New York PSC denies Boundless Energy’s request for rehearing

The New York State Public Service Commission (PSC), in a Feb. 23 order, denied Boundless Energy NE’s request for rehearing of the PSC’s Dec. 17, 2015, order in which the PSC determined that there is a transmission need driven by public policy requirements for new 345-kV major electric transmission facilities to cross the Central East and Upstate New York/Southeast New York (UPNY/SENY) interfaces to provide additional transmission capacity to move power from upstate to downstate New York.

As TransmissionHub reported, Boundless on Jan. 15 told the PSC that the commission should not seek to preclude the company from offering a project and project segments for consideration in the New York ISO (NYISO) process. The PSC, in its December 2015 order, made some requests to Boundless and other companies to withdraw certain projects from further consideration. For instance, the PSC said in its order that in Case 13-T-0461, Boundless is requested to withdraw, effective on or before Jan. 15, 2016, the entire application for all its project segments from further consideration in the proceeding (such withdrawals to be effective concurrently in Cases 12-T-0502 and 13-E-0488).

In its Feb. 23 order, the PSC said that Boundless’ Jan. 15 petition fails to demonstrate that the PSC committed an error of law or fact, or that new circumstances warrant a different determination.

As noted in the order, Boundless requested that the PSC grant rehearing and modify its December 2015 order to only identify the public policy requirement that the NYISO should address under the NYISO open access transmission tariff (OATT) without establishing a particular statement of what transmission development in the specified region must be undertaken.

The PSC said that Boundless alleged nine errors or new circumstances said to warrant rehearing, including:

  • Error as a matter of law and in violation of the State Administrative Procedure Act (SAPA) by adopting a portfolio of project proposals as public policy requirements
  • Error as a matter of law and in violation of Attachment Y of the NYISO OATT by adopting a specific portfolio of project proposals to meet the identified public policy requirements
  • Error as a matter of fact by failing in its assessment of the environmental impacts of the Boundless projects

The PSC said that Boundless’ discussion on SAPA is incomplete and, among other things, fails to note the further distinction between “hard” rules and “soft” rules under SAPA. “Hard” rules are of “general applicability” and are codified in the New York Code of Rules and Regulations (NYCRR), while “soft” rules can be of “general or particular applicability” and are not codified in the NYCRR. Under SAPA, the PSC added, “rules” are adopted under the rule making procedures set forth in SAPA Article 2, and “licenses” such as Article VII certificates, which are required by law to be preceded by notice and an opportunity for a hearing are adopted under the adjudicatory proceedings procedures set forth in SAPA Article 3.

Boundless is incorrect in its characterization of the December 2015 order as an “adjudication of specific projects,” the PSC added, noting that the December 2015 order did not grant any entity an Article VII certificate or “license.” As a matter of law, no “adjudication” of any kind occurred as a result of the December 2015 order. All of the findings and determinations made by the PSC in the December 2015 order were made in compliance with the rule making procedures set forth in SAPA Article 2 as required under the NYISO OATT, the PSC added.

Discussing Attachment Y, the PSC noted that Boundless claims that in the December 2015 order, the PSC acted illegally and in violation of the NYISO OATT by dictating to the NYISO specific projects that meet the requirement identified by the PSC.

“The characterizations made by Boundless are baseless,” the PSC said. “The [Dec.] 17, 2015 order did not dictate to the NYISO specific projects that meet the requirement identified by the commission. To the contrary, the order recognizes that transmission, generation and demand-side solutions can be proposed by any entity to the NYISO in response to the solicitation. The Boundless petition does not establish an error of law in regard to Attachment Y compliance.”

Among other things, the PSC also noted that Boundless claims that the PSC’s assertions that all projects that cross the Hudson River had an environmental ranking higher than “Low” is simply erroneous. Boundless claimed instead that trial staff implicitly ranked both of Boundless’ projects as having a low environmental ranking with respect to the Hudson River crossing.

The PSC added that Boundless is the one that has made the error of fact, noting that “Table 1” attached to the trial staff final report explicitly ranks the Hudson River crossing for Boundless Project 20 as “Medium,” and the Hudson River crossing for Boundless Project 21 as “Medium.”

The Boundless petition does not establish an error of fact in regard to the assessment of environmental impacts, the PSC said.

Boundless’ response

In a Feb. 23 statement, Boundless Energy President Rod Lenfest said: "We are disappointed that today’s order by the PSC failed to address the substantive arguments made in our petition, and we continue to consider all options at our disposal to appeal this arbitrary and flawed process. We are encouraged, however, by the PSC’s very strong stand that the process remains open and that all proposals should be given full consideration by the NYISO. Based on these findings, we anticipate that the NYISO will accept the Boundless Leeds Path West solution and fairly evaluate our proposal along with competing projects."

Lenfest continued: "The Boundless Leeds Path West project is the most efficient and cost effective solution for delivering needed energy capacity while limiting impact on Hudson Valley residents and the environment. We remain confident that an unbiased review of all proposals by any objective standard will demonstrate that the Leeds Path West project is the best option for Hudson Valley residents, the environment, and New York energy consumers."

Article amended at 10:59 a.m., EST, on Tuesday, March 8, 2016, to add Boundless Energy President Rod Lenfest’s response.

About Corina Rivera-Linares 3295 Articles
Corina Rivera-Linares, chief editor for TransmissionHub, has covered the U.S. power industry for the past 16 years. Before joining TransmissionHub, Corina covered renewable energy and environmental issues, as well as transmission, generation, regulation, legislation and ISO/RTO matters at SNL Financial. She has also covered such topics as health, politics, and education for weekly newspapers and national magazines. She can be reached at clinares@endeavorb2b.com.