By NANCY WEST, InDepthNH.org
CONCORD – U.S. District Court Judge Joseph Laplante has denied the Conservation Law Foundation’s motion seeking a preliminary injunction to stop the controversial Seacoast Reliability Project.
Project attorneys said at last week’s hearing in federal court that construction was planned to go forward on Wednesday.
CLF sued the U.S. Army Corps of Engineers and project developer Eversource trying to halt the $84 million, 13-mile transmission line from Madbury to Portsmouth.
CLF sought the preliminary injunction arguing the Corps didn’t conduct alternative analysis of two other possible routes. CLF also argued last week that the Corps should have conducted an Environmental Impact Statement and done its own research rather than relying on records from other state and federal agencies.
The state Site Evaluation Committee granted the project a certificate to build on Dec. 10, 2018.
“…CLF has failed to show that it is likely to succeed on the merits of its administrative law claims by proving that the Corps’ issuance of the permit was arbitrary or capricious and thus in violation of the Administrative Procedure Act,” Laplante wrote in the order.
“Relatedly, CLF has also failed to show a likelihood, rather than a possibility, of irreparable harm. Given these insufficient showings, and the competing equities at play (including the public interests represented by CLF and the Corps), the court denies CLF’s motion for preliminary relief.”
Tom Irwin, CLF’s New Hampshire director, couldn’t immediately be reached for comment on Monday.
Spokesman Kaitlyn Woods said Eversource recognized the deliberate and thorough review undertaken by state and federal agencies prior to issuing their approvals.
“Little Bay is one of the many natural resources that makes our state special, and we will remain deeply committed to its ecological health as we move forward with installing the cable this week,” Woods said.
The one-mile section across Little Bay where the project’s cable will be buried has drawn controversy with CLF experts arguing the jet plow burial method will cause serious pollution in the fragile estuary when long-buried sediment is disturbed.
Eversource has held a trial run of the jet plow burial in Little Bay, which Woods said was successful. But at the hearing, CLF attorney Jeremy Eggleton said Eversource’s test run was flawed.
“The results of the jet plow trial, which included extensive water sampling overseen by an independent environmental monitor and reviewed by the N.H. Department of Environmental Services, confirmed that our cable installation can be conducted in compliance with required water quality criteria and will not have any significant adverse impact on marine life in the bay,” Woods said.
The Seacoast Reliability Project was deemed a reliability project by the Independent System Operator of New England (ISO-NE) meaning the region’s power grid operator determined it is necessary to meet the growing electricity needs of the Seacoast.
Eversource attorney James Banks said at last week’s hearing that delaying the project could cause equipment damage, power outages and pose risks to public safety and should be done by 2020.
Woods said: “Additionally, this project supports our efforts to advance clean energy in New Hampshire by building the reliable, flexible, smart grid of the future that will enable the integration of new small- and large-scale clean energy sources.”
Wayne Burton, a member of the Durham town council, was not happy with the judge’s ruling.
“I’m deeply disappointed that the state would put at risk our precious bay based on tainted research and a flawed pilot test when other, much safer routes are available,” Burton said.
In his ruling, Judge Laplante said CLF argues that it will likely succeed on the merits because the Corps’ decision to approve construction in Little Bay was arbitrary and capricious, and because the Corps’ stated reasons for rejecting alternatives to Little Bay lacked support from any verified data or documentation in the record.
CLF also claims that the Corps’ decision was arbitrary and capricious because the Corps should have prepared an Environmental Impact Statement given significant impacts on the environment, Laplante wrote.
“The court finds that neither theory is likely to be meritorious,” Laplante wrote.