Filed January 12, 2108
For more than one hundred years, the Forest Society has stood as a vanguard of New Hampshire’s majestic and breathtaking landscapes and the unique outdoors- and forest-based economy and culture that thrives because of it. The Forest Society and its thousands of members over the last century have endeavored “to perpetuate the forests of New Hampshire by their wise use and their complete reservation in places of special scenic beauty.” On behalf of its members and for the future generations for whom it acts as steward of our state’s treasured natural, cultural, and historic landscape, the Forest Society opposes the project as proposed because of the unreasonable adverse effects and undue interference the proposed project would wreak on this special landscape, and especially on conserved lands.
As a full-party intervenor, the Forest Society respectfully urges the Chairman and members of the Subcommittee[1] to deny Applicant’s request for a Certificate of Site and Facility to construct a 192-mile transmission line from the Canadian border at the edge of the Great North Woods into the heart of the Merrimack Valley.
Applicant proposes to site this proposed project in a way which would pervasively and permanently[2] scar the northern two thirds of our state with towers and transmission lines that cut through unique forest ecosystems and rise well above the tree canopy, making industrial infrastructure starkly visible within too many of New Hampshire’s rural landscapes from Pittsburg to Londonderry, only to provide purported benefits that would primarily be enjoyed—not in New Hampshire—but in other states and Canada.
As demonstrated in this memorandum and throughout the record, the Subcommittee should deny the application for three key reasons:
The application as originally filed, and all supplementation to it through the close of the record, is deficient. The Applicant did not provide the Subcommittee with information the law requires it to have provided. Thus, Applicant has not met its burden of proof.
Evidence introduced by Counsel for the Public, Intervenors, and public comments affirmatively establishes the proposed project would result in unreasonable adverse effects, undue interference, and would not serve the public interest.
Alternatives exist for transmitting electricity from Quebec to southern New England. They would be less damaging to the State of New Hampshire, and likely less expensive to the ratepayers of New England, than the proposed project. Applicant itself chose not to pursue practicable alternatives that would have avoided, or greatly lessened, the damage that would be caused by its current proposal.
Background
Most of the public first learned of the “Northern Pass” in late 2010. As promoted by Northeast Utilities (for Eversource), it would be a partnership in which Hydro-Quebec had sub-contracted Eversource to build a new transmission line to export Canadian hydropower to New England. High natural gas prices, Hydro-Quebec surmised at the time, would make it possible to sell up to 1,200 megawatts of power at a price that would recoup over time the cost to construct the proposed line.
Since 2010, strong public and municipal opposition to the proposal has persisted. It seems so obvious to so many that it would be incongruous to run an industrial transmission line through natural landscapes and dense residential neighborhoods. But, that is exactly what the route chosen by Eversource and Hydro-Quebec (which determined where it wanted to cross the Canada/US boundary), would do. That route would create 32 miles of new overhead right-of-way in rural northern New Hampshire, and place large-scale transmission towers and lines within an existing right-of-way laid out originally for power distribution on much smaller poles.
Since 2010, Applicant has not reversed public and municipal opposition. The public opposition, in part, has resulted in changes to New Hampshire law, including: changes to the SEC process, clarification that a project like Northern Pass may not use eminent domain, and statutory designation of appropriate transportation corridors that the New Hampshire Department of Transportation (DOT) can lease for use as underground energy corridors. The opposition has also led to unprecedented involvement in this proceeding by individual landowners, cities and towns, and non-government organizations like the Forest Society, Appalachian Mountain Club, and Conservation Law Foundation, among others. The extent of public opposition is overwhelming with 22 of the 31 communities through which the proposed route would be located having sought to intervene in this proceeding,[3] all but approximately eight of the over 130 individual intervenors opposed, and members of the public submitting thousands of comments with 92% of them opposed.[4]
Meanwhile, the energy market and business environment has changed since 2010. Other transmission developers have arrived with proposals that arguably would be less expensive, cause fewer adverse impacts and consequently generated little or no opposition—in large part because of their far less impactful route configurations. With natural gas prices now far lower, such transmission projects, including the proposed project, seek to rely on guaranteed contracts. Faced with faster-moving competition and deadlines to bid into various Requests for Proposals, Applicant moved quickly to submit the application in October 2015, a rush which may explain why the application was so inadequate.
Public opposition is not the only unprecedented aspect of the proposed project.
Geographically, the transmission line would span a serpentine route of 192 miles, bisect 31 municipalities, erect more than 1,200 new and relocated towers[5] at heights up to 160 feet,[6] and require 20 to 25 concurrently-active work sites,[7] 1,200 new crane pads,[8] and use of 84 private roads to access the right-of-way.[9]
Aesthetically, the proposed project would be visible from 224 scenic byways, 183 designated rivers, 1,338 conservation/public lands, 218 great ponds, 1,311 public rivers, 12,313 scenic drives/public roads, 1,158 recreational trails, 83 access sites to public waters, 242 other recreational sites, 85 listed historic resource locations, 1,290 potential historic resources and 488 other community resources.[10] The proposed project’s presence would pervade New Hampshire.
Environmentally, the proposed project would impact more than 6 million square feet of wetlands,[11] result in 800 separate wetland restoration sites,[12] cut 731 acres of trees,[13] and could cause extinction in New Hampshire of endangered species.[14]
Each of the three key reasons why the Subcommittee should deny the application has several components, as follow.
1. Application Deficient; Applicant did not Meet its Burden
The application is replete with deep flaws that pervade almost all legal standards. Notwithstanding the fact Applicant submitted tens of thousands of pages, reflecting the magnitude of this proposed project, Applicant has not submitted adequate information for approval. Applicant still has not produced enough information to show the actual route of the proposed project in its entirety, let alone produced a clear construction plan. Throughout the hearing, Applicant continued to file critical information necessary for the Subcommittee, Counsel for the Public, and Intervenors to have in advance of the hearing to effectively conduct cross-examination. All were consequently deprived of that opportunity. Applicant did not respond in a timely way to discovery requests. And despite the fact that Applicant had a role in drafting the new SEC rules and knew of their impending implementation in advance of this proceeding, the original application did not include key information that could have and should have been included to address the new rules. Even now, at the time of final briefing, an unacceptable volume of basic questions remain unanswered:
On what side of the road would the line be buried and where would blasting occur?
What would be the effects to thousands of unanalyzed scenic and historic resources?
Which tourism destinations would be adversely affected?
What would be the full scale of impacts on wetlands, including wetlands that extend beyond the boundary of the right-of-way?
What would be the effects in Candia, Raymond, Auburn, Chester, Londonderry and Derry?
In sum, has Applicant met its burden of proof? For the multiple reasons set forth in this memorandum, the answer is “no.” Applicant has not produced a preponderance of evidence that the proposed project: 1) would not result in unreasonable adverse effects on aesthetics, historic sites, and the environment; 2) would not unduly interfere with orderly development of the region; or 3) would serve the public interest.
Much of Applicant’s failure results from Applicant’s witnesses consistently employing myopic methodologies in which their analysis of effects—be it on aesthetics, tourism, orderly development, or wetlands—was based on the most narrow (and often unlawfully narrow) interpretation of the pertinent rules. Only with blinders on and working in their own silos were Applicant’s witnesses able to conclude that the 192-mile transmission line would not have any undue interference or any unreasonable adverse effects. Instead of attempting to determine a route for the proposed project that would limit adverse impacts, Applicant instead has put forward testimony that simply overlooks the unreasonable adverse effects, undue interference, and lack of service to the public interest of its own preferred route.
2. Unreasonable Adverse Effects, Undue Interference, and Lack of Service to the Public
The overall record of evidence presented by all parties, as well as the immense volume of public comments, affirmatively establishes that the proposed project would result in unreasonable adverse effects and undue interference that cannot be sufficiently avoided, mitigated, or minimized, and that the proposed project would not serve the public interest.
More particularly, for the following five principal reasons, based on the record, Applicant has not met its burden of proof and therefore the proposed project should not receive a Certificate of Site and Facility.
First, the proposed project would have an unreasonable adverse effect on aesthetics and historic sites. Concerning aesthetics, Applicant has not satisfied its burden. Its witnesses did not comply with applicable rules and employed a flawed, subtractive methodology that eliminated potential scenic resources from their analysis. Beyond that, the overall record demonstrates there would be unreasonable adverse effects on scenic resources. Concerning historic and archaeological sites, Applicant has not met its burden because its analysis of adverse effects was unlawfully narrow and incomplete; it erroneously relies on the Section 106 process to satisfy the SEC standards. Additionally, Applicant submitted otherwise flawed reports and testimonies on these topics.
Moreover, Applicant’s assessment of effects on aesthetics and historic sites does not assess impacts to these resources on the 60 miles of underground corridor where the precise location of the line in the ground remains unknown. Also, Applicant has not made any assessment whatsoever of the portion of the proposed project through the six southern New Hampshire municipalities between Deerfield and Londonderry.
Second, the proposed project would unduly interfere with orderly development of the region, including affected communities and conserved lands. Applicant’s land use witness could not show that the proposed project would not unduly interfere with the prevailing land uses of the affected communities, including the 31 host communities, a special sub-set within the broader category of affected communities. The proposed project would unduly interfere with the prevailing land uses of the affected communities. The witness did not generate for the Subcommittee the information required by Site 301.09 and instead employed a flawed, constricted methodology that eliminated effects. When considering the very large volume of evidence on this topic, the proposed project would unduly interfere with the prevailing land uses of the Great North Woods, including lands permanently conserved by the Forest Society and many other organizations and agencies.
Lands with significant conservation values, including views of and from those lands, are preserved in perpetuity by virtue of public purposes under both state and federal law. Those public purposes for which land trusts such as the Forest Society permanently protect such lands constitute a deliberate element of the orderly development of the region—one of the ways society balances development and preservation of natural resources. Land trusts are legally and ethically bound to uphold those public purposes by defending existing conserved lands, individually and as a larger mosaic of protected resources, from the adverse impacts of private development such as the proposed project.
The proposed project would also unduly interfere with the economy and employment of the affected communities because of its potential negative, long-lasting effects on tourism and real estate values.
As for tourism, the record shows the proposed project would threaten New Hampshire’s unique, highly valuable tourism appeal: outdoor- and forest-based recreation and enjoyment in superior scenic beauty. Applicant’s witness for tourism did not offer a report and testimony that could sustain Applicant’s burden. The witness was not qualified, performed an incomplete analysis (with unsound methodology), and did not counter the weight of other evidence showing a measurably negative effect on New Hampshire tourism.
As for private property values, the methodology of Applicant’s witness suffered from a severe lack of specificity. He considered only single family detached homes within 100 feet of the right-of-way, and did so with an invented method which ignores most changes to view. Applicant’s witness did not consider impacts on the value of condo units (except in one belated instance) and prime outdoor recreational attractions in the vicinity of the right-of-way all along the 192-mile proposed project.
And finally with respect to undue interference, the number of affected municipalities opposed to the proposed project, the number of public commenters opposed to the proposed project, along with the tremendous public opposition within the proceeding, requires a finding that the proposed project would unduly interfere with orderly development of the region.
Third, the proposed project would have unreasonable adverse effects on water quality and the natural environment. As to water quality, specifically as to effects on wetlands, Applicant has not met its burden. Applicant’s numerous and significant shortcomings include: failure to disclose sufficient information, argues for reliance on a flawed recommendation from the Department of Environmental Services (DES), did not seriously consider the least-impacting alternative, offered an inadequate analysis of a fully buried route along a state-authorized energy corridor, provided an inadequate assessment of wetland functions and values, erroneously identified permanent wetland impacts as secondary or temporary, ignored proper consideration of impacted vernal pools, and submitted inadequate wetland mapping.
Similarly, as to effects on the natural environment, Applicant did not meet its burden because the application contains insufficient information on impacts to flora and fauna throughout the entire proposed route. Evidence that other Intervenors and Counsel for the Public presented shows the proposed project would result in unreasonable adverse effects to certain protected species.
Fourth, Applicant has not satisfied its burden regarding public safety. With respect to Applicant’s decommissioning plan and the lack of information about the risks of the proposed colocation of a portion of the proposed project with a buried natural gas pipeline in a narrow stretch of the right-of-way, including risks associated with structural collapse, Applicant has not proven the proposed project would not have unreasonable adverse effects on public safety.
Fifth, the proposed project would not serve the public interest. The public interest standard is a comprehensive standard. It requires the Subcommittee to balance the potential benefits of the proposed project with the potential adverse effects, as guided by the purposes of the statute. Applying this standard, in accordance with the factors articulated in the rules, Applicant has not demonstrated the project as proposed meets the balance test set forward in the purpose statement of RSA 162-H. The proposed project would not serve the public interest.
3. Alternatives Could Have Avoided or Significantly Minimized Adverse Impacts
First, the manifestation of multiple alternative transmission proposals that would deliver roughly the same purported energy benefits to the region (and, using Applicant’s argument, some minimal benefit to New Hampshire), demonstrates that the proposed project offers no unique benefits. Even assuming that importing more hydropower to New England would be beneficial, this proposed project would arguably be the most expensive way to do so and most detrimental to New Hampshire.
Second, Applicant could have proposed a permittable project consistent with state statutes establishing formal energy corridors on pre-approved transportation corridors (such as I-93), but chose not to. This was despite unprecedented public involvement and opposition to the proposed project, including scores of municipalities, businesses, conservation organizations, and thousands of individuals. Applicant had ample opportunity over the past eight years to create a more balanced project by seeking greater public dialog, input, and acceptance. Rather, its outreach to the communities and people of the affected municipalities traveled a one-way street.
Either way, the more durable benefits Applicant purports to bring could be delivered through alternative ways that would not permanently scar New Hampshire’s natural, historic, and cultural landscape.
Another Concern: Excessive Delegations
The SEC has limited legal authority to delegate its duties. Applicant’s delegation requests are unprecedented in their breadth and have been the subject of questions and confusion. These requests trigger the thorny issue of to what extent the SEC process preempts statutory authority for municipal regulation of local roads.
To a great degree Applicant’s requested delegations are a result of important missing elements of the proposed project that are unknown (but should be known) at this time. If granted, the Subcommittee would unlawfully be delegating the SEC’s mandatory statutory duty to assess all potential impacts of the proposed project to determine if the Applicant has satisfied the required statutory findings to be granted a certificate.
Conclusion
The Northern Pass proposal is designed to serve the desires of Applicant and its Canadian partner that would have exclusive use of the proposed transmission line. As such, it serves primarily private benefit, not public. In doing so, Northern Pass would extract too heavy a toll on New Hampshire and her residents to satisfy legal standards. As proposed, this massive proposal does not strike the required balance of benefits against adverse impacts. Northern Pass would not serve the greater good of the State and its communities.
The Forest Society respectfully urges that the Subcommittee to deny the requested Certificate of Site and Facility for the proposed project.
[1] “Subcommittee” as used herein refers to the duly appointed committee of the New Hampshire Site Evaluation Committee. “SEC” as used herein refers to the institution of the New Hampshire Site Evaluation Committee.
[2] According to Applicant, “[a] likely scenario is that the Project, like many transmission lines, will be re-conductored and refurbished over time, keeping it in service indefinitely for all practical purposes.” Applicants’ Motion for Clarification of Site 301.08(d)(2)(b) dated March 24, 2017, SPNF 13, at 106 fn 1.
[3] Ashland, Bethlehem, Bridgewater, Bristol, Canterbury, Clarksville, Concord, Dalton, Dixville, Deerfield, Easton, Franconia, Millsfield, New Hampton, Northumberland, Pembroke, Pittsburg, Plymouth, Stewartstown, Sugar Hill, Whitefield, and Woodstock.
[4] The Forest Society read 1,476 of the public comments and noted the following for each: Date, Title, Name (First, Middle, and Last), Position (Pro, Con, Neutral, Opposed Unless Buried, and Other), Street, Source/Venue (SEC Website Form, Public Hearing, Petition, Letter to SEC), and whether the comment addressed: Criteria Associated with Aesthetics (Existing Character; Significant Factors of Affected Scenic Resource and Distances; Nature and Duration of Public Uses; Scope and Scale of Change; Overall Visual Impacts (Day and Night); Extent of Dominance Over Scenic, Cultural, and Natural Historic Resources; and Avoid, Minimize, and Mitigate), Criteria Associated with Historic (All Potentially Affected Resources; Number of Affected and Extent of Affect; Consider Significance; Extent, Nature, and Duration of Effect; State, Federal, and Local; and Avoid, Minimize, and Mitigate); Criteria Associated with Undue Interference (Land Use, Employment, Economy, Decommission, Municipal and Regional Planning Commissions and Municipal Governing Bodies), Criteria Associated with Public Interest (Welfare of Population, Private Property, Location/Growth of Industry, Overall Economic Growth of State, Environment of State, Historic Sites, Aesthetics, Air/Water, Use of Natural Resources, and Public Health and Safety), Criteria Associated with Public Health/Safety (General Effects; Avoid, Minimize, and Mitigate; and Proximity and Collapse), Air Quality, Water Quality, Criteria Associated with Natural Environment (Significance of Affected (Size, Prevalence, Dispersal, Migration, and Viability); Nature, Extent, and Duration of Effects; Fragmentation or Other Alteration (Habitat and Resources); Analyses and Recommendations of Gov Agencies; and Avoid, Minimize, and Mitigate; Post-Construction Monitoring and Reporting; and Adaptive Management), Criteria Associated with Financial Capability (Applicant’s Experience in Securing Funding, Applicant’s and Advisors’ Overall Experience, and Applicant’s Assets and Liabilities, and Financial Commitments), Criteria Associated with Technical Capability (Applicant’s Experience Designing, Constructing, and Operating; and Experience and Expertise of Contractors or Consultants); Criteria Associated with Managerial Capacity (Applicant’s Experience Managing Construction and Operation; and Experience and Expertise of Contractors or Consultants). The comments read spanned several years, in four batches, as follows: 1) 11/4/10 through 7/6/11; 2) 7/1/13 through 11/11/15; 3) 3/1/16 through 6/23/16; and 4) 6/15/17 through 12/15/17. From the data collected from the 1,476 read comments, the Forest Society extrapolated to conclude that the results of the 1,476 read comments would be the same as the results of all public comments. In the case of opposition, 1,358 opposed the proposed project, which is 92% of 1,476. (This is consistent with the figure noted at a public comment hearing, that comments were “running roughly 11 or 12 to 1 against” the proposed project. Tr. 7/20/17, Public Comment Hearing, at 7 (Honigberg).).
[5] Tr. 5/1/17, Morning Session, at 146 (Johnson).
[6] David Taylor (Dewberry) Pre-filed Testimony (Aboveground), CFP 129, at 2805.
[7] Tr. 5/3/17, Afternoon Session, at 41 (Bowes).
[8] Tr. 5/1/17, Morning Session, at 146 (Johnson).
[9] CFP 129, at 2804.
[10] Kavet and Rockler Supplemental Pre-Filed Testimony, CFP 148, at 6312 (Ex. B: Supplemental Report: Economic Impact Analysis and Review of the Proposed Northern Pass Project (4/17/17)).
[11] Tr. 6/16/17, Afternoon Session, at 15 (Carbonneau).
[12] Pre-Filed Direct Testimony of Raymond Lobdell (12/30/16), SPNF 63, at 4141.
[13] Response and Documents to Motion to Compel, PRLAC 1-19, JT MUNI 191, at 7403. Note this figure includes only trees that are 20 feet or more in height.
[14] Tr. 6/1/17, Afternoon Session, at 92-93 (Johnson); Tr. 7/14, Morning Session, at 110-19 (Barnum).