Code § 56-46.1 Limits SCC Duties in Transmission CPCNs: Verification May Rely on Staff; Undergrounding Turns on Feasibility and Timeliness; Local “Substantial Accord” Review Is Supplanted by § 56-46.1(F)

I. Introduction

Loudoun County v. SCC (with the companion appeal by Lansdowne Conservancy) arose from the State Corporation Commission’s (“Commission” or “SCC”) approval of Virginia Electric and Power Company’s (“VEPCO”) applications for certificates of public convenience and necessity (“CPCNs”) to construct two high-voltage transmission projects in Loudoun County: the Aspen-Golden Project (approximately nine miles of 500 kV and 230 kV lines and substations) and the Apollo-Twin Creeks Project (approximately 1.9 miles of 230 kV lines and substations).

The dispute centered on VEPCO’s plan to build overhead lines—steel monopoles up to 195 feet—near Route 7 in the Lansdowne community, and on whether the SCC should require a three-mile underground segment advanced by the County and the Conservancy through an “Updated Hybrid Proposal” (“UHP”) prepared by RLC Engineering.

The key legal issues were statutory: how the SCC must (1) verify reliability need and modeling under Code § 56-46.1(B), (2) evaluate requested undergrounding (including costs/benefits and impediments to timely construction), (3) consider a locality’s comprehensive plan under Code § 56-46.1(A), and (4) balance environmental, scenic, historic, and cultural impacts under the “avoid or reasonably minimize” standard in Code § 56-46.1(B).

II. Summary of the Opinion

The Supreme Court of Virginia affirmed the SCC’s orders issuing CPCNs for both projects. The Court held that the SCC:

  • Properly verified the load flow modeling, contingency analyses, and reliability needs supporting Aspen-Golden, relying on SCC Staff verification of PJM models;
  • Properly rejected undergrounding as not feasible given cost, engineering constraints, and—critically—timing to meet projected NERC reliability violations by summer 2028;
  • Permissibly treated deficiencies in the UHP (including inadequate environmental impact and environmental justice analysis and route uncertainty) as “potential impediments to timely construction” under Code § 56-46.1(B);
  • Adequately considered impacts to Belmont Manor and the Belmont Scenic Viewshed Easement and still could rationally select Route 1AA as minimizing overall impacts;
  • Met Code § 56-46.1(A)’s requirement to “receive and give consideration” to the County’s comprehensive plan, and was not required to make a “substantial accord” finding under Code § 15.2-2232 because Code § 56-46.1(F) deems that requirement satisfied once the SCC approves the line;
  • Did not abuse its discretion in declining to impose additional mitigation conditions requested late and without supporting evidence; and
  • Properly approved Apollo-Twin Creeks because the challenge to it depended entirely on overturning Aspen-Golden’s overhead configuration.

III. Analysis

A. Precedents Cited

The Court’s decision is heavily shaped by its established deference to the SCC in utility regulation and its approach to statutory “consideration” requirements.

1. Institutional deference to the SCC

  • BASF Corp. v. State Corp. Comm'n, 289 Va. 375 (2015): Quoted for the SCC’s “broad, general and extensive powers,” the need to “balance” adverse impacts with other factors, and the proposition that “minimize” does not mean eliminate all impacts. This precedent anchored the Court’s rejection of the appellants’ effort to treat visual and scenic impacts as dispositive where the SCC found overhead construction and Route 1AA best served the “total public interest.”
  • Office of the Att'y Gen. v. State Corp. Comm'n, 288 Va. 183 (2014): Used (via BASF) to reinforce the constitutional/statutory breadth of SCC authority.
  • Appalachian Voices v. State Corp. Comm'n, 277 Va. 509 (2009): Cited (via BASF) for the principle that SCC decisions are “entitled to the respect due judgments of a tribunal informed by experience,” supporting the Court’s refusal to reweigh engineering feasibility or route selection.
  • West Virginia v. State Corp. Comm'n, 304 Va. 148 (2025): Provided two key doctrinal building blocks: (i) when the General Assembly directs the SCC to “consider” a factor, it need not make specific findings; it must reflect upon the factor with due care, and (ii) the SCC’s refusal to impose additional CPCN conditions is reviewed for abuse of discretion. The Court applied both points to reject the “substantial accord” demand and to uphold the SCC’s denial of late-proposed mitigation conditions.
  • Appalachian Power Co. v. State Corp. Comm'n, 301 Va. 257 (2022), and Board of Supervisors v. Appalachian Power Co., 216 Va. 93 (1975): Cited for the presumption of correctness, the limitation on appellate substitution of judgment on factfinding, and the “balancing” framework in transmission cases. These authorities underwrote the Court’s posture that it would not disturb feasibility and routing determinations supported by record evidence.

2. Technical verification and independent consultants

  • Piedmont Env't Council v. Virginia Elec. & Power Co., 278 Va. 553 (2009): Cited for two purposes: (i) definitional context for NERC and PJM, and (ii) the observation that in some cases SCC Staff has engaged an independent consultant to verify technical information. The Court used Piedmont Env't Council to clarify a limit: while independent consultants are sometimes used, Code § 56-46.1(B) does not require that approach; SCC Staff verification may suffice.

B. Legal Reasoning

1. Verification under Code § 56-46.1(B): staff verification is enough on this record

The appellants framed “verification” as requiring more than the record showed—implicitly pushing toward independent third-party validation. The Court rejected that framing by pointing to express Staff report statements that Staff verified PJM power flow models, confirmed projected NERC violations absent the project, and verified the project resolved those violations. The Court emphasized the absence of a developed challenge: the appellants did not meaningfully contest that verification through cross-examination of the Staff witness.

The doctrinal move is important: “verification” is treated as a statutory compliance question satisfied where Staff affirmatively confirms model checking, rather than as a rigid procedural demand for outside consultants.

2. Undergrounding requests: feasibility and timeliness drive the outcome

Code § 56-46.1(B) requires the SCC, on request of a county, to consider (a) costs and economic benefits of undergrounding and (b) potential impediments to timely construction. The Court upheld the SCC’s finding that undergrounding was not feasible because:

  • Cost: the UHP was estimated at about $1.112 billion—about $423 million more than VEPCO’s overhead plan—with testimony that costs could exceed even that estimate;
  • Engineering constraints: 500 kV undergrounding is rare, requiring specialized materials, crews, and equipment, complicated by shallow diabase rock and the need to relocate existing utilities;
  • Schedule risk: most determinative, the project needed completion by summer 2028 to avoid thermal overloads tied to NERC reliability violations; the SCC could credit testimony that undergrounding would materially delay completion.

The opinion’s distinctive feature is its endorsement of the SCC treating “proposal maturity” as part of “timely construction.” The hearing examiner and SCC did not merely prefer overheading; they also found the UHP deficient (environmental impact and environmental justice analyses; unclear routing details such as transition stations and endpoints), and the Court held those deficiencies were relevant as “impediments” because resolving them would take time and thus threaten the 2028 reliability deadline.

3. Belmont Scenic Viewshed Easement: considered, not dispositive

The Court treated the easement issue primarily as part of the “minimize adverse impacts” balancing. The SCC acknowledged likely monopoles within the easement area but also credited record evidence that the easement language allowed public utilities. The Court held it was permissible for the SCC to conclude Route 1AA minimized overall impacts notwithstanding localized harm to Belmont Manor views.

The Court also enforced procedural boundaries: an argument that easement “violations” barred the route “as a matter of law” was not considered because it fell outside the assignment of error and was not preserved before the SCC (citing Rule 5:21(a)(7)).

4. Comprehensive plan “consideration” vs. Code § 15.2-2232 “substantial accord”

This is the opinion’s clearest statement of statutory hierarchy and preemption-like effect within Virginia’s planning/utility framework.

  • Under Code § 56-46.1(A), the SCC must “receive and give consideration” to local comprehensive plans when requested. The Court—relying on West Virginia v. State Corp. Comm'n—reaffirmed that “consider” does not require specific findings; it requires reflection with due care.
  • The appellants attempted to import Code § 15.2-2232 (local planning commission “substantial accord” review) into the SCC CPCN decision. The Court rejected this because Code § 56-46.1(F) states that SCC approval of a transmission line “shall be deemed to satisfy the requirements of [Code] § 15.2-2232 and local zoning ordinances.” The Court treated this as eliminating any need for a separate “substantial accord” analysis within the SCC proceeding.

Practically, the Court preserved a role for comprehensive plans—SCC must consider them—but prevented them from becoming a veto or an additional statutory hurdle once the SCC finds the public interest favors the line.

5. “Avoid or reasonably minimize” and the “total public interest”

The Court framed the route/configuration choice as classic SCC balancing under Code § 56-46.1(B): the SCC must decide, after considering a multitude of factors, what best serves the “total public interest.” Citing BASF Corp. v. State Corp. Comm'n, it reiterated that “minimize” does not mean eliminate impact and that undergrounding—though it may reduce visual impacts—need not be selected when infeasible due to cost and timing constraints.

6. Late-proposed mitigation conditions: abuse-of-discretion review and evidentiary support

The Conservancy’s requested conditions (limits on collocation, vegetation screening, limiting right-of-way use, keeping the record open) were raised after the hearing, in comments to the hearing examiner’s report, without supporting evidence or specific impact-reduction showings. Applying West Virginia v. State Corp. Comm'n, the Court held the SCC did not abuse its discretion in refusing them.

7. Apollo-Twin Creeks: contingent challenge fails

Because the challenge to Apollo-Twin Creeks depended on forcing Aspen-Golden underground (to require compatible design for collocation), the Court disposed of it once overheading was affirmed.

C. Impact

1. Clarification of “consideration” duties and limits of local planning leverage

The opinion strengthens a predictable rule for transmission CPCNs: local comprehensive plans must be considered, but they do not trigger an SCC obligation to adjudicate “substantial accord” under Code § 15.2-2232, and SCC approval itself satisfies that local-law requirement via Code § 56-46.1(F). Future litigants should expect courts to treat attempts to elevate comprehensive-plan provisions into binding constraints as inconsistent with the statutory design.

2. Undergrounding disputes: the feasibility inquiry expands beyond engineering to process completeness

By holding that deficiencies in an undergrounding alternative’s analyses (environmental impact and environmental justice) and route uncertainty are relevant “impediments to timely construction,” the Court implicitly encourages parties advocating undergrounding to present proposals with sufficient detail to be realistically buildable on the project schedule—not merely conceptually preferable.

3. Verification disputes: emphasis on record development and cross-examination

The Court’s reliance on Staff’s explicit verification statements, coupled with the observation that appellants did not challenge that verification through cross-examination, signals that parties must build a targeted evidentiary record if they intend to argue noncompliance with Code § 56-46.1(B)’s verification requirement.

4. Conditions and mitigation: raise early, support with evidence

The refusal to impose late-requested conditions suggests a procedural lesson for intervenors: mitigation conditions should be developed during the evidentiary phase, with testimony or other proof of feasibility and effect. Requests raised post-hearing face a steep abuse-of-discretion barrier.

IV. Complex Concepts Simplified

  • CPCN (Certificate of Public Convenience and Necessity): A legal authorization the SCC issues allowing a utility to build major infrastructure when it is needed and serves the public interest under governing statutes.
  • Load flow / power flow modeling: Computer simulations of how electricity moves across the grid under expected demand and contingency scenarios; used to predict overloads and reliability problems.
  • Contingency analyses: Studies of how the grid performs when something goes wrong (e.g., a line or transformer is out of service), to ensure the system remains reliable.
  • NERC reliability standards: Mandatory regional grid reliability requirements developed and enforced by the North American Electric Reliability Corporation; violations can indicate risk of equipment damage or widespread outages.
  • PJM: The regional transmission organization that plans and coordinates bulk power transmission across multiple states, providing modeling used in reliability justifications.
  • “Avoid or reasonably minimize … to the greatest extent reasonably practicable”: A balancing standard. The SCC must reduce impacts where feasible, but it may approve a route that still has impacts when alternatives are impracticable due to cost, engineering, timing, or other public-interest factors.
  • “Consider” (as used in statutes): The SCC must reflect on the factor with care, but it need not make detailed findings unless the statute expressly requires them.
  • “Substantial accord” (Code § 15.2-2232): A local planning commission review typically required for public facilities to align with a comprehensive plan; for transmission lines approved under Code § 56-46.1, the statute deems this satisfied.

V. Conclusion

The Supreme Court of Virginia’s decision affirms a robust, deferential framework for SCC transmission CPCN approvals under Code § 56-46.1: Staff verification can satisfy the statute; undergrounding requests are judged through a feasibility-and-timeliness lens that can account for analytical completeness; comprehensive plans must be considered but do not impose a “substantial accord” adjudication because Code § 56-46.1(F) deems that requirement met; and late, unsupported mitigation requests are unlikely to overcome abuse-of-discretion review. In combination, these holdings reinforce the SCC’s central role in balancing localized impacts against grid reliability needs and the “total public interest.”