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Bowditch
&Dewey
ATTORNEYS
Vincent Devito
Direct telephone: (617) 757-6518
Direct facsimile: (508) 929-3019
Email: [email protected]
June 1, 2015
VIA E-FILING AND HAND DELIVERY
Mark D. Marini
Department of Public Utilities
One South Station, Second Floor
Boston, Massachusetts 02110
Re: Petition of The Berkshire Gas Company for Approval
of a Firm Transportation Agreement with Tennessee Pipeline
Company, LLC, Pursuant to G.L. c.164 ~ 94A
Docket No. D.P. U. 15-48
Dear Secretary Marini:
Enclosed relative to the above-referenced matter, please find one original and two
photocopies of the Appeal of Hearing Officer Ruling on Petitions to Intervene of Northeast
Energy Solutions, Inc. and a Certificate of Service in the above proceeding. Thank you for your
attention to this matter.
Very truly yours,
Vincent De i o
VD:kmp
Enclosures
cc:
Laurie E. Weisman, Hearing Officer
Service List, D.P.U. 15-48
{Client Files/BUS/308841/0004/COR/B0533087.DOCX;1 }
BOWDITCH & DEWEY, LLP ONE INTERNATIONAL PLACE, 44T"FLOOR BOSTON, MA 02110
7 617 757 6500 F6177576501 www.bowditch.com
Boston Framingham Worcester
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF PUBLIC UTILITIES
Petition of The Berkshire Gas Company
for Approval of a Firm Transportation
Agreement with Tennessee Pipeline
Company, LLC, Pursuant to
G.L. c. 164, § 94A
)
)
)
)
)
D.P.U. 15-48
APPEAL OF HEARING OFFICER RULING
ON PETITIONS TO INTERVENE
OF NORTHEAST ENERGY SOLUTIONS, INC.
Pursuant to 220 C.M.R. § 1..06 (d)(3), Northeast Energy Solutions, Inc. ("NEES") hereby
submits this appeal (the "Appeal") of the Hearing Officer Ruling On Petitions to Intervene (the
"Ruling") denying the Petition for Leave to Intervene of NEES. For the reasons stated herein,
NEES respectfully requests that the Commission overturn the Ruling and grant NEES leave to
intervene in full in the proceeding.
I.
INTRODUCTION
On April, 21 2015, The Berkshire Gas Company ("Berkshire") filed for approval of a
Precedent Agreement (the, "Precedent Agreement") between Berkshire and Tennessee Gas
which involves the transportation of gas via the development of a proposed pipeline
in
Pipeline Company, LLC ("TGP") by the Department of Public Utilities (the "Department")
a project
known as the Northeast Energy Direct ("NED"). The Agreement relates to the execution of two
forms of gas transportation agreement for 20 year terms which would entitle Berkshire to gas
transmission service between Wright, New York and Dracut, Massachusetts, Berkshire's existing
gates on TGP's system and the West Greenfield Gate Station.
On April 29, 2015, the
Department issued a Notice of Filing and Public Hearing and set a deadline of May 22, 2015 for
{Client Files/BUS/308841/0004/B0532586.DOCX;1 }
petitions for leave to intervene in the proceeding. NEES timely filed a petition for leave to
intervene as a full participant (the "Original Petition"), pursuant to 220 C.M.R. 1.03, on May 22,
2015. On May 28, 2015, NEES filed a Motion for Leave to Amend Petition for Leave to
Intervene and Amended Petition for Leave to Intervene (collectively with the Original Petition,
the "Petition"), after the Town of Lenox ("Lenox") voted unanimously. to join NEES as a
member in order for NEES to represent it in this proceeding. Also on May 28, 2015, Berkshire
filed, but did not serve NEES, a Response of the Berkshire Gas Company to Petitions to
Intervene opposing granting NEES' intervention in this proceeding. On May 29, 2015. the
Hearing Officer issued the Ruling which denied the Petition on the grounds that NEES had not
demonstrated that it is substantially and specifically affected by this proceeding, and that the
Attorney General, the Department of Energy Resources ("DOER") and the Conservation Law
Foundation ("CLF") can adequately represent NEES' interests regarding rates and efficient
energy infrastructure. For the reasons set forth in this Appeal and the Petition, the ruling was
inconsistent with the Department's standard of intervention because NEES has demonstrated that
it is substantially and specifically affected by the proceeding and it is not adequately represented
by any other party.
II.
STANDARD OF REVIEW
The Department is examining whether the Precedent Agreement is consistent with the
public interest. Investi atg ion by the Dept of Telecommunications and Energy Pursuant to G.L.
c. 164, § 94A into the Petition of The Berkshire Gas Company, D.T.E. 04-35, at 8 (2004)
("Berkshire Gas"). In making such examination, Berkshire must show the Precedent Agreement
"(1) is consistent with the company's portfolio objectives and (2) compares favorably to the
range of alternative options reasonably available to the company and its customers including
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releasing capacity to customers migrating to transportation, at the time of the acquisition or
contract negotiation." Id. In addition, the Department will determine whether the Precedent
Agreement satisfies Berkshire's non-price objectives, including flexibility of nominations and
reliability and diversity of supplies. Id.
The Department may "allow any person showing that he may be substantially and
specifically affected by the proceeding to intervene as a party in the whole or any portion of the
proceeding, and allow any other interested person to participate by presentation of argument
orally or in writing, or for any other limited purpose." G.L. c. 30A, § 10(4); see 220 C.M.R. §
1.03(1). In considering a petition to intervene or participate, a Hearing officer may consider,
among other factors:
The interests of the petitioner, whether the petitioner's interests are unique and
cannot be raised by any other petitioner, the scope of the proceeding, the potential
effect of the petitioner's intervention on the proceeding, and the nature of the
petitioner's evidence, including whether such evidence will help to elucidate the
issues of the proceeding, and may limit intervention and participation accordingly.
Hearing Officer Ruling on Petitions to Intervene, D.P.U. 15-39, at 7 ("RulingI"); Boston Edison
Co., D.P.U. 96-23, at 10 (citations omitted).
III.
ARGUMENT IN FAVOR OF NEES' INTERVENTION IN PROCEEDING
NEES' interests, as a representative of a large group of landowners and ratepayers
impacted by the present matter, are substantially and specifically affected by the proceeding.
NEES represents .ratepayers and landowners with a specific interest in ensuring that the
Precedent Agreement and the available alternatives are .analyzed in light of the regulatory
impacts on NED and with regard to the economic, environmental, and other impacts of the
Precedent. Agreement of which NEES, though its other advocacy activities, possesses valuable
expertise which will be of use to the Department.
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A.
NESS Will be Substantially and Speci~cally Affected by the Proceeding
Uniquely, NEES, through its founding members, represents over 101,850 individuals in
The Commonwealth of Massachusetts and its founding members collectively own or hold
conservation restrictions on over 50,000 acres of land in the Commonwealth. This covers all of
the cities and towns served by Berkshire. NEES was founded to represent its members in
providing energy infrastructure analysis and advocacy regarding the economics of energy
projects and transactions in the Northeastern United States, including NED and the effects of the
Precedent Agreement thereon. NEES represents individuals and entities who will be subject to
any change in rates as a result of the Precedent Agreement as well as landowners and rate payers
within Berkshire's service territories. NEES' membership also includes Representative Mike
Brady, an elected member of The Commonwealth of Massachusetts House of Representatives, in
his capacity representing the Ninth Plymouth district, which is comprised of Brockton (Ward 2,
Ward 3: Precincts A, B, C, Ward 4: Precincts A, D, Ward 5: Precinct A, Ward 7: Precincts A, B).
Representative Brady is interested in this matter through the impacts of NED on a proposed
power plant to be built in Brockton which would depend, in part, on gas to be delivered via
NED. Finally, NEES' membership includes Lenox which is interested in this matter through the
impacts of NED and the Precedent Agreement on its residents, economics, financials, and the
ecological resources of Lenox.
Representatives of large groups of ratepayers, such as NEES, are substantially and
specifically interested in proceedings such as .this one which could impact the cost of energy for
their members. See Robinson, 416. Mass. 668 at 674. In Robinson, the court noted that groups
representing large groups of ratepayers had been admitted to the proceeding as full intervenors.
416 Mass. 668 at 674. Representatives of multiple ratepayers, have a substantial and specific
i~
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interest in ensuring that the Precedent Agreement compares favorably to the available
alternatives and that the Precedent Agreement satisfies Berkshire's non-price objectives. See
Berkshire Gas, D.T.E. 04-35, at 8. In Robinson, State Representative Christopher Hodgkins was
permitted to intervene in the matter in full. 416 Mass. at 670 n.2. Representative Brady, a
member of NEES in his elected capacity, has a substantial and specific interest in ensuring the
interests of his constituents, are represented in proceedings such as this which will have impacts
on the viability of infrastructure projects in his district. NEES exceeds standards for being
admitted to the proceeding as a full intervenor.
Importantly, the proposed route of NED, which will provide gas contracted for by the
Precedent Agreement, is proposed to cross numerous communities in which NEES represents
landowners and will affect the property interests of such landowners.
The landowners in
Martorano v. Department of Public Utilities, a citizens group representing impacted landowners
in a community affected by a pipeline project was allowed to intervene in a Department
proceeding. 401 Mass. 257, 260 (1987). Landowners have a substantial and specific interest in
ensuring that the analysis of the favorability of available alternatives to the Precedent Agreement
takes into account the impacts the Precedent Agreement will have on landowners. See Id.
The membership of NEES includes the following entities whose interests will be
substantially and specifically affected by the Precedent Agreement and NED.
The
Massachusetts Land Trust Coalition is an association of over 130 land trusts, watershed
associations, open space committees, and advocacy groups founded to increase- the effectiveness
of Massachusetts land trusts in working with legislative and regulatory bodies. ~ The Berkshire
' The members of the Massachusetts Land Trust Coalition which operate in the Berkshire Gas Service Area include
the following entities: The Mt. Grace Land Conservation Trust is a regional land trust that serves 23 towns in
Worcester and Franklin counties and is supported by more than 1,100 members and has helped to protect more than
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Natural Resources Council currently protects approximately 19,000 acres of land in the
Berkshires and has worked to conserve important natural resources since its founding in 1967.
The East Quabbin Land Trust owns over 400 acres of land in the area of the ~Quabbin Reservoir
and preserves additional land in the area through conservation restrictions. The Nashua River
Watershed Association strives to restore and protect water quality and quantity in part through
the conservation of open spaces and encouraging careful land use and development. The
Franklin Land Trust was founded in 1987 and works to conserve farms, fields, forests and other
cultural resources significant to the environmental quality . and economy of western
Massachusetts by preserving over 28,000 acres of land in the region.
The Trustees of
Reservations is an organization founded over 100 years ago and now owns and cares for over
25,000 acres of land at over 100 sites across Massachusetts.
The Richmond Land Trust
preserves 912 acres through land ownership and conservation restrictions in Richmond
Massachusetts. All these members are landowners and conservation. stakeholders who will be
substantially and specifically impacted by the Precedent Agreement and the proposed NED
pipeline.
In addition, Lenox is a member of NEES. Lenox is part of Berkshire's service area and is
home to 5,025 residents who are customers or potential customers of Berkshire.2 In addition,
Lenox owns over 1,200 acres of permanently protected conservation lands including over 861
28,000 acres of land since 1986. The Kestrel Land Trust serves nineteen towns in the Connecticut River Valley and
since 1970 has conserved more than 19,000 acres of wildlands, woodlands, farmlands and riverlands. The
Williamstown Rural Lands Foundation has about 400 members and preserves approximately 600 acres of land in
Williamstown, Massachusetts. -The Great Barrington Land Conservancy is dedicated to conservation of open space
for ecological, recreational agricultural and scenic purposes and protects over 400 acres of land in its territory. The
Trust for Public Land is a national organization which protects over three million acres of land including sites in the
Connecticut River valley. The Massachusetts Audubon Society is the largest conservation organization in New
England. Founded in 1896, it currently preserves over 35,000 acres of land in Massachusetts and undertakes
advocacy activity with respect to land conservation, climate change, and wildlife protection. Finally, the New
England Forestry Foundation, seeks to conserve New England's forests through conservation and ecological
management of privately owned forestlands in New England, including a number of sites in Western Massachusetts.
2 As of the 2010 census.
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acres of permanently protected land in the Lenox Mountain watershed which was acquired to
protect Lenox's drinking water supply.
Lenox joined NEES in order to ensure that the
substantial and specific interests of Lenox and its residents in the ecological resources of the
town which could be impacted by the Precedent Agreement and NED, were represented in this
proceeding. NEES also includes Stephentown, a town in Rensselaer County, New York
("Stephentown"), which signed a Memorandum of Understanding to join NEES on May 28,
2015. Neither the Attorney General, DOER, or CLF can adequately protect the interests of
Stephentown in this proceeding.
Finally, the Department's consideration of the Precedent Agreement could impact
proceedings with respect to the approval of NED, along with related matters, before the Federal
Energy Regulatory Commission ("FERC"), the U.S. Department of Energy, and the States of
Maine and New York, to which NEES is an active party or anticipates to be an active party.
Based on these activities, and its corporate mission, NEES and its members have a substantial
and specific interest in NED, its regional implications and the effects of the Precedent
Agreement thereon. See Ruling, at 7 (stating that the Conservation Law Foundation was
substantially and specifically affected based on its "interest in the proposed pipeline, its regional
implications, and the Precedent Agreement's relationship thereto"). As a result of the foregoing,
NEES has established that the proceedings will substantially and specifically affect the interests
of NEES and its members.
C.
The Interests of NEES Cannot be Adequately Represented by Any Other
Par
As a result of its activities before FERC and other state's regulatory bodies, NEES
possesses valuable expertise with respect to energy infrastructure and transactions and the
environmental and economic impacts of the same. NEES' expertise in this matter cannot be
-7'
{Client Files/BUS/308841/0004/B0532586.DOCX;1 }
replicated by another party to the proceeding, and as a result, if ~NEES is not granted leave to
intervene, its interests in the matter will not be adequately represented; thereby, causing
avoidable harm to NEES. In addition, NEES believes such information, including expert
testimony with respect to energy agreements, will be valuable information for the Department in
its consideration of the available alternatives to the Precedent Agreement as well as whether or
not the Precedent Agreement is consistent with Berkshire's non-price objectives. See Rulin at
7; Rulin~I, at 7 (stating that CLF's knowledge "could elucidate important issues in the
proceeding"); Hearing Officer Rulingon Petitions to Intervene and Participate D.P.U. 10-54 at 56. ("Ruling II"); Berkshire Gas, D.T.E. 04-35, at 8. NEES is uniquely situated to represent its
and its members substantial and specific interest in this matter, including those of Representative
Mike Brady in his elected capacity to the General Court and Lenox. NEES was. founded for the
purposes of uniquely representing it members' interests before regulatory bodies, as its founders
had not received satisfactory representation from other entities in regulatory proceedings similar
to this case.
In view of the aforementioned, the Commission should view NEES not only as an
organization representing. a large group but also as one with and with members who have unique
interests that cannot be represented by any other party. Further, NEES, by virtue of its extensive
involvement in energy infrastructure, policy, and transactional proceedings in multiple
jurisdictions, including FERC and the U.S. Department of Energy, is substantially and
specifically affected by .this proceeding. NEES' interests are directly connected to this
proceeding, its interests and members are unique and cannot be represented by any other party.
Additionally, in view of NEES' involvement with an array of other matters, it is able to provide
unique expertise that will help to elucidate the issues herein. See Rulin~II, at 5-6. NEES is
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currently involved in a number of proceedings related to natural gas transportation before FERC,
the U.S. Department of Energy, and the States of Maine and New York. NEES has provided
valuable analysis related to the impacts of proposed energy transactions including identifying
defects, inaccuracies and need for clarification in other party's filings, including economic and
environmental analysis. NEES can provide similarly valuable experts, and expertise through
testimony in this proceeding which will elucidate important issues in this proceeding. See Id.
To emphasize, NEES, unlike- any other participant in this proceeding, uniquely represents
numerous large conservation land owners and rate-payers, Lenox and a state representative, in
his elected capacity, who are substantially and specifically affected by this proceeding. NEES
has interests that cannot be adequately represented by the Attorney General, DOER, or CLF none
of whom represent the interests represented by NEES, especially those of Representative Brady,
Lenox, and Stephentown. See Ruling II, at 8.
NEES does have the right to speak for its members, including the large conservation land
owners and Representative Mike Brady, in his elected capacity, and Lenox in this proceeding.
For the foregoing reasons, the Petition was consistent with the Department's standard for
intervention and should have been granted by the Department. See G.L. c. 30A, § 10(4); 220
C.M.R. § 1.03(1); Robinson, 416 Mass. 668 at 674; Martorano 401 Mass. at 260; Berkshire Gas,
D.T.E. 04-35, at 8.
IV.
CONCLUSION
For the reasons described above, Northeast Energy Solutions, Inc. respectfully requests
that the Commission overturn the Ruling and grant Northeast Energy Solutions, Inc. leave to
intervene in the proceeding fully as a party thereto. See Ru1in~ at 8.
{Client Files/BUS/308841/0004/B0532586.DOCX;1 }
Respectfully Submitted,
NORTHEAST ENERGY SOLUTIONS, INC.
i_
•
Vincent Devito, Esq.
Bowditch &Dewey, LLP
1 International Place, 44th Floor
Boston, Massachusetts 02110
(617) 757-6518
vdevito a,bowditcll.com
Christopher Marquis, Esq.
Bowditch &Dewey, LLP
1 International Place, 44th Floor
Boston, Massachusetts 02110
(617)757-6513
cmarquis(u~bowditch.com
Dated: June 1, 2015
-10{Client Files/BUS/308841/0004/B0532586.DOCX;1 }
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF PUBLIC UTILITIES
Petition of The Berkshire Gas Company
for Approval of a Firm Transportation
Agreement with Tennessee Pipeline
Company, LLC, Pursuant to
G.L. c. 164, § 94A
)
)
)
)
)
D.P.U. 15-48
CERTIFICATE OF SERVICE
Ihereby Certify thatIhave this day served the foregoing document upon the persons on
the Service List in the above captioned proceeding in the manner required by the Department of
Public Utilities'. Rules of Practice and Procedure.
Vincent Devito, Esq.
Bowditch &Dewey, LLP
1 International Place, 44th Floor
Boston, Massachusetts 02110
(617) 757-6518
vdevitonbowditch.com
Dated: June 1, 2015
{Client Files/BUS/308841/0004/B0532586.DOCX;1}
~~.
~~je ~omcmconc~ea~~t~j of ~ac~~acc~ju~ett~
DEPARTMENT OF PUBLIC UTILITIES
D.P.U. 15-48
May 29, 2015
Petition of The Berkshire Gas Company for Approval of a Precedent Agreement with Tennessee
Gas Pipeline Company, LLC, pursuant to G.L. c. 164, § 94A.
HEARING OFFICER RULING ON PETITIONS TO INTERVENE
I.
INTRODUCTION
On Apri121, 2015, The Berkshire Gas Company ("Berkshire" or "Company") filed a
petition with the Department of Public Utilities ("Department") seeking approval of a precedent
agreement ("Precedent Agreement") for firm transportation service with Tennessee Gas Pipeline
Company, LLC ("Tennessee"). The Department docketed this matter as D.P.U. 15-48.
On April 27, 2015, the Attorney General of the Commonwealth ("Attorney General")
filed a notice of intervention pursuant to G.L. c. 12, § 11E, and was recognized as a full party to
this proceeding. The Department received timely petitions to intervene as full participants in the
matter from the following: Massachusetts Department of Energy Resources ("DOER"),
Conservation Law Foundation ("CLF"), Pipeline Awareness Network for the Northeast, Inc. and
Representative Stephen- Kulik, jointly ("PLAN"), Northeast Energy Solutions, Inc. ("NEES"),
and Portland Natural Gas Transmission System ("PNGTS").
The Company filed responses to each of the petitions, objecting to full intervention status
for all but DOER and CLF, and suggesting that the other petitioners could be made limited
participants.
II.
STANDARD OF REVIEW
The Department's regulations require that a petition to intervene describe how the
petitioner is substantially and specifically affected by a proceeding. 220 C.M.R. § 1.03(1)(b);
see also G.L. c. 30A, § 10. In interpreting this standard, the Department has broad discretion in
determining whether to allow participation, and the extent of participation, in Department
proceedings. Attorney General v. Department of Public Utilities, 390 Mass. 208, 216 (1983);
Boston Edison Company v. Department of Public Utilities, 375 Mass. 1, 45 (1978) (with regard
to intervenors, the Department has broad but not unlimited discretion), cent. denied, 439 U.S. 921
(1978); see also Robinson v. Department of Public Utilities, 835 F. 2d 19 (1St Cir. 1987). The
Department may allow persons not substantially and specifically affected to participate in
proceedings for limited purposes. G.L. c. 30A, § 10; 220 C.M:R. § 1.03(1)(e); Boston Edison,
375 Mass. at 45. A petitioner must demonstrate a sufficient interest in a proceeding before the
D.P.U. 15-48
Page 2
Department will exercise its discretion and grant limited participation. Boston Edison,
375 Mass. at 45. The Department is not required to allow all petitioners seeking intervenor
status to participate in proceedings. Id.
III.
PETITIONS TO INTERVENE
A.
DOER Petition
DOER alleges that it is the Massachusetts executive agency responsible for establishing
and implementing the Commonwealth's energy policies and programs, generally (DOER
Petition at 1-2, citing G.L. c. 25A, § 6). DOER states that its ability to develop and implement
consistent governmental policies with respect to the Commonwealth's energy programs will be
substantially and specifically affected by this proceeding (DOER Petition at 2).
B.
CLF Petition
CLF describes itself as a nonprofit, member-supported advocacy organization with over
1,600 members in Massachusetts that works to solve environmental problems in New England
(CLF Petition at 1-2). CLF alleges that it and its members are substantially and specifically
affected by this proceeding and have standing for the following reasons: (a) CLF by and through
its members has a substantial interest in the outcome of this proceeding, including the
advancement of the Global Warnung Solutions Act, G.L. c. 21N, c. 30, § 61 ("GWSA");
(b) natural gas is composed primarily of methane, a greenhouse gas that is more potent than
carbon dioxide; and (c) CLF and its Massachusetts members have a substantial interest in
ensuring that the record is fully developed to consider the requirements of the GWSA to enable
the Department to consider whether and to what extent the Company's petition will reduce
greenhouse gas emission (CLF Petition at 2-3). CLF states that its intervention is likely to
elucidate important issues and facilitate an expeditious and just resolution of this proceeding
because of its special expertise and experience in energy policy, including energy efficiency,
energy conservation, and greenhouse gas emission reduction requirements (CLF Petition at 3).
CLF further states that because of its expertise with respect to the environmental issues
associated with natural gas supply and distribution, extensive knowledge regarding the GWSA,
and significant involvement in related proceedings, its intervention will not be duplicative of
other parties and will help facilitate an expeditious and appropriate result (CLF Petition at 3). As
an intervenor, CLF states that it will present its views regarding (1) whether the Company's
Precedent Agreement and any resulting firm transportation service agreements conform to the
requirements of the GWSA; (2) the extent to which additional analysis needs to be conducted
regarding the greenhouse gas impacts of the Precedent Agreement, and (3) the range of
alternative options reasonably available to the Company to assess whether the Agreement would
be inthe public interest (CLF Petition at 4). Finally, CLF states that it and its members have
unique interests that cannot be adequately represented by any other party (CLF Petition at 4).
CLF alleges that it and its members will be irreparably harmed by an inability to raise its unique
interests in this proceeding, and that CLF's participation in recent natural gas dockets before the
D.P.U. 15-48
Page 3
Department demonstrates that CLF and its members have distinct interests and concerns from
those of other parties, including the Attorney General (CLF Petition at 4).
C.
PLAN/Kulik Petition
PLAN describes itself as a nonprofit Massachusetts corporation organized exclusively for
charitable, scientific, and educational purposes, with its primary purpose being to engage in legal
and regulatory advocacy in connection with fossil fuel infrastructure and its alternatives (PLAN
Petition at 1). PLAN states that its members include municipalities within the Company's
service territory, Company customers and ratepayers, and Representative Stephen Kulik and
other legislators within their representative capacity (PLAN Petition at 1). PLAN claims that its
members are private landowners whose property will be adversely impacted and taken by
Tennessee to construct the proposed pipeline (PLAN Petition at 1). PLAN further states that
Representative Kulik is the vice chair of the House Committee on Ways and Means, and that he
represents the First Franklin District, which includes Franklin, Hampshire and Hampden
Counties (PLAN Petition at 2). PLAN further states that four of the municipalities within
Representative Kulik's jurisdiction are subject to the Company's moratorium on new customer
connections, and that six of the municipalities will be directly impacted by the proposed route of
the pipeline (PLAN Petition at 2).
PLAN states that it represents the customers that the Company expects to serve with the
approval of the Precedent Agreement (PLAN Petition at 6). Further, PLAN argues that the
Department's determination as to the reasonableness and prudence of the Precedent Agreement
will involve whether it is the least-cost capacity option for customers (PLAN Petition at 6).
Therefore, PLAN argues that its members and Representative Kulik's constituents will be
substantially and specifically impacted by the capacity choice that the Company makes on their
behalf, will be subject to any rate and cost implications as set forth in the Precedent Agreement,
and will have their rights and interests impacted by the Department's decision (PLAN Petition
at 6). Regarding the moratorium, PLAN argues that the Company's capacity choice of the
Precedent Agreement will have implications for when, whether, and at what cost the moratorium
will be lifted, all of which will specifically and substantially affect PLAN members_ and
Representative Kulik's constituents (PLAN Petition at 6-7). Further, PLAN members and
Representative Kulik's constituents will bear the costs and suffer the impacts of the Precedent
Agreement, and will bear the brunt of any environmental impacts (PLAN Petition at 7).
PLAN desires to submit discovery and testimony regarding the development of pricing
assumptions, the likelihood that the Company will need the capacity, and whether the Company
has conducted a reasonable assessment of a full range of alternatives (PLAN Petition at 8).
PLAN argues that. each of these elements is directly relevant to the standard of review and has
implications regarding costs to ratepayers (PLAN Petition at 8). Further, PLAN states that
Representative Kulik has a substantial and specific interest in ensuring that his constituents have
access to least-cost and uninterrupted gas supply (PLAN Petition at 9j. PLAN argues that its
interests are not adequately represented by any other party, including the Attorney General, and
that it will provide significant information to elucidate and inform the Department (PLAN
Page 4
D.P.U. 15-48
Petition at 10-11). Finally, PLAN argues that it will provide valuable experience and expertise
with respect to the issues in this proceeding (PLAN Petition at 11-12).
D.
NEES Petition
NESS states-that it is a corporation representing a large group of landowners and
ratepayers who are substantially and specifically affected by this proceeding (NEES Petition
at 3). NEES states that its members have a specific interest in ensuring that the Precedent
Agreement and the available alternatives are analyzed in light of the regulatory impacts and with
regard to economic, environmental, and other impacts (NEES Petition at 3). NEES states that its
members hold conservation restrictions on over 50,000 acres of land, covering all municipalities
that the Company serves (NEES Petition at 3). NEES states that its members will be subject to
changes in rates and land impacts (NEES Petition at 4). NEES further states that its members
include State Representative Michael Brady, representing the Ninth Plymouth District, including
Brockton, where the impacts of the proposed project could affect a power plant to be built in
Brockton that would depend, in part, on gas to be delivered via the proposed project (NEES
Petition at 4). NEES argues that this proceeding could impact the cost of energy for its members
(NEES Petition at 4). In addition, NEES argues that Representative Brady has a substantial and
specific interest in ensuring that the interests of his constituents are represented in this
proceeding, which will have impacts on the viability of infrastructure projects in his district
(NEES Petition at 4).
NEES also argues that the proposed route of the project will cross numerous communities
in which NEES represents landowners and will affect their property interests (NEES Petition
at 5). NEES also argues that the Precedent Agreement could impact proceedings and related
matters before the Federal Energy Regulatory Commission ("FERC"), the U.S. Department of
Energy ("DOE"), and other states, to which matters NEES is or may become an active party,
thereby substantially affecting NEES's interests (NEES Petition at 6-7).
Further, NEES argues that it could suffer "peculiar damage" because the Precedent
Agreement could result in increased costs to its ratepayer members, and its members have a
particular interest in ensuring that their energy resources are delivered so as to take into account
environmental, economic, and other impacts (NEES Petition at 7). NEES also notes that its
landowner members could suffer damage as a result of the impact of the project (NEES Petition
at 7). Finally, NEES argues that it possesses valuable expertise regarding energy agreements,
and that no other party can adequately represent its interest (NEES Petition at 7-9).1
~
NEES subsequently moved to amend its petition to include information that the Board of
Selectmen of the town of Lenox, Massachusetts had voted unanimously to join NEES as
a member in order for NEES to represent the Town's interests in this matter. In its
amended 'petition, NEES notes that Lenox is interested in this matter through the impacts
of the proposed project and the Precedent Agreement on its residents, economics,
financials, and the ecological resources of the town (Amended Petition at 5).
D.P.U. 15-48
E.
Page 5
PNGTS Petition
PNGTS states that it is ahigh-capacity, high-pressure interstate natural gas pipeline that
has been serving New England since March 1999 (PNGTS Petition at 1). PNGTS asserts that it
is substantially and specifically affected by this proceeding because the market areas of PNGTS
and the proposed pipeline overlap, that its interests would be affected by any decision that the
Department reaches, and that therefore, it must participate to protect its interests (PNGTS
Petition at 2, 3). PNGTS maintains that, given its expertise and unique knowledge of its own
system, PNGTS's intervention will not be duplicative of other parties and is necessary to ensure
the accuracy of the record (PNGTS Petition at 2). PNGTS further argues that it has unique
information and expertise regarding its system and supply that may become necessary in this
proceeding (PNGTS Petition at 2). PNGTS claims that it seeks to ensure the accuracy of the
record regarding its system and its ability to serve as an alternative potential source of supply
(PNGTS Petition at 2). PNGTS states that it does not seek to harm contractual relationships
between Berkshire and Tennessee (PNGTS Petition at 3).
IV.
COMPANY'S REPONSE
A.
All Petitions
The Company does not object to DOER's or CLF's petitions to intervene (Response at 1,
2). The Company objects to each of the remaining petitions to intervene because the petitioning
entities: (1) have failed to establish that they will be substantially and specifically affected by
the outcome of this proceeding; (2) have failed to allege any specific information that will be
developed in relation to the actual standard of review in this proceeding as a result of their
participation; and (3) have failed to allege or demonstrate any peculiar interest in the subject
matter of this proceeding distinguishable from other customers and not already represented by
the Attorney General (Response at 2). Nevertheless, the Company does not oppose the
Department's granting each of these entities limited participant status (Response at 2).
More specifically, the Company states that these petitioners have presented no evidence
to substantiate a finding that they will suffer peculiar damage by the Department's approval of
the Precedent Agreement (Response at 7). The Company claims that there is no nexus between
the petitioners' stated interests and the evidentiary basis for the Department's review, and to the
extent that the petitioners raise siting concerns regarding the proposed pipeline, those issues are
not properly before the Department in this proceeding (Response at 8). Finally, the Company
argues that granting intervention to individuals or groups that do not meet the exacting statutory
test of "substantially and specifically affected" could easily lead to protracted proceedings,
unnecessary focus on collateral issues, and substantial delays (Response at 8).
B.
PNGTS
As an initial matter, the Company argues that it has no capacity contract with PNGTS,
and that PNGTS has no ability to deliver to Berkshire's service area (Response at 9). Therefore,
the Company argues that it is impossible or highly unlikely that any specific information
D.P.U. 15-48
Page 6
regarding PNGTS's pipeline system will be relevant to this proceeding, and PNGTS has failed to
justify its participation in this proceeding as a full party (Response at 9).
C.
PLAN and Representative Kulik
The Company argues that while some of PLAN's members may coincidentally be
Company customers, that is an insufficient basis for intervention (Response at 9). The Company
asserts that PLAN's stated organizational purpose is not as a ratepayer advocacy group, and that
PLAN has not shown that there are a material number of its members'that are Company
customers (Response at 9-10). Moreover, the Company maintains that even if PLAN were
acting to represent Company ratepayers' interests, PLAN has failed to show that its.members
have any peculiar or unique interests to separate them from the larger customer group whose
interests will be fully and adequately represented by the- Attorney General, who has the statutory
authority to represent customers in proceedings before the Department (Response at 10). In
addition, the Company contends that PLAN's members concerns as private landowners along the
proposed project route are outside the scope of this proceeding because any decision regarding
the project construction will be made by FERC and not the Department (Response at 10).
Finally, regarding the inclusion of Representative Kulik, the Company maintains that this does
not alter the proper conclusion because PLAN's petition notes that Representative Kulik is
participating as a member of PLAN, and because Representative Kulik presented comprehensive
and thoughtful testimony at the public hearing was effectively able to present arguments on his
views (Response at 10-11).
D.
NEES
or
The Company argues that while NEES and some of its members have asserted that they
will experience rate impacts that there will be potential impacts on energy policy in the
Commonwealth, that is an insufficient basis for intervention (Response at 11). The Company
asserts that NEES's stated organizational purpose is not as a ratepayer advocacy group, and that
NEES has failed to show that there are a material number of its members that are Company
customers (Response at 11). Moreover, the Company maintains that even if NEES were acting
to represent Company customers' interests, NEES has failed to show that its members have any
peculiar or unique interests to separate them from the larger customer group whose interests as
ratepayers will be fully and adequately represented by the Attorney General (Response at 11-12).
V.
ANALYSIS AND FINDINGS
A.
Introduction
When ruling on a petition to intervene or participate, a hearing officer may consider,
among other factors, the interests of the petitioner, whether the petitioner's interests are unique
and cannot be raised by any other petitioner, the scope of the proceeding, the potential effect of
the petitioner's intervention on the proceeding, and the nature of the petitioner's evidence,
including whether such evidence will help to elucidate the issues of the proceeding, and may
limit intervention and participation accordingly. See, ems., Hearing Officer Ruling on Petitions to
D.P.U. 15-48
Page 7
Intervene, D.P.U. 92-11 (1992); Hearing Officer Ruling, D.P.U. 90-284, at 3 (Apri124, 1991);
Interlocutory Order on Appeal of Hearing Officer Ruling, D.P.U. 88-250 at 5-6 (March 2l,
1989). The Department exercises the discretion afforded it under.G.L. c. 30A, § 10 so that it
may conduct a proceeding with the goal of issuing a reasoned, fair, impartial, and timely decision
that achieves its statutory mandate. Berkshire Power Development. Inc., D.P.U. 96-104,
Procedural Order (January 9, 1997).
B.
DOER Petition
Ifind that DOER will be substantially and specifically affected by the outcome of this
proceeding because the proceeding relates directly to DOER's powers and duties pursuant to
G.L. c. 25A, § 6. Ifurther note that the Company did not oppose DOER's petition.
Accordingly,Igrant DOER's petition to intervene,
C.
CLF Petition
Ifind that CLF will be substantially and specifically affected by this proceeding because
of CLF's stated interest in the proposed pipeline, its regional implications, and the Precedent
Agreement's relationship thereto. In addition, CLF has extensive knowledge regarding energy
policy, including natural gas distribution infrastructure, which could elucidate important issues in
this proceeding, to the extent that such issues are relevant. See Bay State Gas CompanX,
D.P.U. 13-158, Hearing Officer Ruling at 4 (December 5, 2013); see also Massachusetts Electric
Company and Nantucket Electric Company each d/b/a National Grid, D.P.U. 10-54, Hearing
Officer Ruling at 14 (July 9, 2010) (granting the petition to intervene of CLF, Clean Power Now,
Natural Resources Defense Council, and Union of Concerned Scientists in part based on findings
that the evidence to be presented by each organization could help elucidate the issues in the
proceeding). Ifurther note that the Company did not oppose CLF's petition. Accordingly,I
grant CLF's petition to intervene.
D.
PLA~IV Petition
After reviewing PLAN's and Representative Kulik's joint petition,Ifind that neither
PLAN, nor its members, nor Representative Kulik have shown that they are substantially and
specifically affected by this proceeding..PLAN states that it and Representative Kulik have
significant interests in rate and cost implications, capacity choice, and protecting the property
rights of its landowner members. But those interests are not sufficient to establish that they are
substantially and specifically affected by this proceeding and have a right to intervene as full
participants, and the property rights issues are outside the scope of this proceeding. Moreover,
the Attorney General, who is a full participant in this matter, can adequately represent the
interests of those PLAN members that are Massachusetts ratepayers. Nevertheless, in
recognition of PLAN's and Representative Kulik's sufficient interests in the case,Iallow them
to participate in this matter as limited participants. 220 C.M.R. § 1.03(1)(e). PLAN and
Representative Kulik shall be entitled to the following: (1) receive copies of all correspondence,
pleadings, and discovery requests and responses; (2) attend all conferences and hearings; and
(3) file briefs in accordance with the Department's procedural schedule.
D.P.U. 15-48
E.
Page 8
NEES Petition
After reviewing NEES's petition,Ifind that NEES has not shown that it is substantially
and specifically affected by this proceeding, even with the membership of the town of Lenox.
NEES states that it has a significant interest in prices and rates, efficient energy infrastructure,
and the impact of this proceeding in proceedings before FERC and DOE, but those interests are
not sufficient to establish that NEES is substantially and specifically affected by and has a right
to intervene as a full participant in this proceeding.. Moreover, the Attorney General, DOER, and
CLF, who are full participants in this matter, can adequately represent NEES's stated interests
regarding rates and efficient energy infrastructure. Nevertheless, in recognition of NEES's
sufficient interest in the case,Iallow NEES to participate in this matter as a limited participant.
220 C.M.R. § 1.03(1)(e). NEES shall be entitled to the following: (1) receive copies of all
correspondence, pleadings, and discovery requests and responses; (2) attend all conferences and
hearings; and (3) file briefs in accordance with the Department's procedural schedule.
F.
PNGTS Petition
a
is
Even though the Company states that it has no capacity contracts with PNGTS and that
PNGTS has no ability to deliver to Berkshire's service area, the Company notes in its initial
petition for approval of the Precedent Agreement that the agreement contemplates transportation
service from Wright, New York to Dracut, Massachusetts, which in PNGTS's market area, and
from Dracut to the Company's service area (Initial Filing at 3). Therefore,Ifind that there is an
overlap between PNGTS's market area and the market area of the proposed pipeline, and thus
the outcome of this proceeding may affect PNGTS's business interests. Ifurther find that
PNGTS has unique information and expertise regarding its own system, which maybe relevant
to considerations of PNGTS as an alternative to the proposed pipeline. Itherefore find that
PNGTS has shown that it is substantially and specifically affected by this proceeding and has
right to intervene as a full participant. Moreover,Ifind that PNGTS's information will not be
duplicative of any other party's information, and that no other party that can adequately represent
PNGTS's interests in this proceeding. Accordingly,Igrant PNGTS's petition to intervene.
VI.
RUI;ING
For the above-stated reasons, the petitions to intervene of Department of Energy
Resources, Conservation Law Foundation, and Portland Natural Gas Transmission System are
hereby GRANTED.
The petitions to intervene of Pipeline Awareness Network for the Northeast, Inc.,
Representative Kulik, and NEES are hereby DENIED as these entities have not demonstrated
substantial and specific interests in the subject matter of this' proceeding. Nevertheless, these
entities may participate in the proceeding as limited participants, and the full parties to this
proceeding shall provide them with copies of all notices, testimony, pleadings, correspondence,
etc., pertaining to this proceeding.
D.P.U. 15-48
Page 9
Under the provisions of 220 C.M.R. § 1.06(6)(d)(3), any party may appeal this Ruling to
the Commission by filing a written appeal with supporting documentation within three (3) days
of this Ruling. A copy of this Ruling must accompany any appeal. A written response to any
appeal must be filed within two (2) days of the appeal. The Ruling remains in full force and
effect unless and until set aside or modified by the Commission. 220 C.M.R. § 1.06(6)(d)(2).
/s/
Laurie Ellen Weisman
Hearing Officer