Virginia SCC CPCN Review: “Consideration” of Local Plans (Not “Substantial Accord”), Staff Verification of Reliability Need, and Feasibility-Based Rejection of Undergrounding Under Code § 56-46.1

I. Introduction

In Lansdowne Conservancy v. SCCC (consolidated with Loudoun County, Virginia v. SCCC), the Supreme Court of Virginia reviewed final orders of the State Corporation Commission (the “Commission”) granting Virginia Electric and Power Company (“VEPCO”) two certificates of public convenience and necessity (“CPCNs”) for major transmission-related projects in Loudoun County, Virginia: the Aspen-Golden Project and the Apollo-Twin Creeks Project.

The dispute centered on whether the Commission unlawfully approved overhead high-voltage transmission construction—especially along the Route 7 corridor in the Lansdowne community—rather than requiring underground installation of a key segment. Loudoun County (the “County”) and Lansdowne Conservancy (the “Conservancy”) argued that overhead facilities would harm scenic, historic, cultural, and environmental assets, conflict with a viewshed easement protecting the view of Belmont Manor, and deviate from the County’s comprehensive plan encouraging undergrounding in gateway corridors.

The Supreme Court affirmed the Commission in full, emphasizing the Commission’s broad discretion and clarifying how Code § 56-46.1’s verification, undergrounding-consideration, and local-plan provisions operate in CPCN proceedings.

II. Summary of the Opinion

  • Need verification: The Court held the Commission satisfied Code § 56-46.1(B)’s requirement to “verify” load flow modeling, contingency analyses, and reliability needs where Commission staff verified PJM models and confirmed projected NERC violations absent the project and their resolution with the project.
  • Undergrounding request: The Court held the Commission properly considered—then rejected—underground construction for the Route 7 segment based on cost, engineering constraints, and impediments to timely completion before projected 2028 reliability violations.
  • County alternative proposal (UHP): The Court approved the Commission’s reliance on deficiencies in the County’s Updated Hybrid Proposal (“UHP”) (including environmental and environmental justice analytical gaps and routing uncertainty) as relevant to feasibility and timing under Code § 56-46.1(B).
  • Belmont Scenic Viewshed Easement: The Court held the Commission adequately considered impacts and could still select the route that best minimized overall impacts given the easement language permitting public utilities within the easement area.
  • Comprehensive plan: The Court held Code § 56-46.1(A) requires only that the Commission “receive and give consideration” to a comprehensive plan; it does not require a “substantial accord” finding under Code § 15.2-2232, especially because Code § 56-46.1(F) deems Commission approval to satisfy Code § 15.2-2232 and local zoning ordinances.
  • Extra mitigation conditions: The Commission did not abuse its discretion in refusing conditions first requested after the evidentiary hearing and unsupported by evidence.
  • Apollo-Twin Creeks CPCN: The challenge failed because it depended on overturning overhead approval for Aspen-Golden; with overhead affirmed, no “accommodation” for undergrounding was required.

III. Analysis

A. Precedents Cited

1. Deference to the Commission and the appellate posture

  • BASF Corp. v. State Corp. Comm'n, 289 Va. 375 (2015): The Court used BASF as the principal modern articulation of (i) the Commission’s broad authority, (ii) the “multitude of factors” balancing required in transmission CPCNs, and (iii) the meaning of “minimize” as not requiring elimination of all impacts. BASF also anchors the “total public interest” framework (through earlier precedent) that legitimizes the Commission’s weighing of competing harms (visual, environmental, historic) against reliability and feasibility constraints.
  • Office of the Att'y Gen. v. State Corp. Comm'n, 288 Va. 183 (2014): Quoted through BASF to reinforce that the Constitution and statutes confer “broad, general and extensive powers” on the Commission in public utility regulation—supporting a posture of restraint by the Court when reviewing Commission factfinding and discretionary balancing.
  • Appalachian Voices v. State Corp. Comm'n, 277 Va. 509 (2009): Cited for two related propositions: Commission decisions deserve “respect” due to specialized experience, and appellate courts will not disturb analysis grounded in correct legal principles. This buttressed the Court’s refusal to reweigh feasibility evidence concerning undergrounding and route selection.
  • West Virginia v. State Corp. Comm'n, 304 Va. 148 (2025): This case did substantial work in the Court’s statutory interpretation. It supplied:
    • a definition of “consider” (reflect/think with care),
    • the principle that when the General Assembly tells the Commission to “consider” a factor, it need not make specific findings on that factor, and
    • the abuse-of-discretion standard for reviewing the Commission’s refusal to impose additional CPCN conditions.
    In this opinion, West Virginia is the direct bridge from statutory text (“consider”) to operational doctrine (no mandatory “substantial accord” findings; discretionary conditions).
  • Appalachian Power Co. v. State Corp. Comm'n, 301 Va. 257 (2022): Cited to reiterate limits on appellate substitution of judgment and the “contrary to the evidence or without evidence” threshold for overturning Commission factfinding. That standard is critical to the Court’s acceptance of the Commission’s feasibility/timing findings.
  • Board of Supervisors v. Appalachian Power Co., 216 Va. 93 (1975): The opinion relied on Board of Supervisors for foundational principles: Commission must “balance” adverse impacts with other considerations; the CPCN decision is a “total public interest” determination. This framework explains why the Commission could accept unavoidable scenic impacts while still concluding the project “minimized” impacts to the greatest extent reasonably practicable.

2. Technical verification and the role of staff/consultants

  • Piedmont Env't Council v. Virginia Elec. & Power Co., 278 Va. 553 (2009): The Court used Piedmont for two distinct points:
    • definitions/context for NERC and PJM, supporting the technical reliability narrative; and
    • the observation that in some cases staff has used an independent consultant to verify technical data—while clarifying that Code § 56-46.1(B) does not require that practice.
    The practical effect is to reject an implied “independent consultant” mandate and to validate staff verification as sufficient when supported by the record.

3. Procedural limits in Commission appeals

  • Rule 5:21(a)(7): The Court refused to consider an argument that the alleged easement violations barred overhead construction “as a matter of law” because it exceeded the assignment of error and was not raised before the Commission. This underscores that Commission appeals are tightly constrained by issue preservation and assignment-of-error discipline.

B. Legal Reasoning

1. Code § 56-46.1(B) “verification” is satisfied by record-supported staff technical review

The Court treated “verify” as a functional requirement: the Commission must ensure that the applicant’s reliability and modeling claims are checked and confirmed. Here, staff: (1) verified PJM power flow models, (2) confirmed projected NERC reliability violations without the Aspen-Golden Project, and (3) confirmed via modeling that the project resolves those violations. The Court also noted the challengers did not meaningfully contest that verification when cross-examining the relevant staff witness.

Crucially, the Court rejected the notion that verification requires staff to retain an independent consultant; the statute does not impose that procedural step. This preserves Commission flexibility in how technical verification is accomplished, so long as the record demonstrates it occurred.

2. Undergrounding: “consideration” includes feasibility and timing—and can account for deficiencies in a proposed alternative

Upon a county request, Code § 56-46.1(B) requires the Commission to consider: (a) costs/economic benefits of requiring underground placement and (b) impediments to timely construction.

The Court upheld the Commission’s conclusion that undergrounding the Route 7 segment was not feasible primarily because:

  • Cost: the County’s UHP estimate exceeded the overhead plan by roughly $423 million, with testimony suggesting potential further escalation.
  • Engineering constraints: rarity of underground 500 kV construction, need for specialized crews/materials, shallow diabase rock slowing excavation, and the necessity to relocate existing utilities.
  • Schedule risk: completion needed by summer 2028 to avoid thermal overloads and associated regional service reliability threats; undergrounding was reasonably found likely to miss that deadline.

A key doctrinal move is the Court’s validation of the Commission’s reliance on the UHP’s analytical and routing uncertainties (insufficient environmental impact and environmental justice analyses; unclear transition station locations and endpoints; potential crossings of sensitive and developed areas) as timing impediments. In other words, an alternative does not have to be adopted merely because it is conceptually possible; if its incompleteness creates material delay risk, the Commission may treat that incompleteness as relevant to feasibility under the statute’s “timely construction” factor.

3. “Minimize adverse impact” is a balancing standard, not a no-impact mandate

Relying on BASF Corp. v. State Corp. Comm'n and Board of Supervisors v. Appalachian Power Co., the Court framed Code § 56-46.1(B) as requiring the Commission to balance many competing factors and choose what best serves the “total public interest.” “Minimize” does not mean eliminate. Thus, even substantial aesthetic or viewshed impacts can be legally acceptable if the Commission reasonably finds the chosen corridor avoids or reasonably minimizes impacts “to the greatest extent reasonably practicable” in light of reliability need, constructability, and other constraints.

4. Belmont Scenic Viewshed Easement: consideration and interpretation within the public-interest balance

The Court emphasized that the Commission considered Belmont Manor impacts and the viewshed easement. It was significant that the easement’s text allowed public utility structures within the protected area. The Commission could therefore treat the viewshed impact as an adverse factor but still conclude Route 1AA was the overall least-impactful feasible corridor.

The Court also enforced procedural limits: the appellants could not expand on appeal to a broader claim that easement interference barred the project “as a matter of law,” where that contention fell outside the assignment of error and was not presented below.

5. Comprehensive plans: “give consideration” is not “substantial accord,” and Code § 56-46.1(F) deems compliance

This is the opinion’s most concrete clarification of the relationship between statewide utility siting authority and local land-use planning. The Court held:

  • Code § 56-46.1(A): the Commission must “receive and give consideration” to local comprehensive plans upon request—but is not required to make findings of “substantial accord.”
  • Code § 56-46.1(F): Commission approval of a transmission line “shall be deemed to satisfy the requirements of [Code] § 15.2-2232 and local zoning ordinances.” Therefore, there is no separate “substantial accord” review obligation under Code § 15.2-2232 for a Commission-approved transmission line.

By using West Virginia v. State Corp. Comm'n to interpret “consider,” the Court reinforced a deferential, process-based requirement: the Commission must show it reflected on the plan, not that it conformed to it. The Commission satisfied that duty by adopting the hearing examiner’s analysis acknowledging the plan’s preference for undergrounding while finding undergrounding infeasible.

6. Additional mitigation conditions: discretion, timing, and evidentiary support

The Conservancy’s requested conditions (limits on future collocation, vegetation screening obligations, and right-of-way limitations, plus keeping the record open) were first advanced after the hearing examiner’s report, without evidentiary development. Applying West Virginia v. State Corp. Comm'n, the Court held the Commission did not abuse its discretion in declining to impose conditions unsupported by evidence and not litigated during the evidentiary phase.

7. Apollo-Twin Creeks: derivative challenge fails once overhead Aspen-Golden is affirmed

Because the appellants’ objection to Apollo-Twin Creeks depended on forcing undergrounding accommodations for Aspen-Golden, affirmance of overhead Aspen-Golden eliminated the premise. The Court treated this as a straightforward failure of the contingent argument.

C. Impact

  • Clarifies local-plan limits in Commission CPCNs: Parties should expect that local comprehensive plans can inform the record, but they do not impose a “substantial accord” constraint on Commission-approved transmission lines. Code § 56-46.1(F) operates as a decisive preemption/override mechanism for local plan-accord and zoning compliance as to the transmission line itself.
  • Strengthens feasibility-and-timing as the decisive undergrounding battleground: Counties requesting undergrounding must contend not only with cost comparisons but also with credible schedules, constructability proof, and mature routing/environmental analyses. Incomplete alternatives can be treated as “impediments to timely construction.”
  • Affirms staff-centered verification practice: “Verification” under Code § 56-46.1(B) can be satisfied through staff technical review documented in the record; hiring an outside consultant is permissible but not required.
  • Signals procedural discipline for intervenors: Mitigation conditions should be proposed and supported during the evidentiary hearing stage. Late-stage requests risk denial as unsupported and untimely.
  • Reinforces deferential review: The decision fits within a line of cases emphasizing that courts will not reweigh the Commission’s balancing of scenic/historic harms against reliability need and feasibility constraints unless the decision lacks evidentiary support or applies incorrect legal principles.

IV. Complex Concepts Simplified

  • CPCN (Certificate of Public Convenience and Necessity): A required Commission authorization for major utility infrastructure, reflecting a determination that the project is needed and serves the public interest under the governing statute.
  • Load flow modeling / power flow models: Engineering simulations of how electricity moves through the transmission grid under expected conditions. They help identify whether lines or substations will overload.
  • Contingency analyses: Modeling what happens if something goes wrong (e.g., a line or transformer fails). A system can be “fine” in normal operation but violate reliability criteria under contingency scenarios.
  • NERC reliability standards and “thermal overloads”: NERC sets mandatory reliability rules. “Thermal overload” means equipment is predicted to carry more current than its rated capacity, risking damage and outages.
  • PJM: A regional transmission organization that performs grid planning and modeling used by utilities and regulators to assess reliability needs.
  • Undergrounding feasibility: Not simply whether something can be buried in theory, but whether it is constructable with available materials/crews, within rights-of-way, across geology/utilities, and within required timelines.
  • Environmental justice analysis (as used here): An assessment of whether environmental burdens disproportionately affect certain communities. The hearing examiner treated the absence of adequate analysis as a deficiency that could delay approvals and construction, thus bearing on feasibility/timeliness.
  • Viewshed easement: A property interest meant to preserve a particular view. Here, its text allowed public utilities, so the Commission could consider impacts without treating the easement as an absolute bar.
  • Comprehensive plan vs. “substantial accord”: Local plans guide local land-use decisions; Code § 15.2-2232 is a local conformity mechanism. This opinion emphasizes that, for transmission lines approved under Code § 56-46.1, Code § 56-46.1(F) deems those local conformity requirements satisfied.

V. Conclusion

The Supreme Court of Virginia’s decision affirms strong Commission discretion in transmission CPCN cases while clarifying three practical legal rules: (1) Code § 56-46.1(B) “verification” can be satisfied by staff-verified modeling in the record without a mandatory independent consultant; (2) undergrounding requests rise or fall on feasibility—especially schedule risk tied to reliability deadlines—and the Commission may treat an underdeveloped alternative as a timing impediment; and (3) local comprehensive plans must be considered, but the Commission need not make “substantial accord” findings because Code § 56-46.1(F) deems Commission-approved transmission lines compliant with Code § 15.2-2232 and local zoning.