SEC Northern Pass Hearings Come to a Close
The Site Evaluation Committee has formally closed its evidentiary hearing on the Northern Pass project. The next step in the SEC process is for all parties to present the SEC with “post hearing memos” summarizing their respective arguments. The Counsel for the Public and all interveners have until January 12 to submit their memos, and the applicant has until January 19. The SEC starts public deliberations on January 30. A full 12 days have been scheduled for deliberations, all of which are open to the public.
The burden of proof is on the applicant to clear several findings established in the SEC statute. The hearing is the gathering of evidence. The deliberative sessions are where the SEC discusses the evidence in the record to determine whether the applicant has met its burden of proof. Only if four or more of the seven member SEC panel conclude that the burden of proof has been met can the panel issue a permit (called a “certificate of site and facility’). A final decision is likely by the end of February. A final written order could be issued by the end of March.
For a more detailed discussion of the required findings the applicant must address, go here. For background on the Northern Pass project go here. For background on the SEC process and hearing on the project go here.
THE BIG PICTURE AFTER TWO YEARS OF REVIEW
One of the reasons there are 145 interveners in this case (most opposed to the project) is that Northern Pass failed to reach out and listen to New Hampshire communities and landowners before submitting its SEC application. For seven years Northern Pass outreach has been a one way street. As a result, the SEC application and the route proposed by Northern Pass are deeply flawed. Northern Pass as proposed to the SEC has multiple unreasonable adverse impacts—to aesthetics, to wetlands and to the orderly development of the affected regions. One reason that Northern Pass as proposed is unreasonable is that reasonable alternatives are available to get this electricity to market, alternatives that would avoid nearly all of the adverse impacts to New Hampshire of NP as presently proposed. Another reason is that the purported benefits of Northern Pass are significantly overstated by the applicant. The evidence presented to the SEC strongly suggests that public benefits claimed by Northern Pass are simply not worth the tradeoff in the eyes of the larger public directly affected by the project.
DUE PROCESS TAKES TIME
Many people and organizations have criticized the SEC for taking so much time to conduct its evidentiary hearing. Critics include Governor Sununu, the NH Business and Industry Association and a number of other parties sympathetic to the Northern Pass project. It is not a coincidence that these criticisms surfaced only after all the applicant’s witnesses had completed their appearances before the SEC in August. While the Forest Society is not a neutral bystander in this process, and we do have some issues with how the hearing was conducted, the reality is that with a project of this size and scale, with more than 145 interveners in the proceeding, with new rules that made significant changes to the process to encourage public engagement, with thousands of pages of materials submitted by the applicant long after the original application was submitted in October 2015, crossing over 31 cities and towns from Pittsburg to Deerfield, and with the due process requirements of New Hampshire’s Administrative Procedures Act, it is no small feat for the SEC to have accomplished what it has in the time it has taken to date.
One takeaway from the 70 days of testimony and the tens of thousands of pages of materials submitted by Northern Pass as evidence is that from the beginning the applicant attempted to convince the SEC that it should put very large blinders on when viewing “evidence.” We think this effort should fail, and that the peripheral vision of the SEC members should enable them each to see the larger panoramic view.
Consider the following:
The applicant’s historic resources expert limited her review of historical sites in the original Northern Pass application to those within one mile of the proposed right of way.She considered no historic landscapes in her original report.Only after external pressure did she later prepare reviews of a select group of cultural landscapes (only those eligible for listing on the National Register of Historic Places).These were submitted to the SEC in October 2017, two years after the original application.These cultural landscape reports remain “confidential” and are not available to the public. The SEC hearing’s record of evidence closed before the State Division of Historic Resources could offer the SEC a substantive review and recommendation on the impacts of Northern Pass on these cultural landscapes. Some of the most adversely effected resources at stake in this SEC review are the very landscapes that make New Hampshire New Hampshire.These landscapes are among our most valuable assets as a State.If we close our eyes to these impacts, are there then no unreasonable adverse impacts on these assets?
The applicant’s property value expert determined that the only residential buildings that would be adversely impacted in terms of property value were those single family houses within 100 feet of the overhead powerline right of way. He identified less than 100 structures as adversely impacted, of which 9 would be eligible for some form of buy-out or other compensation from a special fund established by NP. Left out of any consideration were residences beyond 100 feet, condos and other multi-family homes (including 50 of the 148 units of the McKenna’s Purchase Condominium complex within 100 feet of the right of way in Concord) and all commercial properties, which includes many New Hampshire tourism and recreation attractions.The NP visual expert only considered views that are from publicly accessible locations. Thousands of properties owners along the 192 mile route (including the 60 miles of the route buried on secondary roads) believe they will be adversely affected by NP. These effects could include harm to the monetary value of many of these properties, as well as the non-monetary values that attract visitors from around the world and that provide residents a sense of place. If we close our eyes to these impacts, can we then conclude that these adverse impacts do not warrant SEC consideration?
The applicant’s original wetland application limited its review of wetland impacts to only those within the existing and new rights of way the project proposes to use.Yet, wetland complexes, and their functions and values, extend beyond the 150 foot right of way (in some cases far beyond).If we limit our vision to only the disturbances to wetlands within the rights of way, we miss the disturbances to wetland complexes that don’t appreciate the established legal boundary we call a “right of way.”If we are truly interested in understanding NP’s impacts on wetland resources, why would we artificially limit our scope of review to only those parts of the wetland within the right of way?Why would our own Department of Environmental Services allow such a limited review to suffice for its required review?
There are many other examples where Northern Pass, its experts and its attorneys have attempted to put blinders on the evidentiary record. We believe the SEC can see beyond this myopia.
DETAILED DISCUSSION OF FINDINGS
After 70 days of hearings, 160 witnesses, thousands of exhibits, five days of sites visits along the 192 mile proposed project corridor by bus, thousands of public comments (running 30-1 against the project), and 15 public hearings (at which people could make comments and some of which people could ask questions directly of the applicant), the seven members of the SEC panel have accumulated the body of evidence that will inform their final decision.
The SEC statute (RSA 162-h:16) articulates the required findings with the following language:
After due consideration of all relevant information regarding the potential siting or routes of a proposed energy facility, including potential significant impacts and benefits, the site evaluation committee shall determine if issuance of a certificate will serve the objectives of this chapter. In order to issue a certificate, the committee shall find that:
• The applicant has adequate financial, technical, and managerial capability to assure construction and operation of the facility in continuing compliance with the terms and conditions of the certificate.
• The site and facility will not unduly interfere with the orderly development of the region with due consideration having been given to the views of municipal and regional planning commissions and municipal governing bodies.
• The site and facility will not have an unreasonable adverse effect on aesthetics, historic sites, air and water quality, the natural environment, and public health and safety.
• Issuance of a certificate will serve the public interest.
The SEC can make one of three decisions: to deny the certificate, to award the certificate as requested, or to award the certificate with conditions (conditions that “the committee deems necessary”).
If the SEC finds that the applicant has failed to meet its burden of proof on any of the findings it must deny the certificate. For example, the SEC could find that the applicant has failed to demonstrate that the project will not have an unreasonable adverse effect on aesthetics, and on this issue alone could deny the certificate.
The Forest Society and all other interveners opposed to the project will each prepare post-hearing memos that make the case for why we believe the applicant has failed to meet its burden of proof on one or more of these findings. The applicant, and the four interveners supporting the project, will each prepare their memos. The SEC will then read these memos, revisit the tens of thousands of pages of evidence, and start deliberating January 30.
We believe that the Forest Society and all other opposing interveners have compelling arguments for the SEC to conclude that the request certificate should be denied.