Northern Pass: Regulators Failed To Prove Application Deficient

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Nancy West Photo

Pro Northern Pass activists wore blue Got Hydro? shirts at some of the public hearings.

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CONCORD — Northern Pass Transmission filed a motion Friday afternoon asking the Site Evaluation Committee to reconsider its denial and to “thoroughly evaluate” its proposed comprehensive solutions.

Project officials again said the committee has a legal obligation to consider all four criteria needed to issue a Certificate for Site and Facility.

The SEC considered two of the criteria before finding Northern Pass had failed to prove the project would not unduly harm the orderly development of the region. Because all four criteria have to be met in order to win approval, the committee stopped deliberating after the two standards had been considered.

In making its decision Feb. 1, committee members said Northern Pass’s tourism, planning and property value experts were not convincing and “did not pass the straight-face test” in failing to meet its burden of proof.

In its motion, Northern Pass attorney Barry Needleman says the project did meet its obligation.

“The Subcommittee’s vote that the Applicants failed to prove by a preponderance of the evidence that the Project will not unduly interfere with the orderly development of the region is not supported by the record,” Needleman wrote. “Accordingly, the Applicants request that the Subcommittee vacate its decision to deny the application and resume its deliberations on all the required statutory and regulatory considerations, including such conditions of approval that may address issues identified in the course of those deliberations and vacate the decision to deny the Application.”

He said the SEC failed to consider any conditions that could have mitigated the concerns.

In an earlier Northern Pass motion for the SEC to reconsider its oral decision, the developer offered alternatives in order to meet its burden, but in its written ruling the committee rejected the suggestions saying they were made after the adjudicative hearing record was closed.

But project officials say what they proposed in the earlier and current reconsideration motions satisfy committee concerns.

“We have presented to the SEC a solution that fully addresses the issues they pointed to in their order denying the permit,” said Eversource New Hampshire President Bill Quinlan. “The solution is a comprehensive set of commitments and conditions, many of which were proposed by Counsel for the Public, that can be imposed to address the SEC’s concerns.”

One project opponent said the company is acting like a wounded former lover.

“The motion reads like Northern Pass thinks they’ve been jilted — the SEC broke up with them but never said why,” said Jack Savage of the Society for the Protection of New Hampshire Forests, adding the Forest Society will submit a formal response objecting to the Motion.

Nancy West photo

Anti-Northern Pass signs lined the street leading to 49 Donovan St., in Concord where the state’s Site Evaluation Committee began deliberating the fate of Northern Pass in January.

In Northern Pass’s reconsideration motion, its attorneys say one of its purposes is “to sharpen the focus on how certain mitigation elements, based on evidence already in the record, would materially address concerns the Subcommittee expressed during deliberations regarding the Project’s potential impacts on tourism, property values and land use, as well as other issues that may arise pertaining to the other siting criteria.”

Northern Pass says it would meet all the conditions proposed by the Counsel for the Public. The conditions range from construction and environmental parameters to special situations that need to be resolved and upgrading the Coos Loop transmission line.

Northern Pass reiterated proposals made earlier to mitigate harm to real estate values, tourism and other concerns.

The $200 million Forward NH Fund would be used to address areas of concern by dedicating $25 million over 20 years for property value impacts, $25 million to promote tourism and recreation and $25 million for economic development in the 32 host communities.

Also the developer agrees to use horizontal directional drilling under Plymouth’s Main Street and in Franconia to reduce business and residential impacts.

And they proposed subsidies for low-income customers, upgrading the Coos Loop, energy efficiency programs, and energy storage and electric vehicle initiatives.

In the motion, Needleman contends the SEC did not focus on the positive economic impacts of the project and failed to document its reasons for denying the application.

He called the SEC’s written decision issued last month “arbitrary and ad-hoc decision making” making it  “constitutionally vague.”

“Based on the vote of February 1, and the Order, no court can determine how the decision was made and no reasonable applicant can determine what is required to meet the ‘undue interference’ standard in Site 301.15,” Needleman wrote in the motion. 

He also said lawmakers understood that large energy facilities were likely to have negative effects, which by themselves were not sufficient reason to deny a certificate. “In light of that fact, it created standards that allowed for such effects provided interference with (the orderly development of the region) was not ‘undue.’”

Savage says Northern Pass is asking for something the committee does not have to do.

“Northern Pass seems to be arguing that it was the SEC’s job to make up for the adverse impacts of the project by inventing potential conditions that would have overridden those adverse impacts. It is not,” Savage said. “The SEC rightfully concluded that the Northern Pass project, as proposed, couldn’t be fixed by throwing money at people.”

And Savage said Northern Pass is trying to grab the Supreme Court’s attention with the motion.

 I think their attempts to make the case that the SEC decision was unlawful, even unconstitutional, are made in hopes of grabbing the attention of the New Hampshire Supreme Court on appeal,” he said. “A bit like using donuts to hunt bears.”

Project officials had until April 30 to ask the Site Evaluation Committee to reconsider its decision.

After Northern Pass filed its motion for reconsideration Friday, intervenors and the Counsel for the Public have 10 business days to respond.

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

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