Commissioner James Danly Dissent Regarding NECEC Transmission LLC, et al.

I respectfully dissent from this order.[1]  This case concerns the development of a transmission project, a claimed priority of many on this Commission.  Rather than accommodate the requested action date, which was driven by refueling outages and procurement timelines, we have allowed the matter to languish for nearly a year and have yet to issue an order on the merits.  Such delay is unacceptable.

This case involves the New England Clean Energy Connect transmission project (NECEC Project), which is a proposed 320 kV overhead high voltage direct current transmission line, approximately 145 miles in length, which will enable the delivery of up to 1,200 MW of hydroelectric power from Quebec to New England for a period of at least twenty years.[2]

The NECEC Project has faced a number of problems; it has become an exemplum of the challenges faced when establishing new transmission facilities.  The proposal has faced significant local opposition and has had difficulty in obtaining and retaining the necessary state and local permits.  While those problems are outside the Commission’s jurisdiction, the project has another problem that we do have the power to address.

In order to deliver the power transmitted by the NECEC Project to New England, it is necessary for the transmission line to be interconnected with the transmission system operated by ISO New England Inc. (ISO-NE).  And before that interconnection can occur, ISO-NE is obligated to study the effects of the interconnection on its system.  Any adverse effects identified by ISO-NE’s study must be mitigated before the interconnection is placed in operation. 

ISO-NE has performed its study, and one of the effects it identified is that interconnection will require the replacement of a generation circuit breaker at the Seabrook Nuclear Station (Seabrook) owned by NextEra Energy Seabrook, LLC (NextEra Seabrook).  ISO-NE identified the need to replace this circuit breaker as an upgrade to an “Affected System.”  Under Schedule 25 of ISO-NE’s tariff, the costs of upgrades to Affected Systems must be reimbursed by Avangrid. 

So much is straightforward, but there are timing constraints: the circuit breaker upgrade can be installed only when Seabrook is taken out of service for refueling.  The next two scheduled outages for Seabrook are October 2021 and April 2023.[3]  Further, NextEra Seabrook states that the process of performing the necessary studies and procurement will take approximately twenty-two months.[4]  Given the period between refueling outages and the long lead times that NextEra Seabrook has stated will be required to complete the installation, the work must begin long before a planned refueling outage in order to avoid a year-and-a-half delay.

NextEra Seabrook and Avangrid began negotiations over the necessary agreements to accomplish the upgrade and soon reached an impasse on a number of issues regarding the costs Avangrid would be required to pay, non-cost terms and conditions, and NextEra Seabrook’s obligation to perform the upgrade.[5]  In October of 2020, NextEra Seabrook and Avangrid filed a competing petition for declaratory order and complaint. 

By that time, it was too late for NextEra Seabrook to install the generation breaker upgrade in October of 2021, yet it was still eight months until the June 2021 date by which NextEra Seabrook said it would need to begin work in order to install the upgrade during the April 2023 refueling outage.  Given this timing, Avangrid asked the Commission to rule expeditiously on its complaint. 

But the Commission did not rule expeditiously.  In March 2021, Avangrid amended its complaint to reflect changed circumstances and requested the Commission grant expedited relief by May 7, 2021.  And when no ruling was forthcoming in May of 2021, seven months from the date of the original complaint, ISO-NE filed a letter with the Commission.  ISO-NE explained that a ruling was important not only for the NECEC Project, but for all the other generation interconnection studies being performed by ISO-NE that depended on knowing whether and when the NECEC Project would go into service.  Accordingly, ISO-NE asserted “prompt resolution of these proceedings is needed.”[6]  Shortly thereafter, Avangrid filed a similar letter stating that, “[w]hile Avangrid does not agree with all aspects of the ISO-NE Letter, Avangrid does agree with ISO-NE’s request that the Commission act quickly to resolve this proceeding.”[7]

But, again, the Commission did not act quickly.  Instead, the Commission has waited four more months until today, eleven months after NextEra Seabrook filed its petition, to issue this order.  And even now, the Commission is not ruling on either NextEra Seabrook’s petition or Avangrid’s complaint.  Instead, we are asking for yet more briefing to address a completely different question—never raised in any of the pleadings—of whether NextEra Seabrook is obligated to complete the upgrade at its own expense under the terms of its interconnection agreement with ISO-NE.  I can see no justification for this further procedure.  The Commission invites briefing on matters that it should be able to resolve wholly on the basis of the agreements between the parties, the ISO-NE tariff, and Commission precedent.  And as if to add insult to injury, we decline to provide any explanation as to why we did not act in the eight months we had prior to the stated deadline for scheduling the upgrade during the 2023 refueling outage, or why it took eleven months for us to decide to ask for briefing on these new issues.

It is not clear whether NextEra Seabrook’s claim that it needs twenty-two months’ advance notice establishes a real, inflexible deadline, or whether it would still have been possible to complete the upgrade during Seabrook’s April 2023 refueling outage had we acted decisively today.  But it does appear that, by requesting additional briefing, including on a novel theory, the Commission has now all but guaranteed that the generation breaker upgrades will be delayed for at least a year and a half.  And it is entirely possible that the upgrade will not be installed during even the next scheduled refueling outage if the Commission acts with anything like the sense of urgency that it has evinced to date.  While transmission development faces innumerable challenges (as the facts of this case amply demonstrate), unjustifiable Commission inaction should never be among them.

For these reasons, I respectfully dissent.