Hearing Limits Raise Objections in Contentious UI Case

Electrical wires and catenaries along the Northeast Corridor near Westport (CT Examiner)

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Groups challenging a proposed $225 million United Illuminating project say a recent state decision infringes on their right to defend local interests against the utility company, calling the entire Connecticut Siting Council process into question.

United Illuminating submitted its proposed transmission line replacement project along the Metro-North railroad from downtown Bridgeport to Fairfield to the council — the agency responsible for approving public utility projects — for consideration in March. Over the last few years, the council has approved similar work along the rail line in West Haven, Milford, Stratford and part of Bridgeport with little pushback.

But after the council imposed a restriction on those opposing the latest proposal, many began to question the agency’s motives and process.

“What I’ve seen lately is an expedited process that does not recognize the desire and the critical need to get all of the facts and information to make the best decision possible,” State Sen. Tony Hwang, R-Fairfield, told CT Examiner on Wednesday.

According to council rules, groups, companies and individuals that could be impacted by a proposal can apply for intervenor status, meaning they can participate in the hearings and question the details of the project on record. In the case of the United Illuminating application, the two municipalities, property owners and local activists applied for intervenor status after realizing the project would require 19.25 acres of easements, 7 acres of clearing trees and brush and 102 new monopoles.

To plead their case, intervenors can also allow expert witnesses to testify on their behalf. While the five previous council hearings have largely consisted of questions to the utility company, the final evidentiary hearing on Tuesday flipped the dynamic, allowing council members, United Illuminating and other intervenors to interrogate the experts,  including historic preservationists, electrical engineers and environmentalists.

The pushback from Hwang and other local leaders was sparked by a Friday council decision. Just four days before the final hearing, Siting Council Executive Director Melanie Bachman sent a letter stating that each panel of experts could be questioned for only one hour. This meant, for example, that anyone who wanted to question Fairfield’s experts had to share the hour with all of the other parties, including United Illuminating.

Bachman’s letter was seemingly the first time the council had imposed a time limit, and some have argued it’s unfair to limit the opportunity for comment by the intervenors when the group hadn’t done so to United Illuminating.

Three of the intervenor groups — the town of Fairfield, local businesses and Sasco Creek Neighborhood Environmental Trust Inc. — wrote back to Bachman on Monday, arguing that if United Illuminating questioned one of the panels for 45 minutes, the intervenors and council would have little time remaining.

“It is fundamentally unfair to impose significant, arbitrary and inequitable time limitations on the eve of the continued evidentiary hearing,” the intervenor groups wrote.

The intervenors also claimed the time limit contradicts rulings by the state Supreme Court which have recognized the opportunity to cross-examine as an “absolute right.”

Hwang, who objected to the council decision, told CT Examiner that the Friday letter was “the ultimate insult” to intervenors. While he respects that the council’s job can be difficult, he said, they should provide the impacted parties with equal time to talk.

“The frustration is that there wasn’t an opportunity for these intervenors, who have an interest in getting all the facts out related to this project,” Hwang said.

Asked to address the pushback, Bachman backed the decision. She said the council provided “advance notice” to the parties, and referred to a 1990 state Supreme Court case to argue precedent.

In that lawsuit, residents of the town of Sterling similarly claimed that the council impeded on their right to interrogate witnesses. Bachman included a quote from the ruling favoring the council, which outlined the agency’s right to discourage repetitive information.

“Constitutional principles permit an administrative agency to organize its hearing schedule so as to balance its interest in reasonable, orderly and nonrepetitive proceedings against the risk of erroneous deprivation of a private interest,” the excerpt read.

During the previous five hearings, the council and United Illuminating continuously objected to repetitive lines of questioning by intervenors regarding cost estimates, consequences of easements and rejected alternatives provided by the company.

But Hwang argued that the time limit restricts due process, regardless of whether the information is redundant. Furthermore, he said, the decision indicated that council members are uninterested in hearing from the intervenors’ expert witnesses.

“To me, that decision on Friday and this process that just went through yesterday reflects a telltale sign that they’ve already made up their decision and they’re ready to move on,” Hwang said. “And that is disappointing, frustrating and, in my mind, disrespectful to the people whose lives will be impacted, whose business will be impacted.”

The Tuesday virtual hearing lasted for almost six hours, and there was only one instance in which legal counsel representing the SCNET Group — composed of the environmental trust, Southport Congregational Church and the Pequot Library Association — ran out of time. 

The council required attorneys to interrogate in the same order for each panel of witnesses — council members first, then United Illuminating, the SCNET Group, local businesses, the town of Fairfield and ending with the city of Bridgeport. 

For Fairfield’s witness panel, council members used 15 minutes for questioning and United Illuminating used another 25 minutes, leaving 20 minutes for all other intervenors. But the council allowed SCNET Group attorneys and businesses an extra hour and 20 minutes for questioning.

Still, the attorneys noted at the hearing that they left out many questions about the project’s potential impacts on historic resources and property values in the interest of time.

“I have a lot more questions to ask, but I’m aware of the time limit imposed by the council and I’m trying to abide by that,” Mario Coppola, an attorney representing SCNET Group, told the council.

The only remaining opportunity for intervenors to submit their arguments and evidence will be in their post-hearing briefs, which are due by Jan. 11. The council will issue its findings in February and make a decision by March 24.