The Connecticut General Assembly recently passed legislation which imposes additional criteria on utilities seeking a certificate of environmental compatibility and public need for new facilities. Public Act No. 04-246. Legislators describe the amendment to existing siting statutes as “one of the highest bars in the country for electromagnetic fields and standards for construction of transmission lines.” Connecticut House of Representatives, Transcript for May 3, 2004.

Public Health Concerns
Legislators were responding to concerns expressed by constituents in areas to be affected by Connecticut Light and Power Company’s proposed 345-kV transmission line between Middletown and Norwalk, Connecticut. Intervenors before the Connecticut Siting Council filed expert testimony that operation of the proposed overhead high voltage power lines would be expected to pose a long-term health hazard, particularly to children. Connecticut Siting Council, Docket No. 272, Testimony of Dr. Leonard Bell, et al. Residents voiced these concerns to their legislative representatives. The General Assembly did not make findings that such a health hazard exists, but decided to pass the act as a public health and safety measure to reduce possible hazardous health risks due to electromagnetic fields (“EMF”).

Presumption of Public Benefit
The act creates a presumption that 345 kV lines in all residential areas will meet the law’s public benefit standard if the facility is substantially underground. The presumption may be overcome by evidence submitted to the satisfaction of the Siting Council. The act directs the Siting Council to consider the best management of EMF practices in making its decisions regarding placement of high voltage power lines. The Siting Council is directed to take administrative notice of completed and on-going scientific and medical research on electromagnetic fields and may adopt standards regarding best management practices. The act also directs the Siting Council to consider whether it will be technologically infeasible to bury the facility.

Costs of Compliance Recoverable in Rates
Legislators speaking in support of the act stated that cost should not be a consideration. The act does state that all prudent costs associated with burial “shall be deemed to be reasonable” and shall be recovered by the electric distribution company in rates. Public Act No. 04-246. The specific language of the act requires applicants to provide “a justification for overhead portions, if any, including life-cycle cost studies comparing overhead alternatives with underground alternatives, and effects … of undergrounding.” Legislators were not able to assess the additional costs imposed by the legislation, estimating an approximate 1% to 2% increase in rates across the state.

Effective Date of the Act
The effective date of the legislation specifically makes the act applicable to petitions for a certificate of environmental compatibility and public need filed on or after October 1, 2003, for which the Connecticut Siting Council has not rendered a decision. Connecticut Light and Power filed its application for the Middletown to Norwalk transmission line on October 9, 2003 and is therefore subject to the terms of the act. The act was transferred to the Secretary of State on May 21, 2004 and will be sent to the governor for signature, at which time the governor has fifteen days to act or the bill becomes law without the governor’s signature.

Robert A. Olson is a partner in the law firm of Brown, Olson & Gould P.C. which maintains a nationwide practice in energy law, public utility law and related commercial transactions. He can be reached at:

Brown, Olson & Gould, PC
2 Delta Drive, Suite 301
Concord, NH 03301

rolson@bowlaw.com | (603) 225-9716