STATE OF NEW YORK

PUBLIC SERVICE COMMISSION

__________________________________________

Application of Champlain Hudson Power Express, Case 10-T-0139

Inc. for a Certificate of Environmental Compatibility
and Public Need Pursuant to Article VII of the PSL
for the Construction, Operation and Maintenance of
a High Voltage Direct Current Circuit from the
Canadian Border to New York City.
___________________________________________

BRIEF OF CHAMPLAIN HUDSON POWER EXPRESS, INC., AND CHPE

PROPERTIES, INC.

Steven D. Wilson
YOUNG SOMMER, LLC
Executive Woods
Five Palisades Drive
Albany, NY 12205
518-438-9907
swilson@youngsommer.com

Dated: June 15, 2020

STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
__________________________________________

Application of Champlain Hudson Power Express, Case 10-T-0139

Inc. for a Certificate of Environmental Compatibility
and Public Need Pursuant to Article VII of the PSL
for the Construction, Operation and Maintenance of
a High Voltage Direct Current Circuit from the
Canadian Border to New York City.
___________________________________________

BRIEF OF CHAMPLAIN HUDSON POWER EXPRESS, INC., AND CHPE

PROPERTIES, INC.

Responding to the directive contained in the Ruling Denying Motion to Conduct Public

Statement Hearings by Video Teleconference, issued June 3, 2020,1 Champlain Hudson Power

Express, Inc., and CHPE Properties, Inc. (together, the “Applicants”) hereby file this brief

regarding whether evidentiary hearings are required in connection with the Applicants’ petition,

filed December 6, 2019 (the “December 6 Petition”), to amend their Certificate of Environmental

Compatibility and Public Need (“CECPN”).

As discussed herein, the route alternatives proposed in the December 6 Petition share the

common goal of avoiding and minimizing changes in location, potential environmental impacts

and engineering constraints. The December 6 Petition provides a comprehensive review of the

proposed route changes and after two formal opportunities to raise material issues of fact with

respect to the route modifications, with this call for briefs being the third, not one such issue has

been identified by a party.2

1
Case 10-T-0139: Application of Champlain Hudson Power Express, Inc. for a Certificate of Environmental
Compatibility and Public Need Pursuant to Article VII of the PSL for the Construction, Operation and Maintenance
of a High Voltage Direct Current Circuit from the Canadian Border to New York City, Ruling Denying Motion to
Conduct Public Statement Hearings by Teleconference (June 3, 2020) (“Ruling Denying Motion”).
2
In addition to the two formal requests for identification of material issues of fact, the Ruling Denying Motion notes
that several options were provided to the public to submit comments on the December 6 Petition (Ruling Denying

1
 There being no material issues of fact, this proceeding should proceed to the Commission

for decision.

I. BACKGROUND
On April 18, 2013, the Public Service Commission (the “Commission”) granted a CECPN,

authorizing, subject to conditions, the construction of a High Voltage, Direct Current transmission

line extending approximately 330 miles from the New York/Canada border to a converter station

in Astoria, Queens (the “Project”) pursuant to Public Service Law (“PSL”) Article VII. 3 On

December 6, 2019, as supplemented on December 20, 2019, the Certificate Holders filed a petition

to amend the CECPN seeking Commission approval of, among other things, eight Preferred

Alternatives to the route of the Project as originally certified.

A Notice of Procedural Conference was issued February 11, 2020. According to the

Notice, at the procedural conference “[t]he Parties will have an opportunity to discuss what

evidentiary process will be necessary and appropriate in relation to the Petition….” 4

At the procedural conference, appearances were made by the Applicants, Department of

Agriculture and Markets, Department of Public Service Staff (“DPS Staff”), and the City of New

York. Administrative Law Judge (“ALJ”) Mullany stated, “the threshold issue in this proceeding

. . . is whether or not, under Public Service Law 123, Subdivision 2, . . . the proposed change in

the facility would result in any material increase in any environmental impact of the facility or a

Motion, at 4). Despite all the available options and the substantial amount of time allotted for submission of comments,
only a handful of comments have been received. No statements made in these comments can be construed as raising
material issues of fact because, in general, the comments are unsubstantiated and/or do not address issues of fact
pertinent to approval of the Preferred Alternatives.
3
Case 10-T-0139: Application of Champlain Hudson Power Express, Inc. for a Certificate of Environmental
Compatibility and Public Need Pursuant to Article VII of the PSL, Order Granting Certificate of Environmental
Compatibility and Public Need (April 18, 2013).
4
Case 10-T-0139: Application of Champlain Hudson Power Express, Inc. for a Certificate of Environmental
Compatibility and Public Need Pursuant to Article VII of the PSL, Notice of Procedural Conference (February 11,
2020).

2
substantial change in the location of all or a portion of such facility, other than as provided in the

alternates set forth in the application.”5 ALJ Mullany continued that this threshold issue will

determine “what further process would be appropriate, namely a hearing.” 6 No party making an

appearance identified any issues requiring a hearing. DPS Staff did, however, state that further

information was required to make a determination. Over the next two months, DPS Staff served

several discovery requests on the Applicants. No other party served any discovery demands on

the Applicants.

On May 27, 2020, ALJ Costello wrote to all parties requesting identification of any

material issues of fact. ALJ Costello wrote,

“At the procedural conference held on March 4, 2020, staff of the Department of
Public Service (DPS Staff) requested an opportunity to conduct discovery with
respect to the Applicant’s position that there are no material increases in
environmental impacts and no substantial changes in location of facilities. March
4, 2020 Tr., p. 8. DPS Staff should inform Judge Mullany and me by 4:30 p.m. on
Thursday, May 28, 2020, whether discovery is complete and, if so, whether it
contemplates any motion practice with respect to the need for an evidentiary
hearing. By that same time, the Applicant and all other parties should address with
specificity whether there are any material issues of fact requiring an evidentiary
hearing.”7

Only the Applicants and DPS Staff responded. The Applicants maintained the position, as set

forth in the December 6 Petition, that no hearings are required, evidentiary or otherwise. DPS

Staff advised that it had,

“completed its discovery and believes that no material increase in the nature or
extent of adverse environmental impacts of the facility are anticipated beyond those
originally considered by the Commission during its review and grant of the
CECPN. In addition, DPS Staff believes the potential adverse environmental
impacts have been mitigated to the greatest extent practicable through the CECPN’s

5
Case 10-T-0139: Application of Champlain Hudson Power Express, Inc. for a Certificate of Environmental
Compatibility and Public Need Pursuant to Article VII of the PSL, Procedural Conference Transcript (March 13,
2020), at 7 (“Transcript”).
6
Transcript at 7.
7
See Attachment 1.

3
 Conditions and will be reflected in more detail in the anticipated amended EM&CP
filing and, consequently, there are no material issues of fact that would require an
evidentiary hearing.”8

The Ruling Denying Motion was issued June 3, 2020.

II. DISCUSSION

Public Service Law § 123(2) states:

“On an application for an amendment of a certificate, the commission shall hold a

hearing in the same manner as a hearing is held on an application for a certificate if
the change in the facility to be authorized would result in any material increase in
any environmental impact of the facility or a substantial change in the location of
all or a portion of such facility other than as provided in the alternates set forth in
the application.” (emphasis supplied)

Thus, not all amendments to CECPNs require a hearing. 9 Moreover, a finding of either a material

increase in environmental impact or a substantial change in location does not, in and of itself,

require an evidentiary hearing. The requirements of PSL § 123(2) can be satisfied by holding a

public statement hearing. Only in situations where a legitimate material issue of fact is raised by

a party is further process (i.e. an evidentiary hearing) required.10 In this case, no hearing is

necessary, public statement or evidentiary.

Here, the Applicants have carried their burden of proof in the December 6 Petition that no

hearings are required on the Preferred Alternatives. The change in project locations are not

8
See Attachment 2.
9
See Case 02-T-0036: Application of Neptune Regional Transmission System, LLC, Order Granting Amendment of
Certificate of Environmental Compatibility and Public Need (August 26, 2005), at 4 (finding that “[a] hearing
concerning the proposed amendment is not required by PSL §123(2) because it will not result in any material increase
in any environmental impact or a substantial change in the location of the transmission facility.”)
10
Case 13-T-0515: Petitions of New York Power Authority Relating to its Certificate of Environmental Compatibility
and Public Need for the Marcy South 345 kV Transmission Facilities - Formerly Case 70126, Order Granting
Amendment of Certificate Of Environmental Compatibility and Public Need (October 27, 2014), at 5 (finding that
“there was no need for an evidentiary hearing because no material factual issues were in dispute.”)

4
substantial, regardless of whether they are considered in the aggregate or individually, and thus

involve no material increases in environmental impacts. Notably, no party has challenged this.

As discussed in the December 6 Petition, the Preferred Alternatives are principally driven

by engineering, environmental, and landowner/stakeholder considerations that have been

identified as the Applicants have refined the design of the Project since the CECPN was issued in

2013. Implementing the proposed Preferred Alternatives will allow the Applicants to, among other

things, avoid shallow water engineering challenges, reduce rock removal and wetland impacts, re-

route due to new development in downtown Schenectady, forego reliance on an aging railroad

bridge, accommodate community comments, and simplify the design of the Converter Station and

the connecting electrical facilities. There is support for the Preferred Alternatives by the

municipalities involved.11

The rationales that support each of these Preferred Alternatives vary based on their

individual facts and circumstances, but they all share the common goal of avoiding and minimizing

potential environmental impacts as well as engineering constraints. Furthermore, while the

geographic variances presented by the potential modifications differ, the Preferred Alternatives

are sited as close as reasonably possible to the Certified Route. In all events, the Preferred

Alternatives have been designed in such a way that the impact avoidance and minimization

measures already incorporated in the design process pursuant to the CECPN will continue to

accomplish their goal, which is assuring that the Project represents “the minimum adverse

11
With respect to these municipalities, the Applicants have spent nearly two years proactively communicating with,
and listening to feedback from, the communities within which the Preferred Alternatives are now proposed. This
outreach succeeded in securing public resolutions of support. These resolutions were passed after the completion of
significant public process within these municipalities, including presentations by the Applicants, question and answer
sessions, public hearings, and, ultimately, municipal board-level votes in support of the Preferred Alternatives.

5
environmental impact, considering the state of available technology and the nature and economics

of the various alternatives….” (PSL §126[1][c]).

The information provided by the December 6 Petition including the supporting Appendices

conclusively demonstrate that the Preferred Alternatives, individually and in the aggregate, create

no material increase in any environmental impact associated with the Project. Accordingly, no

hearing, evidentiary or otherwise, is required under PSL § 123(2).

Had it been established, let alone argued by any party, that there was either a material

increase in environmental impact or a substantial change in location, it would only then be

necessary to address whether a material issue of fact had been raised. For a material issue of fact

to exist, it is incumbent upon another party to challenge the Applicants’ findings as contained in

the petition and for that party to provide evidence sufficient to demonstrate the legitimacy of its

claim. No party has done so. Indeed, DPS Staff concurs that “there are no material issues of fact

that would require an evidentiary hearing.” 12

III. CONCLUSION

Based on the foregoing, no further hearings are required.

/s/ Steven D. Wilson

____________________________
Steven D. Wilson

YOUNG SOMMER, LLC

Attorneys for Champlain Hudson Power

Express, Inc., and CHPE Properties, Inc.

Dated: June 15, 2020

12
See Attachment 2.

6
 Attachment 1 - Page1 of 2

Steven D. Wilson

From: Costello, James A (DPS) <James.Costello@dps.ny.gov>

Sent: Wednesday, May 27, 2020 1:31 PM
To: Nancy.Clarke@transmissiondevelopers.com; paul.ghosh-roy@snrdenton.com;
mikew@lakechamplaincommittee.org; dbj@readlaniado.com; GaramP@coned.com;
bob.glasser@robertjglasserpc.com; rloughney@couchwhite.com; rjkoda@earthlink.net;
rick.chase@transmissiondevelopers.com; maria@saratogaplan.org; mg@markg.org;
lorif@lakechamplaincommittee.org; lmartinez@nrdc.org; Mark.OConnor@nypa.gov;
Michael.Curti@yonkersny.gov; mcuevas@rwgmlaw.com; Mariotti, Michael (DOT);
mcolomb@entergy.com; atlantic.chapter@sierraclub.org; tmarcelle@albanycounty.com;
gallov@coned.com; shlawr2@aol.com; Wells, Tara (AGRICULTURE);
wtaube@indeckenergy.com; wplache@law.nyc.gov;
Bill.helmer@transmissiondevelopers.com; William.Derasmo@troutmansanders.com;
wellman1985@charter.net; MSCIARROTTA@velco.com; sgroden@discovergreene.com;
rmackow@entergy.com; roymcl@aol.com; Crounse, Sita X (DEC); Steven D. Wilson;
stuart.caplan@snrdenton.com; stephanie.arencibia@nypa.gov;
sdorsey@saratogacountyny.gov; lsinger@couchwhite.com; Smith, Diane
(AGRICULTURE); ddecostanzo@nrdc.org; Drexler, David (DPS); dgoodric@law.nyc.gov;
Hintz, Donna (DOT); Phillips, Elizabeth A (APA); director@tbhca.com; saiad@gtlaw.com;
Nicole Banagan; brad.kranz@nrgenergy.com; Brendan.McGrath@yonkersny.gov;
ServiceList@nrg.com; Belsito, Anthony (DPS); countyattorney@discovergreene.com;
Chris.Jones@troutmansanders.com; dan@shusterassociates.com;
COWPUSA@westchestergov.com; Hogan, Chris M (DEC); gdiaman@ssmplaw.com; John
Borchert; JDax@DaxLawFirm.com; janzevino@scenichudson.org; beckj@coned.com;
joseph.rachiele@yonkersny.gov; kchlad@adirondackcouncil.org; Walrath, Leigh R (APA);
jfung@couchwhite.com; Martens, Kathleen (PARKS); Moreno, Ashley (DPS);
icorcoran@sandyhookpilots.com; hcarlock@scenichudson.org; Behnke, Heather (DPS);
headyj@oru.com; Kemper, Jason; javier.bucobo@nypa.gov;
COWPUSA@westchestergov.com; jpotter@hinmanstraub.com
Cc: Mullany, Sean (DPS)
Subject: Champlain Hudson Power Express (Case 10-T-0139)

To the Parties:

At the procedural conference held on March 4, 2020, staff of the Department of Public Service (DPS Staff)
requested an opportunity to conduct discovery with respect to the Applicant’s position that there are no
material increases in environmental impacts and no substantial changes in location of facilities. March 4, 2020
Tr., p. 8. DPS Staff should inform Judge Mullany and me by 4:30 p.m. on Thursday, May 28, 2020, whether
discovery is complete and, if so, whether it contemplates any motion practice with respect to the need for an
evidentiary hearing. By that same time, the Applicant and all other parties should address with specificity
whether there are any material issues of fact requiring an evidentiary hearing. Thereafter, Judge Mullany and
I will schedule a telephone conference to discuss scheduling matters. Thank you.

James A. Costello
Administrative Law Judge
Office of Hearings and Alternative Dispute Resolution

Department of Public Service

1
 Attachment 1 - Page2 of 2
3 Empire State Plaza, Albany, NY 12223
(518) 473-0275
James.Costello@dps.ny.gov

www.dps.ny.gov

2
 Attachment 2 - Page 1 of 3

Steven D. Wilson

From: Behnke, Heather (DPS) <Heather.Behnke@dps.ny.gov>

Sent: Thursday, May 28, 2020 2:06 PM
To: Costello, James A (DPS); Mullany, Sean (DPS)
Cc: Nancy.Clarke@transmissiondevelopers.com; paul.ghosh-roy@snrdenton.com;
mikew@lakechamplaincommittee.org; dbj@readlaniado.com; GaramP@coned.com;
bob.glasser@robertjglasserpc.com; rloughney@couchwhite.com; rjkoda@earthlink.net;
rick.chase@transmissiondevelopers.com; maria@saratogaplan.org; mg@markg.org;
lorif@lakechamplaincommittee.org; lmartinez@nrdc.org; Mark.OConnor@nypa.gov;
Michael.Curti@yonkersny.gov; mcuevas@rwgmlaw.com; Mariotti, Michael (DOT);
mcolomb@entergy.com; atlantic.chapter@sierraclub.org; tmarcelle@albanycounty.com;
gallov@coned.com; shlawr2@aol.com; Wells, Tara (AGRICULTURE);
wtaube@indeckenergy.com; wplache@law.nyc.gov;
Bill.helmer@transmissiondevelopers.com; William.Derasmo@troutmansanders.com;
wellman1985@charter.net; MSCIARROTTA@velco.com; sgroden@discovergreene.com;
rmackow@entergy.com; roymcl@aol.com; Crounse, Sita X (DEC); Steven D. Wilson;
stuart.caplan@snrdenton.com; stephanie.arencibia@nypa.gov;
sdorsey@saratogacountyny.gov; lsinger@couchwhite.com; Smith, Diane
(AGRICULTURE); ddecostanzo@nrdc.org; Drexler, David (DPS); dgoodric@law.nyc.gov;
Hintz, Donna (DOT); Phillips, Elizabeth A (APA); director@tbhca.com; saiad@gtlaw.com;
Nicole Banagan; brad.kranz@nrgenergy.com; Brendan.McGrath@yonkersny.gov;
ServiceList@nrg.com; Belsito, Anthony (DPS); countyattorney@discovergreene.com;
Chris.Jones@troutmansanders.com; dan@shusterassociates.com;
COWPUSA@westchestergov.com; Hogan, Chris M (DEC); gdiaman@ssmplaw.com; John
Borchert; JDax@DaxLawFirm.com; janzevino@scenichudson.org; beckj@coned.com;
joseph.rachiele@yonkersny.gov; kchlad@adirondackcouncil.org; Walrath, Leigh R (APA);
jfung@couchwhite.com; Martens, Kathleen (PARKS); Moreno, Ashley (DPS);
icorcoran@sandyhookpilots.com; hcarlock@scenichudson.org; headyj@oru.com;
Kemper, Jason; javier.bucobo@nypa.gov; COWPUSA@westchestergov.com;
jpotter@hinmanstraub.com
Subject: RE: Champlain Hudson Power Express (Case 10-T-0139)

Your Honors:

DPS Staff has conducted a thorough review of Champlain Hudson Power Express Inc.’s (CHPEI) second Petition to Amend
the Certificate of Environmental Compatibility and Public Need (CECPN) filed December 6, 2019 (Petition). The Petition
addresses several minor locational matters and identifies eight specific facility locational modifications. The Petition
provides information regarding the nature of environmental resources and potential impacts and control measures to
be applied to final design and Environmental Management and Construction Plans (EM&CP) for the revised Facility
locations. After the Procedural Conference held on March 4, 2020, DPS Staff served several information requests (IRs)
on CHPEI seeking clarifications or explanations of site-specific siting and construction matters. CHPEI provided
reasonable responses and explanations regarding Staff’s site-specific concerns. Among other things, the responses to
Staff’s IRs demonstrate that overland construction methods are similar to the originally proposed measures and,
therefore, will not yield greater impacts (except in different locations). DPS Staff has completed its discovery and
believes that no material increase in the nature or extent of adverse environmental impacts of the facility are
anticipated beyond those originally considered by the Commission during its review and grant of the CECPN. In addition,
DPS Staff believes the potential adverse environmental impacts have been mitigated to the greatest extent practicable
through the CECPN’s Conditions and will be reflected in more detail in the anticipated amended EM&CP filing and,
consequently, there are no material issues of fact that would require an evidentiary hearing.

1
 Attachment 2 - Page 2 of 3
DPS Staff recommends the Commission schedule and conduct at least one Public Statement Hearing as soon as
practicable.

Sincerely,

Heather Behnke
Assistant Counsel

Department of Public Service

3 Empire State Plaza, Albany, NY 12223
t (518) 474-5474 | heather.behnke@dps.ny.gov
www.dps.ny.gov

From: Costello, James A (DPS) <James.Costello@dps.ny.gov>

Sent: Wednesday, May 27, 2020 1:31 PM
To: Nancy.Clarke@transmissiondevelopers.com; paul.ghosh-roy@snrdenton.com;
mikew@lakechamplaincommittee.org; dbj@readlaniado.com; GaramP@coned.com; bob.glasser@robertjglasserpc.com;
rloughney@couchwhite.com; rjkoda@earthlink.net; rick.chase@transmissiondevelopers.com; maria@saratogaplan.org;
mg@markg.org; lorif@lakechamplaincommittee.org; lmartinez@nrdc.org; Mark.OConnor@nypa.gov;
Michael.Curti@yonkersny.gov; mcuevas@rwgmlaw.com; Mariotti, Michael (DOT) <Michael.Mariotti@dot.ny.gov>;
mcolomb@entergy.com; atlantic.chapter@sierraclub.org; tmarcelle@albanycounty.com; gallov@coned.com;
shlawr2@aol.com; Wells, Tara (AGRICULTURE) <Tara.Wells@agriculture.ny.gov>; wtaube@indeckenergy.com;
wplache@law.nyc.gov; Bill.helmer@transmissiondevelopers.com; William.Derasmo@troutmansanders.com;
wellman1985@charter.net; MSCIARROTTA@velco.com; sgroden@discovergreene.com; rmackow@entergy.com;
roymcl@aol.com; Crounse, Sita X (DEC) <Sita.Crounse@dec.ny.gov>; swilson@youngsommer.com;
stuart.caplan@snrdenton.com; stephanie.arencibia@nypa.gov; sdorsey@saratogacountyny.gov;
lsinger@couchwhite.com; Smith, Diane (AGRICULTURE) <Diane.Smith@agriculture.ny.gov>; ddecostanzo@nrdc.org;
Drexler, David (DPS) <David.Drexler@dps.ny.gov>; dgoodric@law.nyc.gov; Hintz, Donna (DOT)
<Donna.Hintz@dot.ny.gov>; Phillips, Elizabeth A (APA) <Elizabeth.Phillips@apa.ny.gov>; director@tbhca.com;
saiad@gtlaw.com; dward@youngsommer.com; brad.kranz@nrgenergy.com; Brendan.McGrath@yonkersny.gov;
ServiceList@nrg.com; Belsito, Anthony (DPS) <Anthony.Belsito@dps.ny.gov>; countyattorney@discovergreene.com;
Chris.Jones@troutmansanders.com; dan@shusterassociates.com; COWPUSA@westchestergov.com; Hogan, Chris M
(DEC) <chris.hogan@dec.ny.gov>; gdiaman@ssmplaw.com; John Borchert <JBorchert@cenhud.com>;
JDax@DaxLawFirm.com; janzevino@scenichudson.org; beckj@coned.com; joseph.rachiele@yonkersny.gov;
kchlad@adirondackcouncil.org; Walrath, Leigh R (APA) <Leigh.Walrath@apa.ny.gov>; jfung@couchwhite.com; Martens,
Kathleen (PARKS) <Kathleen.Martens@parks.ny.gov>; Moreno, Ashley (DPS) <Ashley.Moreno@dps.ny.gov>;
icorcoran@sandyhookpilots.com; hcarlock@scenichudson.org; Behnke, Heather (DPS) <Heather.Behnke@dps.ny.gov>;
headyj@oru.com; Kemper, Jason <jkemper@saratogacountyny.gov>; javier.bucobo@nypa.gov;
COWPUSA@westchestergov.com; jpotter@hinmanstraub.com
Cc: Mullany, Sean (DPS) <Sean.Mullany@dps.ny.gov>
Subject: Champlain Hudson Power Express (Case 10-T-0139)

To the Parties:

At the procedural conference held on March 4, 2020, staff of the Department of Public Service (DPS Staff)
requested an opportunity to conduct discovery with respect to the Applicant’s position that there are no
material increases in environmental impacts and no substantial changes in location of facilities. March 4, 2020
Tr., p. 8. DPS Staff should inform Judge Mullany and me by 4:30 p.m. on Thursday, May 28, 2020, whether
discovery is complete and, if so, whether it contemplates any motion practice with respect to the need for an
evidentiary hearing. By that same time, the Applicant and all other parties should address with specificity

2
 Attachment 2 - Page 3 of 3
whether there are any material issues of fact requiring an evidentiary hearing. Thereafter, Judge Mullany and
I will schedule a telephone conference to discuss scheduling matters. Thank you.

James A. Costello
Administrative Law Judge
Office of Hearings and Alternative Dispute Resolution

Department of Public Service

3 Empire State Plaza, Albany, NY 12223
(518) 473-0275
James.Costello@dps.ny.gov

www.dps.ny.gov