Virginia SCC Transmission CPCNs: “Consideration” of Local Plans Is Not “Substantial Accord,” and Undergrounding Feasibility Turns on Timely Constructability Under Code § 56-46.1

1. Introduction

In Loudoun County v. SCC (Va. Feb. 19, 2026), the Supreme Court of Virginia affirmed the State Corporation Commission’s (“Commission” or “SCC”) approval of two certificates of public convenience and necessity (“CPCNs”) sought by Virginia Electric and Power Company (“VEPCO”) for high-voltage transmission projects in Loudoun County: the Aspen-Golden Project (approximately nine miles of 500 kV and 230 kV facilities) and the Apollo-Twin Creeks Project (approximately 1.9 miles of 230 kV facilities).

The principal dispute—brought by Loudoun County and the Lansdowne Conservancy—concerned whether the SCC should have required a portion of the Aspen-Golden line along Route 7 to be placed underground (as proposed by the County’s consultant via an “Updated Hybrid Proposal” or “UHP”), rather than constructed as overhead lines supported by tall steel monopoles. The challengers also raised issues about (i) statutory “verification” of technical need evidence, (ii) impacts on the Belmont Scenic Viewshed Easement, (iii) alignment with the County’s comprehensive plan, (iv) whether the route minimized adverse impacts as required by statute, (v) additional visual-mitigation conditions sought by the Conservancy, and (vi) the approval of Apollo-Twin Creeks given partial collocation with Aspen-Golden.

2. Summary of the Opinion

  • Need/verification: The Court held the record supported that the SCC verified the applicant’s load flow modeling, contingency analyses, and reliability needs as required by Code § 56-46.1(B), relying on SCC staff verification of PJM models and NERC-violation projections.
  • Undergrounding: The Court affirmed the SCC’s determination that undergrounding the disputed segment was not feasible given cost, engineering constraints, and—critically—impediments to timely construction before projected 2028 reliability violations.
  • UHP deficiencies: The SCC properly considered that the County-backed UHP lacked sufficient environmental and environmental justice analyses and had routing uncertainties; those deficiencies mattered because they would delay delivery under statutory time constraints.
  • Belmont easement: The SCC considered impacts on Belmont Manor and the viewshed easement; the easement’s own terms allowed public utilities, and the SCC could still select the route that best minimized impacts overall.
  • Comprehensive plan: The SCC satisfied Code § 56-46.1(A) by “receiv[ing] and giv[ing] consideration” to the plan; it was not required to conduct a “substantial accord” finding under Code § 15.2-2232, and Code § 56-46.1(F) deems SCC approval to satisfy § 15.2-2232 and zoning requirements.
  • Route/minimization: The Court upheld the SCC’s balancing and conclusion that the selected overhead route avoided or reasonably minimized adverse impacts to the greatest extent reasonably practicable under Code § 56-46.1(B).
  • Extra conditions: The Conservancy’s late-raised request for additional mitigation conditions failed; with no evidentiary record supporting the requested conditions, the SCC did not abuse its discretion.
  • Apollo-Twin Creeks: The challenge was contingent on success as to undergrounding Aspen-Golden; having lost that issue, the Apollo-Twin Creeks approval stood.

3. Analysis

3.1. Precedents Cited

BASF Corp. v. State Corp. Comm'n, 289 Va. 375 (2015)

BASF supplied the central framework for SCC transmission-line review: the SCC must balance adverse impacts with “traditional considerations” and decide what serves the “total public interest.” The Court also drew from BASF the important clarification that “minimize” does not mean eliminate all impact—an especially relevant point where any overhead line along Route 7 would be visually consequential.

Office of the Att'y Gen. v. State Corp. Comm'n, 288 Va. 183 (2014)

Cited through BASF for the SCC’s “broad, general and extensive powers” in utility regulation, reinforcing the Court’s restrained posture in second-guessing SCC line-routing and engineering judgments.

Appalachian Voices v. State Corp. Comm'n, 277 Va. 509 (2009)

The Court used Appalachian Voices (again through BASF) for the proposition that SCC decisions merit deference as judgments of an expert tribunal and that legal analysis will not be disturbed when based on correct legal principles.

West Virginia v. State Corp. Comm'n, 304 Va. 148 (2025)

This was the opinion’s most operative interpretive precedent in two ways:

  • Meaning of “consider”: Relying on West Virginia, the Court held that when the General Assembly directs the SCC to “consider” a factor, it need not make detailed or specific findings—only show it reflected on the factor with care. This undercut the County’s attempt to transform “consideration” of the comprehensive plan into a mandatory “substantial accord” adjudication.
  • Conditions/abuse of discretion: The Court used West Virginia to apply an abuse of discretion standard to the SCC’s refusal to impose late-requested additional conditions, emphasizing that conditions should be supported by an evidentiary record.

Appalachian Power Co. v. State Corp. Comm'n, 301 Va. 257 (2022)

Provided the core appellate standard: the Court will not substitute its judgment on matters within the SCC’s province and will not overturn factfinding unless contrary to the evidence or unsupported. This deference was decisive on feasibility, timing, engineering constraints, and route selection.

Board of Supervisors v. Appalachian Power Co., 216 Va. 93 (1975)

Board of Supervisors is the doctrinal root for “balancing” and the “total public interest” in transmission cases. The Court used it (via BASF) to confirm that the SCC’s statutory role is comparative and integrative, not singularly focused on one impact (e.g., viewshed aesthetics) to the exclusion of reliability, constructability, and cost.

Piedmont Env't Council v. Virginia Elec. & Power Co., 278 Va. 553 (2009)

This case served two functions:

  • Technical context: The opinion borrowed Piedmont Env't Council definitions explaining NERC and PJM, anchoring the reliability-need evidence in the standardized regulatory ecosystem.
  • Verification practice: The Court noted that SCC staff sometimes uses independent consultants to verify technical information (as discussed in Piedmont Env't Council), but held Code § 56-46.1(B) does not require an independent consultant—staff verification was enough on this record.

3.2. Legal Reasoning

(a) “Verification” under Code § 56-46.1(B): substance over form

The County and Conservancy argued the SCC failed to verify load flow modeling, contingency analyses, and reliability needs supporting the overhead method. The Court rejected that contention because SCC staff explicitly: (i) verified PJM power flow models, (ii) confirmed projected NERC reliability violations absent the project, and (iii) verified the project resolves those violations.

A notable doctrinal point: the Court treated “verification” as satisfied by a competent record showing that SCC staff performed and documented technical confirmation, and it refused to read into § 56-46.1(B) a requirement for an external consultant.

(b) Undergrounding requests: the statutory feasibility inquiry is time-constrained

Code § 56-46.1(B) requires the SCC, upon county request, to consider (1) costs/economic benefits of undergrounding and (2) “any potential impediments to timely construction.” The Court framed the SCC’s undergrounding decision as a feasibility determination dominated by whether undergrounding could be completed before projected 2028 thermal overloads and reliability violations.

The Court affirmed three principal feasibility grounds:

  • Cost differential: The UHP was estimated at $423 million more than overhead, with testimony that costs could run higher.
  • Engineering/constructability constraints: rarity of underground 500 kV projects; specialized materials and crews; shallow diabase rock; relocation of existing utilities.
  • Schedule risk: these constraints would delay in-service date beyond the reliability deadline, making undergrounding non-viable under § 56-46.1(B)’s “timely construction” factor.

(c) Role of the UHP’s deficiencies: not a CPCN burden-shift, but a schedule/impediment finding

The appellants argued the SCC wrongly rejected the UHP by effectively demanding a fully developed CPCN-grade alternative. The Court’s response is practical: the UHP’s missing analyses (environmental impact and environmental justice) and routing uncertainties were relevant because they would take time to correct, creating “impediments to timely construction”—a factor the statute expressly commands the SCC to consider.

In other words, the SCC did not improperly shift the legal burden of proof; it permissibly evaluated whether the proposed underground alternative was executable within the statutory and reliability timeline.

(d) Easements and minimization: impacts may be outweighed in the overall balance

The Court held that the SCC adequately considered the Belmont Scenic Viewshed Easement and the fact that monopoles would intrude into the protected area. Two legal points stand out:

  • Textual constraints matter: the easement itself permitted public utility structures, weakening any claim that the easement categorically barred the line.
  • Minimization is comparative: even if Belmont impacts are real, the SCC may still find the selected corridor “minimizes overall” adverse impacts when weighed against other routes and system needs.

(e) Comprehensive plans: “consideration” is not local-plan supremacy

The Court rejected the argument that the SCC had to find the line in “substantial accord” with Loudoun’s comprehensive plan under Code § 15.2-2232. Its reasoning was twofold:

  • Statutory text: Code § 56-46.1(A) only requires the SCC to “receive and give consideration” to local plans; under West Virginia, “consider” does not demand specific findings.
  • Preemption-by-deeming clause: Code § 56-46.1(F) states SCC approval “shall be deemed to satisfy” Code § 15.2-2232 and local zoning with respect to the line—eliminating any need for a separate substantial-accord analysis.

(f) Conditions and record development: mitigation must be litigated, not appended

The Conservancy’s proposed conditions (vegetative screening, limits on collocation, right-of-way limits, keeping the record open) were introduced only after the hearing examiner’s report, without supporting evidence. The Court upheld the SCC’s refusal, applying abuse-of-discretion review and emphasizing the absence of a developed evidentiary foundation.

3.3. Impact

  • Undergrounding fights will pivot on schedule risk as much as aesthetics and cost. This decision reinforces that Code § 56-46.1(B)’s “timely construction” factor can be dispositive where reliability violations have a hard in-service deadline. Counties seeking undergrounding will need to present alternatives that are not merely technically plausible, but demonstrably deliverable on time.
  • Alternative proposals must be “decision-ready” enough to assess impediments. Without saying opponents must carry the CPCN burden, the Court validates SCC consideration of whether an alternative is sufficiently specified (route certainty, transition stations, environmental/environmental justice analysis) to avoid delay.
  • Local comprehensive plans have a consultative, not controlling, role in SCC CPCNs. The Court’s reading of §§ 56-46.1(A) and (F) strengthens statewide uniformity for transmission approvals and narrows the utility of § 15.2-2232 arguments in the SCC context.
  • Procedural discipline for mitigation conditions. Parties seeking conditions should build an evidentiary record before the hearing examiner; late-stage “wish lists” risk being treated as unsupported and waived in practice.
  • Verification challenges must grapple with staff work and cross-examination. The Court noted the challengers did not contest staff verification during cross-examination, signaling that future appellants must develop the record at the agency stage rather than relying on generalized appellate claims.

4. Complex Concepts Simplified

  • CPCN (Certificate of Public Convenience and Necessity): The SCC’s authorization for a utility to build a project, issued after findings on need, routing, and other statutory criteria.
  • Code § 56-46.1(B) “verification”: The SCC must confirm that technical studies (power-flow/load-flow models and contingency analyses) actually support the asserted reliability need and chosen installation method. This case indicates staff verification can satisfy the requirement.
  • NERC reliability standards / thermal overloads: NERC sets mandatory grid-reliability rules. “Thermal overload” means equipment would be loaded beyond safe limits, risking damage or outages.
  • PJM models: PJM runs regional transmission planning and uses power-flow modeling to predict whether the grid can reliably serve load under various scenarios.
  • “Avoid or reasonably minimize ... to the greatest extent reasonably practicable”: A comparative standard: the SCC chooses the best feasible option among imperfect alternatives; it need not eliminate all harm.
  • Comprehensive plan “consideration” vs. “substantial accord”: Localities use comprehensive plans to guide land-use decisions. But for SCC-approved transmission lines, the SCC must consider the plan, and SCC approval is deemed to satisfy the locality’s “substantial accord” process and zoning as to the line.
  • Viewshed easement: A property restriction intended to protect a scenic view. The easement’s text controls; here, it allowed public utility structures, limiting its blocking power.
  • Collocation: Placing new lines alongside existing corridors/lines to reduce new land disturbance and impacts.

5. Conclusion

Loudoun County v. SCC consolidates Virginia transmission-CPCN doctrine in three practical rules: (1) SCC “verification” under Code § 56-46.1(B) is satisfied where staff documented confirmation of PJM/NERC-driven need; (2) undergrounding disputes are governed by a feasibility analysis in which timely constructability can outweigh aesthetic benefits; and (3) local comprehensive plans must be considered but do not impose a “substantial accord” constraint on SCC-approved lines, especially in light of Code § 56-46.1(F)’s deeming clause.

The opinion thus strengthens the SCC’s ability to prioritize reliability deadlines and statewide energy infrastructure needs while still requiring a documented, comparative minimization of adverse impacts—an approach likely to shape future challenges in rapidly growing load pockets such as “Data Center Alley.”