Board of Supervisors v. Pennsylvania Public Utility Commission

DISSENTING OPINION BY

Judge LEAVITT.

Respectfully, I dissent. Article I, Section 27, of the Pennsylvania Constitution1 commands the Commonwealth’s government to preserve Pennsylvania’s natural, scenic and historic resources.2 To implement that constitutional directive, the Public Utility Commission (Commission) has adopted a binding regulation to place an “intensified burden” upon public utilities to justify the environmental degradation presented by the construction of any new high voltage (HV) electric transmission line. In this case, the Commission has reduced this intense burden to little more than a speed bump, thereby abusing its discretion.

At issue here is a certificate of public convenience sought by PPL Electric Utility Corporation (PPL) for a new seven-mile HV electric transmission line that will cut a 100-foot wide corridor through a pristine *152woodland preserve enhanced by a high-quality stream that is home to a number of cold water fish species. PPL’s certificate application explained that this environmental intrusion was necessary to meet the future electric service needs in the southern part of the Lehigh Valley. PPL reached this conclusion by using a planning process that was supposed to assure the public that it will “supply electricity to all customer loads in a reliable, economic and environmentally acceptable manner.” Reproduced Record at 21a (R.R. -) (emphasis added). Springfield Township challenges the conclusion that there is anything environmentally acceptable about PPL’s proposal.

PPL’s planning process began with an identification of the many variables to electric transmission and then used computer simulations to produce an “economic and environmentally acceptable” plan. R.R. 23a. The modeling produced two engineering solutions: the Springfield Functional Configuration and the PPL Functional Configuration.3 PPL chose the PPL Functional Configuration because it was projected to cost $5 million less, a point contested by the litigants. PPL did not compare the relative environmental merits of the two configurations, even though each plan had equal potential to solve the electric service issues that prompted the project.

The Administrative Law Judge found, as fact, that PPL did not consider the environmental impact of the Springfield Functional Configuration even while acknowledging that a “more detailed analysis of environmental and land use assessment” would have been appropriate. R.R. 588a. The ALJ neither agreed nor disagreed with Springfield Township’s expert that the regional reliability issue could be addressed by the Springfield Functional Configuration and without the need to construct a new substation and HV electric transmission line. Nor did the ALJ consider the evidence that with minor modifications, the Springfield Functional Configuration would be less costly than the PPL Functional Configuration.4 This evidence was admitted as probative and relevant, but it was then ignored by the ALJ and by the Commission.

The regulation states that the Commission “will not” grant a certificate of public convenience for a new HV electric transmission line unless and until

it finds and determines [that] the proposed HV line ... will have minimum adverse environmental impact, considering the electric power needs of the public, the state of available technology and the available alternatives.

*15352 Pa.Code § 57.76(a)(4) (emphasis added).5 The Commission considered three alternate routes for the PPL Functional Configuration, but that does not end its mandatory inquiry.6 The Commission then had to go the final step of finding that the proposed HV electric transmission line in the PPL Functional Configuration would have a “minimum adverse environmental impact ...” given the “available alternative” of the Springfield Functional Configuration. 52 Pa.Code § 57.76(a)(4). We know this from the text of the regulation and from the Commission’s own published explanations of the regulation’s purpose.

When the Commission proposed the regulation in 1976, it explained that the regulation was needed because, traditionally, study of a proposed HV line’s “environmental impact [was] limited in scope to the property to be condemned or to the service territory to be traversed.” Re: Proposed Electric Regulation, 1976 Pa. PUC Lexis 114 (March 2, 1976), at *2. The Commission expressed concern that such limited “review occurs too late” because

[i]n many cases, the application for certification is not filed until a final route has been selected, most of the needed rights-of-way have been purchased, and some construction begun ... [thus] creating] substantial restraints with respect to modifying the location and construction of the proposed line.

Id. at *2-*3. The new regulation would remedy this problem by providing oversight “at a sufficiently early stage in the development of new transmission facilities so that the Commission, the public, and interested parties can participate in an effective review.” Id. The Commission promised that its regulation would “ensure *154that [any new HV line] will have the least 'possible adverse impact on the environment and will present the least possible danger to public health and safety.” Id. (emphasis added). In its order adopting the regulation, the Commission explained it intended the regulation to burden the utility with showing “on the record that the environment has been considered in its planning” for any new HV transmission line. 8 Pa. Bull. 1405 (1978) (emphasis added).7

None of these promises have been fulfilled here. To be sure, PPL presented evidence on three alternate routes: the Cross Country Route, the Route 309 Line, and the SEPTA Line. The Cross Country Route was estimated to cost $13 million; the Route 309 line $25 million; and the SEPTA Line $31 million. PPL simply stacked the deck in favor of the route it actually wanted and in which it had already invested. By the time it submitted its application, PPL was well past the planning stages. It had purchased one property and removed the home (R.R. 107a); purchased 85 acres for its proposed substation (R.R. 88a); negotiated rights-of-way with property owners along the Cross Country Route (R.R. 17a); and worked with Tumblebrook Municipal Golf Course to run the new HV electric transmission line across its property (R.R. 15a). However, none of these implementing steps were to be taken in advance of the Commission’s review. Re: Proposed Electric Regulation, 1976 Pa. PUC Lexis 114 (March 2, 1976), at *2. In sum, the Commission has reverted to its pre-regulation days when it examined only “the property to be condemned or ... the service territory to be traversed.” Id.

To rationalize its decision not to evaluate the environmental impact of the Springfield Functional Configuration, the Commission explains that the focus of Section 57.76 is on the siting of the proposed HV electric transmission line, not its alternatives.8 PPL chimes in that “available alternatives” means “alternative routes” and that any other interpretation will place an impossible burden on the utility. These arguments cannot be reconciled with the text and stated purpose of the regulation.

First, “available alternative,” as used in Section 57.76(a)(4), is not synonymous with “alternate route,” as used in Section 57.75(e). Indeed, “alternative route” is a defined term:

Alternate route or alternative route — A reasonable right-of-way which includes not more than 25% of the right-of-way of the applicant’s proposed route.

52 Pa.Code § 57.1. The drafters found it necessary to explain that “alternate” and “alternative” were synonymous when used as adjectives modifying the noun “route.” Notwithstanding this high degree of word sensitivity, the drafters did not sweep *155“available alternative” into this definition. Their decision must be presumed intentional. In mandating that an HV line have a “minimum adverse environmental impact, considering . -.. the available alternatives,” the word “alternatives” means something other than “alternate routes.” 52 Pa.Code § 57.76(a)(4). By reading “alternative,” the noun, as identical to “alternative route,” the Commission is adding words to its regulation. This is error. Guinn v. Alburtis Fire Company, 531 Pa. 500, 503 n. 4, 614 A.2d 218, 220 n. 4 (1992) (words cannot be added to legislation).

Second, the Commission’s present construction of “alternative” in Section 57.76(a)(4) gives utilities an easy, and somewhat perverse, path around the regulation’s command. The utility can choose a route on any grounds, such as a desire to use land purchased from a board member. The utility can then justify any degree of environmental degradation presented by that choice simply by offering more noxious, or even silly, “alternative routes.”

Third, the Commission cannot find that a utility’s proposed HV electric transmission line will have “minimum adverse environmental impact” without considering the “available technology” and “available alternative.” That alternative might eliminate the need for a new HV electric transmission line with a totally different technological alternative. This explains why the word “route” does not appear in 52 Pa. Code § 57.76(a)(4).

PPL argues that any other reading of “available alternatives” will require it to consider every possible alternative. This is a not very convincing bogeyman. As this Court held in O’Connor v. Pennsylvania Public Utility Commission, 136 Pa.Cmwlth. 119, 582 A.2d 427, 433 (1990), a utility is required only to “show that it has made a reasonable decision, not the best possible decision.” PPL rejected the Springfield Functional Configuration on grounds of cost and greater flexibility of the PPL Functional Configuration. By its own admission, PPL did not factor environmental impact into that evaluation. In the absence of that consideration, PPL cannot show that its proposed solution was a reasonable one. Accordingly, the Commission failed in its duty to avoid, where feasible, an adverse environmental impact. See Payne v. Kassab, 468 Pa. 226, 245-47, 361 A.2d 263, 272-73 (1976) (holding that Article I, Section 27 of the Pennsylvania Constitution requires agencies to prevent environmental harm where feasible and, if not feasible, to keep the harm to a minimum). In the absence of any environmental evaluation of the Springfield Functional Configuration, PPL did not prove that the construction of a 100-foot corridor through the Springfield Resource Protection District and deforestation of 44 acres of land was an unavoidable insult to the environment.9

The Commission has allowed its HV electric transmission line regulation to devolve into the worst kind of regulation. It creates busywork for corporate and government bureaucrats; billable hours for consultants and lawyers; and the illusion of environmental protection. In the end, however, the regulation does not advance the substantive goal of preserving

Pennsylvania’s public natural resources [that] are the common property of all *156the people, including generations yet to come.

Pa. Const. Art. I, § 27.

The Commission erred and abused its discretion in finding that PPL’s proposed HV electric transmission line will have a minimum adverse environmental impact because it failed to follow the mandate of its regulation that it consider the available alternative. I would reverse and remand for the Commission to evaluate the environmental impact of the Springfield Configuration.

. Article I, Section 27 of the Pennsylvania Constitution states:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

. In Payne v. Kassab, 468 Pa. 226, 245, 361 A.2d 263, 272 (1976), our Supreme Court stated:

There can be no question that [Article I, Section 27, of the Pennsylvania Constitution] itself declares and creates a public trust of public natural resources for the benefit of all the people (including future generations as yet unborn) and that the Commonwealth is made the trustee of said resources, commanded to conserve and maintain them.

. In its application, PPL refers to the PPL Functional Configuration as "Alternative 1” and the Springfield Functional Configuration as "Alternative 2.” See R.R. 29a-35a.

. Springfield Township's engineering expert, Peter Lanzalotta, agreed that PPL needs to reinforce its service in southern Lehigh County by 2014. He opined, however, that PPL could quadruple its transformer capacity at existing substations, which would eliminate the need for a new substation. He explained that this would create "considerably more expansion capacity ... than PPL would need by 2014 or for many years thereafter.” R.R. 211a. Lanzalotta testified that the Springfield Functional Configuration could use existing substations and HV transmission lines, thereby eliminating the need for any new construction or adverse impact on the environment. By reconductoring existing lines, PPL could more than double their current capacity and significantly reduce the cost of the Springfield Functional Configuration. Finally, Lanzalotta disputed PPL's claim that a centralized substation is needed, noting that PPL provided no data to show that customer service interruptions are a problem in the region or that service operations are affected by the length of a transmission line.

. Section 57.76(a) states:

(a) The Commission will issue its order, with its opinion, if any, either granting or denying the application, in whole or in part, as filed or upon the terms, conditions or modifications, of the location, construction, operation or maintenance of the line as the Commission may deem appropriate. The Commission will not grant the application, either as proposed or as modified, unless it finds and determines as to the proposed HV line:
(1) That there is a need for it.
(2) That it will not create an unreasonable risk of danger to the health and safety of the public.
(3) That it is in compliance with applicable statutes and regulations providing for the protection of the natural resources of this Commonwealth.
(4) That it will have minimum adverse environmental impact, considering the electric power needs of the public, the state of available technology and the available alternatives.

52 Pa.Code § 57.76(a) (emphasis added).

. The regulation identifies what evidence the Commission will consider in making its determination:

(e) At hearings held under this section, the Commission will accept evidence upon, and in its determination of the application it will consider, inter alia, the following matters:
(1) The present and future necessity of the proposed HV line in furnishing service to the public.
(2) The safety of the proposed HV line.
(3) The impact and the efforts which have been and will be made to minimize the impact, if any, of the proposed HV line upon the following:
(i) Land use.
(ii) Soil and sedimentation.
(iii) Plant and wildlife habitats.
(iv) Terrain.
(v) Hydrology.
(vi) Landscape.
(vii) Archeologic areas.
(viii) Geologic areas.
(ix) Historic areas.
(x) Scenic areas.
(xi) Wilderness areas.
(xii) Scenic rivers.
(4) The availability of reasonable alternative routes.

52 Pa.Code § 57.75(e) (emphasis added).

. In more detail, the Commission stated that its regulation expressed the Commission’s

notice of the fact that overhead electric transmission lines cannot be constructed without some adverse effect upon the environment.
This means that under Pennsylvania law every applicant for a siting certificate has an intensified burden to show on the record that the environment has been considered in its planning and that every reasonable effort has been made to reduce the environmental incursion to a minimum.

8 Pa. Bull. 1405 (1978) (emphasis added).

. The regulation sets the substantive standards for the grant of a certificate of public convenience for construction of an HV electric transmission line. 52 Pa.Code § 57.76(a). The standards for approval speak to the need for the HV electric transmission line and protection of the environment; those standards say nothing about the location for the line.

. The Commission notes the steps that PPL has taken to mitigate the environmental impact of the PPL Functional Configuration. These steps, however, address Section 57.76(a)(3), i.e., whether the proposed HV electric transmission line "is in compliance with applicable statutes and regulations providing for the protection of the natural resources of this Commonwealth.” 52 Pa.Code § 57.76(a)(3).