[00:00:00] Speaker 00:
I don't know if we should call you the

[00:00:21] Speaker 07:
Relief advocate or not, I know you're on very short notice.

[00:00:25] Speaker 01:
Thank you very much.

[00:00:26] Speaker 01:
Good morning, Your Honors.

[00:00:27] Speaker 01:
Omar Bustami for the petitioner Green Development LLC.

[00:00:30] Speaker 01:
I've respectfully requested two minutes of my time to be reserved for rebuttal.

[00:00:36] Speaker 01:
Your Honors, the filed rate doctrine prohibits utilities from charging any other rate than that which is on file with the commission.

[00:00:43] Speaker 01:
It has been described as a nearly impenetrable shield, preventing discriminatory and extortionate pricing.

[00:00:50] Speaker 01:
Here, Your Honors,

[00:00:51] Speaker 01:
That filed rate is the ISA New England tariff and that includes several key requirements that the Commission ignored when it approved a plan among two affiliated entities.

[00:01:03] Speaker 01:
to generate over $18 million in new revenue through an improper direct assignment facility charge.

[00:01:10] Speaker 01:
Respectfully, this court should vacate and remand Burke's orders for numerous independent reasons.

[00:01:15] Speaker 01:
First, as I've mentioned, there is the filed rate issue.

[00:01:19] Speaker 01:
Second, Your Honors, the commission also failed to properly evaluate whether the filing parties met their statutory burden under FPA.

[00:01:27] Speaker 01:
Section 206 to demonstrate that the charge is just and reasonable.

[00:01:31] Speaker 01:
And finally, Your Honors, the commission failed to evaluate the totality of the circumstances with respect to each of the commission's seven factors that the commission is supposed to use to evaluate whether certain facilities are for jurisdictional transmission facilities or whether they are state jurisdictional distribution facilities.

[00:01:52] Speaker 03:
This isn't really a filed rate issue.

[00:01:55] Speaker 03:
There's no dispute that

[00:01:58] Speaker 03:
they have to allocate costs according to the tariff.

[00:02:03] Speaker 03:
The question is just what the tariff means, right?

[00:02:08] Speaker 01:
Your Honor, I would respectfully disagree with the contention that this is not a filed rate issue because the entire tariff is considered essentially to be, as a matter of law, a filed rate.

[00:02:20] Speaker 01:
Sure, but there's just a question about what the word requesting means.

[00:02:25] Speaker 01:
Yes, Your Honor, but that word requesting, as petitioner contends, is key here as determining whether the charge is appropriate.

[00:02:34] Speaker 01:
So if I may, Your Honor, I will address some of the key components of the definition that enable that charge to be assessed or not.

[00:02:45] Speaker 01:
So principally, there are two essential file rate issues that focus on two parts of the tariff.

[00:02:51] Speaker 01:
First, you have the definition of direct assignment facility.

[00:02:55] Speaker 01:
FERC aired by classifying these facilities as direct assignment facilities and as such, permitting the charge to be assessed on the transmission customer and air against it.

[00:03:06] Speaker 01:
And that's the first error that FERC made by not following the definition of direct assignment facility.

[00:03:14] Speaker 02:
I'm in the second key on that you're saying that because they misread requesting service that and how does that make the direct assignment facility determination invalid it's basically if they had done that

[00:03:34] Speaker 02:
then they would have pinpointed a time when the need for the facility arose, and they would have done study that would have assessed who benefited from it, and they didn't do any of that, in your view?

[00:03:49] Speaker 02:
Give us a more practical, on-the-ground understanding of what flows from your argument about the term requesting.

[00:03:59] Speaker 01:
Certainly, Your Honor.

[00:04:01] Speaker 01:
Your description and petitioner's view is correct.

[00:04:04] Speaker 01:
So that provision establishes not only the basis for the charge, but establishes two things essentially that the charges are going to one particular customer as opposed to being allocated across the board.

[00:04:16] Speaker 01:
But second, more importantly, it establishes that there has to be a nexus between the transmission request and the upgraded issue.

[00:04:23] Speaker 01:
And the definition explains that the charges are to be assessed on the transmission customer too.

[00:04:27] Speaker 01:
So it's a little bit more than your ordinary definition that actually sets forth

[00:04:30] Speaker 01:
a lot of different provisions that have to be followed.

[00:04:32] Speaker 01:
It sets forth the basis of the charge.

[00:04:34] Speaker 01:
And so that principle in and of itself and that definition in Green Development's view is an independent basis on which FERC erred.

[00:04:43] Speaker 01:
However, you also have the process.

[00:04:46] Speaker 02:
Just to stick on that for a moment.

[00:04:49] Speaker 02:
In arguing about the direct assignment facilities definition, are you disputing that the upgraded facilities would be for Narragansett's sole use or benefit?

[00:04:58] Speaker 02:
You're not disputing that.

[00:05:00] Speaker 01:
Well, Your Honor, Green Development doesn't believe that there's any evidence in the record to show that these are needed for a transmission purpose for Narragansett.

[00:05:09] Speaker 01:
However, even assuming, arguendo, that they are needed for Narragansett, that doesn't permit the agency to act contrary to the filed rate.

[00:05:17] Speaker 01:
has to evaluate the filing party's burden, and it has to evaluate whether the definition is correctly adhered to in order to permit the charge.

[00:05:28] Speaker 01:
So what we believe you have here, and the respondents have sort of teed it up as sort of a cost causation argument, but really whenever the cost causation principle, which is really this idea that

[00:05:39] Speaker 01:
if someone benefits from something they have to pay for it.

[00:05:41] Speaker 01:
So here that beneficiary theoretically is Narragansett, the transmission customer, not Green Development.

[00:05:48] Speaker 01:
That essentially this has to be allowed because Narragansett somehow benefits or needs this for transmission.

[00:05:53] Speaker 01:
But whenever that principle comes to tension with the filed rate, the filed rate prevails.

[00:05:58] Speaker 01:
The filed rate doctrine doesn't allow the agency to waive the operative provisions of the tariff

[00:06:04] Speaker 01:
to allow charges to be assessed after the fact.

[00:06:09] Speaker 01:
If the filing parties wanted to assess charges in that way, they would have to file something with the commission that allows that to happen first.

[00:06:19] Speaker 01:
So it really is a notice principle to put the rate payers on notice of what's permitted to be passed through and flowed through and sort of transitioning to the kind of second key parts of the tariff, which is schedule 21 local service.

[00:06:36] Speaker 01:
We think that provides more confirmation of this understanding because you basically have four key parts of that rate schedule.

[00:06:47] Speaker 01:
that the filing parties have to demonstrate were met.

[00:06:52] Speaker 01:
So first you have the preamble of that provision, which basically requires that all transmission customers taking service are subject to those terms and conditions.

[00:07:04] Speaker 01:
Next, you turn to, and if you need a specific reference, I can certainly provide it to you, but I believe it's section two of schedule 21,

[00:07:13] Speaker 01:
So what is essentially laid out there is a very clear process by which whenever the transmission owner wants to, and customer in this case, wants to amend what's referred to as a local service agreement, they have to file a request for transmission service.

[00:07:39] Speaker 01:
So that's key here, because that's what happened in December of 2021.

[00:07:42] Speaker 01:
The filing parties came in and they amended their local service agreement.

[00:07:46] Speaker 01:
So you have that provision in schedule 21 that requires a transmission service request as a condition precedent.

[00:07:55] Speaker 01:
for the amendment to the local service agreement.

[00:07:59] Speaker 01:
And so then what happens is the ball shifts to ISO New England in order to evaluate whether or not a system impact study is needed.

[00:08:10] Speaker 01:
Now, it's true that ISO New England gets to decide whether system impact study is needed, but the proverbial ball that puts that in ISO New England's court is the transmission service request.

[00:08:21] Speaker 01:
So that didn't happen here.

[00:08:22] Speaker 01:
We see no evidence in the record

[00:08:24] Speaker 01:
that there was ever a transmission service request in connection with these particular upgrades.

[00:08:29] Speaker 01:
And so because of that, the ISO didn't really get to or actually did not get to evaluate at all whether or not these upgrades are needed to accommodate Narragansett's request for additional service.

[00:08:42] Speaker 01:
And I would like to direct your honors to what we think is important as part of evaluating the text, purpose, structure, and history of the tariff, because the definition of direct assignment facilities really derives from a rulemaking in the 90s called Order 888.

[00:08:59] Speaker 01:
It's been described as a bedrock of electric utility regulation by this court.

[00:09:04] Speaker 01:
So that order actually goes into an explanation.

[00:09:08] Speaker 01:
and about why the commission allows specific transmission upgrades to be assessed and charged to one particular transmission customer as opposed to be broadly allocated.

[00:09:20] Speaker 01:
What the commission says is that it really has to do with that customer's need for additional transmission service over what the transmission customer is already receiving.

[00:09:28] Speaker 01:
So in other words,

[00:09:29] Speaker 01:
transmission customer is getting general service, but then it wants a little bit more.

[00:09:33] Speaker 01:
So it makes sense that if by that request causes the need for an extra upgrade, that transmission customer has to pay for that extra upgrade.

[00:09:40] Speaker 01:
The commission is very clear about this.

[00:09:42] Speaker 01:
So in principle and according to the filed rate, green development prevails on both on both aspects.

[00:09:48] Speaker 01:
But in any event, the filed rate doctrine must prevail.

[00:09:51] Speaker 03:
You think it's genuinely disputed that these upgrades were

[00:09:59] Speaker 03:
at the request of Narragansett or Narragansett's benefit as opposed to, I don't know, Boston gas or New Hampshire gas or whoever?

[00:10:08] Speaker 01:
Yes, Your Honor.

[00:10:09] Speaker 01:
We do think that is genuinely disputed.

[00:10:12] Speaker 01:
And Your Honor, I see that I'm approaching the end of my time if I may proceed to answer your question.

[00:10:17] Speaker 01:
A little bit of what might be helpful to color the situation is to understand that green development uses to the extent these facilities are needed at all or any part of them are needed.

[00:10:29] Speaker 01:
They would be used in order to deliver power to Narragansett's customers on the distribution grid.

[00:10:36] Speaker 01:
So the question here isn't really just as near against it need the upgrades.

[00:10:39] Speaker 01:
The question is, is there against it need them for a transmission purpose and there against it does not need these for a transmission purpose and there's nothing in the record to indicate that they do need them for a transmission purpose instead.

[00:10:49] Speaker 01:
What's happening is that green development is already paying for these upgrades under the state distribution interconnection agreement.

[00:10:55] Speaker 01:
And now, because of these duplicative charges, green development is being essentially assessed duplicative charge.

[00:11:03] Speaker 01:
And that's exactly what the file rate doctrine is intended to protect against, discriminant extortion and pricing.

[00:11:08] Speaker 02:
a question about sort of just really stepping back and in a very kind of real-world, practical, layperson's way.

[00:11:18] Speaker 02:
Can you describe how Green Developments Project relates to the Iron Mine Hill substation?

[00:11:27] Speaker 02:
I mean, it seems to me that FERC and New England Power are relying on

[00:11:34] Speaker 02:
heavily on the notion that the substation is connected to a 115 kilovolt line.

[00:11:41] Speaker 02:
And it's sort of that's transmission, end of story.

[00:11:45] Speaker 02:
And there's a question whether that's the right analysis, given the seven factor test.

[00:11:50] Speaker 02:
But be that as it may, what is, and your narrative is kind of like, no, we only ever were getting involved with Narragansett.

[00:11:58] Speaker 02:
for distribution, where we're generating power that's supposed to be used within the distribution system.

[00:12:06] Speaker 02:
And it's like this sort of weird formality that we end up getting sucked into for jurisdictional land.

[00:12:17] Speaker 02:
And I guess I'd like to understand more the layout and how you have an argument that green development is not actually

[00:12:28] Speaker 02:
in transmission land, if you will.

[00:12:31] Speaker 01:
Your Honor, that's precisely correct.

[00:12:33] Speaker 01:
Green development is not in transmission land.

[00:12:35] Speaker 01:
And not to get into too much of the technical aspects, we understand that's not what the court's job is to go in and evaluate technical questions.

[00:12:43] Speaker 01:
It's really for the agency to understand that.

[00:12:45] Speaker 01:
But what's practically going on here is green development is essentially building projects on the distribution system.

[00:12:51] Speaker 01:
So you'll hear this term distributed generation.

[00:12:54] Speaker 01:
So, what green development, you know, basically understands that to mean distributed generation means generation.

[00:12:59] Speaker 01:
That's essentially produced and used on the distribution grid.

[00:13:04] Speaker 01:
So it's not in transmission.

[00:13:05] Speaker 01:
So what happens is that green development goes to Narragansett and wants the actual generation projects, not the wires and the equipment that are at issue here.

[00:13:15] Speaker 01:
They want the generation projects to be studied.

[00:13:17] Speaker 01:
And Narragansett comes back and basically tells them, well, this is what you need to do to upgrade the wires on the system in order to facilitate your distribution.

[00:13:25] Speaker 01:
In this case, what Narragansett actually did is they gave green development two options.

[00:13:30] Speaker 01:
And green development didn't know that either option was going to entail a transmission charge.

[00:13:35] Speaker 01:
So from the get go, green development didn't know that at the 11th hour, they find out that there's transmission charges, but it's really too late.

[00:13:43] Speaker 01:
So they have to produce.

[00:13:46] Speaker 02:
I'm listening.

[00:13:46] Speaker 02:
Go ahead.

[00:13:47] Speaker 01:
Yeah, so how does green development end up in transmission land?

[00:13:53] Speaker 01:
That's really a question.

[00:13:55] Speaker 02:
So was there an option that wasn't taken that would have clearly been slower and maybe more expensive, but would have avoided Narragansett pulling green development into a transmission system?

[00:14:14] Speaker 01:
So green developments intentions, yes, yes.

[00:14:16] Speaker 01:
And that is correct.

[00:14:17] Speaker 01:
However, even if that green development needs an opportunity to properly understand whether that's true or not.

[00:14:24] Speaker 01:
So if there really was another option where transmission wasn't needed, then green development theoretically would have picked that option if the new was going to lead to all these duplicative charges.

[00:14:34] Speaker 02:
Under the circumstance in the case,

[00:14:39] Speaker 02:
Is it sort of as a matter of understanding the scenario to which one applies, the seven factors?

[00:14:47] Speaker 02:
Is it the case that under, given the substation that was built, that effectively green development's power is being put out into the regional transmission system and

[00:15:02] Speaker 02:
It's anybody's guess whether some of it is being used for distribution to narrow against its distribution system, or is it sort of nominally going there for a moment and then being stepped down and brought back?

[00:15:18] Speaker 01:
No, Your Honor.

[00:15:22] Speaker 01:
is not being used on the transmission system.

[00:15:25] Speaker 01:
Under the seven factor analysis, it's not a bright line test.

[00:15:27] Speaker 02:
So I think you- I know that, and I'm trying to say, because I've read and thought through the factors, but what I'm trying to understand is, like, I don't have a map of how the, what is it, H17 relates to the distribution system.

[00:15:46] Speaker 02:
Do we have that in the record?

[00:15:48] Speaker 01:
Your Honor, yes, we do have that in the record.

[00:15:50] Speaker 01:
And there is actually a sketch in the record.

[00:15:53] Speaker 01:
And if you permit me, I can refer you to that.

[00:15:57] Speaker 01:
OK.

[00:15:59] Speaker 01:
I'd like to answer your question, however.

[00:16:00] Speaker 07:
Is that the one on JA-67?

[00:16:05] Speaker 07:
Because I have a question about that.

[00:16:10] Speaker 02:
That shows the H-17, but doesn't really show the, what is it called, the tie.

[00:16:20] Speaker 01:
Your honor, that is the schematic that I was referring to, yes.

[00:16:23] Speaker 07:
Right.

[00:16:23] Speaker 07:
So below the Iron Mine Hill, am I correct, is the feeder that is not part of Perp jurisdiction, and below that is where Green Development has the solar project.

[00:16:37] Speaker 07:
Correct.

[00:16:38] Speaker 07:
All right.

[00:16:38] Speaker 07:
My question is, where is Narragansett in all of this, in this

[00:16:45] Speaker 07:
because the West Farnham number 17, the Farnham number 105, isn't that all New England power?

[00:17:03] Speaker 01:
So, Your Honor, if you're looking at the schematic and you see this West Farnham station and you look to the right, that is Narragansett's distribution system in Green Developments Convention.

[00:17:14] Speaker 07:
Okay, that's not New England power.

[00:17:19] Speaker 01:
That's being utilized in order to move power on the distribution grid to serve Narragansett's retail load.

[00:17:24] Speaker 01:
And the only instance in which power could ever reach the transmission grid in this case is if there's a power overload.

[00:17:33] Speaker 01:
So your honor, Judge Miller, you've mentioned the seven fact tests, so I don't have to walk through that, but we know that one of the tests is to look at the proximity to retail load, and that's evaluated through the purpose and the customers served.

[00:17:45] Speaker 01:
So what Green Development, excuse me, what the commission found is that because the facilities weren't connected to retail load directly, that they fail that test, and these therefore are transmission facilities, but that's not what the test asks for, and FERC's order actually concedes.

[00:18:00] Speaker 01:
the point that the facilities are used to serve Narragansett's retail customers, which are the customers on Narragansett's distribution system.

[00:18:07] Speaker 02:
So you said to the right, so where is the tie to the retail load?

[00:18:11] Speaker 02:
Where do we start to step down from 115 kilovolts to the distribution level?

[00:18:20] Speaker 02:
It's not depicted here.

[00:18:23] Speaker 02:
I'm just wondering where that happens.

[00:18:27] Speaker 02:
I mean, I'm sort of thinking about this.

[00:18:28] Speaker 02:
This is, I'm sure, pretty crude, but where the highway comes in, and it ends, and then you spill out onto Massap, under the tax cord.

[00:18:40] Speaker 02:
If we have transmission and distribution, the local streets are akin to distribution.

[00:18:48] Speaker 02:
The highways are akin to transmission.

[00:18:51] Speaker 02:
But where you have a highway that is coming in and interfacing with the local streets, is that analogous to the situation here, where just because the slowdown light was put on the

[00:19:11] Speaker 02:
last bit of the highway versus further on at the intersection.

[00:19:16] Speaker 02:
I'm just trying to visualize, because I think it's actually important for application of the jurisdictional task.

[00:19:24] Speaker 01:
I think in that analogy,

[00:19:27] Speaker 01:
Apologies if it is accrued now, I apologize on my end as well.

[00:19:30] Speaker 01:
But I think the best way to look at it from that standpoint is that you really have a distribution.

[00:19:34] Speaker 01:
The distribution is your surface road that's not the highway.

[00:19:37] Speaker 01:
And you have the primary purpose of this road is a surface road, not a highway.

[00:19:45] Speaker 01:
But let's say that that surface road gets congested, then you might have cops directing some of the cars to get back on the freeway to make way for other cars or to use the freeway as a bypass, essentially.

[00:19:55] Speaker 01:
So the primary purpose is not transmission, it's really just sort of a backup purpose, and the electrons will rarely ever flow out.

[00:20:03] Speaker 02:
But where is in?

[00:20:05] Speaker 02:
You said they rarely flow out, meaning out of the distribution system.

[00:20:09] Speaker 02:
Where is the distribution system on this?

[00:20:13] Speaker 02:
That's what I'm not understanding because, I mean, FERC is basically saying age 17, that's a transmission line.

[00:20:19] Speaker 02:
This facility, Iron Mine Hill, that's right on a transmission line, right?

[00:20:23] Speaker 02:
And I mean, really, their analysis of the factors seems to collapse into, hey, 115.

[00:20:29] Speaker 02:
And I'm trying to understand your comeback to that.

[00:20:31] Speaker 02:
It's like, yeah, maybe 115, but this is in a distribution setting.

[00:20:36] Speaker 02:
And I don't see the distribution setting.

[00:20:39] Speaker 02:
or understand really where it is.

[00:20:42] Speaker 01:
So in large portion, I think the reason that is from this particular schematic is because the distribution system is somewhat invisible here in a whole because this is really just focusing on the point of interconnection.

[00:20:52] Speaker 02:
Exactly.

[00:20:53] Speaker 02:
But in order to apply the seven factors, don't we need to know at least how the point of interconnection relates to the distribution system?

[00:21:04] Speaker 01:
Yes, Your Honor, and we think that it doesn't solely rest on necessarily this schematic.

[00:21:09] Speaker 01:
There's more information in the record.

[00:21:10] Speaker 02:
But I'm asking you to sort of, using what you know about the other information in the record, sort of sketch for us what would be shown to better explain that.

[00:21:24] Speaker 01:
So what would be shown here is essentially, you would have the generation facilities depicted and then you would essentially.

[00:21:33] Speaker 02:
Where are they in relation to Iron Hill Mine?

[00:21:36] Speaker 02:
Do they feed directly into Iron Hill Mine?

[00:21:38] Speaker 02:
Are they above or below Iron Hill Mine?

[00:21:42] Speaker 02:
Do we know?

[00:21:42] Speaker 02:
I mean, when we're talking about proximity and we're talking about direction of flow and all that,

[00:21:52] Speaker 01:
So the generation facilities are below Iron Hill Mine?

[00:21:56] Speaker 01:
Below meaning?

[00:21:56] Speaker 01:
Below meaning to the write-off over here on the schematic.

[00:21:59] Speaker 02:
The write-off as is the residential users or the retail users?

[00:22:02] Speaker 02:
Exactly.

[00:22:12] Speaker 01:
All right.

[00:22:16] Speaker 01:
And if you're honest, if you permit me to be able to respond to that on rebuttal, I may as well.

[00:22:23] Speaker 07:
Are you finished?

[00:22:24] Speaker 07:
OK.

[00:22:31] Speaker 07:
All right.

[00:22:32] Speaker 07:
We'll give you a couple of minutes.

[00:22:34] Speaker 07:
Mr. Estes.

[00:23:01] Speaker 06:
Good morning.

[00:23:02] Speaker 06:
Good morning, Your Honors.

[00:23:03] Speaker 06:
I'm Matt Estes here on behalf of the Federal Energy Regulatory Commission.

[00:23:07] Speaker 06:
I'd like to go to the questions Judge Pillard was asking, because I'm afraid Mr. Vistami was mistaken.

[00:23:17] Speaker 06:
What's going on here is these four solar projects are relatively large.

[00:23:25] Speaker 06:
And so if they were delivered to the distribution system at all,

[00:23:29] Speaker 06:
there would be a thermal problem causing those lines to melt.

[00:23:34] Speaker 06:
So what ended up being proposed, the option that Green Development accepted, was to construct first a one and a half mile distribution feeder that was sufficient voltage that it could take this power.

[00:23:59] Speaker 06:
And then that delivers that power to the new Iron Hill substation where it flows onto the transmission system and then is taken off the other points of delivery on the Narragansett system where it's... To the right.

[00:24:18] Speaker 06:
Yes.

[00:24:19] Speaker 06:
And so...

[00:24:22] Speaker 06:
I was trying to look through this where I could explain how this is the case during this discussion.

[00:24:27] Speaker 06:
I couldn't find it.

[00:24:29] Speaker 06:
I can write a letter.

[00:24:30] Speaker 06:
But at one point in the description of the new facilities, it says that there is no load connected to the new circuit they're constructing.

[00:24:39] Speaker 06:
And what that means is that none of the power is taken off of the distribution feeder or to serve distribution load in that area.

[00:24:50] Speaker 06:
It all goes to the Iron Hill substation, where it then goes onto the transmission system and is taken off at other points to serve retail load.

[00:24:59] Speaker 02:
But there's nothing in the record suggesting that green development's power would not be ordinarily fully used within this distribution system.

[00:25:13] Speaker 06:
Well, no, there is, because it's not even connected to the neighboring district.

[00:25:16] Speaker 02:
I understand it's not directly connected.

[00:25:18] Speaker 02:
But were we to think, I mean, let me back up.

[00:25:21] Speaker 02:
It sounds like, as I was saying to the opposing council, that in FERC's analysis of whether this is a FERC jurisdictional project, basically the thing that matters is whether this goes on to age 17 or not.

[00:25:37] Speaker 02:
And that's really it.

[00:25:41] Speaker 06:
That's the most important point.

[00:25:43] Speaker 06:
But I think if you go through the seven factors, you get to the same place.

[00:25:49] Speaker 02:
We can talk about that.

[00:25:50] Speaker 02:
But there isn't a regular scenario in which the power is flowing to the region or elsewhere, just this power that green development is.

[00:26:04] Speaker 06:
I'm sorry.

[00:26:05] Speaker 06:
I don't know what you mean the region.

[00:26:06] Speaker 06:
Do you mean the area where the

[00:26:10] Speaker 06:
that solar facilities are located?

[00:26:12] Speaker 02:
No, out to the other towns and cities, as opposed to this distribution.

[00:26:18] Speaker 06:
No, the whole point of it is for the power to go through the transmission lines, the local lines, and then back onto Narragansett's system.

[00:26:30] Speaker 06:
Distribution system.

[00:26:31] Speaker 06:
Yes, that's correct.

[00:26:32] Speaker 06:
But not at that location and other locations.

[00:26:35] Speaker 02:
So you say that if it weren't Narragansett,

[00:26:39] Speaker 02:
as a sole facility, then the cost would be unfairly shared among

[00:26:46] Speaker 02:
either Narragansett's retail customers in the event that we were to hold this not for jurisdictional or other transmission customers that don't benefit from these upgrades.

[00:26:59] Speaker 02:
But I'm a little unclear because I thought that green development was already responsible under its, I guess its state level tariff for paying for operations and maintenance.

[00:27:12] Speaker 02:
So I'm trying to understand what the separate costs even

[00:27:15] Speaker 02:
And whether there's anything to Green Developments' argument that this is double charging.

[00:27:21] Speaker 06:
Well, the Commission didn't address that because the Commission's statutory duty is to have just and reasonable transmission rates.

[00:27:32] Speaker 06:
So in its view, it would not be just and reasonable to assign this cost to any other transmission company.

[00:27:38] Speaker 02:
But if this cost were already being paid, it's a little bit like your state and federal taxes.

[00:27:43] Speaker 02:
If you're already paying something in your state taxes and you get a credit at the federal level, if green development is right, that these exact upkeep or maintenance costs are being paid under the state tariff, then is there anybody else that would have to pay them?

[00:28:04] Speaker 02:
were they to prevail either under the tariff or under a jurisdictional argument?

[00:28:11] Speaker 06:
My understanding, but this isn't something the commission found, and my understanding is there are some, if this is deemed not to be a direct assignment facility, that there are some operations and maintenance costs that wouldn't flow to

[00:28:31] Speaker 06:
green development under the interconnection agreement that would be paid by other transmission.

[00:28:38] Speaker 06:
Now, I would just point out on the whole duplicative charge claim that green development filed a case before the Rhode Island Commission making that claim, it's ongoing.

[00:28:52] Speaker 06:
And I would think that if, in fact, duplicative charges are being

[00:28:57] Speaker 06:
or they're being subjected to duplicative charges that the Rhode Island Commission would address that.

[00:29:05] Speaker 06:
But that's not the commission's concern.

[00:29:07] Speaker 06:
The commission would be arbitrary for them to assign some costs to other customers because they were worried about duplicative charges under the state agreement.

[00:29:20] Speaker 02:
So the commission didn't consider the distribution feeder in its analysis.

[00:29:25] Speaker 02:
And it said that was because it wasn't part of the project.

[00:29:28] Speaker 02:
But that seems to me, potentially anyway, a too narrow understanding of the seven factors.

[00:29:33] Speaker 02:
The seven factors look at context and often include things that aren't actually part of the project.

[00:29:39] Speaker 02:
So it would seem like it's relevant whether the distribution feeder confirms the proximity

[00:29:49] Speaker 02:
of the ultimate customers and the like.

[00:29:53] Speaker 02:
Am I missing something about that analysis?

[00:29:55] Speaker 06:
I think what you're missing is that the commission didn't say that it wasn't part of the project.

[00:30:00] Speaker 06:
They were just determining whether the facilities subject to the direct assignment charge were transmission facilities.

[00:30:11] Speaker 06:
So whether or not the distribution fee, which undisputably is a distribution facility,

[00:30:20] Speaker 06:
If the seven-factor test suggests that the distribution feeder was a distribution facility, the commission would say yes, that's right.

[00:30:29] Speaker 06:
The question is, is the Iron Hill substation a transmission facility, and therefore the cost could be directly assigned in Narragansett, or is it a distribution facility, in which case it could, because that wouldn't be an appropriate transmission.

[00:30:49] Speaker 06:
So the fact that the distribution feeder is proximate to retail facilities means it's a distribution facility, yes, but the Iron Hill substation is not, according to the commission, and therefore that weighs in favor of making it a transmission facility.

[00:31:15] Speaker 02:
I guess what I'm saying is that applying the seven factor test to the Iron Hill substation requires looking at the purpose and the customers that it serves, which would include looking at issues like

[00:31:37] Speaker 02:
whether the power is reconciled or transported to another market, or whether it's consumed in a comparatively restricted geographical area.

[00:31:45] Speaker 02:
And I took Green Development's argument about it being consumed in a relatively constricted geographical area to rely on pointing to the theater and pointing to the whole function of this as a project in the first place.

[00:32:00] Speaker 06:
Well, the whole function of the project

[00:32:03] Speaker 06:
is to bring the power out into the transmission system and transmit it to other parts of the Narragansett system.

[00:32:12] Speaker 06:
So the commission found that that purpose was a transmission purpose.

[00:32:19] Speaker 02:
Again, then just pointing to that, to the voltage of the H171.

[00:32:23] Speaker 06:
Not just to the voltage, but to the fact that all the power goes to the Iron Hill Station and onto the transmission system.

[00:32:33] Speaker 02:
But you're characterizing it as a transmission, as going onto the transmission system.

[00:32:38] Speaker 02:
And Green Development says, yeah, temporarily.

[00:32:40] Speaker 02:
It just is being stepped down.

[00:32:42] Speaker 02:
And then it's flowing right back into a distribution.

[00:32:46] Speaker 06:
Somewhere else, yes, on the Narragansett system.

[00:32:50] Speaker 06:
Now, maybe you could, I think that is the type of judgment that's well within the commission's discretion to decide whether that's

[00:33:02] Speaker 06:
approximate to the facilities or that's far enough away.

[00:33:06] Speaker 06:
And here that's what the commission determined.

[00:33:13] Speaker 07:
Any more questions?

[00:33:19] Speaker 07:
Mr. Estes, I didn't want to cut into your time, but I wanted to ask you just briefly about Burke's implementation of our Allegheny defense project and bank decision.

[00:33:31] Speaker 07:
couple of years ago.

[00:33:33] Speaker 07:
And your attachment B is, and of course, as you know, that's where we threw out the tolling orders.

[00:33:43] Speaker 07:
Yes.

[00:33:44] Speaker 07:
Okay.

[00:33:44] Speaker 07:
Your attachment B, which is the order of April 18th, 2022, denying by operation of law, I guess,

[00:33:58] Speaker 07:
the re-hearing.

[00:34:00] Speaker 07:
But at the same time, the next paragraph says, we reserve the right to revisit this.

[00:34:08] Speaker 07:
And FERC did revisit it on June, I think it was 16th, within the 60 days that you have before the petitioner-like green development

[00:34:27] Speaker 07:
could come before the court.

[00:34:30] Speaker 07:
And my question is, and so I want to ask you if this is the standard operating procedure, because it seems to me that FERC could take longer than the 60 days, but just would run the risk that after the 60 days, a petitioner would come into court and you would lose jurisdiction.

[00:34:56] Speaker 07:
Is that your

[00:34:57] Speaker 07:
understanding that you don't have to.

[00:35:00] Speaker 07:
Yes, your honor.

[00:35:00] Speaker 06:
I think the Allegheny defense decision suggested that the commission could issue another an order addressing the merits at any time until the records filed with the court, at which point the commission loses its jurisdiction.

[00:35:19] Speaker 06:
And because this court suggested that because the commission said it's frequently difficult

[00:35:26] Speaker 06:
to rule on cases in the 30 days it has to issue a ruling.

[00:35:35] Speaker 06:
And that's certainly the case.

[00:35:36] Speaker 06:
So very frequently, the commission does issue one of these notices that says it intends to rule.

[00:35:45] Speaker 06:
Sometimes it issues a notice saying it's denied by Operation Law and we don't intend to rule.

[00:35:51] Speaker 06:
You can go ahead.

[00:35:51] Speaker 06:
But typically, we say that we do intend to rule.

[00:35:55] Speaker 06:
And sometimes we even ask this court or whichever court it is to obey the proceedings so that we have more time before we have to file the record.

[00:36:07] Speaker 06:
So that is typically what we do.

[00:36:10] Speaker 06:
And do you get time from the courts?

[00:36:14] Speaker 06:
Usually not always.

[00:36:15] Speaker 06:
And sometimes, you know, the point in Allegheny defense was that the court gets to decide how long we get with the toning orders.

[00:36:25] Speaker 06:
The commission got to decide how long ahead, but under the new regime, the courts get to supervise how much time we take.

[00:36:35] Speaker 06:
And typically, if we're not asking for a whole lot of extra time, the court will grant it, but not always.

[00:36:42] Speaker 07:
My question still is, if you waited until after the 60 days, is Burke's position, if the petitioner doesn't go into court and waits on you,

[00:36:52] Speaker 07:
thinking, well, we might get the relief here still.

[00:36:55] Speaker 07:
It's just going to take more time.

[00:36:58] Speaker 07:
Have you done that, or do you stick strictly to that 60 days?

[00:37:01] Speaker 06:
No, we don't stick strictly to the 60 days.

[00:37:04] Speaker 06:
And I think there are cases that came out after Allegheny Defense that said that if a party waits until after we do rule, even if it's more than 60 days after the notice is denied by operation of law,

[00:37:22] Speaker 06:
Petition is still timely.

[00:37:26] Speaker 07:
You don't need to respond to this.

[00:37:28] Speaker 07:
I still don't know what we accomplished by that opinion, but anyway.

[00:37:32] Speaker 07:
Well, thank you.

[00:37:35] Speaker 07:
All right.

[00:37:35] Speaker 02:
I have a couple of questions, if I might, about the tariff points.

[00:37:40] Speaker 02:
In Schedule 21 LS, the portion that talks about transmission customers wishing to revise the local service agreement, termination data, or make upgrades, is that Burke's understanding of the reason that Schedule 21 LS would apply would be because this is an upgrade?

[00:38:03] Speaker 06:
That was our reason why we thought that a new request was not required.

[00:38:10] Speaker 06:
Is that your question?

[00:38:11] Speaker 02:
Yeah, I just wanted to know, just as an expert matter, this would be an upgrade, and therefore, it's not required to execute a new local service agreement.

[00:38:25] Speaker 06:
Right, because it was an upgrade to address

[00:38:30] Speaker 06:
changes in the operations of Narragansett, not a new request for service.

[00:38:36] Speaker 06:
So the point, I think the schedule LS-21 says the new request for service is required to facilitate revision of the agreement.

[00:38:47] Speaker 06:
But if the revision has nothing to do with providing new service, then a request doesn't facilitate revision.

[00:38:55] Speaker 02:
And that goes back to my other question, which is about the language requesting service.

[00:39:01] Speaker 02:
And I mean, one of the rules that we use in interpreting legal text is to give a parallel definition to the same term used in the same provision.

[00:39:10] Speaker 02:
And we have a transmission customer requesting service for a generator owner requesting an interconnection.

[00:39:17] Speaker 02:
And Burke reads the first,

[00:39:21] Speaker 02:
use of requesting to mean it could be in an ongoing way in receiving service.

[00:39:28] Speaker 02:
But it's really hard to read the second requesting, a generator owner requesting an interconnection to also countenance something that's already happened or happening.

[00:39:39] Speaker 02:
And so that would seem to me to really support Green Development's view, which is that there has to be a discrete request, and that would at least trigger the possibility of

[00:39:50] Speaker 02:
particular of accompanying studies, and it helps to identify the time, the sequence of whose demands are overloading the system.

[00:40:03] Speaker 02:
Why is that not the right way to read requesting, or in fact, the only way to read requesting?

[00:40:09] Speaker 06:
Well, I think there are differences between the transmission customer and the generator requesting interconnection because

[00:40:17] Speaker 06:
When you request interconnection, by definition, you're making a request to increase, to make a change to the transmission system to increase.

[00:40:29] Speaker 02:
Exactly.

[00:40:29] Speaker 02:
And yet the same word is used, requesting service, indicating the same idea of an incremental new moment rather than.

[00:40:42] Speaker 02:
Well,

[00:40:44] Speaker 06:
I think the difference is it's not possible for a generator interconnection to have the same fact that we have here, where it's not.

[00:40:54] Speaker 06:
In this case, it wasn't a request for a new service.

[00:40:58] Speaker 06:
It was just the change in the operations of the customer that caused the need for these facilities.

[00:41:05] Speaker 06:
And I think it's important to note that the tariff doesn't

[00:41:14] Speaker 06:
referred to a new request for service or a contemporaneous request for service, it just says a transmission customer requesting service.

[00:41:25] Speaker 06:
And the fact is that Narragansett has been taking service continuously since it made its request.

[00:41:36] Speaker 06:
And in fact, because it's customers, it serves retail customers whose loads are constantly changing as they turn the lights on or off or the air conditioning on and off, their Gansett is continuously revising the amount of service it wants.

[00:41:55] Speaker 06:
It's constantly revising up and down

[00:41:58] Speaker 06:
the service that it's requested.

[00:42:00] Speaker 06:
So I think it's reasonable in that circumstance to treat them as a requesting customer.

[00:42:13] Speaker 02:
Is it constructing facilities?

[00:42:15] Speaker 02:
I mean, that's what this provision is.

[00:42:17] Speaker 02:
Is it constructing facilities or portions of facilities in response to, as you say, the up and downs of its service?

[00:42:24] Speaker 02:
It seems like one way to read this, and arguably the most reasonable way to read it, is that when there's that kind of increment that requires the construction of facilities or portions of facilities, that there should be an

[00:42:40] Speaker 02:
And even though it's incremental, I understand the facts that you've just described, but there should be a distinct service request because isn't this the provision that triggers or may trigger various studies about the system impact and the like?

[00:43:01] Speaker 06:
Well, Your Honor, I don't think that's correct because

[00:43:11] Speaker 06:
I'm sorry, I lost my train of thought.

[00:43:13] Speaker 02:
I was just saying that the interrelationship between a request for service and whether there's a application required and potentially a system impact study required.

[00:43:28] Speaker 02:
It's some moment where that comes to first attention and this is analyzed.

[00:43:35] Speaker 06:
I think it's important to know that the tariff

[00:43:39] Speaker 06:
doesn't establish a request for service as a separate requirement to be a direct assignment facility.

[00:43:47] Speaker 06:
Requesting service modifies the words transmission customer.

[00:43:52] Speaker 06:
So it's really identifying what customers could be subject to having to pay direct assignment costs.

[00:44:03] Speaker 06:
So in that context, we're talking about the question is, is Narragansett

[00:44:09] Speaker 06:
a transmission customer requesting service.

[00:44:12] Speaker 06:
And I think it's reasonable to say they are because they requested service and they consistently take service.

[00:44:19] Speaker 06:
They've never stopped.

[00:44:21] Speaker 06:
It's not like a situation where you made a request, stopped, and now you need to make another request.

[00:44:29] Speaker 06:
It's ongoing.

[00:44:30] Speaker 06:
So because it modifies transmission customer and doesn't establish a independent requirement, I think

[00:44:39] Speaker 06:
it's reasonable to interpret that as applying to Narragansett in this circumstance.

[00:44:50] Speaker 07:
All right, thank you.

[00:44:51] Speaker 07:
Thank you.

[00:44:53] Speaker 07:
Ms.

[00:44:54] Speaker 07:
Almeda?

[00:45:19] Speaker 04:
Good morning, Your Honors, and may I please the court?

[00:45:21] Speaker 04:
Marian Almeida on behalf of Intervenor, New England Power Company, New England Businesses National Grid.

[00:45:26] Speaker 04:
I'm happy to focus my time anywhere where the court has particular questions.

[00:45:30] Speaker 04:
Otherwise, I'd like to start with the jurisdictional argument.

[00:45:34] Speaker 04:
And I'd like to first frame the question, because it's different than it has been discussed throughout this argument so far.

[00:45:41] Speaker 04:
It is atypical for a generation of this magnitude to be connected in the way that this generation

[00:45:48] Speaker 04:
It is far more common for it to be interconnected directly as a generation facility to the grid itself, rather than through a substation as is set up here.

[00:45:58] Speaker 04:
The reason this is important is because only the portion of the facility that is a direct assignment facility under the terms of the tariff is what is actually paid for under the FERC jurisdictional determination here.

[00:46:11] Speaker 04:
And that is the portion of the facility that interconnects the H17 line

[00:46:15] Speaker 04:
into the Iron Mine Hill Road substation, not the portion of the substation that includes the distribution feeder, the 34.5 kilovolt.

[00:46:25] Speaker 04:
It's only the portion that connects to that transmission line itself.

[00:46:29] Speaker 02:
So is that your answer to double charging is that there are two different portions of the facility and one of it is considered to be federal jurisdictional and its maintenance and operation is charged under the federal tariff and some other portion of it is considered to be state jurisdictional and charged under the state tariff?

[00:46:45] Speaker 04:
Yes, Your Honor, and only the portion that is under the federal jurisdictional tariff, the H17 transmission interconnection, is the portion that is before the court and that was before work originally.

[00:46:59] Speaker 04:
The reason that this is important is because that's what the jurisdictional determination must be made based on, not the 34.5 kilovolt feeder, not the portion of the facility that is within the distribution area.

[00:47:12] Speaker 02:
I haven't really taken the argument to be dividing

[00:47:15] Speaker 02:
the facility into parts.

[00:47:18] Speaker 02:
And when we look at the facility under the seven factor test, there's a bunch of factors that just seems like FERC hasn't analyzed.

[00:47:26] Speaker 02:
I mean, the proximity to retail customers, the configuration of facilities, maybe you can speak to some of the questions that I had earlier about what is the proximity to retail customers?

[00:47:37] Speaker 02:
I thought they were right down the road.

[00:47:39] Speaker 04:
Certainly.

[00:47:39] Speaker 04:
So let me first answer the preamble to your question there about the portions of the facilities.

[00:47:45] Speaker 04:
Now the definition of direct assignment facility explicitly recognizes that portions of facilities can be directed.

[00:47:51] Speaker 02:
I understand that, but I just hadn't read your brief or first brief or its order under review as

[00:47:59] Speaker 02:
as bifurcating this facility and the charges associated.

[00:48:02] Speaker 04:
That's because it's only a portion that is transmission related that is at issue here.

[00:48:07] Speaker 04:
And so if I can get to why that portion is transmission related rather than distribution related.

[00:48:13] Speaker 04:
I think the factors, while they are forfeit due to the nature of this project that is being connected, still in their functional and flexible way demonstrate that it is transmission.

[00:48:26] Speaker 04:
The most important factor, and to get your honest questions earlier about the 115 kilovolt line, it's not just the magnitude of the voltage there, but it is that line is an existing transmission.

[00:48:38] Speaker 04:
ISM New England has treated that line as transmission throughout.

[00:48:41] Speaker 04:
And that transmission line needed to be redirected and reconfigured through the new substation to accommodate this.

[00:48:50] Speaker 04:
To make that portion of an existing transmission facility

[00:48:53] Speaker 04:
Considered distribution would be completely inconsistent with how that line has been treated throughout its existence.

[00:49:00] Speaker 04:
To the first factor of the proximity of retail customers.

[00:49:03] Speaker 03:
Sorry, before you get to the factors, can you just give me in plain English, if possible, a summary of these two

[00:49:13] Speaker 03:
There's something called the distribution feeder, which has been held to be distribution and it's not before us.

[00:49:21] Speaker 03:
And then there's this other thing that we're talking.

[00:49:24] Speaker 03:
So just tell me what those are and how they relate.

[00:49:29] Speaker 04:
Certainly, Your Honor.

[00:49:29] Speaker 04:
And there's two configuration diagrams in the JA that I'd like to direct you to.

[00:49:36] Speaker 04:
The first is JA 67, which was discussed earlier.

[00:49:39] Speaker 04:
Right.

[00:49:39] Speaker 04:
So in the proposed new configuration,

[00:49:42] Speaker 04:
in very small font at the bottom.

[00:49:44] Speaker 04:
You can see a little squiggly line.

[00:49:46] Speaker 04:
It says 33 slash 55.

[00:49:48] Speaker 04:
Can you get a little closer to the microphone?

[00:49:53] Speaker 04:
Just let me try that.

[00:49:54] Speaker 04:
Is that better?

[00:49:55] Speaker 04:
Can you start again?

[00:49:56] Speaker 04:
My apologies.

[00:49:57] Speaker 04:
I'm on a JA67, the bottom configuration, the proposed new configuration in the Iron Mine Hill substation.

[00:50:07] Speaker 04:
that substation in the center of the diagram there.

[00:50:10] Speaker 04:
There's a little squiggly line noted with 33 slash 55.

[00:50:14] Speaker 04:
That is shorthand for the transformer that exists between the distribution feeder at 34.5 kilovolt and the 115 kilovolt line.

[00:50:25] Speaker 04:
So that's where the boundary is between the distribution facilities and the portion of the substation that relates to transmission.

[00:50:34] Speaker 04:
The place where it's easier to see this is at JA 494.

[00:50:55] Speaker 04:
This is an expanded

[00:50:57] Speaker 04:
image of the configuration that is part of the interconnection study that was performed in considering whether the upgrades to the transmission system were necessary here.

[00:51:07] Speaker 04:
You can see the same transformer about a third of the way down the page and it's listed as with the broader terms and explanation that it is the 115 to 34.5 transformer.

[00:51:21] Speaker 04:
So that's the distinction between

[00:51:23] Speaker 03:
the above that is the sorry sorry my eyes on that good where where are you it's difficult to see it so I said no labeled number one no yes it is it is labeled number one that's the transformers to the right of what looks like.

[00:51:41] Speaker 03:
To squiggly lines.

[00:51:44] Speaker 04:
Correct.

[00:51:45] Speaker 04:
This is the transformer as represented in this configuration.

[00:51:50] Speaker 04:
And beneath that is the 34.5 kilovolt area of the substation.

[00:51:54] Speaker 04:
Above that is the 115 kilovolt area of the substation.

[00:51:59] Speaker 04:
You can see at the area above

[00:52:01] Speaker 04:
the lines of H17 going to West Barnum in one direction and Riverside in the other direction.

[00:52:07] Speaker 04:
Those are other substations on the H17 line.

[00:52:10] Speaker 04:
And again, that H17 line is the existing transmission line that ISO New England recognizes as a transmission facility.

[00:52:18] Speaker 02:
And am I correct that the power is largely, if not exclusively, in practice?

[00:52:22] Speaker 02:
It can flow either of it, but flowing left to right in terms of

[00:52:31] Speaker 02:
If green development is not taking power off, except potentially to run its facility, and it's putting power on and sending it to the right.

[00:52:41] Speaker 04:
Your description of green development's role is correct.

[00:52:44] Speaker 04:
But in this configuration, green development is at the bottom of the page.

[00:52:47] Speaker 04:
Right.

[00:52:48] Speaker 04:
The energy flows.

[00:52:50] Speaker 02:
But still, West Barnum is up to the left, and Riverside is off.

[00:52:54] Speaker 04:
Right.

[00:52:56] Speaker 04:
That's correct.

[00:52:56] Speaker 04:
But the 115 kilovolt line can go either direction.

[00:53:00] Speaker 04:
Can go.

[00:53:01] Speaker 02:
Green development's power, though, there's no evidence that does anything other than go one direction.

[00:53:05] Speaker 04:
Which is, on this page, is up to the transmission line.

[00:53:09] Speaker 02:
Up to the, and then out, riverside.

[00:53:10] Speaker 04:
Out in either direction on the transmission line.

[00:53:14] Speaker 04:
Can go, but does go?

[00:53:16] Speaker 04:
My understanding is that it does go either direction because that line goes both directions.

[00:53:22] Speaker 04:
There is nothing, though, that would be unexpected for power to go down the page to green development.

[00:53:30] Speaker 04:
which is the way that the factor plays here, is that the power flow goes from green development through the 34.5 kilovolt line in the distribution node onto the transmission line and then to other distribution loads after flowing onto the transmission line in either direction.

[00:53:52] Speaker 02:
And in terms of proximity to retail customers, it was

[00:53:58] Speaker 02:
Burke just said that it's transported across the system, so we're not really going to look at who actually is ultimately using this tower.

[00:54:08] Speaker 04:
So the proximity is measured in terms of purpose.

[00:54:11] Speaker 04:
And the purpose is that it goes not to another customer within this distribution node, but to customers on other distribution loads, like Riverside or West Barnum or farther away.

[00:54:23] Speaker 04:
The Narragansett system covers basically all of that.

[00:54:26] Speaker 02:
Is a node the same as a substation?

[00:54:29] Speaker 02:
I was not clear about that as a technical matter.

[00:54:33] Speaker 04:
That is my understanding that the distribution node, as we use the term here, refers to the substation.

[00:54:39] Speaker 04:
I believe you could also refer to a particular area of generation to be a node.

[00:54:44] Speaker 04:
But as we have used it in our brief, the distribution level is what we consider to be the

[00:54:51] Speaker 04:
That means that the proximity of the customers is further away, even if it is not as far away as redevelopment would have it be.

[00:54:58] Speaker 04:
The fact that it goes over the transmission system to get to those other customers shows that the purpose is within the transmission grid.

[00:55:04] Speaker 04:
We've also talked about factor three, that the distribution goes out of redevelopment facilities onto the transmission grid, not the other direction.

[00:55:12] Speaker 04:
And of course, factor seven, which gets back to the size of the voltage line, that it exists on a current transmission line.

[00:55:20] Speaker 02:
But the direction of power flows, typically, the FERC has analyzed not just whether power can flow in two directions, but how much power actually flows out relative to how much flows in.

[00:55:35] Speaker 02:
So it would seem that there, the direction of power flows very much favors green developments position.

[00:55:42] Speaker 04:
I disagree, Your Honor, because the purpose of this connection is for the power to flow out.

[00:55:50] Speaker 02:
Right.

[00:55:51] Speaker 02:
And that's one direction, not for it to flow back in.

[00:55:55] Speaker 02:
So it's not that green development is taking anything off the transmission system.

[00:55:59] Speaker 02:
It's really here to put it on.

[00:56:01] Speaker 02:
And then you get to the factors four and five, which the commission kind of blew off, but I think are central to green development's position, which is that the power, whether the power is distributed to a local distribution system.

[00:56:14] Speaker 02:
And technically, of course, it goes onto the

[00:56:19] Speaker 02:
system, but it's not transported off to another market.

[00:56:24] Speaker 02:
It's consumed in comparatively restricted areas.

[00:56:27] Speaker 02:
Is it not?

[00:56:28] Speaker 04:
Your question, you want to get again to the distribution feeder, which is not part of the direct assignment facility.

[00:56:33] Speaker 02:
It's not part of the facility, but it's part of the context.

[00:56:36] Speaker 02:
And I understand this analysis to look at the context, not just the facility itself.

[00:56:42] Speaker 02:
It's looking at retail customers.

[00:56:44] Speaker 02:
Those are not part of the facility, right?

[00:56:47] Speaker 02:
Certainly.

[00:56:47] Speaker 02:
And where things are consumed, that's not part of the facility.

[00:56:50] Speaker 02:
It's looking at the context.

[00:56:52] Speaker 04:
Right.

[00:56:53] Speaker 04:
But it's the context of the facility.

[00:56:55] Speaker 04:
And the context of the relevant portion of the facility here is all transmission.

[00:56:59] Speaker 04:
It's not what happens beneath the transformer that we've looked at at 494.

[00:57:03] Speaker 04:
I see my time has elapsed, but I'd like to just briefly address the requesting service question.

[00:57:15] Speaker 04:
Substantively, re-development would read as the phrase, customer requesting service, the requirement that does not exist in the definition.

[00:57:21] Speaker 04:
And that phrase contains no such requirement by its clean terms, that a request be contemporaneous.

[00:57:28] Speaker 04:
This compares with what the definition says about specifying the direct assignment facilities in a separate agreement or elsewhere.

[00:57:34] Speaker 04:
And the participle phrase, at most, is temporally ambiguous, to which this court would defer to FERC's determination.

[00:57:41] Speaker 04:
If there are no other questions, I think

[00:57:45] Speaker 07:
Mr. Bruce Downey, why don't you take two minutes?

[00:58:00] Speaker 01:
Thank you very much.

[00:58:01] Speaker 01:
So I first of all want to address the prior question.

[00:58:05] Speaker 01:
Sorry, what?

[00:58:06] Speaker 01:
I did want to address the prior question regarding where the transmission and distribution are with relation to each other and what green developments contention is here.

[00:58:16] Speaker 01:
I think that Council for FERC and interveners explanations actually highlighted many of the issues here.

[00:58:24] Speaker 01:
What's happening here is that it's true that the right is a distribution system, but the left side of the schematic, so referring to the 115 kilovolt line, is also a distribution line.

[00:58:40] Speaker 01:
So when FERC is saying that this power is being transmitted on the transmission system because it's on a transmission line, FERC is begging the question somewhat circular because the question is that line a transmission line or not.

[00:58:57] Speaker 01:
And the problem I think is highlighted by FERC counselor is that FERC is focusing on an assumption that the line is transmission to classify this line as transmission.

[00:59:09] Speaker 01:
But really, the focus is on the destination of the power.

[00:59:11] Speaker 01:
And I think it's clear from the record below and also the statements of opposing counsel that the end purpose, the destination of the power, is retail.

[00:59:21] Speaker 01:
So that's the answer to what is on the left of the line.

[00:59:26] Speaker 02:
But isn't the end purpose of all generated power ultimately retail?

[00:59:30] Speaker 02:
And the question is about how it's carried there?

[00:59:34] Speaker 01:
The ultimate purpose is going to be retail, but what separates is the retail function.

[00:59:42] Speaker 01:
It is going to be whether or not you're in, you're doing a wholesale transaction or not.

[00:59:48] Speaker 01:
So you have the power is transmitted in general on the transmission grid.

[00:59:53] Speaker 01:
Sure.

[00:59:53] Speaker 01:
It ultimately gets to retail, but it first goes to someone else.

[00:59:56] Speaker 02:
But isn't that just as circular as what you've just accused of doing, saying we didn't intend this to go to wholesale, even though it's going to Narragansett.

[01:00:09] Speaker 02:
And Narragansett is somewhat treating it as wholesale by putting it on this.

[01:00:14] Speaker 01:
Interconnector, because what I'm focusing on here is who's going to be the first person in line to purchase that power.

[01:00:22] Speaker 01:
So the first person in line to purchase the power here is going to be the distribution customer.

[01:00:27] Speaker 01:
In the wholesale context, the first person to purchase the line is going to be the utility like, not the line, the power, the power, excuse me, the purchase of power is going to be the utility like Narragansett.

[01:00:36] Speaker 02:
Let me just back up on the direct assignment facilities definition and the requesting power.

[01:00:42] Speaker 02:
If you were right about that, what happens after remit?

[01:00:45] Speaker 02:
Would Narragansett submit an application for service and do any missing studies and then go ahead and charge the direct assignment facilities charge, or is it too late for that to happen?

[01:00:58] Speaker 02:
Is that why that's an advantageous position for you?

[01:01:01] Speaker 01:
No, Your Honor, it's not too late for that to happen.

[01:01:04] Speaker 01:
We hope that the orders will be vacated and remanded, and that on remand, we will see FERC require a transmission application so that Green Development and other rate paying customers can also have a chance to evaluate why these upgrades are needed.

[01:01:22] Speaker 01:
So if I may, Your Honor, address another point from the Intervener Council.

[01:01:29] Speaker 01:
And I know that there was some discussion about this idea that, oh, could you split up the facility and charge some for transmission, some for distribution?

[01:01:37] Speaker 01:
And we just want to point out that all of these facilities are being included, including the theoretical transmission side is being included over here.

[01:01:46] Speaker 01:
So that's why there's a duplicative issue, because we're already, so even in theoretically speaking, you could split it up.

[01:01:52] Speaker 01:
It doesn't solve the duplication issue.

[01:01:54] Speaker 02:
So- Because they're not splitting up.

[01:01:55] Speaker 01:
Because they're not splitting up, exactly.

[01:01:57] Speaker 02:
And is the Rhode Island proceeding that Council pointed to the correct place for you to raise that?

[01:02:04] Speaker 01:
No, Your Honor.

[01:02:05] Speaker 01:
Oh, so in terms of the splitting up of the facilities?

[01:02:10] Speaker 02:
Avoiding duplicative costs.

[01:02:13] Speaker 01:
That would not be the

[01:02:15] Speaker 01:
correct place to address whether there are transmission charges that are being assessed that are duplicative with the state jurisdictional charges because the Rhode Island Commission is not going to look at whether or not these are actually legitimate transmission charges.

[01:02:31] Speaker 01:
They're just going to defer to whatever FERC thinks.

[01:02:34] Speaker 01:
So that's part of the issue over here.

[01:02:36] Speaker 01:
The charges are essentially just being passed through Narragansett and New England Power affiliates at the time.

[01:02:42] Speaker 01:
So the pass through is just automatic.

[01:02:44] Speaker 02:
So Perk is saying, what happens in Rhode Island is not our problem.

[01:02:49] Speaker 02:
Rhode Island will say, as you anticipate, what happens with Perk is not our problem, and nobody's going to examine the potential overlap.

[01:02:56] Speaker 01:
That's correct.

[01:02:57] Speaker 01:
That's precisely how we wound up in this problem.

[01:02:59] Speaker 01:
Everybody's pointing fingers at the other person.

[01:03:00] Speaker 02:
Isn't it really how you wound up in this problem that you entered into an agreement with a very big term that has not yet pinned down and started building the facility without

[01:03:13] Speaker 01:
No, Your Honor, because when you're talking about the agreement, I presume that you're talking about as a distribution interconnection service agreement.

[01:03:20] Speaker 01:
And so when you're looking at the various provisions of that, what you're really looking for is that these are essentially placeholders for charges to be passed through and assessed on the customer.

[01:03:30] Speaker 01:
But that's assuming that the charges are in fact legitimate on Ferguson.

[01:03:34] Speaker 01:
So if the charges aren't legitimate, then it essentially voids that provision ab initio because you have a situation where the charges aren't being assessed.

[01:03:44] Speaker 01:
So theoretically, the interconnection agreement permits green development to be assessed.

[01:03:51] Speaker 01:
These transmission charges is a pass through, but if there's zero charges, then there's no pass through.

[01:03:57] Speaker 01:
All right, thank you.

[01:03:59] Speaker 01:
Your Honor, may I conclude in requesting the court vacate on remand on arbitrary depreciations.

[01:04:04] Speaker 01:
Thank you.

[01:04:04] Speaker 07:
Thank you.