Bethany L. Appleby, Wiggin & Dana
Bethany Appleby, Wiggin & Dana Click here to enlarge image
Several years ago our client, Cross-Sound Cable Company LLC, began its efforts to construct and operate a high-voltage direct current (HVDC) electric transmission and fiber optic cable system from New Haven, Conn. to Long Island, N.Y. capable of transporting 330 MW of electricity between the points in either direction. The most direct route from New Haven to Long Island is directly across Long Island Sound, and that is the submarine route Cross-Sound decided to take.
The first route chosen was not approved by the Connecticut Siting Council because of concerns regarding potential damage during installation to actively cultivated oyster beds in New Haven Harbor. Cross-Sound reapplied to the Siting Council, having developed an alternate route that avoided crossing all but a very small portion of shellfish beds by locating the cable within the Federal Navigation Channel (FNC) in New Haven Harbor. On Jan. 3, 2002, after extensive public hearings, the Siting Council granted the necessary certificate of environmental compatibility and public need, determining that the Cable Project: (a) provided a significant public benefit; (b) did not create any environmental impact that would provide a “sufficient reason to deny the application”; (c) conformed to a long-range plan for expanding electric power in this area; and (d) did not pose an undue hazard to persons or property along the area traversed by the line.
The benefits of connecting Connecticut to Long Island by the Cable Project are widely acknowledged. For example, as the Siting Council noted when approving the Cable Project:
“We believe that the proposed project would enhance the interregional cooperation and interconnections between regions. We believe that the proposed project would enhance the inter-regional electric transmission infrastructure and improve the reliability and efficiencies of the electric system here in Connecticut as well as in New York.”
Similarly, the Independent System Operator-New England (ISO-NE) has recognized that the Cable Project will improve the reliability of the region’s electric system and reduce the probability of ISO-NE taking emergency actions to maintain system reliability and prevent the interruption of electrical service. In addition, the New York State Public Service Commission (NYPSC) found the Cable Project critical to ensuring the reliability of electric service and that it would provide important economic benefits to New York and New England. The Federal Energy Regulatory Commission (FERC) has also approved the project, commenting that it enhances competition and market integration by expanding capacity and trading opportunities between the New England and New York markets. In addition, New York’s attorney general has urged timely completion of the Cable Project, which he deems “vital to ensuring that both states have enough power to meet the energy demands of the peak summer season.”
Nevertheless, local challenges based on unsubstantiated environmental and navigational concerns to the Cable Project have been relentless. As recently pointed out by the Commissioner of the Connecticut Department of Environmental Protection (CT DEP) in a June 13, 2002 letter to the Connecticut attorney general, the Project’s most ardent critic, “Published rhetoric has eclipsed facts on this project, at least from an environmental impact standpoint.” Cross-Sound has, however, cleared such obstacles as: two separate motions in the Connecticut Superior Court to stay the
Siting Council’s approval of the Cable Project (although the administrative appeals in connection with which these motions to stay were filed remain pending); proposed state legislation to block installation; a stop-work order issued by the local building inspector with respect to a necessary substation in New Haven; and a municipal effort to prevent access to the substation using an alternate route when the main access road was blocked by a labor protest against another company.
Clearing these hurdles, Cross-Sound successfully installed the cable within the April to May time constraints in its installation permits. However, the project’s cable-laying ship was unable to bury a small portion of the 24-mile-long cable to the expected depth because of the previously undetected presence of subsurface obstructions. The U.S. Army Corps of Engineers and the CT DEP have reported that the cable in its present location does not pose a threat to navigation or the environment, and Cross-Sound should be able to achieve the expected depth when the seasonal constraints are lifted. Neither agency has objected to Cross-Sound’s operation of the cable as installed. Nonetheless, the attorney general has claimed that a new moratorium law precludes the CT DEP from approving any changes to the permit or the operation of the line at its current depth.
While the attorney general of the state of Connecticut continues his mission to prevent operation of the cable, mobile gas-turbine generators have already been turned on to prevent blackouts on Fire Island, Long Island. Perhaps it will take an energy crisis on the magnitude of California’s to shift public opinion.
But for now, the battle lines are drawn as Cross-Sound marches forward to operate the cable to meet the region’s pressing energy needs.
Appleby is a litigator in the law firm of Wiggin & Dana in New Haven, Conn. She can be reached at 203-498-4365 or email@example.com.