Attorney General: Hon. Mortimer A. Gelston, Connecticut Siting Council, 1995-029 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

October 30, 1995

Hon. Mortimer A. Gelston
Chairman
Connecticut Siting Council
136 Main Street, Suite 401
New Britain, CT 06051-4225

Dear Chairman Gelston:

You have requested our opinion regarding the jurisdiction of the Connecticut Siting Council (the "Council") in connection with the proposal of the National Railroad Passenger Corporation ("Amtrak") to complete the electrification of the Northeast Corridor rail line from New Haven, Connecticut to Boston, Massachusetts (the "Project"). Specifically, you have asked whether the Federal Railroad Administration (the "FRA") has preempted the Council by its oversight and involvement in the Project, including in particular its preparation and issuance of an environmental impact statement.

The Project is part of the Northeast Corridor Improvement Project (the "NECIP") authorized by Congress in the enactment of the Railroad Revitalization and Regulatory Reform Act of 1976 (the "Railroad Act"), 49 U.S.C. 24901 et seq. In authorizing the NECIP, Congress expressly set the goal for Amtrak of establishing regularly scheduled and dependable intercity rail passenger transportation between Boston and New York, operating on a three-hour schedule. 49 U.S.C. 24902(a); 24903(a). Electrification of the rail line is funded entirely through federal appropriations. These funds are appropriated to the FRA, which transfers them to Amtrak and oversees their expenditure by Amtrak.

Under the Public Utility Environmental Standards Act ("PUESA"), the Council has jurisdiction over the siting of electric transmission lines of a design capacity of 69 kilovolts or more and electric substations designed to change or regulate the voltage of electricity at 69 kilovolts or more. Conn. Gen. Stat. 16-50i(a)(1),(4). Under Connecticut law, no person may construct such facilities without first obtaining a certificate of environmental compatibility and public need from the Council. Conn. Gen. Stat. 16-50k(a). The Council may not grant a certificate for such facilities unless it makes the following findings: (1) a public need for the facility and the basis for the need; (2) the nature of the probable environmental impact, including a specification of every significant adverse effect; (3) why the adverse effects are not sufficient to deny the application; (4) in the case of electric transmission lines, (a) what part, if any, of the line shall be located overhead, (b) that the facility conforms to a long-range plan for expansion of the electric power grid and will serve the interests of electric system economy and reliability, and (c) that the overhead portions of the facility, if any, are cost effective and the most appropriate alternative based on a life-cycle cost analysis of the facility and underground alternatives to such facility, and are consistent with state and federal guidelines; and (5) in the case of electric transmission lines, that the location of the line will not pose an undue hazard to persons or property along the area traversed by the line. Conn. Gen. Stat. 16-50p(a).

The Project will include two high-voltage substations and interconnecting transmission lines to be located in Branford, Connecticut, and New London, Connecticut. Accordingly, unless the Council's jurisdiction over the Project is preempted by federal law, the siting of the Project's substations and transmission lines would be subject to the Council's regulation, and a certificate from the Council would be required.

The FRA determined that the transfer of the appropriated funds to Amtrak for the Project constituted a "major Federal action" within the meaning of the National Environmental Policy Act ("NEPA"), 42 U.S. C. 4321 et seq. Accordingly, under NEPA it was required to prepare an environmental impact statement. The FRA's environmental impact statement purports to provide a comprehensive analysis and assessment of the consequences of the Project and potential alternatives on the environment. In particular, the FRA has asserted that its review included an environmental and technical analysis of the proposed Branford and New London sites. The FRA's conclusions are that the siting of the proposed substations and accompanying transmission lines will not have a significant environmental impact. The question thus has arisen whether this review by the FRA has preempted the Council.

By its own terms, the PUESA does not apply to "any matter over which an agency, department or instrumentality of the federal government has exclusive jurisdiction, to the exclusion of regulation of such matter by the state." Conn. Gen. Stat. 16-50k(d). This provision is, in essence, a statutory restatement of the constitutional principle that federal law may, in certain circumstances, preempt state law. Specifically, federal law may preempt state law (1) when Congress has expressly or implicitly preempted state law in the language or structure of a federal statute, Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977); (2) when Congress has, despite the absence of express preemptive language, exhibited an intention to occupy an entire field of regulation by enacting a comprehensive regulatory scheme, Fidelity Fed. Sav. & Loan Ass'n v. De la Cuesta, 458 U.S. 141, 153 (1982); or (3) when compliance with federal and state law is impossible because the two conflict or state law poses an obstacle to the achievement of the objective of federal law, Pacific Gas & Elec. Co. v. Energy Resources Conservation & Development Comm'n, 461 U.S. 190, 204 (1983). The actions of a federal administrative agency may also preempt state law if such administrative action is within the agency's congressionally delegated authority. Louisiana Pub. Service Comm'n v. Federal Communications Comm'n, 476 U.S. 355 (1986). Preemption, however, is a question of congressional intent, and the presumption is that "'the historic police powers of the States [are] not to be superseded by [federal law] unless that [is] the clear the manifest purpose of Congress."' Cipollone v. Liggett Group, Inc., --- U.S. ---, 112 S.Ct. 2608, 2617 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

Despite inquiries from the Council, the FRA, to our knowledge, has not expressly stated that it is its position that the Council's jurisdiction over the substations and transmission lines associated with the Project is preempted. In a letter dated June 28, 1995 from Michael Saunders, Director of the Northeast Corridor Project Office to Joel M. Rinebold, Executive Director of the Council regarding the FRA's position on whether the Council was preempted, the FRA stated it "believes that the [environmental impact statement it issued]...satisfies the substantive areas of review which would otherwise fall within the purview of the Siting Council under state statute. Accordingly, the exercise of jurisdiction over the [Project] by the Siting Council pursuant to State law is unnecessary and could be detrimental to the timely completion of the [P]roject, a project which our analysis has concluded would have important economic, transportation and environmental benefits for the State of Connecticut and the region as a whole." Although the FRA's statement raises a question about Council jurisdiction posing an obstacle to the Project, it falls decidedly short of asserting that the Council is preempted from asserting its jurisdiction.

As preemption is a question of congressional intent, our analysis must begin with Congress' enactments. To be certain, Congress has expressed its clear intention to improve rail transportation in the Northeast Corridor by passing the Railroad Act and appropriating federal funds for the Project. Stated simply, Congress has determined that there is a public need for the Project. Although a finding of public need is a statutory prerequisite under the PUESA to the grant of a certificate by the Council, the Council would clearly be preempted from finding otherwise.

Congressional preemption on the question of public need, however, does not itself preempt the Council from exercising jurisdiction altogether. The Railroad Act, which is the authority for the Project, is silent on other questions of siting other than public need. The FRA appears to suggest that the Council's exercise of jurisdiction would be inappropriate, in part, because of the analysis it undertook in preparing and issuing an environmental impact statement pursuant to NEPA. Nothing in NEPA itself expressly or implicitly preempts state or local jurisdiction or suggests that Congress intended to occupy the field by establishing a comprehensive regulatory scheme to the exclusion of state regulation. The remaining basis for finding federal preemption would be a determination that the FRA's actions in connection with its environmental impact statement were so comprehensive that the Council's review would not only be duplicative but would present an obstacle to the achievement of Congress' goals.

We have some guidance on these questions from the case of National Fuel Gas Supply Corp. v. Public Serv. Comm'n of New York, 894 F.2d 571 (2d Cir.), cert. denied, 497 U.S. 1004 (1990). In National Fuel, the New York Public Service Commission sought to regulate certain aspects of the siting of a natural gas pipeline, despite the fact that the Federal Energy Regulatory Commission ("FERC") had already granted a certificate permitting the construction of the pipeline. Specifically, the New York commission contended that, under an essentially identical statutory provision as found in 16-50k(d) of the PUESA, it retained jurisdiction over certain site-specific issues that had not been expressly considered by FERC in granting the pipeline certificate. The court rejected the argument that the New York commission's jurisdiction could be exercised "piecemeal" and concluded that FERC's authority over gas pipelines completely preempted the field. Id. at 578-79.

The circumstances presented by the Project and the Council's jurisdiction are distinguishable from those in National Fuel. Unlike this matter, in National Fuel FERC had in fact granted a certificate to construct the pipeline under the Natural Gas Act, 15 U.S.C. 717 et seq., which gives FERC exclusive jurisdiction over interstate gas pipelines. Id. at 576-77 (citing Schneidewind v. ANR Pipeline Co., 485 U.S. 293 (1988)). Because FERC was given exclusive authority to consider the siting of gas pipelines, a state could not engage in a concurrent site review. Id. at 579. By contrast, as discussed above, neither the Railroad Act nor NEPA expressly or implicitly grants exclusive jurisdiction to the FRA, or any other federal agency, over the regulation of environmental issues posed by the substations and transmission lines required for the Project. Although NEPA required the FRA to prepare an environmental impact statement, that requirement does not reflect a "clear and manifest purpose" of Congress to oust state authority altogether.

The court in National Fuel also raised questions about whether, as a matter of state law, the New York commission's siting authority could be exercised "piecemeal." In dicta, the court suggested that New York commission's authority over a facility could not be exercised unless it had complete jurisdiction over the facility; in other words, if any portion of the state's siting authority were preempted, it lost all authority with respect to the facility. Id. at 578. Despite the fact that the New York statutory language at issue in National Fuel is essentially identical to the language in Conn. Gen. Stat. 16-50k(d), the court's view does not control. First, the court's discussion was expressly dicta. See Id. ("Were we a New York state court, we would not hesitate to hold that [the New York commission's authority] is not amenable to piecemeal application.... We are not a New York state court, however, and will not dwell on the meaning of [the New York statute].") Moreover, the court supported its construction of the New York statute as precluding "piecemeal" application with the fact that the New York commission had itself for many years followed such an interpretation of its governing statute. Quite the opposite is true of the Council's interpretation of 16-50k(d). The Council's long-standing construction of its authority under the PUESA and 16-50k(d) in particular has been that the Council retains jurisdiction over a facility even if certain aspects of the siting review have been preempted by the federal government.1 Deference must be accorded an agency's long-standing interpretation of the statutes that it is charged with enforcing. Perkins v. Freedom of Information Comm'n, 228 Conn. 158, 165, 635 A.2d 873 (1993); Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023 (1986). As the Council's construction of 16-50k(d) appears entirely consistent with the purposes of the PUESA and the legislature's intent, we reject the court's dicta in National Fuel as controlling the meaning of 16-50k(d).

We conclude that the Council has concurrent jurisdiction over the siting of the Project's substations and transmission lines. Although Congress has preempted the Council on the issue of the public need for the Project, it has not given exclusive jurisdiction over the siting of the substations and transmission lines to the FRA. Therefore, the extent to which the aspects of a siting review by the Council other than the question of public need are preempted depends on the extent to which the FRA has acted in its review and issuance of the environmental impact statement "to the exclusion of regulation" by the Council. Conn. Gen. Stat. 16-50k(d).

A complete answer to that question, however, is not possible on the basis of the limited information available. The FRA's environmental impact statement certainly is broad-ranging in scope and appears to address certain of the issues that would ordinarily be factors examined by the Council on an application for a certificate. The Council has expressed serious reservations, however, about deficiencies in aspects of the FRA's review. See Letter dated November 19, 1993 from Joel M. Rinebold to Glenn Goulet. Matters not scrutinized by the FRA and therefore remaining within the Council's jurisdiction might include, for instance, the review of the transmission line route within the proposed right-of-way, the review of technology, construction techniques and access for the substations and transmission lines, the application of site-specific environmental mitigation measures and best management practices for electric and magnetic fields, as well as the establishment of public complaint resolution procedures and a construction monitoring and inspection plan. See Conn. Gen. Stat. 16-50p; Conn. Agencies Regs. 16-50j-60 to 16-50j-62. Nevertheless, a conclusive determination of the scope of the Council's jurisdiction can only be made on an issue-by-issue basis, including an opportunity for the relevant parties to be heard on the question.

In conclusion, the FRA does not have exclusive jurisdiction over the siting of the Project's substations and transmission lines. The Council retains some limited jurisdiction over those facilities. However, the precise extent and scope of that jurisdiction must await the development of a record permitting an issue-by-issue analysis guided by the general conclusions drawn here.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Mark F. Kohler
Assistant Attorney General

RB/MFK/js


1 For example, in connection with the siting of cellular telecommunications towers, the Federal Communications Commission has preempted state and local governments on the issue of the public need for the development of a cellular telecommunications system. See FCC Report and Order, Dkt. No. 79-318 (rel. May 4, 1981). The Council has consistently determined that, although it is preempted from questioning the need for a cellular system in Connecticut, it is not preempted from considering the other factors required to grant a certificate for a cellular tower under the PUESA. See, e.g., Connecticut Siting Council Dkt. No. 126, Findings of Fact and Decision and Order (April 4, 1990). Thus, the Council's long-standing interpretation of Conn. Gen. Stat. 16-50k(d) has been that, while it is not required to find that there is a public need for the development of an effective cellular telecommunications system, it is not precluded from considering the environmental effects of a proposed tower or, for that matter, the public need for a particular proposed tower.


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