In the Matter of the Application of Boundless Energy NE, LLC, Petitioner,
Public Service Commission of the State of New York, New York Independent System Operator, Inc., North American Transmission Corporation, North American Transmission, LLC, Nextera Energy Transmission New York, Inc., Central Hudson Gas & Electric Corporation, Consolidated Edison Company of New York, Inc., Niagara Mohawk Power Corporation D/B/A National Grid, New York State Electric and Gas Corporation and New York Transco LLC, Respondents.
Charles M. Pratt, General Counsel to Petitioner Boundless
Energy NE, LLC.
Kimberly A. Harriman General Counsel to Respondent Public
Service Commission of the State of New York.
C. Graham, of counsel Three Empire State Plaza.
and Williams, Joseph J. Saltarelli, of Counsel, Attorneys for
Respondent New York Independent System Operator, Inc.
A. HARTMAN, J.
CPLR Article 78 proceeding, petitioner Boundless Energy NE,
LLC (Boundless) seeks to vacate a Public Service Commission
(PSC) Order Finding Transmission Needs Driven by Public
Policy Requirements, dated December 17, 2015 (Transmission
Needs Order). The PSC, following a comparative evaluation
process, identified a need driven by public policy
requirements to provide additional transmission capacity in
the upstate-to-downstate corridor; invited specific
applicants to submit all or part of their transmission
development proposals to respondent New York Independent
System Operator, Inc. (NYISO) for further review; and asked
other applicants, including petitioner, to withdraw their
original proposals or provide an explanation or statement of
intent. Petitioner also challenges a PSC order dated February
23, 2016, denying rehearing and asks the Court to direct
NYISO to hold in abeyance further decisions with respect to
the Transmission Needs Order.
NYISO is not a proper party to this proceeding, NYISO's
motion to dismiss the petition as against it is granted.
And because Boundless has not demonstrated that the PSC's
Transmission Needs Order is contrary to law or irrational,
the petition against the PSC is denied.
AC Transmission Proceedings
2012, the PSC solicited proposals to "increase transfer
capacity through the congested transmission corridor, which
includes the Central East and the [Upstate New York/Southeast
New York (UPNY/SENY)] interfaces, " by 1, 000 megawatts
(Proceeding on Motion to Examine Alternating Current
Transmission Upgrades, R1323, at 2).  Four transmission
developers submitted 22 proposals, with Boundless submitting
two of them. The proposals were submitted pursuant to the
licensing and siting procedures of Public Service Law Article
VII. Referring to them as the Alternating Current
Transmission Proceedings (AC Transmission Proceedings), the
PSC performed a comparative analysis of the proposals, taking
into consideration the anticipated transfer capacity
increase, cost, and environmental impacts. In July 2015, PSC
staff produced an interim report (R631). According to that
report, the approval of a new 720 megawatt generation
facility required the staff to update its analysis before
issuing a final report (Interim Rpt., at ii). The interim
report recommended that a number of projects be eliminated
from consideration, but proposed continued study of seven
projects, including the Boundless proposals (Interim Rpt., at
Public Policy Transmission Planning Process
August 2014, while the AC Transmission Proceedings were
underway, NYISO commenced parallel proceedings to fulfill its
public policy transmission planning role pursuant to
NYISO's Open Access Transmission Tariff (Tariff) with the
Federal Energy Regulatory Commission (FERC) (see
R729). FERC's regulatory authority focuses on ensuring
that generators have nondiscriminatory access to transmission
facilities and that rates for such access are reasonable.
NYISO's solicitation of proposed public policy
transmission needs resulted in multiple proposals, which
NYISO forwarded to the PSC. Pursuant to the FERC Tariff, the
PSC was required to identify public policy requirements
driving transmission needs after notice-and-comment
rulemaking in accordance with the State Administrative
Procedures Act (SAPA). In a July 20, 2015 Order Addressing
Public Policy Requirements for Transmission Needs, the PSC
issued its determination with respect to other areas of the
State, but deferred its determination of public policy-driven
transmission needs in the Eastern New York transmission
corridor pending the staff's review in the AC
Transmission Proceedings (R729).
September 2015, PSC staff issued its final report,
recommending that the PSC declare public policy needs for
transmission facilities consistent with its identification of
three proposals, not including Boundless's, as best
meeting transmission needs in a cost-effective manner, with
minimal environmental impacts (R604).
receiving the final report, on October 7, 2015, the PSC
published a notice of proposed rulemaking, which stated that
the PSC was "considering whether to adopt, modify, or
reject, in whole or in part, certain proposals to relieve
congestion between Upstate and Downstate New York to be
transmission needs driven by Public Policy Requirements"
(2015-40 NY St. Reg. 91). The PSC then held hearings and
conducted additional analyses.
December 17, 2015, the PSC issued an Order Finding
Transmission Needs Driven by Public Policy Requirements
(R464). In the order, the PSC, among other things, identified
the transmission needs as a detailed portfolio of projects,
divided into two segments; set criteria for NYISO to apply in
evaluating proposed transmission solutions; requested the
entities that had proposed the projects recommended in the
final report to submit those project proposals to NYISO;
requested that the remaining entities, including Boundless,
withdraw their proposals; and required any entity that
declined to withdraw its proposal to submit to the PSC a
written explanation and declaration of future intent. It also
declared that the Transmission Needs Order constituted a
written statement provided to NYISO as part of its Public
Policy Transmission Planning Process ...