August 27, 2001
SITING COUNCIL REGULATION OF ENERGY FACILITIES
By: Kevin E. McCarthy, Principal Analyst
You requested a primer on how the Siting Council regulates pipelines and other energy facilities and the criteria it considers in making its decisions.
A Siting Council certificate is generally required to build or modify fuel pipelines, electric transmission lines, generating plants, and substations, as well as certain other facilities. CGS § 16-50g et seq. govern the council's regulation of energy (and telecommunications) facilities. Other statutes apply to the council's regulation of ash disposal areas and hazardous waste facilities.
The facility developer must consult with potentially affected municipalities before it applies to the council for a certificate. It must file an extensive application when it seeks a certificate, the contents of which vary by the type of facility. The applicant must provide a copy of its application to potentially affected municipalities; state legislators; and relevant local, state, and federal agencies. The applicant must provide newspaper notice of the application, and developers of power plants and substations must notify abutting property owners. In the case of power lines, notice must be provided in the electric bills of people in the affected municipalities.
The law allows a wide variety of individuals and groups to participate in council proceedings. The council must hold a hearing on the application, with one session held in the evening in the county where the facility would be located.
The council has 12 months from the application date to issue a decision on a pipeline, electric transmission, and substation that is part of a transmission line application. It has 180 days to issue a decision on power plants and substations that are not part of a transmission line application. The criteria that the council must use in granting a certificate depends on the type of the facility. In general, the council only grants a certificate if it determines that the need for the facility (in the case a power plant, the plant's public benefit) outweighs the environmental harm it may produce.
The developer generally must obtain a certificate before exercising any eminent domain power that it has been granted. However, developers of pipelines and transmission lines can acquire property without a certificate if (1) the council determines that the facility will cause no substantial environmental harm or (2) the acquisition complies with the council's regulations. Additional provisions apply when a utility seeks to condemn residential property.
The energy facilities under the council's jurisdiction are:
1. fuel pipelines, other than gas pipelines that transmit gas at less than 200 pounds per square inch;
2. electric transmission lines of 69 kilovolts (kv) or more, other than transmission line taps (lines that connect certain generating plants with the transmission grid);
3. electric generating plants, other than certain small plants owned by nonutility generators, fuel cells with a capacity of 10 kilowatts or less, and emergency generating devices; and
4. electric substations that handle electricity at 69 kv or more that the council determines may have a substantial environmental effect.
Generally, the council has exclusive jurisdiction over these facilities. Once the council grants a certificate, its decision fulfills the requirement to obtain approvals from any state or municipal agency with regard to the any question of public need, convenience, or necessity of the facility. But, municipal zoning and wetlands agencies can “regulate and restrict” the location of proposed power plants and substations. Although the law does not define this phrase, it has been used to change where a facility is located on a specific parcel so as to reduce its environmental impact.
Pre-application Consultation with Municipalities
Before applying for a certificate, the prospective applicant must consult with the municipality where he proposes to locate the facility, and any alternative locations under consideration. The consultation must include good faith efforts to meet with the chief elected officials of the municipalities. As part of the consultation, the prospective applicant must provide the officials with any technical reports regarding the need for the facility, the site selection process, and the facility's environmental effects. The municipality can hold public hearings and meetings with the prospective applicant to inform it of the municipality's recommendations.
The municipality must make its recommendations within 60 days of the initial consultation. Within 15 days of making its application, the applicant must supply the council all of the information it provided to the municipality, a summary of its consultations with the municipality, and the municipality's recommendations.
The law requires certificate applicants to file detailed information with their applications. For fuel pipelines, electric transmission lines, and substations, the applicant must provide, among other things:
1. a detailed description of the facility, including how it will improve service on the electric grid;
2. a map describing nearby populated areas, parks, and scenic areas;
3. a justification for the selected site or route, including a comparison to other feasible alternatives;
4. a description of consultations with public agencies regarding the siting process, including their positions;
5. a description of the proposed facility's effect on the environment and historic, scenic, and recreational values; and
6. a schedule for property acquisition, construction, and operation.
In addition, for electric transmission lines, the application must justify any overhead segments and include a cost study of overhead versus underground options over the facility's life cycle.
Different filing requirements apply to power plants. These include:
1. a statement of why the plant is needed;
2. safety and reliability information;
3. estimated cost information;
4. available site information, including geological, ecological, and water supply information; and
5. a description of measures that will be taken to reduce the plant's environmental impacts.
As in the case with the facilities described above, an application for a power plant must describe the plant. It must justify the chosen site and compare it with alternative sites. It must list the agencies from which approvals have been sought.
The law requires the applicant to notify a wide range of individuals, public agencies, and others. For any type of facility, the applicant must provide a copy of the application to:
1. each municipality which contains the proposed or alternative facility site, any municipality located within 2,500 feet of the facility, the planning and zoning commissions and inland wetlands agencies of these municipalities, and the regional planning agencies serving these municipalities;
2. each state legislator whose district includes the proposed or alternative sites;
3. various state agencies, including the departments of Environmental Protection, Public Health, and Public Utility Control; and
4. relevant federal agencies.
A notice of the application must also be published in local newspapers, in at least ten-point type (slightly smaller than the type used in this memo).
Notice of a certificate application for a power plant or substation must be sent, by registered or certified mail, to the owners of property abutting the proposed or alternative site. In the case of electric transmission lines, the notice must go to the local electric company. The company must provide a notice of the application to its customers with their electric bills. The notice sent to the customers must briefly describe the project and identify its location. The notice must provide information regarding the length and voltage of the line, the type and height of support towers, and the reason for the project. The notice must include an address and toll-free number where the customer can obtain additional information. The notice must include a heading stating “Notice of proposed construction of a high voltage electric transmission line.” This heading must be in 24-point type (twice as large as the type used in this memo).
The council must serve the parties with notice of its decision and publish a notice in local newspapers.
Participants in the Certification Proceedings
The law allows a wide variety of individuals and groups to participate in council proceedings. The following can participate as parties:
1. anyone entitled to receive a copy of the application;
2. a wide range of nonprofit groups, if they file a notice with the council;
3. anyone else the council believes is appropriate to participate as parties.
The nonprofit groups eligible for party status include environmental, historic preservation, consumer, business, and development groups. As a party, the individual or group can present testimony and cross-examine witnesses at the hearing and can file briefs and exhibits. By law, parties can also appeal the council's decision to the courts.
The law also provides two additional ways that an individual can participate in a less comprehensive manner in the proceeding. The individual can seek to participate as an intervenor. An intervenor can participate in the proceedings in the same way as a party, but the council determines the scope of his participation. Both of these options are also available to people with regard to petitions for declaratory rulings.
Finally, an individual can make a limited appearance at the hearing on a certificate application. The person can file a statement in writing, explaining facts and his concerns, which becomes part of the record for Council consideration. The individual cannot cross-examine witnesses, parties, or intervenors. The council has a Web page http://www.state.ct.us/csc/paul/appguide/particip.htm that provides additional information about the three participation options.
The council must schedule a hearing within 30 to 150 days after receiving a certificate application. At least one session of the hearing must start after 6:30 p.m. and be held in the county where the facility is proposed to be located. (In practice, the council starts its evening sessions at 7 p.m.) The council must mail notices of the date and location of the hearing within one week of fixing them. The notice must be mailed to the applicant and each individual entitled to notice of the original application.
The hearing includes presentation of applicant's witnesses, who are subject to cross-examination by the council, parties, and intervenors. Next, each party and intervenor is allowed to present its exhibits and witnesses and is then subject to cross-examination. In addition, written statements sent to the council within 30 days after the hearing are given the same weight as spoken statements. The council's Web page http://www.state.ct.us/csc/paul/appguide/hrngparticip.htm describes its hearing procedures in detail.
Pipelines and Substations
The council cannot grant a certificate for a pipeline or substation unless it finds that there is a public need for the facility and, in the case of a pipeline, that it will not unnecessarily jeopardize people or property along its route. The council must (1) identify the facility's environmental impacts that, on their own or cumulatively, conflict with state policy and (2) determine that the negative impacts are not sufficient reason to deny the application. In determining the facility's environmental impact, the council must consider ecological balance; public health and safety; scenic, historic, and recreational values; forests and parks; air and water purity; and fish and wildlife.
The council cannot grant a certificate for a power plant unless it (1) finds that there is a public benefit in building the plant; (2) identifies the environmental impacts, as described above, that conflict with state policy; and (3) determines that the negative impacts are not sufficient reason to deny the application. By law, a plant creates a public benefit if it is needed for (1) the reliability of electric supply in the state or (2) a competitive market for electricity. In considering the plant's environmental impact, the council must consider the same factors as is does in reviewing pipeline and substation applications.
Electric Transmission Lines
In approving an application for a transmission line, the council must (1) identify its environmental impacts, as described above, that conflict with state policy; (2) determine that these impacts are not sufficient reason to deny the application; (3) find that the line will not unnecessarily jeopardize people or property along its route; and (4) find that the line conforms to a long-range plan for expanding the power grid and will benefit electric system economy and reliability.
In addition, the council must (1) determine which parts of the line, if any, should be overhead and (2) determine whether the overhead portion is cost-effective, the most appropriate alternative over its life cycle, and consistent with relevant state law and federal guidelines. If the proposed line is primarily overhead, the council must find that there is need for it; if it is substantially underwater or underground, the council must find that there is a public benefit in building it. The council must conduct an analysis of the costs of overhead versus underground lines at least every five years and can hire consultants for this purpose.
ACQUISITION OF PROPERTY FOR PIPELINE OR TRANSMISSION LINE
A developer cannot acquire property for a pipeline or transmission line unless (1) it has obtained a certificate, (2) the council determines that the facility will have no substantial adverse environmental impact, or (3) the acquisition complies with the council's regulations. Under the regulations (Conn. Agencies Regs. § 16-50z-1 et seq.), the developer must inform the council as to why it needs the property and how the acquisition meets the criteria of CGS § 16-50z(a). This law permits acquisition without a certificate or council determination if it will (1) prevent hardship to a property owner, (2) prevent substantial development along the facility's route, or (3) allow for adjustments of existing rights-of-way for the convenience of the owner of the affected parcel.
If the council does not act on the application within 30 days, or decides not to hold a hearing, the application is considered approved. If the council decides to hold a hearing, it must notify the parties and the chief elected officer and planning commission of the affected municipality. It must also publish a notice in the local newspaper.
The council must consider the following in deciding to approve an application:
1. probable hardship for the owner of the target property and his neighbors;
2. development on and near the property;
3. the public need for the facility, its environmental impact, and its location.
The council has six months to make its decision, which must be published in a local newspaper.
CONDEMNATION OF RESIDENTIAL PROPERTY
The law provides a process by which a homeowner can dispute the condemnation of his property by a utility company (CGS § 16-50z(b)). (Some entities regulated by the council, such as pipeline companies, are considered utilities while others, such as the companies that develop power plants, are not.)
The owner can bring the issue to the council within 30 days of learning of the proposed acquisition. (The utility must inform the owner of this right when it proposes to take the property.) The council must start a proceeding to determine whether the condemnation is necessary and consistent with state energy policy (CGS § 16a-35k). The council must provide the owner and utility with notice of the proceeding and make its decision within 90 days of the owner's request. The utility must pay the costs of the proceeding. If (1) the owner and the utility agree on the need for the taking but disagree on the price or (2) the utility disagrees with the council's decision that the taking is unnecessary or inconsistent with state policy, the owner or utility can take the issue to court.
When a utility takes residential real property, it must pay the owner (1) the property's fair market value, (2) reasonable moving expenses, and (3) other expenses ordered by the court.