Public Counsel Says Northern Pass’ Motion To Resume Deliberations Should Be Denied

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Nancy West photo

Balsams developer Les Otten, left, speaks with Michael Iacopino, the attorney representing the state Site Evaluation Committee in the Northern Pass application process, during a break in the technical session in which Otten answered questions about his pre-filed testimony and his opinions regarding Northern Pass during a technical session Jan. 23, 2017.

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CONCORD — The independent Counsel for the Public believes Northern Pass’s motion to vacate the Site Evaluation Committee’s denial and to resume deliberations should be denied.

Assistant Attorney General Christopher Aslin said without a written decision, which has yet to issued, the motion is premature and should be denied.

Aslin filed his motion Friday along with a number of intervenors, all but one, asking the SEC to deny Northern Pass’s motion.

The SEC meets Monday at 11 a.m. to take up project developer Eversource’s motion and any other business to legally come before the board.

In Counsel to the Public’s filing, Aslin argues, “It is nonsensical for a motion for rehearing to be heard before the order sought to be reheard has been issued and the Subcommittee as a whole has the opportunity to issue its collective rationale and basis for its members’ individual votes, and thus provide a complete record upon which a party can determine whether the Subcommittee committed an error of fact, reasoning or law, and the Supreme Court can have a complete record to review in any appeal.”

Aslin asked the SEC to deny the motion without prejudice so a similar motion could be filed after the written order is issued. The deadline is the end of the month.

Other intervenors asked the SEC to deny the motion and not to accept another motion for reconsideration once the order is issued.

Deputy Concord City Solicitor Danielle Pacik said Northern Pass chose to seek rehearing before the SEC issued its final written decision.

It is unfair to the SEC as well as the intervenors to be forced to address multiple motions for rehearing on the same decision, Pacik wrote.

“To put it simply, having made their bed, the Applicants must lie in it, for better or worse,” Pacik wrote.

In its filing, Counsel for the Public countered Eversource’s argument that the SEC is required to deliberate the four criteria established by law in order to issue a certificate for construction, saying regulators only have to determine the four criteria to award a certificate, not to deny an application.

Aslin did write that deliberating all four standards would be a “good practice” so an applicant can see the full scope of the deficiencies, but is not required under the law or SEC rules as Northern Pass claims in its filing.

Northern Pass’s motion to vacate SEC’s denial argued the committee violated the law and its own rules by shutting down deliberations after two and a half days.

The SEC had determined Northern Pass was financially able to build the project, and has the experience to manage and construct the 192-mile transmission line stretching from Pittsburg to Deerfield, but determined it would unduly interfere with the orderly development of the region. The decision to deny the project on Feb. 1 was unanimous 7 to 0.

The SEC made no determination on the other two criteria required by law in siting energy projects: whether it would have unreasonable adverse effects on aesthetics and whether issuing a certificate to build would be in the public interest.

Northern Pass had argued the SEC failed to apply all of the legal criteria, failed to assess conditions that could be imposed to alleviate any concerns and did not apply the required standard for deciding whether the project would interfere with orderly development of the region.

“In sum, the SEC simply failed to complete the process that the law requires. As a result, the Applicants have been subjected to an unfair process and an unjust result,” the Northern Pass motion states.

In his filing Aslin argues the SEC is not required to consider or impose conditions if the applicant fails to meet its burden of proof.

“Unlike a finding, a failure of proof cannot be mitigated through the imposition of conditions,” Aslin wrote. “ Nor are there conditions that could ‘support’ a failure of proof.”

Northern Pass conditions

In its motion, Northern Pass proposed a number of conditions it would be willing to meet, most of which they rejected during the project’s adjudicative hearings, he noted.

Aslin said those conditions were not before the committee, and to be considered, would require the record to be reopened, something the applicants say they are not asking to do.
There is no requirement to consider conditions in its findings or for the committee to develop its own conditions to fill gaps in an applicant’s case, Aslin said.

In many instances there is no evidence in the record to support the applicant’s contention that the conditions would mitigate the projects interference with tourism or address the loss of property values, the Counsel for the Public argues.

And he said the monetary programs the applicants proposed to offset adverse impact do not address the underlying issues and changes the purpose of the Forward New Hampshire Fund that would pay for them.

Supportive Balsams developer 

Filing Friday in support of Northern Pass’s motion for reconsideration and to vacate the denial, Dixville Capital, LLC and Balsams Resort Holdings’ argued that had the “SEC considered the remaining two statutory criteria, it would not have overlooked the numerous benefits associated with the Applicants’ Project, including increased energy capacity, increased renewable energy production, reduction of C02 emissions, and job creation associated with the Project’s projected construction.”

If the project does not go forward, the benefits would be lost, the filing states.

“The Balsams was a recipient of funds from the Forward NH Fund, which were instrumental in advancing its development efforts, and demonstrated a true commitment by the Applicant to promote tourism and facilitate economic development in the North Country,” said attorney Mark E. Beliveau, representing developer Les Otten. “The denial of NPT’s application will result in losing the benefits of the proposed Forward NH Fund, and the key commitments made by the Applicant relating to tourism, recreation, economic development and energy cost benefits to businesses and residents.”
The Balsams developer received a $5 million loan from the Forward NH Fund.

Project overview

First proposed in 2010, the Northern Pass project would bring 1,090 megawatts of Hydro-Quebec electricity to southern New England.

The $1.6 billion project has drawn significant opposition from communities, individuals and businesses along the route. The proposal includes about 60 miles of buried line, mostly through the White Mountain National Forrest and under Main Street in Plymouth.

Project supporters include labor unions whose members would work on the project, two of the 31 host communities as well business organizations like the Business and Industry Association and the Greater Manchester Chambers of Commerce. The week before the SEC voted 7-0 to deny the application, the Massachusetts Clean Energy Project selected Northern Pass to provide 2,000 megawatts of renewable energy, giving the project the green light to negotiate with the state’s major electric distributors, including Eversource, National Grid and Unitil for a 20-year contract.

Since the denial, the Massachusetts project has continued to negotiate with Northern Pass, but has said it could terminate negotiations before the March 27 deadline to reach an agreement with distributors on a contract to be reviewed by the Massachusetts Department of Public Utilities.

Massachusetts energy officials are also negotiating with Central Maine Power.

Monday’s SEC meeting will be at 49 Donovan Street in Concord.

Garry Rayno may be reached at

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