“Consideration” Means Reflection: SCC Need Not Make Local “Substantial Accord” Findings When Granting Transmission-Line CPCNs Under Code § 56-46.1

I. Introduction

In Loudoun County v. SCC (consolidated appeals involving the Lansdowne Conservancy and Loudoun County), the Supreme Court of Virginia reviewed final orders of the State Corporation Commission (“Commission” or “SCC”) granting Virginia Electric and Power Company (“VEPCO”) two certificates of public convenience and necessity (“CPCNs”) for new high-voltage transmission infrastructure in Loudoun County: the Aspen-Golden Project (approximately nine miles of 500 kV and 230 kV lines and related facilities) and the Apollo-Twin Creeks Project (approximately 1.9 miles of 230 kV lines and substations).

The dispute centered on whether the SCC should have required VEPCO to place a portion of the Aspen-Golden lines underground along the Route 7 corridor in the Lansdowne community, where residents and the County warned of substantial scenic and historic impacts (including impacts to Belmont Manor and an associated viewshed easement). The County and Conservancy also argued the projects conflicted with the Loudoun County Comprehensive Plan and that the SCC failed to verify technical reliability showings supporting “need.”

II. Summary of the Opinion

The Court affirmed the SCC’s issuance of CPCNs for both projects. Key holdings include:

  • The SCC satisfied Code § 56-46.1(B)’s requirement to “verify” load flow modeling, contingency analyses, and reliability needs where SCC staff verified PJM modeling and confirmed the projected NERC violations and their resolution with the project; the statute does not require an independent third-party consultant.
  • The SCC properly considered undergrounding under Code § 56-46.1(B) and reasonably found it infeasible due to cost, engineering constraints, and schedule risk tied to impending NERC reliability violations.
  • It was permissible for the SCC/hearing examiner to consider that the County’s proposed “Updated Hybrid Proposal” (“UHP”) lacked needed environmental and environmental justice analyses and had routing uncertainties—because those deficiencies were relevant to “impediments to timely construction” under Code § 56-46.1(B).
  • The SCC adequately “considered” the Loudoun County Comprehensive Plan under Code § 56-46.1(A) and was not required to make a “substantial accord” determination under Code § 15.2-2232, especially given Code § 56-46.1(F)’s deeming clause.
  • The SCC’s route and overhead-configuration determinations satisfied Code § 56-46.1(B)’s “avoid or reasonably minimize adverse impact … to the greatest extent reasonably practicable” standard, which requires balancing and does not demand elimination of all impacts.
  • The SCC did not abuse its discretion in declining to impose additional visual-mitigation conditions requested late by the Conservancy without supporting evidence.
  • The challenge to the Apollo-Twin Creeks CPCN (seeking accommodations for undergrounding the Aspen-Golden lines) failed once the Court upheld overhead construction for Aspen-Golden.

III. Analysis

A. Precedents Cited

The Court’s analysis is built on a line of decisions emphasizing SCC expertise, deference to SCC factfinding, and the statutory balancing nature of CPCN decisions:

  • BASF Corp. v. State Corp. Comm'n, 289 Va. 375 (2015): Used for two central propositions. First, the SCC has “broad, general and extensive powers” in regulating utilities, anchoring a deferential posture toward SCC judgments. Second, and more substantively for transmission CPCNs, BASF frames Code § 56-46.1(B) as a balancing statute: the SCC weighs “a multitude of factors,” and “minimize” does not mean “eliminate.” The Court invoked this directly to reject the appellants’ implication that significant scenic harm (or a preferred underground alternative) compels reversal.
  • Office of the Att'y Gen. v. State Corp. Comm'n, 288 Va. 183 (2014): Quoted via BASF for the SCC’s expansive regulatory authority—supporting the Court’s general reluctance to second-guess SCC judgments within its delegated domain.
  • Appalachian Voices v. State Corp. Comm'n, 277 Va. 509 (2009): Cited (again via BASF) for the principle that SCC decisions deserve respect as judgments of a tribunal “informed by experience,” reinforcing deference to SCC technical and policy determinations.
  • West Virginia v. State Corp. Comm'n, 304 Va. 148 (2025): This case drives two modern interpretive rules the Court applied here. (1) When the General Assembly instructs the SCC to “consider” a factor, the SCC need not make specific findings; it must reflect with care. This directly resolved the Comprehensive Plan dispute under Code § 56-46.1(A). (2) West Virginia also supplied the abuse of discretion standard for reviewing the SCC’s refusal to impose additional CPCN conditions—decisive against the Conservancy’s late-raised mitigation requests.
  • Appalachian Power Co. v. State Corp. Comm'n, 301 Va. 257 (2022): Quoted for the canonical limitation on appellate review—courts cannot substitute their judgment for the SCC in matters within the SCC’s province and will not overturn findings of fact unless unsupported by evidence. This frame is critical to why disputes over underground feasibility and routing failed on appeal.
  • Board of Supervisors v. Appalachian Power Co., 216 Va. 93 (1975): Used (via BASF) to describe the SCC’s task as choosing what best serves the “total public interest” after balancing adverse impacts and traditional considerations. The Court’s route/impact discussion tracks this framework closely.
  • Piedmont Env't Council v. Virginia Elec. & Power Co., 278 Va. 553 (2009): Cited for technical context (describing NERC and PJM) and, importantly, to clarify that while SCC staff sometimes use independent consultants to verify technical materials, Code § 56-46.1(B) does not require that practice. This undercut the appellants’ “verification” challenge.

B. Legal Reasoning

1. “Verification” under Code § 56-46.1(B)

The appellants attacked the predicate “need” finding by claiming the SCC failed to verify the technical studies supporting the Aspen-Golden Project. The Court treated this as a record-and-statute question: the staff report explicitly stated that staff verified PJM power-flow models, confirmed the NERC violations absent the project, and verified that the project resolves them. With no meaningful evidentiary attack on that verification in the record (including no cross-examination challenge to staff on the point), the Court found the statutory requirement satisfied.

The Court further clarified the method portion of verification: staff evaluated undergrounding and rejected it for “timing, cost, and constructability,” concluding overhead was the feasible path to meet the 2028 reliability deadline. By citing Piedmont Env't Council v. Virginia Elec. & Power Co., the Court closed off a potential argument that verification demands an external consultant; it does not.

2. Undergrounding: cost-benefit and “impediments to timely construction”

Code § 56-46.1(B) requires the SCC, upon county request, to consider (a) costs and economic benefits of undergrounding and (b) impediments to timely construction. The Court accepted the SCC’s approach as faithful to both prongs:

  • Costs: The County’s UHP estimate ($1.112B) exceeded VEPCO’s overhead cost by $423M; other evidence suggested even higher risk of escalation. The Court treated this as substantial evidence supporting the SCC’s rejection of undergrounding.
  • Timeliness/feasibility: The Court emphasized schedule risk in light of looming thermal overloads and NERC violations projected for summer 2028. Evidence included specialized materials and crews for 500 kV undergrounding, diabase rock, and relocation of existing underground utilities—all supporting a reasonable conclusion that undergrounding could miss the reliability-driven deadline.

A notable doctrinal move is the Court’s acceptance of the hearing examiner’s critique that the UHP lacked adequate environmental impact and environmental justice analyses and had routing uncertainty (transition stations, endpoints, crossings, etc.). The appellants characterized this as an improper requirement that intervenors present a CPCN-ready alternative. The Court reframed those critiques as directly relevant to “impediments to timely construction”: analytical and routing deficiencies would themselves consume time to cure, threatening the 2028 deadline. This validates the SCC’s ability to consider the practical completeness and permitting readiness of an underground alternative when assessing feasibility.

3. Scenic easements and “minimization” of adverse impacts

Regarding Belmont Manor and the Belmont Scenic Viewshed Easement, the Court’s reasoning is procedural and substantive: the SCC considered the impacts, noted the easement allows public utility structures, and then balanced those harms against other route-selection factors, concluding Route 1AA was optimal overall. The Court refused to entertain a broader “as a matter of law” easement-preclusion argument because it fell outside the assignment of error and was not preserved before the SCC (invoking Rule 5:21(a)(7)).

4. Comprehensive plans: “consideration” vs “substantial accord”

The Court squarely held that Code § 56-46.1(A) requires the SCC only to “receive and give consideration” to local comprehensive plans—no “substantial accord” determination is required. This conclusion rests on two pillars:

  • Interpretation of “consider”: Under West Virginia v. State Corp. Comm'n, “consider” means reflect on the factor with care; it does not compel specific findings or a local-law style conformity determination.
  • Deeming clause: Code § 56-46.1(F) provides that SCC approval “shall be deemed to satisfy the requirements of [Code] § 15.2-2232 and local zoning ordinances.” That statutory directive eliminates any need for a separate Code § 15.2-2232 “substantial accord” analysis in the SCC’s CPCN decision.

5. Conditions: evidentiary timing and abuse of discretion

The Conservancy’s requested conditions (limits on collocation, vegetation screening, limiting right-of-way use, keeping the record open for enforcement) failed primarily on process and proof. The Court stressed the Conservancy did not raise or develop these conditions before the hearing examiner and offered no evidentiary foundation explaining how they would mitigate impacts. Under West Virginia v. State Corp. Comm'n, the SCC’s refusal is reviewed for abuse of discretion; on this record there was none.

C. Impact

  • Underground alternatives must be “schedule-real”: Even when undergrounding would reduce visual impacts, the SCC may reject it if engineering, procurement, routing uncertainty, and analytical gaps create unacceptable risk to statutory reliability-driven timelines—especially where NERC/PJM modeling identifies near-term overloads.
  • Intervenor proposals can be discounted for incompleteness without “shifting” the CPCN burden: The Court endorsed the SCC’s consideration of missing environmental and environmental justice analyses and unclear routing as evidence of “impediments,” encouraging future intervenors to develop alternatives with permitting and constructability specificity if they want them treated as feasible.
  • Comprehensive plans have consultative weight, not veto power: The decision reinforces that local plans are a factor, but not a binding conformity standard in SCC CPCN proceedings; and the General Assembly has expressly preempted local “substantial accord” gating for SCC-approved transmission lines through Code § 56-46.1(F).
  • Condition requests should be timely and evidentiary: Parties seeking mitigation conditions should present them during the evidentiary phase (not post-report comments) and build a record explaining feasibility, effectiveness, and enforceability, or risk deferential affirmance of an SCC denial.
  • Verification challenges must confront the record: Where SCC staff verification is documented and not meaningfully contested, appellate courts will not require more (such as independent consultants) absent a statutory mandate.

IV. Complex Concepts Simplified

CPCN (Certificate of Public Convenience and Necessity)
A regulatory authorization issued by the SCC allowing a utility to build and operate specified facilities, after the SCC finds the project is needed and satisfies statutory siting/impact standards.
Load flow modeling / contingency analyses
Engineering studies simulating how electricity moves through the grid under normal and “what if a component fails” scenarios (contingencies). They help determine whether lines/substations will overload and whether new facilities are needed.
NERC reliability standards
Mandatory grid-reliability rules developed and enforced through the North American Electric Reliability Corporation (NERC), overseen by federal regulators. Violations can signal risk of equipment damage and regional outages.
PJM
The regional transmission organization coordinating the high-voltage grid and wholesale transmission planning for Virginia and neighboring states; PJM modeling often informs reliability-need showings.
“Avoid or reasonably minimize … to the greatest extent reasonably practicable”
The statutory siting standard in Code § 56-46.1(B). It requires balancing and practical optimization, not a requirement to eliminate all adverse impacts or to choose the option with the least visual impact regardless of feasibility, cost, and timing.
Comprehensive plan “consideration” vs “substantial accord”
Local comprehensive plans guide local land use policy. Under Code § 56-46.1(A), the SCC must consider them when requested, but does not have to find a transmission line is in “substantial accord” with them—especially because Code § 56-46.1(F) deems SCC approval to satisfy Code § 15.2-2232 for the line.
Presumption of correctness / deference to the SCC
On appeal, SCC factfinding is upheld if supported by evidence; courts do not reweigh competing testimony on engineering, routing, or timing unless the decision lacks evidentiary support.

V. Conclusion

The Supreme Court of Virginia’s decision cements a pragmatic, deferential framework for Code § 56-46.1 transmission-line CPCNs: the SCC must verify technical need and consider undergrounding and local plans, but it retains discretion to reject underground construction when cost, constructability, analytical completeness, and schedule risk make it impracticable—particularly where reliability violations are imminent. The Court also clarifies that local “substantial accord” requirements do not constrain SCC transmission-line approvals due to the limited “consideration” mandate in Code § 56-46.1(A) and the preemptive deeming rule in Code § 56-46.1(F).