Commissioner Christie’s Opening Remarks at the March 29, 2023 Environmental Justice and Equity in Infrastructure Permitting Roundtable, AD23-5

Thank you, Mr. Chairman.

This event today is entitled the “Roundtable on Environmental Justice and Equity in Infrastructure Permitting.”  Since permitting of infrastructure is the focus, I will speak specifically on permitting and how considerations of fairness and equal treatment should be part of the permitting process.

As a state utility commissioner in Virginia for 17 years, I sat on well over 100 certificate of public convenience and necessity (“CPCN”) proceedings.  These CPCN proceedings included applications to construct electric transmission lines, electric power generating stations, intrastate natural gas pipelines and related facilities, and any other utility facility requiring a CPCN under Virginia law. 

Each and every one of these projects impacted persons and communities in or near the path or site of the facility in some way, large or small.  Landowners whose property was subject to being taken under eminent domain were obviously seriously impacted, but so were people living within a close enough proximity to the route or site to see it, hear it, sometimes smell it, or be concerned about potential effect on the character of their community or their property values. 

Based on my experience in these many CPCN cases, I believe it is absolutely essential that the regulatory authority considering the CPCN makes every reasonable effort to ensure that all affected persons and communities are treated equally under the law.  Specifically, they should be (i) notified of the upcoming proceeding in time to decide on participating in some way if they choose, (ii) informed of their right to participate or comment in the upcoming proceeding, and (iii) provided with necessary assistance in how to participate or comment if they cannot afford their own legal representation.  Such assistance should be available to those who speak English as a second language or not at all. 

I further believe that the regulatory authority has a special obligation in the proceeding to ensure that persons and populations who are less sophisticated, less wealthy, and less influential, or were likely in the past to be excluded from, or ignored in, such proceedings, receive the necessary assistance to ensure that their voices are heard equally and their concerns are respected. 

This special obligation is not about having different legal standards for different persons or populations.  If different standards are applied based on impermissible classifications, that could implicate Equal Protection concerns under the 5th and 14th Amendments to the U.S. Constitution.  What I am saying is that regulators have a special obligation to make sure that all persons, especially those without the high-priced lawyers, get treated fairly in a CPCN proceeding that could impact them and their communities. 

Let me also speak as to why facilities are located where they are.  In my experience in Virginia, infrastructure facilities such as power lines were sited at locations for two primary reasons (the “Two Es”):  first, engineering requirements and, second, economic requirements. 

The engineering need involves finding the most feasible physical location for the facility for it to fulfill its purpose; the economic need involves finding the most cost-effective location, because obviously the regulator is going to try to minimize the cost impact on ratepayers.  So, for example, a transmission developer may choose to build in a right-of-way it already owns, which is typically less costly than acquiring new right-of-way, yet that economic decision will have different impacts on different populations.    

And since this roundtable is focused on infrastructure permitting, let me emphasize something else:  

It is critically important to remember that the “P” and “N” in “CPCN” stand for public necessity – which simply means public need.  The central question in every permitting case is whether the infrastructure facility is needed by the public.  If the facility is needed by the public, then by definition the facility must be built.[1]  That is the whole point of a CPCN proceeding, to serve the public’s need for a facility, whether it is a bridge, highway, airport, public school, or an electric transmission line or generating station.  That is why the awesome power to take a person’s private property is authorized under the Constitution’s Fifth Amendment Takings Clause.[2] 

Once this finding of public need has been made, the question then turns to determining feasible conditions of mitigation to reduce or eliminate the impacts on affected persons or communities.[3]  These mitigation measures can include everything from sound barriers, to measures to control water run-off, to restoration of vegetation and wildlife habitats, to minimizing impacts on viewsheds, such as reforestation or ordering a different paint color on the transmission tower to reduce light reflection, even to changing the route or site itself to minimize impacts. 

In requiring these mitigation measures, the regulatory authority should make every effort to ensure that the less sophisticated, the less wealthy and the less influential populations, those who do not have the expensive lawyers representing them, have their concerns heard respectfully and receive the same consideration as others in determining appropriate mitigation of impacts.

So from my experience in more than 100 permitting proceedings, I would say equity in permitting comes down to simple fairness in conducting the proceeding and it means the regulator has a special obligation to make sure the rights of all are respected equally.  But equity also means that rights of the public to critically needed infrastructure are also respected and protected. 

Thank you, Mr. Chairman.