James City County v. SCC

• Court: Supreme Court of Virginia
• Decided: April 16, 2015
• Docket: 141010
• Status: Published

Opinion

PRESENT: Lemons, C.J., Millette, Mims, McClanahan, and Powell, JJ., and Russell and Koontz, S.JJ.

BASF CORPORATION

v. Record Nos. 140462, 141009 & 141201

STATE CORPORATION COMMISSION, ET AL. OPINION JUSTICE LEROY F. MILLETTE, JR. JAMES CITY COUNTY, ET AL. April 16, 2015

v. Record Nos. 140470 & 141010

STATE CORPORATION COMMISSION, ET AL.

FROM THE STATE CORPORATION COMMISSION

These consolidated appeals of right by James City County,

Save the James Alliance Trust, and James River Association

(collectively, "JCC"), and BASF Corporation ("BASF") arise from

proceedings before the State Corporation Commission (the

"Commission").

By an initial Certificate Order and an Amending Order, the

Commission issued to Virginia Electric and Power Company d/b/a

Dominion Virginia Power ("Dominion") certificates of public

convenience and necessity ("CPCNs") authorizing the construction

of electric transmission facilities (the "Project"). BASF

challenges the approval of the transmission line's route across

a sensitive environmental remediation site on its property along

the James River. JCC challenges the approval of two main

features of the Project: a new 500 kilovolt ("kV") overhead

transmission line that will cross the James River and an associated switching station that will be located in James City

County. JCC argues that the switching station is a not a

"transmission line" under Code § 56-46.1(F), and therefore

subject to local zoning ordinances.

We conclude that the Commission did not err in its

construction or application of Code § 56-46.1's requirements

that Dominion "reasonably minimize adverse impact on scenic

assets, historic districts, and environment of the area

concerned," and that the record is not without evidence to

support its findings. We hold, however, that the Commission did

err in concluding that a switching station is a "transmission

line" under Code § 56-46.1(F). We will therefore affirm the

orders as to appellant BASF, and affirm in part, reverse in

part, and remand as to the JCC appellants.

I. PROCEEDINGS

In 2012, Dominion filed an application with the Commission

seeking the issuance of the CPCNs under Code § 56-265.2 of the

Virginia Utility Facilities Act, and approval under Code § 56-

46.1, to construct the Project.

Code § 56-265.2(A) provides that "[i]t shall be unlawful

for any public utility to construct . . . facilities for use in

public utility service . . . without first having obtained a

certificate from the Commission that the public convenience and

necessity require the exercise of such right or privilege."

2 This provision also requires compliance with the provisions of

Code § 56-46.1 for the issuance of a certificate to construct

overhead transmission lines of 138 kV or more.

Code § 56-46.1 directs the Commission to consider several

factors when reviewing the utility company's application for the

certificate. As relevant here, subsection (A) of the statute

provides: "Whenever the Commission is required to approve the

construction of any electrical utility facility, it shall give

consideration to the effect of that facility on the environment

and establish such conditions as may be desirable or necessary

to minimize adverse environmental impact." Code § 56-46.1(A).

Here, the term "'environmental' shall be deemed to include in

meaning 'historic.'" Code § 56-46.1(D). Subsection (A) also

directs that "the Commission (a) shall consider the effect of

the proposed facility on economic development within the

Commonwealth . . . and (b) shall consider any improvements in

service reliability that may result from the construction of

such facility." Code § 56-46.1(A).

Subsection (B) of Code § 56-46.1 then provides, in relevant

part: "As a condition to approval the Commission shall

determine that the [proposed transmission] line is needed and

that the corridor or route the line is to follow will reasonably

minimize adverse impact on the scenic assets, historic districts

and environment of the area concerned."

3 Dominion's application addressed the need for the Project

and described its proposed features. Dominion represented that

the construction of this additional transmission capacity was

needed to assure continued reliable electric service to its

customers in the North Hampton Roads Area. 1 The Project,

according to Dominion, was the best means for meeting this need

while "reasonably minimiz[ing] adverse impact on the scenic

assets, historic districts and environment of the area

concerned," as required by Code § 56-46.1(B).

The Commission undertook an investigation, received public

comments and assigned a Hearing Examiner to conduct the

proceedings and issue a report on Dominion's application. Two

days of public witness hearings were then conducted, followed by

a nine-day long evidentiary hearing for the purpose of receiving

evidence offered by Dominion, respondents, including JCC and

BASF, and the Commission's staff. Following its receipt of the

Hearing Examiner's report, the Commission issued the first of

the orders challenged in this appeal.

1 The North Hampton Roads Area, as referred to in this case, includes the following 14 counties and 7 cities: the counties of Charles City, James City, York, Essex, King William, King and Queen, Middlesex, Mathews, Gloucester, King George, Westmoreland, Northumberland, Richmond, and Lancaster, and the cities of Williamsburg, Yorktown, Newport News, Poquoson, Hampton, West Point, and Colonial Beach. 4 A. Evidentiary Hearing

The record below is extensive, but included the following

basic facts.

Under federal law, Dominion must comply with North American

Electric Reliability Corporation ("NERC") standards, which have

been adopted by the Federal Energy Regulatory Commission

("FERC"). See Piedmont Envtl. Council v. Virginia Elec. & Power

Co., 278 Va. 553, 559-60, 684 S.E.2d 805, 808 (2009) (explaining

federal regulation of public utilities like Dominion that

operate "bulk electric transmission systems"). Dominion

presented evidence that, in order to monitor whether its

electric transmission system is in compliance with NERC

reliability standards, Dominion continually assesses the

system's future reliability using load flow modeling studies.

Based on the load flow modeling evidence in this case, previous

studies had indicated that normal load growth in the North

Hampton Roads Area would result in NERC reliability violations

by 2019. However, in order to comply with new regulations,

Dominion determined that six of its local coal-fired generation

units (two at the Yorktown Power Plant and four at the

Chesapeake Power Plant) would need to be shut down. According

to Dominion, the retirement of just one unit at Yorktown was

enough to cause reliability violations to begin in the summer of

2015.

5 To meet the above-stated need, Dominion proposed in its

application for the CPCNs that the Project include the

construction of (1) approximately seven to eight miles

(depending upon the specific route across the James River) of a

new 500 kV overhead transmission line (the "Surry-Skiffes Creek

Line"), (2) approximately 20 miles of a new 230 kV overhead

transmission line (the "Skiffes Creek-Whealton Line"), and (3) a

new switching station required to interconnect the 500 kV line

to the 230 kV line (the "Skiffes Creek Switching Station"). 2

Dominion's application, at issue in today's appeal,

presented the Surry-Skiffes Creek Line over the James River and

onto BASF's property, with several "Variations" as to the exact

route crossing the James River. As an alternative to the Surry-

Skiffes Creek Line, Dominion also offered for the Commission's

consideration a different route extending 38 miles from

2 The 500 kV Surry-Skiffes Creek Line would begin on Hog Island at Dominion's existing Surry Switching Station near the Surry Nuclear Power Station in Surry County and extend to the south shore of the James River. The line would then cross the James River and come ashore on BASF's property in a dormant industrial area at one of two locations. The line would proceed through BASF's property and beyond to the Skiffes Creek Switching Station to be constructed on property owned by Dominion in James City County, through which several transmission lines currently cross. The 230 kV Skiffes Creek- Whealton Line would then proceed for approximately 20 miles along an existing Dominion right-of-way from the Skiffes Creek Switching Station to the existing Whealton Substation located in the City of Hampton.

6 Dominion's existing Chickahominy Substation in Charles City

County to the new Skiffes Creek Switching Station in James City

County (the "Chickahominy-Skiffes Creek Line"). However,

Dominion preferred the Surry-Skiffes Creek Line for the Project

based on significant differences as to adverse impact and cost:

the Chickahominy-Skiffes Creek Line would pass in close

proximity to more residences than the Surry-Skiffes Creek Line.

Dominion also stated that, because approximately 25 miles of the

right-of-way is unimproved, the Chickahominy-Skiffes Creek Line

"crosses significantly more forested land, open marshland,

wetland and perennial waterbodies and will require much more

forest land to be cleared and forested wetlands to be converted

to scrub shrub community." In addition, Dominion's estimated

cost of the Chickahominy-Skiffes Creek Line was more than $50

million above the estimated cost of the Surry-Skiffes Creek

Line. 3

Under Code § 56-46.1, as part of the evaluation process,

the Hearing Examiner and then Commission must determine whether

new Projects "reasonably minimize adverse impact on the scenic

concerned." Code § 56-46.1(B). Both BASF and JCC presented

3 The estimated total cost of the Project is approximately $151 to $155 million dollars using the Surry-Skiffes Creek Line, compared to $213 million using the Chickahominy-Skiffes Creek Line. 7 evidence of adverse impacts caused by the proposed Surry-Skiffes

Creek Line.

The BASF property is a former manufacturing site undergoing

active remediation subject to both Environmental Protection

Agency ("EPA") and Department of Environmental Quality ("DEQ")

corrective action. Dominion's preferred route of the Surry-

Skiffes Creek line ("Variation 1") crosses the middle of BASF's

property, the most sensitive area of environmental remediation,

containing zinc contaminants. This area is identified as Area

4C. The plans underway to remediate Area 4C contain three main

mitigation measures: a capped landfill, a bio-barrier trench,

and a phytoremediation plot of poplar trees. BASF offered

expert testimony that a transmission tower in this area would

interfere with the bio-barrier, that the transmission line will

render the phytoremediation plot ineffective, and that Variation

1 would generally threaten and delay successful remediation.

BASF's position was that, if the Surry-Skiffes Creek line

was selected, the route identified as Variation 4 was its

preferred route. Variation 4 crosses the northern boundary of

the property (approximately one half-mile north of Variation 1)

and thereby avoids Area 4C. In order for Variation 4 to be

viable, the James City County Economic Development Authority

(the "EDA") would have to agree to provide Dominion a right-of-

8 way easement, as Dominion determined that it does not have the

authority to exercise eminent domain over the property.

BASF has already spent over $15 million dollars in the

process of remediating the property and preparing it for

redevelopment. BASF presented testimony that Variation 1 could

delay remediation efforts and result in BASF failing to meet

its EPA-mandated remediation deadline in 2020, thereby

resulting in treble damages. Further, according to BASF

witnesses, a transmission line bisecting the property

substantially damages prospects for future development of the

property.

In addressing the issue of scenic and historic

preservation, JCC presented expert testimony that any overhead

transmission line would disrupt scenic vistas and historic

landmarks, and expressed its desire for an underground

transmission line. As the experts observed, the Surry-Skiffes

Creek Line would be located in the vicinity of the Historic

Triangle of Jamestown, Yorktown and Williamsburg. According to

the experts, a portion of the overhead line would be visible

from the Colonial National Historic Parkway. The line would be

most visible from Carter's Grove, a mid-eighteenth century

dwelling and a National Historic Landmark located on the north

shore of the James River, where the line would be located

between one-half mile to one mile south of Carter's Grove,

9 depending upon the line's route across the James River. As for

the James River itself, according to the experts, the line would

pass within a portion of the river that has been designated by

Code § 10.1-419 as a "[H]istoric [R]iver," and would be visible

from the Captain John Smith National Historic Water Trail. JCC

presented testimony that these sites have received state and

national recognition on historic registers and should be free

from such visual intrusion. JCC further presented testimony

that the historical, cultural, and ecological importance of the

area would be impacted by an overhead transmission line, and the

Project could potentially damage the ongoing attempt to have the

area designated as a World Heritage Site.

Dominion countered with its own experts, who argued that

while these adverse impacts do exist, they could be reasonably

minimized. The specific responses of these experts are

addressed in Parts IV.B. and V.B., infra, where we analyze the

evidentiary issues under Code § 56-46.1.

B. Hearing Examiner's Report

In August 2013, the Commission's Hearing Examiner issued a

178 page report that summarized the extensive record, analyzed

the evidence and issues, and made numerous findings and

recommendations for the Commission's consideration. As relevant

here, after finding a need to upgrade Dominion's electric

10 system, the Hearing Examiner's express findings and

recommendations included the following:

• The [p]roposed Project is the least cost[ly] viable alternative for addressing the identified NERC reliability violations presented in this case, can be constructed in a timely manner, and is the best alternative in this case;[ 4]

• The [p]roposed Project's overhead crossing of the James River will have a limited visual impact on one section of the Colonial Parkway and a very limited impact on a small portion of Jamestown Island. Overall, the [p]roposed Project will reasonably minimize the adverse impacts on the scenic assets, historic districts, and environments;

• The route crossing the James River should follow James River Crossing Variation 4 on the condition that the [EDA] and Dominion . . . conclude a right- of-way agreement within three weeks of the Commission's final order. If such an agreement is not [so] concluded . . . then the route crossing the James River should be James River Crossing Variation 1;

• The Commission may or may not decide to address whether Skiffes Creek Switching Station is a "transmission line" for purposes of [Code] § 56- 46.1[(F).]

4 In this regard, the Hearing Examiner found that "[t]he [Chickahominy] [a]lternative [p]roject is a viable alternative, is electrically equivalent to the [p]roposed Project and can be constructed in a timely manner. However, the [Chickahominy] [a]lternative [p]roject has a higher cost than the [p]roposed Project and will have a greater impact on scenic assets, historic districts and the environment." The Hearing Examiner also found that "[a]dditional generation . . . resolve[s] the identified NERC reliability violations, but at a significantly higher price and at a greater risk of failing to be completed by the date needed." 11 The Hearing Examiner therefore recommended that the Commission

adopt the findings of the Report and grant the Application

subject to the recommendations in the report.

C. Commission's Certificate Order

Based on its review of the record and the Hearing

Examiner's findings and recommendations, the Commission issued

the November 26, 2013 order (the "Certificate Order") granting

the CPCNs to Dominion. After evaluating numerous alternatives

offered for its consideration, the Commission found that "[t]he

engineering evidence in this case is overwhelming" in

establishing that the construction of an overhead 500 kV

transmission line is the best way to address the needed upgrade

to Dominion's electric system. The Commission then compared

Dominion's two alternative 500 kV proposals: the Surry-Skiffes

Creek Line and the Chickahominy-Skiffes Creek Line. The

Commission concluded that the record supported the Hearing

Examiner's findings that the Surry-Skiffes Creek Line "'is the

least cost[ly] viable alternative for addressing the identified

NERC reliability violations presented in this case, can be

constructed in a timely manner, and is the best alternative in

this case.'" Further, the Commission cited and agreed with the

Hearing Examiner's finding that the proposed Project "reasonably

minimize[ the] adverse impact on the scenic assets, historic

12 districts[,] and environment [in] the area concerned" in

accordance with Code § 56-46.1(B).

The Commission also agreed with the Hearing Examiner's

recommended approval of Variation 4 as the route for the Surry-

Skiffes Creek Line. The Commission found that "the

environmental and economic development considerations in

particular" favored Variation 4 over Variation 1. The

Commission declined, however, to adopt the Hearing Examiner's

recommendation for the contingency approval of Variation 1,

should Dominion's negotiations with the EDA over the right-of-

way prove fruitless. The Commission indicated that it fully

expected Dominion and the EDA to complete the negotiations

necessary for Variation 4.

As to whether the construction of the Skiffes Creek

Switching Station is subject to James City County's zoning

ordinances, the Commission addressed the issue and concluded

that the switching station constitutes a "transmission line" for

purposes of Code § 56-46.1(F), and is thus exempt from the

zoning ordinances. "From an engineering standpoint . . . the

Skiffes Creek Switching Station will be an electrically,

physically, and operationally inseparable part of several high

voltage transmission lines," the Commission explained. The

Commission reasoned, "[t]he Skiffes Creek Switching Station

enables a number of transmission circuits to be completed and

13 connected through transformers and other associated equipment."

The Commission thus concluded that the transmission line CPCNs

would include the Skiffes Creek Switching Station.

Accordingly, in the Certificate Order, the Commission

approved the Project for the construction of the 500 kV Surry-

Skiffes Creek Line with Variation 4, the Skiffes Creek Switching

Station and the 230 kV Skiffes Creek-Whealton Line.

D. Commission's Amending Order

Dominion was, ultimately, unsuccessful in negotiating a

right-of-way with the EDA, and thus could not comply with this

condition of the Certificate Order. Dominion sought to amend

the Certificate Order as Variation 4 was no longer viable. The

Hearing Examiner conducted a second evidentiary hearing to

determine if a portion of the approved route for the Surry-

Skiffes Creek Line must be modified in order to allow the

Project to be constructed. While continuing to prefer Variation

1, Dominion proposed in the alternative that the Commission

approve a limited adjustment to Variation 4, identified as

Variation 4.1. This route would bypass the EDA property but

would require Dominion to obtain new right-of-way easements from

other affected landowners. BASF recommended a similar

adjustment, identified as Variation 4.2, and continued to oppose

Variation 1. For reasons unrelated to the environmental

dispute, pertaining most prominently to the grade of the land,

14 it became apparent that Variation 4.2 was inappropriate, and

BASF altered its position to favor Variation 4.1 as between the

remaining options under consideration. After concluding

Dominion was not able to implement Variation 4, the Hearing

Examiner "found advantages and disadvantages to Variations 1 and

4.1, and recommended Variation 4.1."

Upon its review, the Commission instead found that

Variation 1 had "become the best variation to satisfy the Code." 5

The Commission approved Variation 1 based on the risk that

construction of the Project would not be completed in time to

address the NERC violations if it approved one of the adjusted

variations to Variation 4. The Commission found, among other

factors, that approval of one of the adjusted variations could

result in significantly delaying the U.S. Army Corps of

Engineers' Project review, which had to be completed before

Dominion could begin construction.

Having previously approved Variation 4, the Commission

noted that "Variation 1 will impact certain properties

differently than Variation 4." However, the Commission found

that "Variation 1 allows Dominion to: (1) reasonably minimize

5 The Commission noted that in the Certificate Order it had agreed with the Hearing Examiner's analysis of the various James River crossing variations and findings that "the [c]ertificated Project, regardless of which variation for the Surry-Skiffes Creek Line is used, reasonably minimizes the adverse impacts on the scenic assets, historic districts, and environment and otherwise satisfies the Code." 15 adverse environmental impacts, including impacts to historic

resources and scenic assets; (2) cross the James River with less

visual impact to Carter's Grove . . . among other properties in

the area; (3) bypass the EDA property that has obstructed

Variation 4; and (4) address significant reliability risks to

the North Hampton Roads Area in a timely manner." By order

dated February 28, 2014 (the "Amending Order"), the Commission

amended the Certificate Order by authorizing Dominion to

construct the Project using Variation 1. On April 10, 2014, the

Commission entered an additional order denying BASF's petition

for reconsideration of the Amending Order.

II. MOTION TO DISMISS

Both BASF and JCC appeal from the Certificate Order and the

Amending Order, with BASF additionally appealing from the

Commission's order denying BASF's motion for reconsideration of

the Amending Order.

As a preliminary procedural matter, Dominion has filed a

motion to dismiss the JCC and BASF appeals challenging the

Certificate Order based on Dominion's interpretation of Rule

5:21, which governs appeals from the Commission. Dominion urges

the Court to dismiss BASF's appeal as to the Certificate Order

and JCC's appeal in its entirety on the ground that we lack

16 jurisdiction under Rule 5:21(a). 6 Dominion argues that it alone

filed a notice of appeal of the Certificate Order under Rule

5:21(a)(3); JCC and BASF merely filed notices of participation

under 5:21(a)(6). Because Dominion decided not to proceed with

its appeal, it reasons that the jurisdictional basis for the

appeals of all parties pertaining to the Certificate Order has

evaporated.

Dominion originally filed a notice of appeal from the

Certificate Order, pursuant to Rule 5:21(a)(3), because Dominion

had not been awarded its preferred route. JCC and BASF

subsequently filed notices of participation pursuant to Rule

5:21(a)(6). When the Commission then issued the Amending Order,

moving the route to Variation 1, Dominion determined that it

would not file a petition for appeal from the Certificate Order.

However, JCC and BASF proceeded to file petitions for appeal

from the Certificate Order, pursuant to Rule 5:21(a)(7).

Dominion argues that because it was the only party to file a

notice of appeal from the Certificate Order, the petitions for

appeal filed by JCC and BASF from that same order "were mooted"

when Dominion did not pursue its petition for appeal, as "there

6 The motion to dismiss pertains directly to the appeals arising out of the Certificate Order, Record Numbers 140470 and 140462. Dominion also argues that, if granted, the motion would render moot all issues not specifically relating to BASF's Variation dispute arising from the Amending Order. 17 was no [Dominion] appeal in which they could participate." We

disagree.

"[B]oth the rules of this Court and of the Commission are

liberally applied and construed to the end that all parties

having an interest in any matter in controversy before the

Commission be permitted to intervene and to appeal." Blue Cross

of Virginia v. Commonwealth, 218 Va. 589, 597, 239 S.E.2d 94, 98

(1977).

Rule 5:21(a)(6) expressly provides, in relevant part, that

"each party who has not filed a notice of appeal and who intends

to participate in the appeal shall file in the office of the

clerk of the Commission and shall mail to every other party a

notice that he intends to participate as an appellant . . . .

Every party who seeks reversal or modification of the order

appealed from shall be deemed an appellant . . . ." JCC and

BASF were thus deemed appellants under the Rule in their

challenge to the Certificate Order, and the Rule contains no

provision for terminating that status by virtue of the party

that filed the notice of appeal opting to no longer pursue it.

The Rule does not state that jurisdiction ceases should the

party that originally noticed the appeal fail to proceed at some

juncture in the future. We thus find it appropriate to reach

the merits of the case.

18 III. STANDARDS OF REVIEW

We are guided by well-settled principles in our review of

the Commission's decision. The Constitution of Virginia and

statutes enacted by the General Assembly give the Commission

"'broad, general and extensive powers'" in regulating public

utilities. Office of Attorney Gen. v. State Corp. Comm'n, __

Va. __, __, 762 S.E.2d 774, 778 (2014) (quoting Virginia Elec. &

Power Co. v. State Corp. Comm'n, 284 Va. 726, 735, 735 S.E.2d

684, 688 (2012)). This authority influences our standards of

review in this case.

In considering evidentiary findings of the Commission, this

Court is bound to a highly deferential standard. "The

Commission is charged with the responsibility of finding the

facts and making a judgment," Appalachian Voices v. State Corp.

Comm'n, 277 Va. 509, 516, 675 S.E.2d 458, 461 (2009) (quoting

Northern Virginia Elec. Coop. v. Virginia Elec. & Power Co., 265

Va. 363, 368, 576 S.E.2d 741, 743-44 (2003)), and its decision

comes to this Court with "'a presumption of correctness.'"

Office of Attorney Gen., __ Va. at __, 762 S.E.2d at 778

(quoting Appalachian Power Co. v. State Corp. Comm'n, 284 Va.

695, 703, 733 S.E.2d 250, 254 (2012)). This means "[w]e will

not substitute our judgment in matters within the province of

the Commission and will not overrule the Commission's findings

of fact unless they are contrary to the evidence or without

19 evidentiary support." Level 3 Commc'ns of Va., Inc. v. State

Corp. Comm'n, 268 Va. 471, 474, 604 S.E.2d 71, 72 (2004) (citing

Virginia Gas Distrib. Corp. v. Washington Gas Light Co. 201 Va.

370, 375, 111 S.E.2d 439, 443 (1959)).

This Court reviews matters of law de novo. Syed v. ZH

Techs., Inc., 280 Va. 58, 69, 694 S.E.2d 625, 631 (2010).

However, "the Commission's decision is entitled to the respect

due judgments of a tribunal informed by experience, and we will

not disturb the Commission's analysis when it is 'based upon the

application of correct principles of law." Appalachian Voices,

277 Va. at 516, 675 S.E.2d at 461 (internal quotation marks

omitted). Keeping these principles in mind, we proceed to the

merits.

IV. BASF'S APPEAL

In BASF's three assignments of error, BASF asserts, first,

that the Commission erred as a matter of law in finding

Variation 1 reasonably minimizes adverse impacts under Code

§ 56-46.1(B) based merely on the unavailability of Variation 4.

BASF further argues that the Commission erred as a matter of law

in determining whether Code § 56-46.1 was satisfied by weighing

of the transmission system reliability concerns together with

the adverse impacts, instead of as separate processes. Next,

BASF contends the Commission erred in approving Variation 1,

both by wrongly finding that Variation 1 reasonably minimizes

20 the adverse environmental impact to Area 4C, and by disregarding

Variation 1's destruction of the property's development

potential. Finally, BASF argues that the Commission erred in

rejecting the Hearing Examiner's recommendation in favor of

Variation 4.1 because it is the only available route that

reasonably minimizes adverse impacts.

A. Construction of Code § 56-46.1(B)

BASF's first assignment of error argues that the Commission

erred as a matter of law in approving Variation 1 in two ways.

As matters of law, the Court reviews these questions de novo.

Syed, 280 Va. at 69, 694 S.E.2d at 631.

1. Action by "Default"

First, BASF contends the Commission chose Variation 1 in

the Amending Order simply because it determined that Variation 4

was unavailable due to the EDA's failure to provide the

necessary easement. In doing so, the Commission, according to

BASF, arrived at Variation 1 by default. BASF argues that the

Commission stated that it met the requirements of the statute in

a conclusory manner and failed to rely on any actual analysis to

determine whether Variation 1 would in fact reasonably minimize

the adverse impacts as required under Code § 56-46.1(B).

The statute requires that the Commission "determine" that

the variation reasonably minimizes adverse impacts. Code § 56-

46.1(B). In the context of this statute, the Court has

21 previously quoted Webster's New International Dictionary to

define "determine" as "to fix conclusively or

authoritatively . . . to settle a question or controversy about

. . . to come to a decision concerning as the result of the

investigation or reasoning . . . to settle or decide by choice

of alternatives or possibilities." Board of Supervisors v.

Appalachian Power Co., 216 Va. 93, 103, 215 S.E.2d 918, 925

(1975) (emphasis added).

Had the Amending Order provided merely a conclusory

recitation of the statutory language, absent investigation or

reasoning, BASF would undoubtedly have grounds for complaint.

This, however, is not the record before us. The Amending Order

includes factors considered by the Hearing Examiner in comparing

Variation 1 to Variation 4.1, not Variation 4, indicating that

the Commission indeed undertook a comparison between Variation 1

and the new route. The Commission expressly considered many of

the same factors enumerated by the Hearing Examiner:

[T]he Commission agrees . . . that Variation 1 will have less visual impact than Variation 4.1 on certain historic resources, including Carter's Grove. . . . Variation 1 would be located farther than Variations 4.1 and 4.2 from Carter's Grove and from other, more distant historic resources. On the other hand, an environmental advantage of Variations 4.1 and 4.2 is that these variations avoid certain environmental remediation areas on the BASF property which Variation 1 would cross.

The Commission ultimately weighed these competing claims

differently than the Hearing Examiner, granting visual impact

22 and construction schedule more relative weight. This is not

error as a matter of law, however. The Commission clearly

engaged in reasoning on the record evaluating relevant factors,

and concluded that "[b]ased on the record, the Commission finds

that the Certificated Project using Variation 1 would reasonably

minimize adverse impact to the scenic assets, historic

districts, and environment of the project area."

2. Process of Weighing Adverse Impact

Next, BASF argues that the Commission erred as a matter of

law by weighing the need to upgrade Dominion's transmission

system against the adverse impacts of Variation 1. According to

BASF, the statute requires the Commission to both establish need

and reasonably minimize adverse impacts, and by considering need

and the Project's construction schedule as a part of the impact

analysis, the Commission is accomplishing only the former.

"When construing a statute, our primary objective is to

ascertain and give effect to legislative intent, as expressed by

the language used in the statute." Cuccinelli v. Rector &

Visitors of the Univ. of Va., 283 Va. 420, 425, 722 S.E.2d 626,

629 (2012) (internal quotation marks and citation omitted)

(emphasis added). Code § 56-46.1 does not state the factors to

be considered in addressing the listed adverse impacts and does

not indicate whether these two tests must be undertaken

independently of each other. It merely states that adverse

23 impact should be "reasonably minimize[d]." Something is

"reasonable" when it is "[f]air, proper, or moderate under the

circumstances; sensible." Black's Law Dictionary 1456 (10th ed.

2014). The essence of reasonableness under the law is prudent

action in context; there can be no error in linking a

reasonability standard to the circumstances at large.

The Commission, pursuant to Code § 56-46.1(B), determines

whether a need for the proposed infrastructure exists. In doing

so, as explained in the Certificate Order, the Commission must

assess the magnitude and timing of any such need. The statute

specifically calls for "verif[ification of] the applicant's load

flow modeling, contingency analyses, and reliability needs

presented to justify the new line and its proposed methods of

installation," in determining need. Code § 56-46.1(B). Added

to these factors, along with minimizing adverse impacts under

subsection (B), are the costs of such construction. See Board

of Supervisors, 216 Va. at 104, 215 S.E.2d at 926 (Commission

properly considered, among other factors, "economic and

environmental factors," "reliability of electric service," and

"engineering feasibility" in approving route for transmission

line); Town of Mt. Crawford v. Virginia Elec. and Power Co.,

220 Va. 645, 650, 261 S.E.2d 311, 314 (1980) (affirming

Commission's rejection of locality's proposed alternative route

for new transmission line based on evidence showing that, among

24 other things, the "deviation would substantially increase the

cost of the entire line").

The adverse impacts of a proposed project are not to be

considered in a vacuum. When presented with an application for

transmission line construction, the Commission must "balance"

adverse impacts along with other "factors" and "traditional

considerations." Board of Supervisors, 216 Va. at 100, 215

S.E.2d at 923-24. Then the Commission, "as a tribunal informed

by experience," Appalachian Voices, 277 Va. at 516, 675 S.E.2d

at 461 (citation and internal quotation marks omitted), must

decide within the parameters of the statute what best serves the

"total public interest." Board of Supervisors, 216 Va. at 104,

215 S.E.2d at 926. We conclude that the use of the word

"reasonably" demonstrates the General Assembly's recognition of

the multifactorial balancing that goes into such an

investigation, and we find that the Commission did not err.

B. Evidentiary Challenges Under Code § 56-46.1

BASF's second and third assignments of error are closely

related, so we will address them together. BASF challenges the

evidentiary support for the Commission's choice of Variation 1

over Variation 4.1. BASF contends that there is not sufficient

evidence to support the contention that Variation 1 would

reasonably minimize environmental impacts of the Surry-Skiffes

Creek Line; rather, Variation 4.1 is the only alternative that

25 would reasonably minimize the adverse environmental impacts by

traversing the northern boundary of BASF's property. Variation

1, according to BASF, would maximize those impacts and destroy

the property's developmental potential by bisecting the property

through Area 4C, that is, the portion of the property undergoing

environmental remediation. Thus, BASF concludes, the

Commission's approval of Variation 1 violates Code § 56-46.1(B).

As this portion of the appeal challenges the evidentiary

findings of the Commission, we must review the evidence in light

of our highly deferential standard of review. We find fault

with the Commission only if its findings are "contrary to the

evidence or without evidentiary support." Level 3 Commc'ns, 268

Va. at 474, 604 S.E.2d at 72.

1. Selection of Variation 1

First, a thorough review of the record shows that it is not

without evidence to support the Commission's finding that the

Project, using Variation 1, will reasonably minimize adverse

impacts as required by the statute.

The property was previously an industrial operations and

manufacturing site that caused substantial soil and groundwater

contamination. As part of the environmental remediation efforts

within the former main industrial area known as Area 4C,

consisting of approximately 30 acres, BASF excavated several

lagoons and surface impoundments and reinterred the materials

26 into a stabilized capped landfill. To capture additional

contaminants, BASF has developed plans to construct a permeable

reactive barrier ("bio-barrier") near the landfill. BASF is

also planning the creation of a phytoremediation plot on Area

4C. This involves selective plant growth on the property to

minimize the migration of contaminants by binding them in the

soil while lowering the water table.

The dispute over the Project's adverse environmental impact

to BASF's property centers on the Commission's approval of

Dominion's construction of a transmission tower in Area 4C for

the Surry-Skiffe's Creek Line, using Variation 1. BASF's

remediation specialist, Vernon Burrows, testified that the

placement of the tower in Area 4C conflicts with BASF's

remediation efforts, including the bio-barrier and the

phytoremediation plot, and would "result in serious

environmental damage to the BASF property."

Dominion, on the other hand, presented expert testimony

indicating that the construction of the tower in Area 4C will

have minimal environmental impact. One such witness was Mark

Allen, a Dominion civil engineer, who is responsible for the

management of all of the high voltage transmission designs in

Dominion's system. This includes assuring that all such designs

meet established standards for safety and reliability. Another

such witness was Cathy Taylor, director of Dominion's Electric

27 Environmental Services Department, whose responsibilities

include oversight of environmental compliance and remediation.

Allen submitted testimony that the only tower required in

Area 4C would not be located on the capped landfill. He also

stated that the landfill could successfully be spanned by the

transmission line proposed in Variation 1, such that no

construction activity would occur on the capped landfill. In

contrast to Burrows' statements that the foundations for the

tower would be installed by "drilled piles," a method that can

cause displacement of contaminates, Allen and Taylor both

testified that Dominion would use "pipe pile foundations" that

would be driven into the ground by vibration, resulting in

minimal disruption of surrounding soil and migration of

contaminated groundwater. Taylor testified that they would work

with BASF to reconfigure the location of the tower or bio-

barrier, if necessary, in order that the tower would not

interfere with the construction and operation of the bio-

barrier. Additionally, Taylor stated that there is "more than

enough space to safely place the tower [and bio-barrier] in

[Area 4C]." As to BASF's plan for phytoremediation, while BASF

will be unable to plant hybrid poplars in the right-of-way area

as it had planned, Taylor testified that there are numerous

alternative grasses and small plants that can be used for

28 phytoremediation that would be consistent with the mandatory

standards for transmission line right-of-way maintenance.

The DEQ, which is overseeing the remediation of Area 4C,

also submitted an extensive report to the Commission regarding

the proposed Project, including Variation 1. The DEQ, however,

did not indicate in the report that Variation 1 was incompatible

with BASF's remediation of Area 4C as claimed by BASF. Rather,

the DEQ recommended without preference that one of the proposed

routes for the Surry-Skiffes Creek Line be used, as opposed to

the route for the alternative Chickahominy-Skiffes Creek Line.

While vigorously contested, we cannot say that the

Commission's selection of Variation 1 was without evidence to

support it.

2. Rejection of Variation 4.1

Second, the record was not without evidence to support the

Commission's rejection of Variation 4.1.

This is due, in large part, to evidence regarding the

construction schedule risks associated with Variation 4.1. This

evidence was introduced through the testimony of Elizabeth

Harper, a Dominion siting and permitting specialist for electric

transmission lines. According to her testimony, Variation 1 has

the shorter construction schedule for addressing the urgent need

to complete the Project. She stated that there was a greater

risk with Variation 4.1 that construction of the Project would

29 not be completed in time to address the NERC violations. This

risk was posed because Variation 4.1 had not yet undergone

review by the U.S. Army Corps of Engineers, which must be

completed before Dominion can begin construction on the Project.

Delay caused by this additional review could then result in

Dominion having to request an unprecedented fifth-year extension

from the EPA to delay shutting down certain of its Yorktown coal

fired units. Harper stated that "the parameters for obtaining

such an extension are not fully known."

Based on this evidence, the Commission found that, "while

there is no absolute schedule certainty for any route, approval

of Variation 4.1 . . . would present for customers in the North

Hampton Roads Area an increased and unreasonable risk, as

compared to Variation 1, that the [c]ertificated Project would

not be constructed in time to ensure reliable service to those

customers." In light of this record, and in light of the fact

that, as discussed in Part IV.A.2., supra, the Commission was

permitted to consider the construction schedule in its

evaluation, we cannot say the Commission's rejection of

Variation 4.1 was without evidence to support it.

3. Selection of Variation 1 Despite Adverse Impact

Finally, the record is not without evidentiary support for

the Commission's approval of Variation 1 despite any adverse

effect the route might have on future economic development of

30 BASF's property. Code § 56-46.1(A) expressly requires the

Commission to consider among the other statutory factors the

route's effect "on economic development within the

Commonwealth." Acting within this statutory authority, the

Commission considered this factor in the broader context of

Dominion's customers in the affected region, and found as

follows: "The timely construction of Variation 1 and the rest

of the [c]ertificated Project are necessary to address

significant reliability risks in the North Hampton Roads Area.

Customers in these counties and cities include citizens,

schools, local governments, and businesses that depend on

reliable power for a variety of needs. As required by statute,

we have considered the impact on economic development in the

Commonwealth and . . . approve Variation 1." Both as a matter

of law and as a matter of evidentiary inquiry, the Commission

did not err by considering the impact of economic development on

residents of the entire region and not simply to BASF.

V. JCC'S APPEAL

In JCC's three assignments of error, JCC argues, first,

that the Commission erred as a matter of law in its construction

and application of Code § 56-46.1(A) and (B) by limiting its

consideration of routes for the transmission line to those

proposed by Dominion in its application. Like BASF, JCC argues

that the Commission erred as a matter of law by limiting its

31 inquiry to a one-step balancing process as opposed to a two-step

inquiry in which need is first established and that

reasonableness is evaluated separately from need. Second, JCC

contends the Commission erred in finding that the route of the

Surry-Skiffes Creek Line reasonably minimizes its adverse

impacts as required under Code § 56-46.1. Third, JCC argues the

Commission erred in its construction and application of Code

§ 56-46.1(F) in finding that the Skiffes Creek Switching Station

is a "transmission line" under this provision and thus exempt

from local zoning regulations.

A. Construction of Code § 56-46.1(A) and (B)

JCC's first assignment of error argues that the Commission

erred as a matter of law in its interpretation and application

of subsections (A) and (B) of Code § 56-46.1 when it approved

the overhead transmission line route. We review this issue of

law de novo. Syed, 280 Va. at 68, 694 S.E.2d at 631.

JCC argues that the approval of the overhead transmission

line's route "essentially ignor[ed] the statute's directive that

the impacts on historic assets of the Commonwealth be

minimized." The Commission did so, JCC contends, by limiting

its "application of impact minimization" under the statute to a

choice of routes presented by Dominion in its application for

the CPCNs. JCC argues this effectively reduced the Commission's

two-step mandate to establish need and minimize adverse impacts

32 to a "one-step process" by "us[ing] the determination of need to

override its statutory duty to minimize the adverse impacts of

the transmission line."

This argument is fundamentally the same as the argument

raised by BASF in Part IV.A.2., supra. We do note that JCC also

invokes Code § 56-46.1(A), which states that "[w]henever the

Commission is required to approve the construction of any

electrical utility facility, it shall give consideration to the

effect of that facility on the environment and establish such

conditions as may be desirable or necessary to minimize adverse

environmental impact . . . ." "Minimize" does not require no

impact, and the Commission is also required under subsection (A)

to consider the economic development of the Commonwealth and

service reliability. Thus, our analysis from Part IV.A.2.,

supra, is equally applicable here. For the reasons articulated

previously, we find no error in the Commission's interpretation

of the statute.

B. Evidentiary Support for Approved Route

JCC's second assignment of error argues that the Commission

erroneously found that the approved route for the Surry-Skiffes

Creek Line reasonably minimizes adverse impacts under Code § 56-

46.1. As with BASF's evidentiary challenge, we must review the

evidence with deference to the findings of the Commission,

reversing only if the findings are "contrary to the evidence or

33 without evidentiary support." Level 3 Commc'ns, 268 Va. at 474,

604 S.E.2d at 72.

JCC argues that, based on the testimony of expert

witnesses, the evidence before the Commission showed

"overwhelmingly" that the route would have significant negative

impacts on the historic assets in the Historic Triangle. JCC

points specifically to the Colonial Parkway, Jamestown Island,

the James River, the Captain John Smith National Historic Water

Trail, and Carter's Grove. As to Carter's Grove, JCC relies on

the testimony of expert witnesses who claimed that the impact

would be "severe" because the current view from this historic

home is "almost devoid of anything but river, as it was in

colonial days." The ultimate opinion from a number of these

witnesses upon which JCC relies is that there is no way to

minimize these adverse impacts of the Surry-Skiffes Creek Line's

James River crossing except to construct the line underground or

elsewhere.

Despite this evidence, JCC argues, the Commission accepted

Dominion's purported treatment of these adverse impacts as

"insignificant" and therefore determined that "mitigation

efforts and minimizing conditions were unnecessary." We

disagree. We conclude that the record is not without evidence

to support the Commission's determination that the selected

34 route reasonably minimizes adverse impacts to the above-stated

resources in the Historic Triangle.

As discussed in Part IV.A.2., supra, "reasonably

minimiz[ing] adverse impact[s]" involves weighing a multitude of

factors. Code § 56-46.1(B) (emphasis added). In this case, the

record shows that the Commission considered, in light of these

factors, numerous alternatives, proposed by not only Dominion,

but also James City County, BASF, environmental groups, the

Commission's staff, and the Hearing Examiner. These

alternatives included transmission in different locations, lower

voltage transmission, underground transmission, generation (that

is, power plant) options, combinations of generation and

transmission, and demand-side management (for example, lowering

electric demand by consumers).

The record reflects that Dominion presented testimony from

Peter Nedwick, a consulting engineer in electric transmission

planning strategic initiatives, and Elizabeth Harper, Dominion's

siting and permitting specialist. Both testified that Dominion

considered numerous generation alternatives before proposing the

500 kV Surry-Skiffes Creek Line. Both offered testimony that

the other proposed alternatives were inconclusive, insufficient

in terms of capacity and time of completion, and/or cost

prohibitive by comparison. Of particular significance to this

appeal is the evidence showing that (a) the inclusion of

35 anything less than a 500 kV line as part of a transmission

solution would provide insufficient voltage for ensuring system

reliability, and (b) constructing a 500 kV line underground at

the James River crossing is not viable.

The parties do not dispute the finding that, as between the

Surry-Skiffes Creek Line and the Chickahominy-Skiffes Creek

Line, the evidence supports the Surry-Skiffes Creek Line. We

nonetheless note that Harper testified that the Surry-Skiffes

Creek Line was chosen in large part because of the large degree

of wetlands and undeveloped land traversed by the Chickahominy-

Skiffes Creek Line. By contrast, she stated the area where the

Surry-Skiffes Creek Line would cross the James River is already

impacted by more modern developments.

Dominion presented testimony from Douglas Lake, Technical

Director of Natural Resource Group, LLC, which prepared

Dominion's Environmental Routing Study, stating that the

transmission line would not be visible from Williamsburg,

Yorktown or most of Jamestown Island, including the Jamestown

Settlement, the Jamestown Fort and visitor center areas. Where

the line would be visible from one location on Jamestown Island

and one location on the Colonial Parkway, it would be from three

to six miles away. Harper further testified and presented

evidence that the portion of the James River where the line

would cross already contains modern developments currently

36 visible from this part of the river including, among other

things, the Surry Nuclear Power Plant; Kingsmill, a resort

community with a marina and a riverfront golf course; the Ghost

Fleet, a collection of retired naval vessels anchored offshore

from Fort Eustis; theme park rides; water towers; and a sewage

treatment plant. Harper thus concluded that the line would not

substantially change the character of the James River.

Harper further testified that, while visible from Carter's

Grove, Variation 1 is located a mile offshore while Variations 4

and 4.1 are located approximately 1/2 mile offshore. Dominion

thus argues that Variation 1 therefore minimizes adverse impacts

as to Carter's Grove.

Considering this record, we cannot say that the Commission

erred in concluding that the proposed route for the Surry-

Skiffes Creek Line across the James River reasonably minimizes

the line's adverse impacts. As the Commission observed,

"[p]lacing a project in a particular location involves impacts

but also avoids impacts associated with a different location."

Here, the record is not without evidence to support the

Commission's choice of location for the route in light of all

competing considerations under the governing legal standards –

including but not limited to adverse impacts on the scenic

assets, historic districts and environment of the affected area.

37 C. Skiffes Creek Switching Station

We now turn to JCC's third assignment of error in which it

contends the Commission erred in its interpretation and

application of Code § 56-46.1(F).

Code § 56-46.1(F) states: "Approval of a transmission line

pursuant to this section shall be deemed to satisfy the

requirements of [Code] § 15.2-2232 and local zoning ordinances

with respect to such transmission line." The Commission

construed "transmission line," as used in this provision, to

include switching stations, so that Code § 56-46.1(F) exempted

the Skiffes Creek Switching Station from the requirements of

James City County zoning ordinances. This was error.

While it is true that this Court gives "great weight" to

"the practical construction given to a statute by public

officials charged with its enforcement," Commonwealth v.

Appalachian Elec. Power Co., 193 Va. 37, 45, 68 S.E.2d 122, 127

(1951), we are not inextricably bound to that construction. If

such a construction is based on a mistake of law, then this

Court will not hesitate to reverse the decision of the public

officials charged with the enforcement of the statute. See

Virginia Elec. & Power Co. v. State Corp. Comm'n, 284 Va. 726,

736, 735 S.E.2d 684, 688 (2012).

This Court has recognized that, in determining whether

certain structures or uses are exempt from local zoning

38 ordinances, there must be a "manifest intention on the part of

the legislature" to do so. City of Norfolk v. Tiny House, Inc.,

222 Va. 414, 422-23, 281 S.E.2d 836, 840-41 (1981).

Although the Commission's position that switching stations

and transmission lines function together and should be governed

under the same authority is well-taken, the intention to exempt

switching stations from local zoning ordinances is not manifest

within Code § 56-46.1. Under the plain language of Code § 56-

46.1(F) the only structures or uses expressly exempt from local

zoning ordinances are transmission lines. Thus, because

switching stations are not expressly exempt under Code § 56-

46.1(F), the question before this Court is whether the term

"transmission lines" includes switching stations.

As stated previously, "[w]hen construing a statute, our

primary objective is to ascertain and give effect to legislative

intent, as expressed by the language used in the statute."

Cuccinelli, 283 Va. at 425, 722 S.E.2d at 629 (internal

quotation marks and citation omitted) (emphasis added). The

General Assembly's intent "is usually self-evident from the

statutory language," and we look first to the plain meaning of

the words used in the statute. Rutter v. Oakwood Living Ctrs.

of Va., Inc., 282 Va. 4, 9, 710 S.E.2d 460, 462 (2011) (citation

and internal quotation marks omitted). Title 56 of the Code of

Virginia, governing public utilities, does not define the term

39 "transmission line" as used in Code § 56-46.1(F). However,

determining the meaning of the term "transmission line" does not

require analysis "[f]rom an engineering standpoint" as the

Commission argues. A layperson can identify the plain meaning

of a transmission line: the wires used to transmit electric

current over great distances and the structures necessary to

physically support those wires. "Transmission line" does not

mean "switching station."

A switching station remains just that: a station. A

switching station is a facility, and thus is distinguishable

from and more intrusive to its surrounding environment than

transmission lines. It is reasonable for such facilities to be

subject to local zoning, while continuous transmission lines are

exempt because of the onerous nature of navigating local zoning

ordinances for all the acreage over which transmission lines

cross.

The application itself delineates Project components as

"lines" and a "station." The Commission noted that "[t]he

engineering evidence in this case also demonstrates that no

'transmission line' . . . will simply end at the property line

of the Skiffes Creek Switching Station." The fact that the

transmission line continues does not by necessity incorporate

the facility into the transmission line. The station remains a

40 facility, and the plain language of "transmission line" under

Code § 56-46.1(F) does not encompass a station facility.

We note the General Assembly has previously employed a

similar definition. In 2006, the General Assembly mandated that

the Joint Legislative Audit and Review Commission ("JLARC"), a

legislative oversight commission composed of nine members of the

House of Delegates and five members of the Senate, see Code

§ 30-56, evaluate "the feasibility of undergrounding

transmission lines in the Commonwealth." H. J. Res. 100, Va.

Gen Assem. (Reg. Sess. 2006). As part of its evaluation, the

JLARC conducted a comprehensive review of the Code and

Commission policies with regard to transmission lines. In its

subsequent report, the JLARC defined "transmission lines" as

"the conductors (wires or cables) which carry power at a high

voltage level from the plants to local substations some distance

away." Joint Legislative Audit and Review Comm’n, Report to the

Governor and General Assembly of Virginia: Evaluation of

Underground Electric Transmission Lines in Virginia, House Doc.

No. 87, at 4 (2006), available at

http://leg2.state.va.us/dls/h&sdocs.nsf/By+Year/HD872006/$file/H

D87.pdf (last visited March 25, 2015).

The Commission's rationale for its construction of the

statute is that a switching station is "an electrically,

physically, and operationally inseparable part of several high

41 voltage transmission lines." Using this logic, an electrical

generating facility would likewise be a transmission line for

the purposes of Code § 56-46.1(F). Without an electrical

generating facility, a transmission line would be nonfunctioning

and incomplete; therefore, according to the Commission's

holding, the General Assembly also intended to regulate

electrical generating facilities as transmission lines. The

language of the statute makes it clear that this was not the

General Assembly's intent.

We also note the ease with which the General Assembly could

have included substations in Code § 56-46.1(F), as exempt from

local zoning ordinances, along with transmission lines, had that

been its intent. Code § 56-46.1(A) includes "any electrical

utility facility," whereas Code § 56-46.1(B) addresses only

"electrical transmission line[s]." Both terms are contemplated

under the same statute.

Here, the plain language of Code § 56-46.1(F) does not

reflect a manifest intent on the part of the General Assembly to

exempt switching stations from local zoning ordinances. The

Commission therefore committed a mistake of law. Accordingly,

we will reverse the decision of the Commission with regard to

the applicability of Code § 56-46.1(F) to the Skiffes Creek

Switching Station.

42 VI. CONCLUSION

The Project under consideration today is not without

weighty environmental and historical impacts to beloved areas of

the Commonwealth, as well as pressing power needs to the

residents of the Commonwealth. This Court appreciates the

contributions of all the parties in the lengthy deliberations

before the Commission and this tribunal. We make our decision

with deep respect for the long-held level of deference accorded

to the Commission, while recognizing our duty to uphold the law

of the Commonwealth as written.

For the reasons stated herein, we conclude the Commission

did not err in finding that Variation 1 reasonably minimizes

adverse impacts. We hold, however, that a switching station is

not a "transmission line" under Code § 56-46.1(F). Accordingly,

we will affirm the orders as to appellant BASF, and affirm in

part, reverse in part, and remand as to the JCC appellants.

Record Nos. 140462, 141009 & 141201 - Affirmed.

Record Nos. 140470 & 141010 – Affirmed in part, reversed in part, and remanded.

JUSTICE MIMS, with whom CHIEF JUSTICE LEMONS and JUSTICE McCLANAHAN join, concurring in part and dissenting in part.

I agree with the Court's analysis and conclusions regarding

Code § 56-46.1(A) and (B), and I join in those portions of the

opinion. However, because I conclude that the Commission's

43 construction and application of Code § 56-46.1(F) is correct, I

must respectfully dissent from Part V.C. of the Court's opinion.

We review the Commission's interpretation of a statute de

novo. Appalachian Power Co. v. State Corp. Comm'n, 284 Va. 695,

703, 733 S.E.2d 250, 254 (2012). However, "the practical

construction given by the Commission to a statute it is charged

with enforcing is entitled to great weight by the courts and in

doubtful cases will be regarded as decisive." Piedmont Envtl.

Council v. Virginia Elec. & Power Co., 278 Va. 553, 563, 684

S.E.2d 805, 810 (2009) (internal quotation marks and citations

omitted).

The Hearing Examiner began his analysis with the statutory

text. See Appalachian Power Co., 284 Va. at 705, 733 S.E.2d at

255 ("In any case involving statutory construction we begin with

the language of the statute."). Because the term "transmission

line" is undefined, the Hearing Examiner turned to previous

decisions of the Commission, a decision of the Maine Public

Utilities Commission, the common dictionary definitions of

"transmission line" and "circuit," and the definition of

"transmission line" supplied by the North American Electric

Reliability Corporation ("NERC"). 1 The Hearing Examiner properly

1 The Federal Energy Regulatory Commission ("FERC") has designated NERC as the Electric Reliability Organization for the United States, and the Energy Policy Act of 2005 made NERC's 44 considered these sources in reaching the conclusion that the

term "transmission line" includes facilities such as the Skiffes

Creek Switching Station.

Similarly, the Commission observed that the Code does not

define "transmission line." After reviewing the parties'

arguments, and noting the Hearing Examiner's "substantial

analysis," the Commission then relied on its expertise in such

matters to observe that the "Skiffes Creek Switching Station

will be an electrically, physically, and operationally

inseparable part" of the transmission facilities. The

Commission therefore concluded that the Skiffes Creek Switching

Station constitutes "a part of any transmission line for

purposes of Code § 56-46.1(F)."

In the Commonwealth, electrical power is supplied via a

three part system: generation, transmission, and distribution.

See Code § 56-576; Joint Legislative Audit and Review Comm'n,

Report to the Governor and General Assembly of Virginia:

Evaluation of Underground Electric Transmission Lines in

Virginia, House Doc. No. 87, at 2 (2006), available at

http://leg2.state.va.us/dls/h&sdocs.nsf/By+Year/HD872006/$file/H

D87.pdf (last visited April 7, 2015) ("JLARC Report"). In the

Virginia Electric Utility Regulation Act, the General Assembly

reliability standards mandatory, subject to FERC's oversight. See Pub. L. No. 109-85, 119 Stat. 594, 941 (2005) (codified at 16 U.S.C. § 824o). 45 has defined the "[t]ransmission system" as "those facilities and

equipment that are required to provide for the transmission of

electric energy." Code § 56-576. In turn, "[t]ransmission"

refers to the "transfer of electric energy through the

Commonwealth's interconnected transmission grid from a generator

to either a distributor or a retail customer." Id. Meanwhile,

"generation" means "the production of electric energy," and

"distribution" refers to "the transfer of electric energy

through a retail distribution system to a retail customer." Id.

Thus, the General Assembly has defined the transmission system

to extend from the point of generation to the point of

distribution. As the statutory definitions demonstrate, there

is a functional distinction between these terms. An electrical

generating facility is not a transmission facility, and a

distribution facility is not a transmission facility. However,

each is a type of "electric utility facility." See Code § 56-

46.1; see also Code § 56-576 (defining "electric utility").

Transmission lines generally operate at high voltages —

considerably higher than distribution lines. See JLARC Report,

at 5 (noting that the "most common voltage for transmission

lines is 230 kilovolts (kV)" while distribution lines "generally

operate at lower voltages of 34.5 kV or less"). The record

indicates that the Skiffes Creek Switching Station will have the

capacity to step the voltage down from 500 kV to 230 kV and from

46 230 kV to 115 kV. It will also link 7.4 miles of new 500 kV

transmission line to 20.2 miles of new 230 kV transmission line,

thereby connecting the Surry Switching Station and Whealton

Substation. Nothing in the record indicates that the Skiffes

Creek Switching Station will step the voltage down to levels

associated with distribution. Therefore, the record reflects

that the Skiffes Creek Switching Station is functionally part of

the transmission system. See Code § 56-576.

Furthermore, JLARC recognized that the terms "circuit" and

"line" are "often used synonymously," but explained that a line

may have one or more circuits. JLARC Report, at 3. As the

Hearing Examiner recognized, the dictionary definition of a

"transmission line" refers to its function as a "circuit." 2 The

Hearing Examiner and the Commission reasoned that the purpose of

the Skiffes Creek Switching Station is to complete a

transmission circuit, the path between the Surry Switching

Station and the Whealton Substation. Thus, it is an integral

part of the transmission line.

2 A "transmission line" is "a metallic circuit of three or more conductors used to send energy usu. at high voltage over a considerable distance; specif : a usu. metallic line used for the transmission of signals or for the adjustment of circuit performance and often consisting of a pair of wires suitably separated, a coaxial cable, or a wave guide." Webster's Third New International Dictionary 2429 (1993). In turn, a "circuit" is "the complete path of an electric current including any displacement current." Id. at 408. 47 Finally, the fact that a transmission switching station is

a facility does not make it more reasonable for it to be subject

to a local zoning ordinance than the remainder of the

transmission line. Indeed, under the majority opinion, if an

electric utility obtains the Commission's approval under Code §

56-46.1(A) and (B) for the location of a transmission line, but

fails to obtain permission from local zoning authorities for

transmission switching stations, the approval under Code § 56-

46.1(A) and (B) would be meaningless. The electric utility

would have to adjust the route of the transmission line until

all local zoning authorities permit locations for all such

stations. Yet Code § 56-46.1(F) provides that the Commission's

approval of a transmission line satisfies local zoning

ordinances "with respect to" that transmission line. Clearly,

the Commission's approval of the line also must satisfy local

zoning ordinances with respect to everything necessary for the

transmission line to function as such.

For these reasons, I believe the relevant question is

whether a facility is designed to facilitate transmission or to

facilitate distribution or to facilitate generation of

electricity within the Commonwealth. See Code § 56-576.

Clearly, the Skiffes Creek Switching Station is designed to

facilitate, and in fact is integral to, the transmission of

electricity. The Commission's practical construction gives

48 effect to the function-based distinctions established by the

General Assembly. Moreover, it adheres to well-established

principles of statutory construction. For these reasons, I

would affirm the decision of the Commission with respect to its

interpretation and application of Code § 56-46.1(F).