2017 decision by Energy Facility Siting Board, currently under review by the Court, determined burying power lines to be unfeasible
PROVIDENCE, R.I. – Attorney General Peter F. Neronha announced today that his Office has filed an amicus curiae brief with the Rhode Island Supreme Court in the matter of City of Providence vs. Rhode Island Energy Facility Siting Board, a case involving the decision by state regulators to place National Grid power lines through India Point Park and along the Providence waterfront.
By filing the amicus brief, the Attorney General is seeking to ensure that the Energy Facility Siting Board (EFSB) followed the appropriate legal requirements in its decision to approve the placement of the power lines.
"Public bodies created and entrusted to make decisions on behalf of Rhode Islanders must follow specific processes – processes that were put in place so that the public is able to review and understand those decisions," said Attorney General Neronha. "The EFSB's decision to allow the placement of high-voltage power lines through India Point Park has significant cost and environmental implications for Rhode Islanders. There are many stakeholders who deserve an opportunity to understand how this decision was made. We are concerned that the proper legal requirements were not followed here, which is why my Office filed an amicus brief in this case with the Rhode Island Supreme Court."
Amicus Curiae Brief
In the brief filed with the Rhode Island Supreme Court, the Attorney General has argued that a 2017 decision made by the EFSB concerning the placement of power lines through India Point Park was not properly evaluated or issued under state law.
Specifically, the Attorney General contends that the 2017 decision by the EFSB did not evaluate the project in light of the criteria set out in Rhode Island's Energy Facility Siting Act. Under the Act, the EFSB is required to determine whether: 1) the project meets the needs of the state; 2) is cost-justified; and 3) that it will not cause unacceptable harm to the environment and will enhance the socio-economic fabric of the state. The EFSB decision, memorialized in Order 123, does not evaluate the project based on that criteria.
Furthermore, Order No. 123, as written, does not provide any basis for approving a plan that instead of burying the power lines, would place them through and adjacent to India Point Park. Under Rhode Island law, agency decisions must be made in writing to ensure that a court is able to review the basis for which the decision was made. In reviewing the administrative record in connection with this petition, the Attorney General is not satisfied that there is sufficient evidence in the written record to support the approved project.
Citing concerns that the proper legal requirements were not followed, the Attorney General has asked the Court to remand the matter back to the EFSB with the direction that its decision be supported by information in the record, or take any other action this Court deems appropriate, including supplementing the existing record with more current information as required.
In 2003, National Grid applied to the EFSB to modify the alignment of a portion of its electric transmission line that travels between Providence and East Providence. The EFSB oversaw the regulatory approval process in which stakeholders provided opinions on public health effects, impact to the natural environment, planning and land uses, and plan alternatives with cost estimates.
In 2004, National Grid and stakeholders, including the cities of Providence and East Providence, and neighborhood and community organizations, came to a settlement agreement that called for the transmission power lines to be buried or, in the event complete burial could not proceed, several alternative alignment plans.
Years later, in 2015, National Grid determined that complete burial of the transmission power lines would not be feasible and sought to proceed with one of the alternative alignment plans. In 2017, the EFSB approved the alternative alignment plan and memorialized its decision in Order No. 123.
Subsequently, impacted parties have sought Rhode Island Supreme Court review of the EFSB's decision to approve an alternative alignment plan. The Attorney General has submitted an amicus curiae (friend of court) brief to the Supreme Court as part of this review.
Environment and Energy Unit Chief and Special Assistant Attorney General Tricia K. Jedele is lead counsel for the Attorney General in this matter.