Public Counsel: Northern Pass Failed To Prove Legal, Factual Errors in Project Denial

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Northern Pass Motion for Rehearing


CONCORD — Northern Pass fails to prove the Site Evaluation Committee made legal or factual errors in denying the utility’s transmission line application, Counsel for the Public said in opposing the project’s request to reconsider the decision.

The Counsel for the Public was joined by numerous intervenors Monday opposing reconsidering the SEC’s decision, while one group supported the request.

Last month, Northern Pass asked the SEC to vacate its decision, saying regulators did not thoroughly evaluate the evidence presented on the 192-mile, $1.6 billion project; that the decision was unlawful, unjust, unreasonable and unconstitutionally vague; and failed to complete deliberations.

However, Counsel for the Public Christopher Aslin said in his response: “The Applicants have not demonstrated any errors of fact or law by the Subcommittee or areas that the Subcommittee overlooked or misconceived.”

He said developer Eversource fails to properly comprehend the SEC’s decision.

“Many of the Applicants’ arguments are based on a continued misapprehension that the Subcommittee made an affirmative finding that the Project would unduly interfere with the orderly development of the region, when the Subcommittee’s actual finding was that Applicants failed to present sufficient credible and reliable evidence to allow the Subcommittee to make the required statutory findings for issuance of a Certificate,” Aslin writes. 

 He notes the applicants expect the SEC to propose conditions to mitigate the inadequacies in its presentation, which is not the committee’s responsibility, but rather the applicants’ or other parties to the case.

“The Subcommittee cannot be faulted for failing to consider conditions that were not part of the record and that were not adequately supported by factual evidence in the record,” Aslin writes.

And he said the applicant now proposes the SEC impose conditions that exceed its authority under the law.

“To the extent Applicants now argue that their recently proposed additional conditions are critical to meeting their burden of proof, Applicants could have requested leave to reopen the record to submit the proposed additional conditions and supporting evidence,” Aslin states.

Jack Savage vice president for communications for the Society for the Protection of New Hampshire Forests agrees with Aslin’s assessment.

“In its Motion for Rehearing, Eversource demands that the SEC do things that the SEC is simply not required to do,” said Savage. “The failure of Northern Pass lies at the feet of the applicant–Eversource–to address fundamental flaws of the proposal, and now they want the SEC to fix those flaws. That’s not the SEC’s job.”

According to the society’s motion opposing reconsideration, its attorney Amy Manzelli said Northern Pass’s reconsideration motion largely attacks the Subcommittee’s conclusions on the credibility and reliability of the evidence.

“Such determinations are well within the discretion of the members of the Subcommittee that heard from over 154 witnesses and reviewed more than 2,000 exhibits over the course of 70 days of hearings,” Manzelli writes. “There is no good reason or good cause to grant a rehearing or continue deliberations.”

Others also noted the applicant’s reconsideration motion does not prove any factual or legal errors, including the Joint Municipal Group representing Concord, Plymouth and  numerous other towns and cities, along with the Ashland to Deerfield Non-Abutters and Non-Abutting property owners from Bethlehem to Plymouth. 

“The Motion for Rehearing appears to take the position that the Subcommittee’s decision to deny the Certificate was legally erroneous despite the fact that every member of the Subcommittee evaluated and weighed the multitudes of evidence before them and each concluded that the Applicant had failed to meet the orderly development criteria due to concerns with the Project’s impact on land use, property values, and tourism,” writes Concord Deputy City Solicitor Danielle Pacik. “A fair reading of the Subcommittee’s Order and deliberations paints the picture of a carefully considered decision, well supported by the record, and absent any legal errors or ‘good cause’ that would warrant rehearing. The motion should be denied.”

Other groups or businesses filing motions opposing the reconsideration motion include Conservation Law Foundation, the McKenna’s Purchase Unit Owners Association, the Pemigewasset River Local Advisory Committee and the Deerfield Abutters.

Les Otten’s Dixville Capital, LLC and Balsams Resort Holdings agreed with Northern Pass’s reconsideration motion, saying the SEC failed to deliberate on all four criteria needed to grant a certificate and failed to consider conditions that could have mitigated its concerns.

If the committee had deliberated on all four criteria it would not have overlooked the considerable benefits of the project, said Attorney Mark Beliveau.

He said the SEC also failed to consider expert testimony and reports, as well as written and oral testimony in support of the project by Otten.

Instead, Beliveau writes, the SEC “largely focused on the potential negative impacts on tourism, but it pointed to no specific evidence to substantiate this decision.”

After 70 days of adjudicative hearings and two days of deliberations, the SEC determined Eversource had not met its burden of proof that the project would not unduly interfere with the orderly development of the region including impacts on tourism, the economy, home values and businesses.

It issued a 7-0 oral order Feb. 1 and Eversource asked the SEC to reconsider its decision on Feb. 28. The SEC then decided March 13 to suspend its oral order saying it would entertain motions for reconsideration after it issues its written order, which it did March 30.

Eversource filed April 27 seeking reconsideration.

Intervenors have until Friday to file motions opposing or favoring the reconsideration request. 

The Site Evaluation Committee scheduled deliberations on the reconsideration motion May 24 and June 4 if necessary.

If the SEC denies the motion to reconsider the project, Eversource has said it would appeal the decision to the state Supreme Court, a process that would take about a year.

Northern Pass was proposed in 2010.

Garry Rayno may be reached at

Northern Pass: Regulators Failed To Prove Application Deficient

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