Twice in the past two years the Cape Cod Commission has faced attempts to subvert its decisions on major utility projects.
In the first case, Barnstable County’s land use agency stood by while the state’s Energy Facilities Siting Board overturned its denial of a KeySpan gas pipeline on the Mid-Cape.
Last week, the siting board took up a petition by Boston-based Cape Wind Associates seeking the same result on the commission’s denial of transmission lines the company needs to connect to the electrical grid wind turbines it wants to build in Nantucket Sound.
The question of which agency has jurisdiction over the transmission lines will likely be decided in court, but in the meantime the commission is trying to make it more difficult for the siting board to ignore its voice on such matters.
The commission will hold a public hearing today on procedures for all future reviews of utility projects where there might be similar conflicts.
“It’s a response to the (siting board’s) decision in the KeySpan case,” Paul Niedzwiecki, executive director of the commission said Monday. In that instance, the siting board questioned, among other procedures, the inability of the applicant to cross-examine witnesses, Niedzwiecki said.
In its decision, the siting board ruled that “the commission did not make adjudicatory findings of fact in conducting its … review of the company’s project.”
In adjudicatory proceedings, a person or entity is charged with finding facts and another is charged with interpreting the law, Niedzwiecki said. In some cases, the two may be one in the same, he said.
The idea behind the commission’s proposed adjustments is to mandate the siting board to accept testimony from the commission’s proceedings during any appeal of a decision, he said.
The siting board is responsible for ensuring a reliable energy supply in the state with a minimum impact on the environment at the lowest possible cost. While the siting board’s jurisdiction in this area runs deep, the commission is tasked with wider responsibilities, Niedzwiecki said.
“Many times, we’re not judging the project by the same standard,” he said, adding that the legislature knew that when the Cape Cod Commission Act was passed. The resulting conflict is probably best decided by the courts, he said.
Those familiar with the commission are watching closely.
“We’re kind of comparing what they’ve now come out with what our comments are,” said Patrick Butler, an attorney who has appeared before the commission in more than 100 cases and who currently represents the Alliance to Protect Nantucket Sound in its battle against Cape Wind.
In the Cape Wind case, the question remains whether challenges to commission decisions should even go before the state board or are more appropriately heard in land or superior court, he said.
The proposed procedures would also negatively affect KeySpan customers by hampering the company’s ability to site and build infrastructure needed to serve the Cape, said Jackie Barry, spokeswoman for National Grid, KeySpan’s parent company.
A spokesman with the state’s Department of Public Utilities declined to comment on the commission’s proposed changes.
By Patrick Cassidy
29 November 2007
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