Commonwealth Court Upholds PUC's Approval of PPL's Poconos Transmission Line

In January 2009, PPL Electric Utilities Corp. (“PPL”) sought Pennsylvania Public Utility Commission (“PUC”) approval to construct a 500kV Pennsylvania-New Jersey transmission line, part of which, subject to the issuance of appropriate permits, will run through the National Park system in Pennsylvania's Pocono Mountains.  The project involves modernization of an existing 230kV transmission line and the exercise of eminent domain over five parcels of land.  A PUC Administrative Law Judge issued a recommended decision granting PPL’s application on the condition that PPL not begin construction on the 230kV line prior to obtaining all approvals necessary for construction.  The PUC's final opinion and order adopted the ALJ’s recommended decision but also required that PPL inform the PUC whether it intended to defer its construction schedule and refrain from constructing a certain portion of the 230kV line until obtaining a National Park Service permit.  On reconsideration, the PUC clarified that PPL could begin construction on any other part of either line that was not subject to the National Park Service permit because to hold otherwise “would result in a significant, unacceptable delay in light of the demonstrated need for the line.”

The Energy Conservation Council (“ECC”) argued on appeal that the PUC erred by finding that the alternatives evaluated by PPL were adequate to address the reliability issues the project was designed to correct, particularly since PPL’s evaluation (1) failed to include non-transmission alternatives, (2) did not evaluate certain demand side resources, (3) did not use an updated load forecast, (4) failed to evaluate the effects of Pennsylvania’s and New Jersey’s energy efficiency statutes.

Rejecting the EEC's arguments and affirming the PUC, the Commonwealth Court found no error in PPL’s failure to consider non-transmission alternatives.  In addition, the regulations require only that PPL consider “the available alternatives,” not “all available alternatives,” and the record demonstrated that PPL considered at least 30 alternatives including market-driven additions of new generation capacity and demand side management resources, neither of which are transmission-related.  PPL also conducted significant siting studies and adopted criteria to ensure minimal crossing of natural resource lands, which would have the added benefit of minimizing any electromagnetic impact.  The record also established that PPL did use updated load forecasts and that the updated forecasts affirmed a need for the lines.  Failure to consider the effects of energy efficiency statutes was not an error, according to the Commonwealth Court, because the statutes were recently-enacted and their future effects are currently unknown.  All of this established by a preponderance of the evidence and to the satisfaction of the Commonwealth Court that the PUC rightfully found that PPL had complied with statutory and regulatory requirements.

The EEC also argued that the PUC erred in allowing construction to commence prior to National Park Service permitting.  Despite the ALJ’s requirement that the permits be acquired before construction begins, the Commonwealth Court held that the PUC’s siting regulations do not require receipt of all necessary permits prior to construction and the 80-year-old line would have to be replaced whether it was part of the proposed project or not.

Finding that PPL's proposed project met all statutory and regulatory requirements and that a utility is not required to obtain all of a project’s necessary permits before commencing construction on any individual parts of the project not subject to the permits, the Commonwealth Court affirmed the PUC’s approval of PPL’s application.

The full text of the Commonwealth Court order can be found here.