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Appeal of Northern Pass Transmission, LLC

Supreme Court of New Hampshire

July 19, 2019

APPEAL OF NORTHERN PASS TRANSMISSION, LLC & a. (New Hampshire Site Evaluation Committee)

          Argued: May 15, 2019

         Site Evaluation Committee

          McLane Middleton, Professional Association, of Manchester (Wilbur A. Glahn, III, Barry Needleman, and Jeremy T. Walker on the brief, and Mr. Glahn orally), for the petitioners, Northern Pass Transmission, LLC, and Public Service Company of New Hampshire d/b/a Eversource Energy.

          Gordon J. MacDonald, attorney general (Christopher G. Aslin, senior assistant attorney general, on the brief and orally), representing the public interest.

          City Solicitor's Office, of Concord (Danielle L. Pacik, deputy city solicitor, on the joint brief and orally), for intervenor City of Concord; Mitchell Municipal Group, P.A., of Laconia (Steven M. Whitley on the joint brief), for intervenors Towns of Deerfield, Littleton, New Hampton, and Pembroke; and Drummond Woodsum, of Manchester (C. Christine Fillmore on the joint brief), for intervenors Towns of Bethlehem, Bristol, Easton, Franconia, Northumberland, Plymouth, Sugar Hill, and Whitefield.

          BCM Environmental & Land Law, PLLC, of Concord (Amy Manzelli on the brief and orally), for intervenor Society for the Protection of New Hampshire Forests.

          Wadleigh, Starr & Peters, PLLC, of Manchester (Stephen J. Judge, Jeffrey Karlin, and Stephen Zaharias on the brief), for intervenor McKenna's Purchase Unit Owners Association.

          Foley & Lardner LLP, of Boston, Massachusetts (Courtney Worcester on the joint brief), for intervenors Ammonoosuc Conservation Trust and Appalachian Mountain Club, and Melissa E. Birchard, of Concord, on the joint brief, for intervenor Conservation Law Foundation.

          Bernstein Shur, of Manchester (Andru Volinsky on the memorandum of law), for intervenors Bradley and Daryl Thompson and Jeanne Menard.

          Richard J. Samson, Coos County Commissioner, District Three, and Stephen J. Ellis on the joint memorandum of law, for intervenors Towns of Pittsburg, Clarksville, and Stewartstown.

          Philip Bilodeau and Joan Bilodeau joined in the brief for the Society for the Protection of New Hampshire Forests.

          F. Maureen Quinn joined in the brief for the Society for the Protection of New Hampshire Forests.

          Dalton Whitefield Bethlehem Abutters joined in the brief for the Society for the Protection of New Hampshire Forests.

          Pemigewasset River Local Advisory Committee joined in the brief for the Society for the Protection of New Hampshire Forests.

          Dummer, Stark and Northumberland Abutters joined in the brief for the Society for the Protection of New Hampshire Forests.

          Abutting Property Owners, Bethlehem to Plymouth joined in the brief for the Society for the Protection of New Hampshire Forests.

          Non-Abutter Property Owners Stark to Bethlehem joined in the joint brief of the City of Concord and multiple towns.

          Bethlehem to Plymouth Non-Abutters joined in the brief for the Society for the Protection of New Hampshire Forests. [1]

          HANTZ MARCONI, J.

         The petitioners, Northern Pass Transmission, LLC and Public Service Company of New Hampshire d/b/a Eversource Energy (PSNH), appeal the decision of the New Hampshire Site Evaluation Committee denying their application for a "Certificate of Site and Facility" (certificate) for the siting, construction, and operation of a high voltage transmission line (HVTL) and associated facilities from Pittsburg to Deerfield (the project). We affirm.

         I. The Project

         The following facts either were found by the Site Evaluation Committee or are drawn from the contents of documents submitted as part of the appellate record. The petitioners' application proposes to install a 192-mile HVTL to carry 1, 090 megawatts of electricity from Canada into New England. The project's transmission corridor would encompass 3, 161 acres, including approximately 465 acres of new rights-of-way to be used for the overhead transmission corridor, 2, 520 acres of existing rights-of-way to be leased from PSNH and used for the overhead transmission corridor, and approximately 176 acres for the underground transmission corridor. The major components of the project include: a high-voltage direct current transmission line running from the Canadian border to a converter terminal in Franklin; a converter terminal to be constructed at South Main Street in Franklin; an alternating current overhead transmission line running from the converter terminal in Franklin to an existing substation in Deerfield; six high-voltage direct current overhead to underground transition stations to be located in Pittsfield, Clarksville, Stewartstown, Bethlehem, and Bridgewater; and "various access roads, laydown areas, staging areas and marshaling yards." The approximately 10-to-20 laydown areas would consist of open space areas ranging in size from five to 50 acres, located off the right-of-way along the length of the project.

         According to the petitioners' application, approximately 60.5 miles of the transmission corridor would be located underground. For that portion of the HVTL using overhead transmission, the petitioners propose to use primarily lattice structures, with some tubular steel monopole structures. The lattice configuration would have an approximate base dimension of 30 feet by 30 feet and taper to a six foot by five foot column half way up the structure, anchored to four concrete foundations at the corners of the base approximately three to five feet in diameter. For the high-voltage direct current transmission portion of the project, the height of the structures would range from 60 to 135 feet. For the alternating current overhead transmission line portion of the project, the height of the structures would range from 48 to 160 feet.

         The transmission line would cross existing substations in Northumberland, Whitefield, North Woodstock, Campton, Ashland, New Hampton, Franklin, Concord, and Deerfield. Overhead/underground transmission stations would be installed at each end of each underground segment of the line and occupy an area approximately 75 feet by 130 feet, enclosed with fencing. The Franklin converter terminal would include a variety of buildings occupying approximately 10 acres, enclosed with fencing. The Deerfield substation would be modified to include additional construction requiring the clearing of eight acres. Sixty-three miles of existing lines for the high-voltage direct current portion of the line, and 21 miles of existing lines for the alternating current portion of the line, would be relocated. These lines would remain within the boundaries of the existing right-of-way. A large number of structures associated with these existing lines would be replaced with structures greater in height than currently existing structures.

         II. Procedural Background

         The petitioners filed their application with the Site Evaluation Committee in October 2015. Pursuant to RSA 162-H:9 (2014), the attorney general appointed a Counsel for the Public (CFP). In November, the chair of the Site Evaluation Committee appointed a Subcommittee. See RSA 162-H:4-a (Supp. 2016).[2] The Subcommittee sent notice to the municipalities affected by the project and included procedures for intervening in the proceedings.[3] Following a public hearing, the Subcommittee accepted the application, finding that it "contained sufficient information to carry out the purposes of" RSA chapter 162-H.

         In January 2016, the Subcommittee held public information sessions in Franklin, Londonderry, Laconia, Whitefield, and Lincoln. See RSA 162-H:10, I-a (Supp. 2016) (amended 2017). In addition, the Subcommittee held seven public hearings between March and June of 2016 in Meredith, Colebrook, Concord, Holderness, Deerfield, Whitefield, and Plymouth. See RSA 162-H:10, I-c (Supp. 2016) (amended 2017, 2018). The Subcommittee received 160 motions to intervene and, in May 2016, the Subcommittee combined the intervenors into groups by geography and areas of interest. Between March 2016 and October 2017, the Subcommittee conducted seven days of site visits.

         The Subcommittee held 70 days of adjudicative hearings between April and December 2017. It received testimony from 154 witnesses and received 2, 176 exhibits. The evidentiary record closed on December 22, 2017. The Subcommittee commenced its deliberations on January 30, 2018, first addressing whether the petitioners had "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." RSA 162-H:16, IV(a) (Supp. 2016). Although the Subcommittee did not take a formal vote, it "informally agreed" that the petitioners have "sufficient financial capability to ensure construction and operation of the Project." The Subcommittee also agreed that the petitioners demonstrated that their "contractors and subcontractors have sufficient experience and resources required for construction of aboveground and underground transmission projects." While the Subcommittee found that the petitioners "demonstrated that [they have] technical capacity to construct and operate the Project in compliance with the Certificate," it did not "come to a clear consensus in determining whether [the petitioners have] sufficient managerial capabilities to manage the planning and construction of this Project given its size and effects on surrounding communities."

         The Subcommittee next deliberated on whether 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." RSA 162-H:16, IV(b) (Supp. 2018). The Subcommittee voted unanimously that the petitioners "failed to demonstrate by a preponderance of evidence that the Project will not unduly interfere with the orderly development of the region" and denied the application on February 1, 2018.

         The petitioners filed a motion for rehearing and a request that the Subcommittee vacate its February 1 decision and resume deliberations. Following a hearing, the Subcommittee voted to suspend its oral decision made during deliberations, and to deny the application pending the issuance of a written decision. The Subcommittee issued a 287-page written decision denying the application on March 30, 2018. The petitioners then filed a second motion for rehearing. Following deliberations, the Subcommittee denied the motion in a 72-page written order, and this appeal followed.

         III. Statutory Framework

         A. Purpose

         The siting of energy facilities and the Subcommittee's review of an application for a certificate is governed by RSA chapter 162-H. In the statute's declaration of purpose, the legislature "recognizes that the selection of sites for energy facilities may have significant impacts on and benefits to": (1) "the welfare of the population"; (2) "private property"; (3) "the location and growth of industry"; (4) "the overall economic growth of the state"; (5) "the environment of the state, historic sites, aesthetics, air and water quality"; (6) "the use of natural resources"; and (7) "public health and safety." RSA 162-H:1 (Supp. 2018). Accordingly, the legislature stated that

it is in the public interest to maintain a balance among those potential significant impacts and benefits in decisions about the siting, construction, and operation of energy facilities in New Hampshire; that undue delay in the construction of new energy facilities be avoided; that full and timely consideration of environmental consequences be provided; that all entities planning to construct facilities in the state be required to provide full and complete disclosure to the public of such plans; and that the state ensure that the construction and operation of energy facilities is treated as a significant aspect of land-use planning in which all environmental, economic, and technical issues are resolved in an integrated fashion.

Id.

         B. Required Findings

         In furtherance of these objectives, the legislature established a procedure "for the review, approval, monitoring, and enforcement of compliance in the planning, siting, construction, and operation of energy facilities." Id. In order to issue a certificate, the Subcommittee is required to find:

(1) 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.
(2) That 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.
(3) That 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.
(4) That issuance of a certificate will serve the public interest.

RSA 162-H:16, IV(a)-(b), (c) (Supp. 2018), (e) (Supp. 2018). In addition to the statutory requirements, the Subcommittee's review is governed by administrative rules adopted pursuant to RSA 162-H:10, VI (Supp. 2018). See N.H. Admin. R., Site 100 et seq. In issuing or denying a certificate, the Subcommittee "shall make a finding regarding the criteria stated in RSA 162-H:16, IV, and Site 301.13 through 301.17, and issue an order pursuant to RSA 541-A:35." N.H. Admin. R., Site 202.28. The Subcommittee has broad discretion in making a determination whether to issue a certificate and it may deny a certificate if it determines that the issuance of a certificate will not serve the "objectives" of RSA chapter 162-H after giving "due consideration" to all relevant information. RSA 162-H:16, IV (Supp. 2018).

         C. Burden of Proof

         For a certificate to issue, the burden of proof is on the applicant to make the necessary showings by a preponderance of the evidence. See N.H. Admin. R., Site 202.19(b) (stating that "[a]n applicant for a certificate of site and facility shall bear the burden of proving facts sufficient for the committee . . . to make the findings required by RSA 162-H:16"); see also N.H. Admin. R., Site 202.19(a) (requiring that "[t]he party asserting a proposition shall bear the burden of proving the proposition by a preponderance of the evidence").

         D. Orderly Development of the Region

         In determining whether a proposed energy facility will not unduly interfere with the orderly development of the region, the Subcommittee must consider: (a) "[t]he extent to which the siting, construction, and operation of the proposed facility will affect land use, employment, and the economy of the region"; (b) "[t]he provisions of, and financial assurances for, the proposed decommissioning plan for the proposed facility";[4] and (c) "[t]he views of municipal and regional planning commissions and municipal governing bodies regarding the proposed facility." N.H. Admin. R., Site 301.15.

         IV. The Subcommittee's Decision

         The Subcommittee voted unanimously to deny the application, concluding that after considering "the extent to which the siting, construction, and operation of the Project would affect land use, employment, and the economy of the region," the Subcommittee determined that the petitioners had "failed to demonstrate by a preponderance of evidence that the Project will not unduly interfere with the orderly development of the region." In its written order, the Subcommittee detailed the parties' positions and the evidence submitted and set forth its deliberations on impacts of the project on orderly development including: (1) effects on land use during construction such as impacts on traffic, utilities, vegetation along the right-of-way, road surfaces, construction noise, the rights of private property owners, and access to private property during construction; (2) impact on employment in the region including establishment of the North Country Jobs Creation Fund - a $7.5 million fund to be spent on economic development and job creation in the region; (3) effects on the economy including wholesale electricity market savings, impacts on small businesses, effects on local real estate taxes, and establishment of the Forward New Hampshire Fund - to be funded with $10 million annually for 20 years to support community betterment, clean energy innovation, tourism, and economic development; (4) effect on real estate values; (5) effect on tourism; and (6) effect on current local land uses including forestry, agriculture, residential, commercial/industrial, transportation, institutional/government, recreation, and conservation, and historical and natural features such as rivers, wetlands and wildlife habitat. The order also summarized the evidence of the views of municipal and regional planning commissions and municipal governing bodies on the effect of the project on implementing local, regional and state-wide plans.

         A. Construction Impacts

         The Subcommittee concluded, among other things, that the "testimony and evidence demonstrated that construction of the Project would have an impact on traffic in affected communities and that the degree of the impact would vary," noting an "area of particular concern is the impact of the traffic on orderly development of Plymouth." The Subcommittee expressed concerns about construction impacts, such as "inadequate traffic management strategies, combined with a lack of communication and consideration of business access," and found that the petitioners did not meet their burden of proof on "whether the degree of traffic interference caused by construction would not unduly interfere with orderly development of the region."

         In particular, the Subcommittee found that the petitioners did not provide a final survey of the right-of-way that was deemed acceptable by the New Hampshire Department of Transportation (DOT) and, therefore, neither the Subcommittee nor the petitioners could know the boundaries of the right-of-way or the precise location of each component of the underground section of the project, or determine the number and nature of exceptions to be filed with DOT. The Subcommittee concluded, however, that while not having this information was "problematic," it did not necessarily preclude the Subcommittee "from ascertaining the construction impacts on orderly development."

         The Subcommittee found that the "impacts associated with construction under and over locally-maintained roads present[ed] a greater problem." It found that the petitioners did not clearly identify crossings over locally-maintained roads, the petitioners' evidence with respect to such roads did not include a traffic management plan, and that DOT had "raised significant concerns about usurping the authority of municipalities over locally-maintained roads." The Subcommittee explained that it

needs to understand which roads and where the Applicant intends to cross. The Applicant failed to provide documentation that clearly identified crossings over locally-maintained roads and instead provided a list which did not differentiate between State and local roads. This oversight is consistent with the Applicant's failure to provide serious consideration and planning with respect ...

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