Wednesday, December 16, 2009

More Analysis of Con Ed's ROW Rights and Responsibilities

From a May 17, 2007 email by Mike Sigal to Paul Feiner:

Subject: MUNICIPALITY'S RIGHT TO REGULATE CON ED TREE CUTTING/TOPPING

This email is being sent on behalf of Dan Rosenblum and myself. We are both members of the Greenburgh Conservation Advisory Council. I am a retired business lawyer, and Dan is a Senior Attorney of the Pace Law School Energy Project and also a former Commissioner of the Illinois Commerce Commission.

As far as we can tell, a utility in NYS does not have the right to override local municipal law with respect to tree cutting on private rights of way on which "distribution" electric lines are situated. Whether a utility in NYS is exempt from municipal regulation with respect to tree cutting on public rights of way on which "distribution" electric lines are situated would depend on the terms of the right of way and/or franchise agreement granted by the municipality.

We base these conclusions on: (i) Article 2 of the Transportation Corporation Law (Gas and Electric Corporations), (ii) provisions of the NY Public Service Law, and (iii) the Public Service Commission June 20, 2005 Order in Case 04-E-0822 (Enhanced Transmission Right-of-Way Management Practices By Electric Utilities).

I have also had informal discussions, via phone and email, with Richard Berkley, counsel to Assemblyman Brodsky, who at the request of Town Councilman Steve Bass has been very helpful in providing background on the legal framework. Dan Rosenblum has had separate informal discussions with a PSC lawyer. The conclusions herein, while informed by those communications, are ours alone.

A. A few background facts, as we understand them to generally be: "Transmission" electric lines move electric energy between points of supply and points at which it is transformed for delivery to consumers. "Distribution" electric lines deliver electric energy from substations to consumers. Transmission lines and subtransmission lines are high voltage, with voltages up from 69 kilovolts. Distribution lines are lower voltage, with voltages around 34 kilovolts.

B. Article 2 of the Transportation Corporations Law, in Section 11(3), provides that

"electric corporation . . . shall have power to . . . supply electricity for heat or power in cities, towns and villages within this state; . . . to lay, erect and construct suitable wires or other conductors, with the necessary poles, pipes or other fixtures in, on and under the streets, avenues, public parks and places in such cities, towns or villages, with the consent of the municipal authorities thereof, and in such manner and under such reasonable regulations, as they may prescribe . . . ." (emphasis added).


C. The Public Service Law also is relevant to activities of utilities in the State.

Section 130 of the PSL provides that "notwithstanding any other provision of law, no . . . municipality. . . may require any approval, consent, permit, certificate or other condition for the construction or operation of a major facility." Section 120 defines "major utility transmission facility" as (i) an electric transmission line of 125 KV or more extending one mile or more or (ii) an electric transmission line of 100-125 KV extending ten miles or more.

Thus, the PSL specifically preempts local municipal regulation with respect to transmission lines, but does not specifically preempt local municipal regulation with respect to distribution lines. An inference under rules of statutory construction would be that, by specifically preempting local municipal regulation with respect to major facilities, the PSL is not preempting local municipal regulation with respect to distribution lines. If the PSL automatically preempted all local municipal regulation with respect to all electric lines, Section 130 (preempting only with respect to major facility transmission lines) would be superfluous.

D. The Public Service Commission administers the PSL. In 2005, the PSC issued a major order relating to effective right-of-way management in order to assure reliability of electric power delivery: June 20, 2005 Order (Enhanced Transmission Right-of-Way Management Practices By Electric Utilities). This Order relates only to "bulk and other critical transmission facilities" and to "non-critical" transmission facilities as prescribed by the PSC. (P. 30) The PSC determined that "69 kV appears to be a reasonable voltage threshold" for coverage of the Order. (P. 17) The Order thus does not cover lower voltage distribution facilities.

Also, it is worth noting that, even with respect to the major facilities transmission lines covered by the Order, the utilities "must continue to evolve and develop effective danger tree programs that incorporate the appropriate balance between attempting to attain zero tree-caused outages and the corresponding cost, public acceptance and environmental impact of these programs." (P. 13)

E. Rights of way on which distribution lines are situated are either from a public owner or private owner of the underlying property.

ROWs and/or franchise agreements granted by a municipality may, or may not, have granted the grantee utility an exemption from municipal regulation. Each relevant ROW/franchise agreement relating to municipal property would have to be reviewed.

ROWs granted by a private property owner could not legally grant to the grantee utility an exemption from municipal regulation. A private property owner is subject to municipal regulation, and a private property owner when he/she grants a ROW to an utility could not have granted an exemption from municipal law to the grantee utility.




Considering the above law and facts, in order to protect the residents of the Town, both in Villages and Unincorporated Greenburgh, we would suggest that the Town take the position that Con Ed is NOT exempt from local municipal regulation with respect to tree cutting on private and public rights of way on which distribution lines are situated. If Con Ed has a legal basis for a different position, Con Ed should demonstrate in writing to all relevant Town and Village authorities.

1 comment:

Anonymous said...

The PSC/DPS should be investigated regarding its 2005 directive to clear cut electric transmission lines. It is very doubtful that that such should have been promulgated based on a short form EAF.