reasons the case needs to be remanded
334
00:13:45.270 --> 00:13:47.610
to the board because this issue of alternative sites
335
00:13:47.610 --> 00:13:49.710
was not fully litigated.
336
00:13:49.710 --> 00:13:51.750
I can read from the final decision,
337
00:13:51.750 --> 00:13:53.430
alternative sites were ruled
338
00:13:53.430 --> 00:13:55.380
outside the scope of the proceeding
339
00:13:55.380 --> 00:13:56.213
and so there's no record--
340
00:13:56.213 --> 00:14:00.570
Isn't that because that was part two of this saga.
341
00:14:00.570 --> 00:14:01.403
Sorry, part two of this--
342
00:14:01.403 --> 00:14:02.490
Part two of the saga.
343
00:14:02.490 --> 00:14:05.160
I mean, so part one you had a initial site
344
00:14:05.160 --> 00:14:07.410
and then it moved, I think 190 feet
345
00:14:07.410 --> 00:14:09.090
and that's the case that came to us.
346
00:14:09.090 --> 00:14:10.870
Yes. I appreciate the question
347
00:14:12.090 --> 00:14:13.890
the location was at issue previously,
348
00:14:13.890 --> 00:14:15.450
but I'll give you two reasons
349
00:14:15.450 --> 00:14:17.000
why siting an alternative sites
350
00:14:18.420 --> 00:14:19.470
should have been before the board
351
00:14:19.470 --> 00:14:21.480
and should be before this court today.
352
00:14:21.480 --> 00:14:22.767
One, under the Roadmap Law,
353
00:14:22.767 --> 00:14:24.240
the environmental justice principle
354
00:14:24.240 --> 00:14:26.250
is called for the equitable distribution
355
00:14:26.250 --> 00:14:29.520
of environmental and energy benefits and burdens.
356
00:14:29.520 --> 00:14:32.520
And part of ensuring that there is an equitable distribution
357
00:14:32.520 --> 00:14:34.830
involves assessing where the site is located
358
00:14:34.830 --> 00:14:36.120
relative to other sites.
359
00:14:36.120 --> 00:14:38.700
But that's again, specifically
360
00:14:38.700 --> 00:14:41.040
is Justice Wendlandt point.
361
00:14:41.040 --> 00:14:44.430
In stage one, there was an extensive analysis
362
00:14:44.430 --> 00:14:46.380
of possible sites, right?
363
00:14:46.380 --> 00:14:51.380
Extensive. Then there's a request to move at 190 feet.
364
00:14:52.110 --> 00:14:54.990
And there's an extensive analysis of that.
365
00:14:54.990 --> 00:14:58.773
Now you're asking to do it a third time.
366
00:14:59.640 --> 00:15:02.250
No, we feel it's required.
367
00:15:02.250 --> 00:15:03.750
The second provision I'll state,
368
00:15:03.750 --> 00:15:07.140
in addition to the roadmap law is section 69H.
369
00:15:07.140 --> 00:15:09.480
And the board cites in its brief,
370
00:15:09.480 --> 00:15:11.820
the town of Winchester versus Energy Facility Siting Board.
371
00:15:11.820 --> 00:15:14.640
And that case involved a transmission line
372
00:15:14.640 --> 00:15:17.640
but it is relevant here because it talks about...
373
00:15:17.640 --> 00:15:20.070
The appeals court talks about the board's mandate
374
00:15:20.070 --> 00:15:24.000
under section 69J and section 69H of chapter 164.
375
00:15:24.000 --> 00:15:27.120
And 69H governs in part this proceeding.
376
00:15:27.120 --> 00:15:29.680
And the court there talks about how
377
00:15:31.784 --> 00:15:35.100
the Siting Board assessed
378
00:15:35.100 --> 00:15:39.180
two different routes using a multifactor comparison
379
00:15:39.180 --> 00:15:40.710
under section 69H.
380
00:15:40.710 --> 00:15:43.680
And section 69H, which talks about
381
00:15:43.680 --> 00:15:45.870
the three pillars of reliability,
382
00:15:45.870 --> 00:15:47.340
cost and environmental impact
383
00:15:47.340 --> 00:15:49.383
does in part govern this proceeding.
384
00:15:50.250 --> 00:15:52.290
I see that my time is up, I would ask--
385
00:15:52.290 --> 00:15:54.120
Can you address the DEP issue?
386
00:15:54.120 --> 00:15:56.670
'Cause that's the one substantive issue
387
00:15:56.670 --> 00:15:58.293
that seems quite new.
388
00:15:59.532 --> 00:16:02.040
For independent use issue.
389
00:16:02.040 --> 00:16:03.450
Yeah, absolutely.
390
00:16:03.450 --> 00:16:05.280
And in answering that question,
391
00:16:05.280 --> 00:16:08.250
just they are gonna get up and say,
392
00:16:08.250 --> 00:16:10.590
your Weymouth site is different.
393
00:16:10.590 --> 00:16:12.690
This is fact specific.
394
00:16:12.690 --> 00:16:14.613
They're also gonna say DEP,
395
00:16:15.540 --> 00:16:20.400
which normally is not aligned with the Energy Department.
396
00:16:20.400 --> 00:16:21.870
They're protecting the environment.
397
00:16:21.870 --> 00:16:24.390
They both agree this is a water dependent use.
398
00:16:24.390 --> 00:16:29.043
So explain how you still win in that context.
399
00:16:30.270 --> 00:16:33.090
Sure. As we argue in our brief,
400
00:16:33.090 --> 00:16:37.230
we believe that this case is,
401
00:16:37.230 --> 00:16:40.440
this substation is non-water dependent.
402
00:16:40.440 --> 00:16:43.013
And I will note that this is a new part of--
403
00:16:43.013 --> 00:16:46.590
Is that a question of law,
404
00:16:46.590 --> 00:16:49.230
fact or a mixed question of law and fact?
405
00:16:49.230 --> 00:16:52.620
I would say it's mixed because it does involve--
406
00:16:52.620 --> 00:16:55.440
Our standard of review is?
407
00:16:55.440 --> 00:17:00.270
Well, I think the standard
408
00:17:00.270 --> 00:17:01.660
that the court has to apply
409
00:17:02.670 --> 00:17:04.810
is based on prior precedent
410
00:17:05.880 --> 00:17:08.280
involving incorrect interpretation.
411
00:17:08.280 --> 00:17:10.260
Because we do believe there is an incorrect interpretation
412
00:17:10.260 --> 00:17:15.260
here of the waterways law and regulations.
413
00:17:16.050 --> 00:17:21.050
So whether the board's findings were abusive discretion
414
00:17:22.050 --> 00:17:23.430
or arbitrary and capricious
415
00:17:23.430 --> 00:17:27.390
in interpreting the water waste law and the regulations.
416
00:17:27.390 --> 00:17:28.263
Can I ask one?
417
00:17:29.820 --> 00:17:33.273
Is this case decided this DEP issue yet?
418
00:17:34.350 --> 00:17:35.183
You wrote your briefs
419
00:17:35.183 --> 00:17:36.980
I can't remember how many months ago.
420
00:17:38.160 --> 00:17:42.720
Do we have a resolution of this case?
421
00:17:42.720 --> 00:17:46.230
Has this gone on to appeal the DEP decision here
422
00:17:46.230 --> 00:17:48.270
or is that all held in advance for this
423
00:17:48.270 --> 00:17:51.480
and the Weymouth one, what is its status?
424
00:17:51.480 --> 00:17:52.890
I don't believe we have a decision
425
00:17:52.890 --> 00:17:55.260
in the case involving Weymouth,
426
00:17:55.260 --> 00:18:00.260
which is the cases that were argued for you by us.
427
00:18:01.830 --> 00:18:04.260
So that hasn't gone on appeal yet?
428
00:18:04.260 --> 00:18:05.093
Not to my knowledge.
429
00:18:05.093 --> 00:18:06.930
It's back to DEP.
430
00:18:06.930 --> 00:18:08.850
That's right. Not to my knowledge.
431
00:18:08.850 --> 00:18:10.650
And DEP, from what I understand from the briefing,
432
00:18:10.650 --> 00:18:12.940
the last decision in DEP said
433
00:18:14.040 --> 00:18:17.160
is in favor of the,
434
00:18:17.160 --> 00:18:18.690
that it's a water dependent user.
435
00:18:18.690 --> 00:18:21.597
Is that incorrect or is it still unresolved?
436
00:18:21.597 --> 00:18:24.870
It's unresolved because it was sent back by the court.
437
00:18:24.870 --> 00:18:27.240
It was remanded by the superior court and so it's--
438
00:18:27.240 --> 00:18:28.290
So they haven't.
439
00:18:28.290 --> 00:18:30.090
I understand there was a preliminary decision
440
00:18:30.090 --> 00:18:32.370
by one decision maker at DEP.
441
00:18:32.370 --> 00:18:34.440
It went up to another decision maker.
442
00:18:34.440 --> 00:18:36.690
That decision maker is not issued
443
00:18:36.690 --> 00:18:38.610
a second decision outta DEP?
444
00:18:38.610 --> 00:18:39.840
Not to my knowledge.
445
00:18:39.840 --> 00:18:40.840
Not to my knowledge.
446
00:18:42.780 --> 00:18:45.687
I would just close by saying if the Roadmap Law
447
00:18:45.687 --> 00:18:47.400
and the environmental justice mandates in it
448
00:18:47.400 --> 00:18:48.900
are to have any meaning
449
00:18:48.900 --> 00:18:51.060
and to move the commonwealth away from business
450
00:18:51.060 --> 00:18:55.110
as usual permitting in environmental justice populations,
451
00:18:55.110 --> 00:18:57.540
then the decision must be vacated and remanded.
452
00:18:57.540 --> 00:18:58.620
Thank you for your time.
453
00:18:58.620 --> 00:19:01.173
Okay, thank you. Attorney Ramos.
454
00:19:12.390 --> 00:19:14.250
Good morning, and may it please the court.
455
00:19:14.250 --> 00:19:16.920
Adam Ramos, Special Assistant Attorney General
456
00:19:16.920 --> 00:19:19.980
on behalf of the Energy Facility Siting Board.
457
00:19:19.980 --> 00:19:22.801
I think some of the questions
458
00:19:22.801 --> 00:19:27.801
from the court this morning to Attorney Turner
459
00:19:27.810 --> 00:19:29.760
sort of hit the nail on the head.
460
00:19:29.760 --> 00:19:33.540
This is a case where the Energy Facilities Siting Board
461
00:19:33.540 --> 00:19:37.110
fulfilled its statutory obligation.
462
00:19:37.110 --> 00:19:39.600
The Energy Facilities Siting Board exists
463
00:19:39.600 --> 00:19:41.220
because the Commonwealth recognized
464
00:19:41.220 --> 00:19:43.530
the need for an expert agency
465
00:19:43.530 --> 00:19:48.030
with statewide perspective
466
00:19:48.030 --> 00:19:50.310
to consider all of the relevant factors
467
00:19:50.310 --> 00:19:51.570
that go into a determination
468
00:19:51.570 --> 00:19:54.510
of where energy infrastructure should be sited
469
00:19:54.510 --> 00:19:57.630
in order to ensure that every population
470
00:19:57.630 --> 00:20:01.320
in the state receives reliable energy.
471
00:20:01.320 --> 00:20:05.040
As Justice Wendlandt and Justice Kafker pointed out,
472
00:20:05.040 --> 00:20:08.250
this is the third time through the ringer
473
00:20:08.250 --> 00:20:10.560
on this particular project for the Siting Board,
474
00:20:10.560 --> 00:20:13.680
and the second time that it has come to this court.
475
00:20:13.680 --> 00:20:17.160
It is important to point out that this time
476
00:20:17.160 --> 00:20:20.340
we are here on an appeal from a decision
477
00:20:20.340 --> 00:20:22.860
from the Siting Board's certificate authority.
478
00:20:22.860 --> 00:20:24.450
And the certificate authority
479
00:20:24.450 --> 00:20:26.940
is doing something very specific.
480
00:20:26.940 --> 00:20:29.490
It's taking a look at a project
481
00:20:29.490 --> 00:20:31.200
that has already been approved,
482
00:20:31.200 --> 00:20:34.710
determined to be needed to provide reliable energy.
483
00:20:34.710 --> 00:20:36.900
It is on a particular site,
484
00:20:36.900 --> 00:20:39.120
and it is coming back before the board
485
00:20:39.120 --> 00:20:41.670
because the local permitting agencies
486
00:20:41.670 --> 00:20:44.610
have somehow impaired the ability
487
00:20:44.610 --> 00:20:46.590
of the construction to go forward
488
00:20:46.590 --> 00:20:49.740
so that the Siting Board exercising its expertise
489
00:20:49.740 --> 00:20:52.800
can determine whether to stand in the shoes
490
00:20:52.800 --> 00:20:54.780
of those permitting agencies
491
00:20:54.780 --> 00:20:57.393
and issue those permits through a certificate.
492
00:20:59.160 --> 00:21:00.690
In this particular instance--
493
00:21:00.690 --> 00:21:03.090
Although there does seem to be a fair amount
494
00:21:03.090 --> 00:21:04.833
of new evidence presented.
495
00:21:07.290 --> 00:21:10.923
It wasn't sort of limited to a narrow question of law there,
496
00:21:12.090 --> 00:21:15.360
the agency because of the passage of time
497
00:21:15.360 --> 00:21:18.003
takes into account a bunch of new information, right?
498
00:21:18.003 --> 00:21:20.640
That is absolutely correct Justice Kafker,
499
00:21:20.640 --> 00:21:23.790
the agency refreshes the record
500
00:21:23.790 --> 00:21:25.830
on a variety of issues,
501
00:21:25.830 --> 00:21:28.083
including the question of need.
502
00:21:29.130 --> 00:21:30.660
And in this particular case,
503
00:21:30.660 --> 00:21:35.640
it even went so far as to do an analysis
504
00:21:35.640 --> 00:21:39.600
of alternative technologies given the passage of time
505
00:21:39.600 --> 00:21:42.780
and compared the feasibility
506
00:21:42.780 --> 00:21:44.550
of those alternative technologies
507
00:21:44.550 --> 00:21:46.680
against the project to ensure
508
00:21:46.680 --> 00:21:48.270
that it was making a decision
509
00:21:48.270 --> 00:21:52.470
that still stood the test of time essentially
510
00:21:52.470 --> 00:21:56.310
as it did when it made its initial determination of need.
511
00:21:56.310 --> 00:21:57.720
I do wanna point out another thing
512
00:21:57.720 --> 00:21:59.070
and I think that--
513
00:21:59.070 --> 00:22:00.930
Can you address before you move,
514
00:22:00.930 --> 00:22:03.273
the environmental justice arguments,
515
00:22:04.470 --> 00:22:06.660
what is your sense of what is new
516
00:22:06.660 --> 00:22:08.640
and what is not there?
517
00:22:08.640 --> 00:22:11.310
'Cause we did an environmental justice analysis,
518
00:22:11.310 --> 00:22:13.020
we looked at a lot of these principles,
519
00:22:13.020 --> 00:22:17.290
we drew a distinction between when MEPA requires
520
00:22:19.950 --> 00:22:22.650
the first step in their process and when they don't.
521
00:22:22.650 --> 00:22:23.880
So I'm trying to understand,
522
00:22:23.880 --> 00:22:27.240
is there anything new from this Roadmap Law
523
00:22:27.240 --> 00:22:29.830
that you think require consideration
524
00:22:30.720 --> 00:22:34.200
besides this issue of water dependent use?
525
00:22:34.200 --> 00:22:36.040
There was no new evidence
526
00:22:37.050 --> 00:22:39.450
or no evidence that was any different
527
00:22:39.450 --> 00:22:41.400
from what was presented before
528
00:22:41.400 --> 00:22:43.170
regarding environmental justice
529
00:22:43.170 --> 00:22:46.200
and the weighing of burdens and benefits--
530
00:22:46.200 --> 00:22:47.880
Just as you said, they take into account
531
00:22:47.880 --> 00:22:50.850
some new technologies and new batteries
532
00:22:50.850 --> 00:22:53.490
and new electrical advances.
533
00:22:53.490 --> 00:22:57.150
So there is some of that going on in this decision,
534
00:22:57.150 --> 00:22:59.943
which relates to environmental justice issues, right?
535
00:23:01.050 --> 00:23:03.060
It relates to it, but it wasn't done directly
536
00:23:03.060 --> 00:23:04.950
because of environmental justice issues.
537
00:23:04.950 --> 00:23:07.800
It was the overall assessment of whether or not
538
00:23:07.800 --> 00:23:11.400
the need determination stands up.
539
00:23:11.400 --> 00:23:13.150
And it also relates to the question
540
00:23:18.840 --> 00:23:20.190
of whether or not it was appropriate
541
00:23:20.190 --> 00:23:22.320
to build the substation at all.
542
00:23:22.320 --> 00:23:23.910
And it was determined that it was,
543
00:23:23.910 --> 00:23:26.940
they refreshed the evidence on need of the Roadmap Act.
544
00:23:26.940 --> 00:23:30.063
It does seem to me that East Boston bears its,
545
00:23:32.640 --> 00:23:34.620
at least at a superficial level,
546
00:23:34.620 --> 00:23:39.620
a disproportionate share of the costs and burdens,
547
00:23:40.050 --> 00:23:43.233
environmental burdens of energy.
548
00:23:44.430 --> 00:23:48.030
And I'm wondering how this decision,
549
00:23:48.030 --> 00:23:51.360
which I understand is just about
550
00:23:51.360 --> 00:23:54.960
getting the certificates in place
551
00:23:54.960 --> 00:23:58.500
isn't more of what your opposing counsel said,
552
00:23:58.500 --> 00:24:00.093
business as usual.
553
00:24:02.436 --> 00:24:05.100
How is siting this substation in East Boston
554
00:24:05.100 --> 00:24:08.520
that already bears the disproportionate share
555
00:24:08.520 --> 00:24:11.730
of these burdens consistent
556
00:24:11.730 --> 00:24:15.240
with the equal justice mandates of the new law.
557
00:24:15.240 --> 00:24:16.390
Thank you Justice.
558
00:24:17.430 --> 00:24:22.350
To begin, East Boston is actually the only neighborhood
559
00:24:22.350 --> 00:24:24.690
in the city of Boston that does not have
560
00:24:24.690 --> 00:24:27.000
a substation at present.
561
00:24:27.000 --> 00:24:29.340
And this particular substation
562
00:24:29.340 --> 00:24:31.260
is needed particularly to provide
563
00:24:31.260 --> 00:24:35.820
energy reliability benefits to the population of East Boston
564
00:24:35.820 --> 00:24:36.750
And Chelsea.
565
00:24:36.750 --> 00:24:38.313
And Chelsea, absolutely.
566
00:24:41.117 --> 00:24:45.117
And the Siting Board strongly considered
567
00:24:46.500 --> 00:24:48.780
all of the benefits and burdens
568
00:24:48.780 --> 00:24:52.320
associated with the substation.
569
00:24:52.320 --> 00:24:54.570
The evidence showed that there, for example,
570
00:24:54.570 --> 00:24:57.960
the visual burdens will be mitigated
571
00:24:57.960 --> 00:25:01.350
because of the community benefits agreement
572
00:25:01.350 --> 00:25:03.090
that the Siting Board directed,
573
00:25:03.090 --> 00:25:06.300
needed to be negotiated with the neighborhood
574
00:25:06.300 --> 00:25:09.030
so that it will not be an eyesore, for example.
575
00:25:09.030 --> 00:25:11.430
They'll be getting the benefits as Justice Kafker
576
00:25:11.430 --> 00:25:16.430
I think highlighted during questioning of Attorney Turner
577
00:25:16.830 --> 00:25:20.430
that of remediating a contaminated site.
578
00:25:20.430 --> 00:25:22.020
The evaluation of--
579
00:25:22.020 --> 00:25:24.420
It's across the street from a playground, right?
580
00:25:24.420 --> 00:25:25.530
It is.
581
00:25:25.530 --> 00:25:26.363
Okay.
582
00:25:27.840 --> 00:25:29.973
Can you address that aspect of this?
583
00:25:30.840 --> 00:25:32.700
It is across the street from--
584
00:25:32.700 --> 00:25:34.050
I'm sure the kids won't see it,
585
00:25:34.050 --> 00:25:38.700
but are there issues associated
586
00:25:38.700 --> 00:25:42.660
with siting an electrical substation in East Boston
587
00:25:42.660 --> 00:25:44.430
across the street from one of the only
588
00:25:44.430 --> 00:25:46.113
playgrounds in the town?
589
00:25:47.310 --> 00:25:48.450
I wouldn't say that there...
590
00:25:48.450 --> 00:25:49.770
I mean, I suppose there are issues.
591
00:25:49.770 --> 00:25:51.540
Those issues are considered.
592
00:25:51.540 --> 00:25:54.210
All of the protections that are associated with
593
00:25:54.210 --> 00:25:56.670
the development of this substation
594
00:25:56.670 --> 00:25:59.100
are such to avoid safety issues
595
00:25:59.100 --> 00:26:00.750
for example, the Siting Board is required
596
00:26:00.750 --> 00:26:03.450
that a site specific safety plan be developed
597
00:26:03.450 --> 00:26:05.880
with respect to this substation.
598
00:26:05.880 --> 00:26:07.530
And I mentioned the visual issues,
599
00:26:07.530 --> 00:26:09.300
but there was an evaluation
600
00:26:09.300 --> 00:26:11.190
of other types of health impacts
601
00:26:11.190 --> 00:26:14.430
that might come from a substation such as EMF exposure
602
00:26:14.430 --> 00:26:15.263
and things like that.
603
00:26:15.263 --> 00:26:16.480
And it was determined that
604
00:26:17.880 --> 00:26:21.570
there would not be increased levels of EMF exposure
605
00:26:21.570 --> 00:26:22.830
at a distance as far away
606
00:26:22.830 --> 00:26:25.083
as the playground is from the substation.
607
00:26:27.120 --> 00:26:28.950
The Siting Board takes very seriously
608
00:26:28.950 --> 00:26:32.340
the concerns around environmental justice
609
00:26:32.340 --> 00:26:34.860
and making sure that the populations
610
00:26:34.860 --> 00:26:37.470
that are going to be impacted by this construction
611
00:26:37.470 --> 00:26:41.040
are protected from undue burdens
612
00:26:41.040 --> 00:26:43.050
as that would be associated with this.
613
00:26:43.050 --> 00:26:47.100
And their role is to take into account
614
00:26:47.100 --> 00:26:48.360
what the benefits are that will come
615
00:26:48.360 --> 00:26:49.830
and what the burdens are that will come from it
616
00:26:49.830 --> 00:26:52.710
and determine whether or not this is the appropriate place
617
00:26:52.710 --> 00:26:54.529
at the appropriate time to put this--
618
00:26:54.529 --> 00:26:58.050
And does that benefits and burdens calculus
619
00:26:58.050 --> 00:27:03.050
consider the existing burdens to the community
620
00:27:03.510 --> 00:27:07.233
or is it benefits and burdens of this particular project?
621
00:27:08.640 --> 00:27:11.100
I would say it does in some respects
622
00:27:11.100 --> 00:27:12.600
and in some respects it doesn't.
623
00:27:12.600 --> 00:27:15.060
So there are certain types of projects
624
00:27:15.060 --> 00:27:18.900
that require a--
625
00:27:18.900 --> 00:27:20.370
Let's just stick with this project.
626
00:27:20.370 --> 00:27:23.310
I mean, in weighing the benefits
627
00:27:23.310 --> 00:27:25.500
and burdens of this project,
628
00:27:25.500 --> 00:27:30.500
is the existing burden on East Boston already considered?
629
00:27:31.260 --> 00:27:32.790
It definitely weighs into the calculus.
630
00:27:32.790 --> 00:27:35.820
And where is that in the board's decision?
631
00:27:35.820 --> 00:27:37.650
I think it's reflected through the entirety
632
00:27:37.650 --> 00:27:41.130
of the evaluation of the benefits and burdens.
633
00:27:41.130 --> 00:27:45.533
There's a recognition of what community this is in.
634
00:27:45.533 --> 00:27:47.490
Don't you, you don't start?
635
00:27:47.490 --> 00:27:48.660
It's the trigger.
636
00:27:48.660 --> 00:27:50.250
I mean that's, you wouldn't do
637
00:27:50.250 --> 00:27:53.640
the environmental justice analysis if this was Wellesley,
638
00:27:53.640 --> 00:27:56.193
you do it because it's East Boston.
639
00:27:57.401 --> 00:27:59.340
I think, isn't that recognized?
640
00:27:59.340 --> 00:28:00.480
That's right up front.
641
00:28:00.480 --> 00:28:03.270
You're doing this because East Boston
642
00:28:03.270 --> 00:28:04.650
fits within the definition
643
00:28:04.650 --> 00:28:06.720
of environmental justice community, right?
644
00:28:06.720 --> 00:28:07.650
That's exactly right.
645
00:28:07.650 --> 00:28:10.260
Environmental justice community in and of itself
646
00:28:10.260 --> 00:28:14.070
is one that is by definition overburdened and that--
647
00:28:14.070 --> 00:28:16.560
Can I ask can you consider...
648
00:28:16.560 --> 00:28:19.710
I mean one of the often low income
649
00:28:19.710 --> 00:28:22.320
environmental justice communities have lack of power too.
650
00:28:22.320 --> 00:28:25.500
They're the first ones that go out when the storm hits.
651
00:28:25.500 --> 00:28:28.140
Is that appropriate consideration
652
00:28:28.140 --> 00:28:30.690
in the environmental justice analysis as well?
653
00:28:30.690 --> 00:28:32.790
Yes, it is. That's something that
654
00:28:32.790 --> 00:28:36.960
ensuring energy reliability is an energy benefit
655
00:28:36.960 --> 00:28:39.753
that the Siting Board considered.
656
00:28:40.694 --> 00:28:42.150
And I feel it's appropriate to point out
657
00:28:42.150 --> 00:28:43.680
that the amicus brief
658
00:28:43.680 --> 00:28:45.540
submitted by the Union of Concerned Scientists,
659
00:28:45.540 --> 00:28:49.200
which was ostensibly opposed to the project
660
00:28:49.200 --> 00:28:51.090
pointed out in two places.
661
00:28:51.090 --> 00:28:52.770
I think it's worth reading the quotes.
662
00:28:52.770 --> 00:28:54.960
One, lack of access to reliable energy
663
00:28:54.960 --> 00:28:56.790
is an energy injustice.
664
00:28:56.790 --> 00:28:59.490
And two, access to reliable energy
665
00:28:59.490 --> 00:29:02.700
is a benefit and a key component of energy justice.
666
00:29:02.700 --> 00:29:04.260
And those are things that the Siting Board
667
00:29:04.260 --> 00:29:06.480
certainly considered with respect to determining
668
00:29:06.480 --> 00:29:09.000
that this should be placed in the...
669
00:29:09.000 --> 00:29:11.520
It was appropriate to issue the certificate
670
00:29:11.520 --> 00:29:12.720
in this proceeding.
671
00:29:12.720 --> 00:29:14.070
I do see that I'm out of time.
672
00:29:14.070 --> 00:29:18.063
One last question on the 100 year survey.
673
00:29:19.740 --> 00:29:21.900
The flooding issue and whether you have to consider
674
00:29:21.900 --> 00:29:25.620
100 years versus 75 years.
675
00:29:25.620 --> 00:29:26.940
Is there something new here?
676
00:29:26.940 --> 00:29:28.470
We dealt with this issue last time.
677
00:29:28.470 --> 00:29:29.430
I'm just trying to get a sense
678
00:29:29.430 --> 00:29:33.393
is there something new we have to resolve on that issue?
679
00:29:35.040 --> 00:29:37.440
'Cause there's some new information
680
00:29:37.440 --> 00:29:39.510
presented on that or am I wrong on that?
681
00:29:39.510 --> 00:29:41.070
There's not new information presented
682
00:29:41.070 --> 00:29:43.350
on the flooding issue.
683
00:29:43.350 --> 00:29:46.560
It was still a question of
684
00:29:46.560 --> 00:29:49.192
what time frame you're looking at.
685
00:29:49.192 --> 00:29:50.550
So that one we can write a sentence saying
686
00:29:50.550 --> 00:29:52.920
you decided that issue or is there--
687
00:29:52.920 --> 00:29:54.450
I think so, yes.
688
00:29:54.450 --> 00:29:55.833
You could on that one, yes.
689
00:29:58.080 --> 00:29:59.630
Okay. Thank you.
Thank you
690
00:30:04.200 --> 00:30:05.433
Attorney Rosenzweig.
691
00:30:08.100 --> 00:30:09.690
Good morning Your Honors. May it please the court.
692
00:30:09.690 --> 00:30:12.540
David Rosenzweig appearing on behalf of
693
00:30:12.540 --> 00:30:13.710
Nstar Electric Company
694
00:30:13.710 --> 00:30:16.530
doing businesses with Eversource Energy.
695
00:30:16.530 --> 00:30:19.080
Turning directly to the questions that were asked
696
00:30:19.080 --> 00:30:21.570
with respect to the Roadmap Act,
697
00:30:21.570 --> 00:30:24.330
it imposes two obligations on the Siting Board.
698
00:30:24.330 --> 00:30:25.860
One of them I don't believe is at issue
699
00:30:25.860 --> 00:30:27.390
which was already decided by the court
700
00:30:27.390 --> 00:30:30.480
in the first Green Roots decision a year and a half ago.
701
00:30:30.480 --> 00:30:33.000
And that is whether the Siting Board's procedures
702
00:30:33.000 --> 00:30:35.340
allow for a meaningful opportunity
703
00:30:35.340 --> 00:30:40.020
for the public participation EJ populations in its review.
704
00:30:40.020 --> 00:30:42.150
I don't think there's a serious argument there.
705
00:30:42.150 --> 00:30:44.190
The argument comes down to whether the Siting Board
706
00:30:44.190 --> 00:30:46.590
conducted a reasonable analysis
707
00:30:46.590 --> 00:30:51.090
in considering the energy benefits, environmental benefits,
708
00:30:51.090 --> 00:30:54.480
and weighing those against the environmental burdens
709
00:30:54.480 --> 00:30:57.510
and the Siting Board's analysis here was extensive.
710
00:30:57.510 --> 00:30:59.610
They very reasonably construed the statute
711
00:31:01.020 --> 00:31:04.050
including in that equation the reliability benefits
712
00:31:04.050 --> 00:31:05.880
of a reliable energy supply,
713
00:31:05.880 --> 00:31:07.620
which is critically important for all communities
714
00:31:07.620 --> 00:31:09.720
but particularly EJ communities.
715
00:31:09.720 --> 00:31:13.200
And here they found a very acute time-sensitive need,
716
00:31:13.200 --> 00:31:14.490
particularly given the delays
717
00:31:14.490 --> 00:31:16.950
associated with permitting this facility.
718
00:31:16.950 --> 00:31:20.190
And they included within that analysis,
719
00:31:20.190 --> 00:31:23.220
the benefits of the community benefits agreement
720
00:31:23.220 --> 00:31:25.720
which provided significant tree canopy
721
00:31:26.640 --> 00:31:27.630
enhanced funding for--
722
00:31:27.630 --> 00:31:29.100
Was it really significant or was there...
723
00:31:29.100 --> 00:31:31.450
I thought it was like five trees or something like that.
724
00:31:31.450 --> 00:31:32.580
I had a list of things,
725
00:31:32.580 --> 00:31:35.877
but tree canopies was one of the items funding--
726
00:31:37.710 --> 00:31:40.770
The trees are kind of not a lot, right?
727
00:31:40.770 --> 00:31:43.140
You're not really relying on tree cover.
728
00:31:43.140 --> 00:31:44.400
They were gonna be at the playground
729
00:31:44.400 --> 00:31:47.790
to help screen the playground and provide more shade
730
00:31:47.790 --> 00:31:51.180
and cover to the users of the recreational area
731
00:31:51.180 --> 00:31:55.050
that's adjacent across the street from the substation site.
732
00:31:55.050 --> 00:31:57.060
But the community benefits agreement in total
733
00:31:57.060 --> 00:31:58.950
has about a million and a half dollars of benefits
734
00:31:58.950 --> 00:32:02.880
that include funding for recreational use
735
00:32:02.880 --> 00:32:04.680
and enhancing the urban wild
736
00:32:04.680 --> 00:32:06.990
that's adjacent to the substation site
737
00:32:06.990 --> 00:32:09.840
is a direct benefits to the community.
738
00:32:09.840 --> 00:32:11.400
And while they talk about the costs
739
00:32:11.400 --> 00:32:13.980
and they have concerns about that on the appellant side,
740
00:32:13.980 --> 00:32:16.380
those costs will actually be born and shared
741
00:32:16.380 --> 00:32:21.120
and spread across the Eversource territory,
742
00:32:21.120 --> 00:32:22.440
so they are not receiving
743
00:32:22.440 --> 00:32:24.450
an inequitable share of those costs.
744
00:32:24.450 --> 00:32:25.830
So summarize for me
745
00:32:25.830 --> 00:32:28.050
the environmental benefits to the community
746
00:32:28.050 --> 00:32:29.100
as you understand it.
747
00:32:29.100 --> 00:32:32.220
It's the cleaning up of the property
748
00:32:32.220 --> 00:32:34.323
which would otherwise not be cleaned up.
749
00:32:35.190 --> 00:32:37.920
It's this tree canopy.
750
00:32:37.920 --> 00:32:39.030
It's what else?
751
00:32:39.030 --> 00:32:41.010
It's the remediation of the site,
752
00:32:41.010 --> 00:32:43.290
which is separate from the community benefits agreement
753
00:32:43.290 --> 00:32:48.290
by removing essentially 10,000 tons of contaminated soil
754
00:32:49.470 --> 00:32:51.270
as well as thousands of gallons
755
00:32:51.270 --> 00:32:53.280
of contaminated groundwater
756
00:32:53.280 --> 00:32:56.730
that was at a cost of $5 million roughly.
757
00:32:56.730 --> 00:32:58.650
Justice Kafker asked that earlier.
758
00:32:58.650 --> 00:32:59.970
Those are very significant benefits
759
00:32:59.970 --> 00:33:01.980
that were not materializing
760
00:33:01.980 --> 00:33:05.820
when the property was in the hands of the city of Boston.
761
00:33:05.820 --> 00:33:06.930
So those are very important
762
00:33:06.930 --> 00:33:09.810
significant benefits, environmental benefits.
763
00:33:09.810 --> 00:33:11.760
Can I ask the effect,
764
00:33:11.760 --> 00:33:14.430
I have some knowledge of AULs and remediation,
765
00:33:14.430 --> 00:33:17.310
but so you've got, as Justice Wendlandt points out
766
00:33:17.310 --> 00:33:20.060
a park next to this, how does...
767
00:33:21.030 --> 00:33:25.620
When you clean up that neighboring property to an AUL level,
768
00:33:25.620 --> 00:33:27.930
what's that effect on the...
769
00:33:27.930 --> 00:33:31.080
Is that making it safer for the people in the park
770
00:33:31.080 --> 00:33:33.510
or how does that work?
771
00:33:33.510 --> 00:33:36.930
Well, it ensures that some of those contaminated soils
772
00:33:36.930 --> 00:33:39.813
do not escape off site by removing them from the site.
773
00:33:41.318 --> 00:33:45.360
The remediation here was to remediate it
774
00:33:45.360 --> 00:33:47.580
to a level that would accommodate a substation
775
00:33:47.580 --> 00:33:48.987
if it was going to be a recreational use,
776
00:33:48.987 --> 00:33:51.000
and it had never been a recreational use.
777
00:33:51.000 --> 00:33:54.060
It had longstanding use by the city of Boston
778
00:33:54.060 --> 00:33:57.570
as a Department of Public Works Depot.
779
00:33:57.570 --> 00:34:01.470
And it would not be a recreational use without
780
00:34:01.470 --> 00:34:03.210
significantly additional remediation
781
00:34:03.210 --> 00:34:05.640
that the city was not intending to perform.
782
00:34:05.640 --> 00:34:06.840
So go ahead, keep going.
783
00:34:06.840 --> 00:34:08.520
The environmental benefits of the property,
784
00:34:08.520 --> 00:34:10.320
are what else?
785
00:34:10.320 --> 00:34:12.120
Also is within the definition
786
00:34:12.120 --> 00:34:15.810
of environmental benefits is access
787
00:34:15.810 --> 00:34:17.340
to clean renewable energy
788
00:34:17.340 --> 00:34:20.140
that's within the definition that's provided by statute.
789
00:34:21.360 --> 00:34:22.980
Without a reliable energy supply,
790
00:34:22.980 --> 00:34:24.840
without transmission, without a substation,
791
00:34:24.840 --> 00:34:26.700
this community would be foreclosed
792
00:34:26.700 --> 00:34:29.190
from being able to access renewable energy,
793
00:34:29.190 --> 00:34:31.290
green energy to serve its energy needs,
794
00:34:31.290 --> 00:34:32.940
that's a very important consideration to the Siting Board.
795
00:34:32.940 --> 00:34:35.040
Okay. So opposing counsel says
796
00:34:35.040 --> 00:34:38.190
you didn't do enough reasonable alternative analysis.
797
00:34:38.190 --> 00:34:40.710
Massport is always at East Boston.
798
00:34:40.710 --> 00:34:42.810
Massport should be the one,
799
00:34:42.810 --> 00:34:45.090
so what's your answer to that?
800
00:34:45.090 --> 00:34:47.280
That issue is fully and fairly litigated
801
00:34:47.280 --> 00:34:48.330
in the prior proceedings.
802
00:34:48.330 --> 00:34:50.190
and this Siting Board's policy
803
00:34:50.190 --> 00:34:51.737
as well as this courts affirm that those issues--
804
00:34:51.737 --> 00:34:53.160
So was there nothing...
805
00:34:53.160 --> 00:34:53.993
I just wanna make sure.
806
00:34:53.993 --> 00:34:56.940
Is there nothing new on alternative analysis?
807
00:34:56.940 --> 00:35:00.390
Did again, I skimmed through this 220 page decision.
808
00:35:00.390 --> 00:35:01.620
I haven't read it yet fully,
809
00:35:01.620 --> 00:35:04.290
but is there anything there
810
00:35:04.290 --> 00:35:08.520
re-upping the alternative site analysis?
811
00:35:08.520 --> 00:35:10.890
There was no new evidence other than a confirmation
812
00:35:10.890 --> 00:35:12.990
that Logan Airport was not available as a site
813
00:35:12.990 --> 00:35:14.640
that was reconfirmed during the proceeding.
814
00:35:14.640 --> 00:35:17.280
It was part of the record of the proceeding.
815
00:35:17.280 --> 00:35:19.830
And the Siting Board made the finding that
816
00:35:19.830 --> 00:35:22.530
there was no location outside of Tidelands.
817
00:35:22.530 --> 00:35:24.480
This is the sole location that was available
818
00:35:24.480 --> 00:35:26.160
for this substation use.
819
00:35:26.160 --> 00:35:28.680
In fact, it was earmarked by the city of Boston
820
00:35:28.680 --> 00:35:33.330
through an RFP as part of a land swap where the city had,
821
00:35:33.330 --> 00:35:35.400
as one of the conditions for its RFP,
822
00:35:35.400 --> 00:35:37.200
that the use of the property
823
00:35:37.200 --> 00:35:38.880
would go to the beneficial interest
824
00:35:38.880 --> 00:35:40.530
of the residents of East Boston,
825
00:35:40.530 --> 00:35:42.120
where reliability and substation
826
00:35:42.120 --> 00:35:43.830
is a key component of that.
827
00:35:43.830 --> 00:35:46.890
Before we lose you, the DEP issue,
828
00:35:46.890 --> 00:35:51.180
so it's, we don't have a definitive decision
829
00:35:51.180 --> 00:35:54.123
out of DEP in the other case.
830
00:35:55.050 --> 00:35:57.390
I understand that your agency,
831
00:35:57.390 --> 00:36:01.290
his agency is empowered to make this determination
832
00:36:01.290 --> 00:36:02.313
with or without DEP.
833
00:36:03.870 --> 00:36:07.860
Here it's a lot easier when DEP agrees with you.
834
00:36:07.860 --> 00:36:11.610
So far DEP agrees with you in your case, right?
835
00:36:11.610 --> 00:36:14.850
But it hasn't resolved the other case.
836
00:36:14.850 --> 00:36:15.840
That's correct, Your Honor.
837
00:36:15.840 --> 00:36:17.160
The other case is different.
838
00:36:17.160 --> 00:36:18.120
It's materially different.
839
00:36:18.120 --> 00:36:19.350
The facility is different.
840
00:36:19.350 --> 00:36:21.840
It's not defined as an ancillary facility,
841
00:36:21.840 --> 00:36:23.580
unlike a substation.
842
00:36:23.580 --> 00:36:25.980
There was evidence in the Weymouth case that I--
843
00:36:27.090 --> 00:36:29.220
I thought the Weymouth case also has...
844
00:36:29.220 --> 00:36:33.480
It wasn't an ancillary facility in Weymouth as well.
845
00:36:33.480 --> 00:36:36.060
It is not within the definition of DEPs
846
00:36:36.060 --> 00:36:39.900
waterways regulations at 310 CMR 9.02.
847
00:36:39.900 --> 00:36:43.350
A substation is, it's the first listed facility.
848
00:36:43.350 --> 00:36:44.183
What is this?
849
00:36:44.183 --> 00:36:45.797
Could you slow that down, 310 what?
850
00:36:45.797 --> 00:36:49.053
310, Code of Mass Regulations 9.02.
851
00:36:50.820 --> 00:36:53.880
There is no mention of a gas compressor station.
852
00:36:53.880 --> 00:36:55.950
The evidence was that the gas pipeline there
853
00:36:55.950 --> 00:36:59.670
was working effectively without a compressor station.
854
00:36:59.670 --> 00:37:01.590
Juxtapose the facts here.
855
00:37:01.590 --> 00:37:04.410
Without the substation the transmission lines
856
00:37:04.410 --> 00:37:06.930
that are already licensed by DEP
857
00:37:06.930 --> 00:37:10.170
would not work and serve their intended purpose
858
00:37:10.170 --> 00:37:11.670
as other issues such as
859
00:37:11.670 --> 00:37:14.220
the siting of that gas compressor station.
860
00:37:14.220 --> 00:37:15.840
The evidence in the Waymouth case
861
00:37:15.840 --> 00:37:17.850
is that there were locations out of Tidelands
862
00:37:17.850 --> 00:37:19.350
that would accommodate that use,
863
00:37:19.350 --> 00:37:21.240
that's squarely not the case here.
864
00:37:21.240 --> 00:37:22.890
So the facts are materially different.
865
00:37:22.890 --> 00:37:25.935
But to get right to the heart of your question,
866
00:37:25.935 --> 00:37:28.140
DEP is not resolved that issue
867
00:37:28.140 --> 00:37:29.430
and it's still pending.
868
00:37:29.430 --> 00:37:31.950
But DEP in this case had affirmative testimony
869
00:37:31.950 --> 00:37:34.650
from their head of their waterways licensing division
870
00:37:34.650 --> 00:37:36.950
that they agreed with the...
871
00:37:37.980 --> 00:37:40.020
They three times found that this facility
872
00:37:40.020 --> 00:37:41.490
was water dependent and agreed
873
00:37:41.490 --> 00:37:42.630
with the Siting Board rolling it
874
00:37:42.630 --> 00:37:46.203
into for purposes of the substation.
875
00:37:47.460 --> 00:37:48.390
I see my time is up.
876
00:37:48.390 --> 00:37:50.310
Unless the court has a further questions,
877
00:37:50.310 --> 00:37:51.423
we rest on our briefs.