NJ Judge Denies FirstEnergy Transmission Plan

Congratulations, RAGE!  You did it!

Residents Against Giant Electric (RAGE) formed several years ago to fight FirstEnergy affiliate Jersey Central Power & Light's insane plan to construct a 10-mile, 230kV transmission line in a narrow commuter railroad right of way abutting dense residential development in Monmouth County.  As the judge recognized in her decision handed down yesterday, "RAGE took up the predominant oar in mounting the opposition to the MCRP, understandably, in light of the fact that the Project is in the back yards of its members."  This victory is yours, RAGErs!  The citizens group was incredibly well-organized and managed and its members worked incredibly hard toward denial.  The effort put forth was nothing less than stellar, but effort alone cannot always guarantee victory.  RAGE also worked an incredible strategic game and left no stone unturned, no task undone, and no decision left to chance.  They worked this case in an aggressive, take no prisoners fashion.  They assured their own victory.  Bravo, RAGE, well done!

JCP&L's response to having their ass handed to them whined:

"We strongly disagree that JCP&L failed to prove the need for the Monmouth County Reliability Project," the utility said. "The initial decision contradicts the findings made by the regional grid operator and industry experts."

Clearly, the judge did not feel that the regional grid operator and "industry experts" were credible.  Is that going to be JCP&L's thing on exceptions to the BPU?  That the judge who spent hours and hours evaluating testimony and exhibits failed to recognize the superiority of utility arguments?  That the BPU should disregard her "in the trenches" view of the case and substitute their own judgment of whether or not JCP&L met their burden?  That is truly unlikely.  Judge Cookson was very thorough, carefully evaluated the evidence, and made a reasoned decision.  JCP&L couldn't even point to an error she made, it simply whined that it didn't win.

PJM was not credible.  RAGE presented evidence that JCP&L had begun working on this project, and its preferred route, months before PJM even found a "problem" for it to fix.

I FIND that the preponderance of credible evidence proves that JCP&L commenced studies to justify the MCRP as its preferred route months before any “problem” was even identified as needing a solution.

PJM and its utility members suffer from a serious case of chicken/egg.  This isn't the first time a utility came up with a solution for a problem that PJM had not identified and then used PJM's planning process as a "vehicle" to advance a utility plan by finding a "problem" for it to fix.

Judge Cookson also recognized that failure to kowtow to PJM as an omnipotent grid planning oracle who must be obeyed isn't really a big deal at all.

During the hearings, PJM concurred that JCP&L will not suffer any financial penalties if the Board rejects the MCRP. Both PJM and JCP&L agree that if the MCRP is not approved, they will return to the planning stage and find another way to solve the P7 contingency.

Bravo!  This is the first time a state has recognized that denial of a PJM transmission proposal won't make the lights go out.  Such a simple thing, buried under mounds of rhetoric and projections of doom and gloom.

New Jersey can be a shining example in recognizing that states have the ultimate say in whether or not a RTO planned transmission project is constructed.  Instead of cowering and simply accepting regional grid plans as beyond question, states can say "no."  A regional grid authority was never intended to be the final arbiter of transmission plans.  If it were, there would be no purpose to state transmission permitting authority.  States need to stop acting like a rubber stamp and assert their authority under the law.

The judge also questioned the veracity of every RTO and utility's favorite word, "robust."  Personally, I hate that word.  It means nothing.

There were four alternative 230 kV lines into Red Bank on the narrowed list but apparently no technical studies were undertaken of them because they were considered by JCP&L to lack the appropriate level of “robustness.” Palermo could not find any definition for that term and was unfamiliar with its use generally in the transmission industry.

Let that term go back to the world of salad dressings.

Now let's talk about those "industry experts" JCP&L wants us to believe.  Because I knew the outcome of this Order before I read it, I didn't have to skip to the ordering paragraphs first.  I was able to start at the beginning and read through the synopsis of the evidence before getting to the judge's conclusions.  There was some pretty ominous foreshadowing in the way the judge presented her statement of the evidence.  And once I got to the findings, there were no surprises.  As far as JCP&L's "expert," who found no effect on property values, the judge opined:

Applying these standards, I FIND that Dr. Moliver’s expert opinion is entitled to greater weight than that of McHale. I FIND that McHale’s credibility was undermined by his careless quotation of synopses of studies he never read. He utilized a general search engine that returned results for terms “effect of HVTL at 15 ft” and followed a link to a New Hampshire Siting Commission webpage, copied the summaries, and deleted the attribution footer from his reprint. As reluctant as I am to express this, in my opinion, such “scholarship” by a student would produce an “F” and subject one to claims of plagiarism. It is certainly not the work product of a professional entitled to much weight to count the number of supportive studies versus the number of unsupportive studies without regard for the study criteria and quality. The merits, depths, sampling size, and commonality must be taken into account before a study can be cited as persuasive to a novel setting. I also FIND that his opinion as an expert witness was blended with several lay perceptions that fell outside the scope of his presentation for the Company and were unverified.

The utilities need to quit using this guy.  It sure appears that he put little effort into his testimony, but yet he most likely billed the utility thousands for his "work."  Because utilities believe their expert's opinions are beyond question, apparently some of the "experts" believe likewise.  JCP&L should ask for its money back.  Of course, it's not really JCP&L's money... they paid this guy with funds they will recover from ratepayers.

While the judge did not make a finding on the EMF issue, I got the distinct impression that maybe she believed that the industry has influenced science and that "experts" like Dr. Bailey make a tidy living being utility "experts" and making the same denials over and over.  Perhaps Bailey made a grave error by trying to make the opponent's witness look like a quack.  The judge mentioned that she didn't find him "eccentric" at all.  All those delicious ad hominem utility arguments tossed out to avoid any real debate of the EMF issue... wasted!

The best expert witness overall was clearly RAGE electrical engineer Jeffrey Palermo.  It's obvious that he developed an early rapport with the judge that the other engineering witnesses just couldn't touch.  The technical aspects of electric transmission are extremely difficult for laypeople.  Utility witnesses are usually more about complicating things with unfamiliar words and technical terms in an effort to make the judge give up and simply just trust his opinion because they can't put everything together to devise their own.  From reading this decision, I surmise that Palermo approached it differently and was able to explain the technicalities in a way the judge could understand and equip her to make an informed decision on the technical merits of "need."  He also presented a workable alternative that could be much cheaper and less invasive to the community.  And he clearly explained this alternative to the judge, who adopted it as a possible future solution.  Well done!

JCP&L needs to take a look at its own failed regulatory strategy at this point.  It didn't work on this judge.  She saw right through it all.

The evaluation directed by JCP&L was both pre-emptive in the timeline of the “need” for the Project and created an unlevel playing field tipped in its obvious favor. This is not a close case of general public interest versus parochial interest, with a tie going to the public utility company. I CONCLUDE that JCP&L’s application for municipal waivers pursuant to N.J.S.A. 40:55D-19 must be denied because the Company has not supported its application by the preponderance of the relevant and admissible evidence. The MCRP is not a safe or reasonable response to the potential P7 violation.

Any transmission opposition group that seeks to have a transmission regulatory application denied has to show up and play ball.  RAGE played hard, but more importantly it played smart.  It gave the judge the tools to deny this application.

But the regulatory process isn't the only game transmission opponents need to play.  Public opinion and politics also play a huge role in driving a denial.  RAGE rocked this game as well.  In her summary of the public hearings, the judge remarked:

The prepared summary of written statements indicates that eighty-three (83%) percent were opposed to the MCRP; and, seventeen (17%) percent in favor. Approximately twenty-five (25%) percent of the statements opposing the Project were form letters; and ninety-two (92%) percent of the statements in favor of the Project were form letters, of which eighty-eight (88%) percent were not from the impacted area.

And where did those 92% favorable form letters come from?  The judge elaborated:  "Those backing the MCRP primarily based that support on reliability and economic concerns, and were primarily from businesses not in the five impacted municipalities on a form letter prepared by the New Jersey Chamber of Commerce for its members."

The utility popularity contest was a flop in this instance.  Regulatory public comment hearings are intended to give voice to the community.  The utility's opportunity to make its opinions known comes during the hearing process.  But yet utilities consistently attempt to intrude in the public's opportunity by coercing supportive statements from entities who care little about the project.  It's strictly a numbers game to the utility -- how  many supportive comments can they coerce, and how "important" are the supporters?  RAGE completely drowned these shills out by showing up in record numbers and making honest, heartfelt, personal testimony opposing the project.  Perhaps JCP&L had a hand in its own defeat here by enraging the community to counteract JCP&L's underhanded efforts to set up its numbers game.  Utility efforts to coerce supportive comments from the community is a tactic that has backfired on more than one occasion and it needs to be jettisoned from the utility bag of tricks.

RAGE's victory should be celebrated and admired.  They not only accomplished their goal, but they provided an example that will be studied over and over by transmission opponents on other projects (and dare I say utilities, if they ever pull their heads out of their own behinds long enough to recognize they have a serious problem with opposition groups).

Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it's the only thing that ever has.  --  Margaret Mead

Well done, RAGE!  You changed the world!