Chester Township v. Power Siting Commission

Locheb, J.,

dissenting. Today, it is evident that overhead high voltage transmission lines are a fact of life in a world in which the demands for electric power are constantly growing. Furthermore, it is presently accepted that there is no known way to produce, transmit and distribute electric energy without some effect on the environment; Indeed, it is ironic that, just at the time when a portion of our society has become concerned with the environment and aesthetic questions, this country is saddled with an insatiable appetite which consumes ever increasing amounts of electricity and all other; known forms of energy. The *240result is a conflict between the needs of a highly technological society and an increased awareness of environmental considerations.

A realization of this conflict served as an impetus to the General Assembly’s establishment of the Power Siting Commission (hereinafter “commission”). In general, the commission is responsible for evaluating the effects on the environment of proposed and alternative sites for the location of power plants and transmission line routes. 43A Ohio Jurisprudence 2d, Pollution Control, Section 155. R. C. 4906.04 states that no person shall commence to construct a major utility facility in Ohio without first having obtained a certificate for the facility from the commission. Guidelines for the issuance of the certificate are established by R. C. 4906.10. In relevant part, they require the commission to find:

(1) The basis for the need for the facility;

(2) the nature of probable environmental impact;

(3) that the facility represents the minimum, adverse environmental impact, considering the state of available technology and the nature and the economics of various alternatives, and other pertinent considerations; and

(4) that the facility will serve the public interest, convenience and necessity.

Furthermore, R. C. 4906.13 prevents public agencies and political subdivisions from requiring approval, consent, permit, certificate or other condition for construction or initial operation of a major utility facility. Plainly speaking, the object of the statute is to prevent local authorities from placing “local” considerations ahead of “statewide” concerns. Clearly, the General Assembly created the commission to balance the presently competing interest of energy and environment, endowed it with the necessary power to prevent local concerns from interfering with statewide energy needs, and then formulated the guidelines within which the commission is to perform its task. To this court was given the duty of ascertaining the commission’s adherence to these principles.

*241Today’s affirmance of the commission’s order grants the approval of this court to a standard that, when applied, rejects, for apparently aesthetic reasons only, the judgment of the duly elected representatives of a community concerning the nature of transmission towers to be placed within their community and accepts the design proposed by the utility and its hired consultant, regardless of the failure to show that the design chosen by the community is unreasonable, conflicts with an overriding state interest, or impairs the ability of the utility to complete the project for which it seeks certification. While I concur with the majority’s statement that this court must apply the same standard of review to the commission’s determination as it applies to the orders of the Public Utilities Commission, I disagree with its conclusion that the commission’s findings were supported by considerable evidence and the determinations based thereon were reasonable and lawful.

The facts reveal the commission’s acceptance of the recommendation of the utility and its consultant to use horizontal lattice design transmission towers along that segment of the route passing through Chester Township, despite the fact that the Board of Trustees of Chester Township approved the “H” frame steel pole design as being compatible with the community and its future, development. In finding the commission’s order reasonable and lawful, the majority points to the following evidence:

(1) the “lattice” design is well suited to the predominantly wooded landscape of Chester Township;

(2) the “lattice” design towers are compatible with the existing towers on the right-of-way; and -

(3) the “lattice” design towers cost 80 percent less than the design approved by the trustees.

In addressing the last point first, the record is inundated with comments by the representatives of the utility implying that cost was not a controlling factor in the selection of the “lattice” type tower for use on the route through Chester Township. In fact, counsel for appellee reiterated the same proposition in oral argumént before .this , court. *242The utility presented various viable tower designs for use along the route from which Chester Township chose their design which incidentally was not the most expensive of the designs submitted. The commission made no finding of the exact total dollar increase that would result with the use of the “H” frame tower for that portion of the route traversing Chester Township. Nor did the commission relate this- increased cost as a percentage to the total cost of the project, or its ultimate relationship to utility rates. G-enerally, the cost problem presented by the variance in cost between transmission tower designs is minimal in relationship to the overall cost of the project.6 Therefore, it appears unreasonable for the commission to base its decision on a factor which the utility has frequently admitted played no relevant part in its decision to use the “lattice” type structure.

The argument that the “lattice” design towers are compatible with the existing transmission towers is hardly more compelling. Evidence obtained during the hearings showed that the existing towers were constructed in the 1930’s. Even if aesthetics were considered when these existing towers were constructed, it is reasonable to assume that their environs have changed during the past 45 years. The commission is thus basing its order on the proposition that what was good in 1930 must continue to be appropriate for 1976.

Furthermore, evidence was presented and a finding made by the administrative law judge that transmission towers had a useful life of 75 years. In this regard, Chester Township expressed its desire that the existing towers *243would at the expiration of their useful life he replaced by a tower of a design more compatible with the community. The commission’s order would merely perpetuate the use of a tower similar to existing towers for the mere sake of symmetry. Application of this tenet places a developing community in the position of forever being saddled with transmission towers similar to those already existing within the community. Thus, the community is left to place the blame on their nearsighted forefathers.

The only remaining evidence from which the commission could reasonably conclude the “lattice” design tower is preferable to the “H” steel pole design was the testimony of the utility representatives as to the findings of their consultants that the lattice design is well suited to the predominantly wooded landscape of Chester Township. Thus, the decision of the commission appears to be based not on the energy needs of the state, economics, or technological considerations but upon aesthetics, beauty versus ugliness, or likes versus dislikes. The commission accepted the “taste” of the utility and its consultants in spite of the request of the duly elected representatives of Chester Township to use a tower which they believe to be more compatible with their community and their plans for their future. It will not be the utility, its consultants, the commission or the vast majority of the populace of Ohio, but the residents of Chester Township who will awake each morning to find the “erector-set” images superimposed on their vision of the horizon. Beauty and ugliness or likes and dislikes are purely subjective. The requirement of probative evidence as to the effect on the residents and the community is both impractical and unrealistic. The residents of Chester Township will bear the imposition; it is only logical that, if this necessary intrusion could be . slightly lessened by taking a different form, fulfillment of a minimum adverse environinental impact should be the commission’s objective.

Chester Township’s choice of the “H” design tower instead of the “lattice” design transmission tower in no *244manner impedes or restricts the transmission of needed electricity. This is not the classic example of the conflict between energy and the environment. The transmission lines will traverse the township. The township’s request only goes to the . nature of the beast, not to its existence. The township’s request would present no technical obstructions to the completion of the project. R. C. 4906.10 requires the commission to determine the facilities that represent the minimum adverse impact. It is the opinion of the representatives of the community that the use of the “H” design tower would minimize the adversity of this necessary creature of our modern world. Thoughtful consideration of and due respect to an affected community’s opinion expressed by its legal representatives by the commission is implied from the notice provision of R. C. 4906.06(B). However, thoughtful consideration and due respect are certainly not implied by the statement the commission used in disposing of the township’s request:

“Simply stated, there is a lack of evidence to justify the use of steel pole, H-frame structures in Chester Township.”

I believe it is unreasonable to infer a legislative intent that the commission, in circumstances as these and where no matter of statewide concern is presented, is presumed to be able to tell the inhabitants of a community what they will like or dislike.

‘The aesthetics issue has, however, on occasion arisen in another and more diffuse form when it is. contended, not that the transmission lines should be placed underground, but that they should be supported by some type of structure different from that proposed, allegedly more aesthetic. Generally speaking, here the cost problem becomes less acute and we are confronted with a simple comparison of the attractiveness of one type of a structure as opposed to another. * * *” Buchmann, Electric Transmission Lines and the Environmment (1972), 21 Cleveland State L. Rev. (2), 121, 133.