PUC’s Electric Transmission Line Environmental Impact Inquiry “Little More Than a Speed Bump,” Says Court Dissenter

Pennsylvania’s electric utilities need consider potential adverse environmental impacts only for the route proposed and the considered alternate routes when siting high voltage transmission lines, and need not consider the environmental impact of other potential engineering solutions considered to address the underlying reliability issue, said a majority of the Commonwealth Court in affirming the PUC’s approval of PPL’s Lehigh Valley Region transmission upgrade.  Board of Supervisors of Springfield Township v. Pa.PUC, ___ A.3d ___ (Pa. Cmwlth. 2012) (No. 1624 C.D. 2009, filed January 13, 2012).

The PUC’s electric transmission line siting regulations, which include a provision requiring an examination of adverse environmental impact of various alternative routes, implement Article 1, Section 27 of the Pennsylvania Constitution which directs the Commonwealth to preserve “ natural, scenic, historic, and esthetic values of the environment.”  In designing an upgrade for its Lehigh Electric transmission network, PPL engineers identified two “functional configurations” that could accomplish the desired result, one of which would have required the construction of a 3-4 mile line through more densely populated areas, and the other of which required a 6-7 mile line through a less populated region that included a woodland preserve, golf course, and other suburban and more rural attributes.  PPL rejected the configuration that would have required traverse of the more densely populated area in favor of the other configuration, then plotted and compared three alternative route options for the configuration chosen, performing an environmental assessment as to each, but without ever considering the environmental impact of the configuration not chosen. Arguing that PPL should have plotted and compared alternative routes for the configuration not chosen, Springfield Township protested PPL’s siting approval application before the PUC. The PUC disagreed and approved PPL’s application, and a majority of the en banc Commonwealth Court affirmed, reasoning that the PUC’s regulations require only that the utility assess the environmental impacts of alternative routes to implement a selected configuration, not the environmental impacts of a configuration not chosen. “To summarize, the Commission’s siting regulations apply to and require the satisfaction of criteria related to the proposed HD line and the alternate routes for the high voltage transmission line. No requirements exist to rejected functional configurations.” Slip op. at 15.

Dissenting, Judge Leavitt observed that the PUC had specifically adopted regulations to place “an intensified burden” on public utilities to justify the environmental degradation presented by the construction of any new high voltage transmission line. “In this case, the Commission has reduced this intense burden to little more than a speed bump, thereby abusing its discretion.” Dissent at 2.  Reviewing the PUC’s 1976 proposal to promulgate the regulation in question, Judge Leavitt pointed out that the purpose of the regulation was to provide oversight at a sufficiently early stage in the development of new transmission facilities so as to accomplish the least possible adverse impact on the environment.  In practice, however, 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.’” Dissent at 7.  In sum, she concluded, PPL’s failure to conduct an environmental evaluation of the functional configuration not chosen rendered it unable to carry its burden under the regulation: “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.”

Evaluating the Commission’s process, she observed:  “The Commission has allowed HV electric transmission line regulation to devolve into the worst kind of regulation.  It creates busy work 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 [the environment as commanded by Article 1, Section 27].”

A copy of the decision is attached here:  images/stories/pdf/kjm/springfield v. papuc order.pdf