Supreme Court to Take Up Northern Pass Appeal of SEC Decision

Supreme Court to Take Up Northern Pass Appeal of SEC Decision

 Northern Pass — the Zombie Project That Wouldn’t Die

Northern Pass — the Zombie Project That Wouldn’t Die

But combined with Eversource's statement that it remains "fully committed" to Northern Pass and Eversource’s work on legislation to "reform" the SEC, you’re left with the sickening feeling that you’re watching the opening scenes of a horrifying zombie movie entitled ‘The Project That Wouldn’t Die’.

Eversource indeed is “fully committed.” It’s become apparent that it is pursuing a two-front war to get a giant extension cord from one end of New Hampshire to the other built to bring Canadian hydropower to southern New England.

One front is its appeal of the SEC’s unanimous decision to deny Northern Pass a site certificate. Ordinarily this wouldn’t be a cause for concern. In case after case the Supreme Court has upheld SEC decisions, emphasizing the great deference it must give to the SEC's factual findings. Even Eversource’s executive vice President Lee Olivier told stock analysts last year, “we think from our long experience with the SEC process that it’s, quite frankly, long.  It’s very judicious.  It’s very comprehensive.  But when it’s complete, it has always withstood legal challenge.”  

The only way to put an end to this Northern Pass madness is for all of us to remain fully committed to its defeat. 

But the makeup of the Supreme Court has changed over the past two years, and earlier this year the Court overturned a Public Utilities Commission decision, finding that a state statute requiring electric utilities to divest all of their generating assets doesn’t preclude utilities from buying generating assets. It’s reasonable to have concern about what this Supreme Court will do with the Northern Pass appeal.

If the Supreme Court overturns the SEC’s decision, the Northern Pass case will go back to the SEC for further consideration. More SEC hearings on Northern Pass? Talk about the walking dead. But there would be a twist in the plot, because Gov. Sununu will have had the opportunity to replace several of the SEC members by then with new members who may have a different perspective.

The other front Eversource is pursuing is legislation to make it easier for projects like Northern Pass to get SEC approval. If the Supreme Court upholds the SEC’s 7-0 vote to deny a site certificate to Northern Pass, you can expect “fully committed” Eversource to file a new application with the SEC for a slightly different project, Northern Pass II (the sequel). With new members of the SEC, it’s conceivable that Northern Pass II could be approved.        

The only way to put an end to this Northern Pass madness is for all of us to remain fully committed to its defeat.

To Preserve Our Defeat of Northern Pass We Need To Ask Candidates Where They Stand

To Preserve Our Defeat of Northern Pass We Need To Ask Candidates Where They Stand

Hundreds of ordinary individuals devoted much of the last eight years to stopping Eversource’s Northern Pass transmission project from ever being built. Thousands of people across New Hampshire also took action to protect our state from serving as a giant extension cord to bring power to Massachusetts and Connecticut.

This hard work paid off when the Site Evaluation Committee voted unanimously earlier this year to deny Northern Pass a site certificate.

But make no mistake. Eversource is not giving up.

We know Eversource is already working with its allies such as the Business and Industry Association on crafting legislation to make it easier to get state approval for monstrous projects like Northern Pass.

That’s why knowing where the candidates for state office – Governor, Executive Council, State Senate and State Representative – stand on Northern Pass is so critical to preserving our victory over Northern Pass.

We know there are elected officials who are willing to carry Eversource’s water on these proposals.

Just last month in a speech at the NH Energy Summit, Gov. Chris Sununu said New Hampshire needs more energy infrastructure and it is taking too long for projects to get permits. He didn’t need to say the words “Northern Pass.” Everyone knew that’s what he was talking about.

And this past year State Representatives who support Northern Pass pushed for legislation to automatically grant a site certificate to projects like Northern Pass if the SEC doesn’t make a decision within one year. That legislation was only defeated by 30 votes in the New Hampshire House. They will try again next year.

Before you vote this November find out where the candidates stand on Northern Pass.

When they knock on your door seeking your vote or if you see them campaigning in your area, ask them whether they support or oppose Northern Pass.

Check out the answers candidates gave in response to a questionnaire from Protect the Granite State or if they haven’t responded. You can see their answers on our website by clicking here.

All our work to stop Northern Pass will be for naught if a the legislature and governor next year enact legislation that green lights projects like Northern Pass. You can prevent that by knowing where candidates stand before you vote.

Wow, Eversource Really Did Try to Rig the Massachusetts RFP for Northern Pass

Wow, Eversource Really Did Try to Rig the Massachusetts RFP for Northern Pass

During the process for selecting the winner of the Massachusetts request for proposals to provide millions of megawatts of low-carbon energy to Massachusetts over 20 years, people wondered whether the process was rigged for Northern Pass. After all, both Northern Pass and one of the Massachusetts distribution utilities deciding the winner are subsidiaries of Eversource Energy. Eversource MA played a critical role in crafting the legislation establishing the process and in drafting the terms of the RFP and it had the most members of the evaluation team that was charged with selecting the winning bid. When it was announced on January 25, 2018 that the Northern Pass-Hydro Quebec proposal had been conditionally selected, more questions about the inherent conflicts were raised.

But it was all just speculation – until the independent evaluator hired to monitor the solicitation and evaluation process issued its report at the end of July. 

In its redacted report, the independent evaluator, Peregrine Energy Group, stated:

Based on our observations, Eversource favored, or had the appearance of favoring, NPT in various stages of the evaluation and selection process, especially toward the end. This included the deliberations with respect to the interest rate assumption in the quantitative evaluation and the qualitative evaluation with respect to several criteria, including [redacted]. This was also the case with respect to the Stage 3 and bid selection process, where Eversource focused on aspects of the evaluation, evaluation metrics and assumptions that supported selection of Northern Pass. It was perhaps even more apparent when Eversource sought to keep NPT in play for contract negotiations even after the required New Hampshire siting approval was denied, with a remote possibility for a prompt reversal in order for Northern Pass to be able to build the project anywhere near the time frame proposed.

Despite Eversource’s efforts to promote Northern Pass, the independent evaluator believed in the end the other participants and the independent evaluator had “counteracted any favoritism on the part of Eversource.”

There were some other noteworthy findings in the independent evaluator’s reports. The three distribution utilities, subsidiaries of Eversource, National Grid and Unitil, deadlocked over which proposal to select, so it was the state Department of Energy Resources that actually made the initial selection of Northern Pass. Despite the fact that the proposal from Central Maine Power had the highest quantitative score, the state DOER picked Northern Pass because Northern Pass had claimed in its bid it would be operational in 2020, two years earlier than Central Maine Power.  According to the independent evaluator, “DOER concluded that NPT’s greater certainty for an earlier in-service date gave it the advantage as the winning bid in light of the urgent need to meet {Global Warming Act Solution] goals, as well continuing concerns for near-term winter reliability stresses on the regional electric grid exacerbated by pending generator retirements.”  

For anyone who was even casually following the Northern Pass saga, it is stunning that the state DOER found Northern Pass’s claim that it would be operational in 2020 believable. 

At the time it selected Northern Pass in January 2018, the New Hampshire Site Evaluation Committee had not yet rendered its decision on whether or not to grant Northern Pass a site certificate.  Even in the best case scenario – the SEC approves Northern Pass in February 2018 and no opposing intervenor appealed and no private landowner filed a lawsuit based on violations of easements granted to Eversource decades ago – it would be impossible for Northern Pass to be operational in just two years. In its efforts to win approval from the SEC, Northern Pass made numerous promises to not do construction in certain parts of the route during different times of the year and during limited hours of the day. And it was never going to be the best case scenario. Objecting intervenors would certainly have filed for a motion for rehearing if the SEC had approved Northern Pass, and, based on what happened with Northern Pass’s motion for rehearing of the SEC’s denial, it would have taken about six months for the SEC to rule on that. At that point if the SEC had denied the rehearing request, opposing intervenors would have appealed to the Supreme Court. Moreover, there were people who owned land that Northern Pass would have been built on who had already hired lawyers to file lawsuits over easement rights.    

The independent evaluator’s report also describes the desperate efforts the Massachusetts Eversource subsidiary made to have Northern Pass retain the bid award after the Site Evaluation Committee voted 7-0 to deny a site certificate to Northern Pass.   Again the distribution utilities deadlocked on how to proceed so the state DOER decided the group would commence negotiations with Central Maine Power and give Northern Pass until March 27 to try to get a reversal from the SEC. When the selection steering committee met on March 26, it was clear that Northern Pass could not meet the next day deadline, so Eversource pleaded for yet more time for its sister subsidiary. 

National Grid supported terminating negotiations with NPT and continuing negotiations with NECEC (“NECEC” is the acronym for the name of Central Maine Power’s project). Eversource opposed terminating negotiations with NPT, indicating that the bidder should be given more time to reverse the denial and obtain the required permit, and that negotiations should continue with both NPT and NECEC, with a decision on which deal to execute to be made at the end of the negotiations. Unitil stated that given the difference in opinion between Eversource and National Grid, it was up to DOER to make the final selection decision.  

At this point the independent evaluator had had enough of Eversource’s wrangling for Northern Pass, and said to the group “that the likelihood of NPT being able to reverse the NHSEC decision and obtain its permit within any reasonable timeframe was remote. Further, the IE expressed the view that Eversource’s continuing effort to keep NPT in the running represented favoritism or at least the appearance of favoritism toward its affiliate.” The Massachusetts DOER then decided to terminate negotiations with Northern Pass once and for all.  

Up here in New Hampshire, Eversource doesn’t even bother with the pretense of a legitimate bidding process. Eversource NH actually submitted a proposal to the NH Public Utilities Commission for a no-bid contract to buy 10 percent of the power Hydro Quebec would transmit over the Northern Pass extension cord. If the Supreme Court ever reverses the SEC’s unanimous decision to deny a site certificate to Northern Pass, keep your eyes and ears open for an even larger no-bid proposal from Eversource.

Northern Pass: Not Credible, Not Reliable

Northern Pass: Not Credible, Not Reliable

This month the Site Evaluation Committee issued a withering written denial of Northern Pass’s Motion for Rehearing, replete with the SEC’s findings that the case Northern Pass presented was “not credible” and “not reliable.” 

In the face of such a powerful rejection of its proposal to build a 192-mile industrial extension cord across New Hampshire to bring Canadian hydropower to southern New England, you might think Eversource would go back to the drawing board and try to come up with something more acceptable than Northern Pass. 

But, no, Eversource said it would appeal the SEC’s well thought out, painstakingly detailed 68-page decision to the New Hampshire Supreme Court. Apparently the company’s thinking is that the project is “too big to fail” - since they've already spent nearly $300 million on the Northern Pass boondoggle, why not roll the dice and spend a few million more on an appeal.

Given that the crux of the SEC’s decision was its detailed, numerous findings that Northern Pass’s expert witnesses were “not credible” and “not reliable,” it would be shocking if the Supreme Court reversed the SEC’s decision. After all, the Supreme Court has consistently ruled that it will not substitute its judgment on issues such as the credibility of witnesses.  In fact, just this spring the Supreme Court upheld the SEC’s decision to grant a site certificate in another case, stating, "When reviewing the [SEC's] decision, it is not our task to determine whether we would have credited one expert over another, or to reweigh the evidence, but rather to determine whether its findings are supported by competent evidence in the record."   

Remember that under the law the burden was on the applicant for a site certificate, Northern Pass, to prove it would not unduly interfere with orderly development.  Accordingly,  the onus was on Northern Pass to prove it would not unduly impair tourism, property values, land use and other factors.

The SEC, in a carefully laid-out written order, found that Northern Pass’s witnesses were simply not credible.  The SEC “members specifically addressed the testimony and reports filed by the Applicant’s experts, identified gaps and inaccuracies in the reports, identified the reasons why the testimony and reports were inadequate and not credible, and specifically stated why they could not be relied upon.”

One by one, the SEC written decision evaluates the testimony provided by the various experts. 

Tourism. The SEC “found the Applicant’s expert testimony and report addressing the impacts of the project on tourism was not reliable” and it “considered Mr. Nichols’ testimony and found it unpersuasive, unsupported by the facts, based on false assumptions and, ultimately, unreliable.”

Property Values.  The SEC “found that the Applicant’s expert testimony and report on property value impacts also simply was not reliable.”  In its March order denying Northern Pass's application for a site certificate, the SEC explained, “Confronted on cross-examination Dr. Chalmers acknowledged errors in the studies he relied upon, but failed to adjust his ultimate opinion on the Project’s effect…. He gave little, if any, consideration to commercial property, condominiums, multi-family housing, vacant land, second homes or to property along the underground portion of the route….Dr. Chalmers presents no cogent explanation why properties beyond 100 feet from the right-of-way that experience a significant change in view would not suffer a drop in value as a result of the Project.”

Land Use. “The [SEC] reasoned, after evaluating the facts and circumstances of this case, that Mr. Varney’s testimony that the Project would be consistent with prevailing land
use because it would be constructed within an existing right-of-way was not credible” and stated, “its expert witness simply did a poor job of addressing the views of municipalities and local and regional planning agencies.”

The bottom line is Northern Pass presented a weak case. It’s time to move on.

How Not To Get a Permit: The Northern Pass Story

How Not To Get a Permit: The Northern Pass Story

The same day the New Hampshire Site Evaluation Committee voted unanimously to deny a site certificate to Northern Pass I overheard an intervenor to the proceeding, who had been fighting this transmission project for eight years, say, “Northern Pass could be taught as a textbook case in how not to get a permit.”

She’s right. From the day PSNH (now dba Eversource) announced its plans to build a giant extension cord from one end of New Hampshire to the other, to bring Canadian hydro power to southern New England, Eversource has made mistake after mistake. 

Any project developer looking to not get necessary permits should follow Eversource’s four-step approach: 1) ignore concerns and turn opponents into sworn enemies; 2) condescend to municipalities so that 94 percent oppose your project; 3) present a case that defies credibility; and 4) assume you can trample on individual property rights. 

I. Ignore Concerns and Turn Opponents into Sworn Enemies

Throughout this botched venture Eversource has demonstrated staggering arrogance, an arrogance that caused the company’s executives to believe they could ignore the concerns of people, businesses and municipal officials and still sail through the state approval process. 

Eversource had been developing its Northern Pass plans for more than two years before it bothered to tell the communities that would "host" the transmission line about their plans.  And “tell” is the operative word. The company didn’t consult with local residents, businesses and officials about what would be the least disruptive locations for industrial towers as high as 140 feet. Eversource told them where the towers and lines would go.

Five years later the company announced it would bury the 52 miles of lines that would go through the White Mountain National Forest. If Eversource thought this decision would silence the highly-educated professionals who had retired to the White Mountains, that didn't work.  

That just gained them new opponents.

Again, Eversource didn’t consult with local folks about where to bury the lines. Instead, it decided to bury lines under very narrow and old state and local roads, drawing additional opponents to the project and creating obstacles to obtaining state Department of Transportation approval that are still unresolved. Throughout the years people have encouraged Northern Pass to rethink its plans and instead bury the transmission lines along Interstate 93. Northern Pass rejected that alternative, claiming it would be too expensive and too complicated. But could anything really be more complicated than the path it chose?  

The heavy-handed way Eversource handled its interactions with affected communities came back to haunt the company when it filed its application for a site certificate with the Site Evaluation Committee in late 2015. More than 150 individuals, small businesses, municipalities and environmental organizations – an unprecedented number - officially intervened in the SEC proceedings in opposition to the project. That guaranteed a more complicated, contentious and longer SEC process.

II. Treat Municipalities with Condescension so that 94 Percent Oppose Your Project

Throughout the process, Northern Pass and Eversource gave short-shrift to the concerns of municipal officials, leading to 30 of the 32 communities along the route to oppose the project and 22 to actually intervene at the SEC. That proved to be a big mistake.

Given that Northern Pass would need to detour traffic on to local roads during construction and was planning on burying a large chunk of the transmission line under town roads, one would expect the company to work to gain the affected towns’ support, but, no, Northern Pass assumed the SEC and the State Department of Transportation would usurp the towns’ authority so the company saw no need to engage the towns. That didn’t work out so well when the Department of Transportation informed the SEC just before the record closed that the department didn’t have the expertise or legal authority to manage local roads. Oops. Northern Pass’s response to that was to propose that the SEC administrator be put in charge of managing this process. The SEC roundly rejected this harebrained idea, explaining:

Construction of the Project under locally-maintained roads and subsequent maintenance of these roads would require the resolution of many issues concerning multiple parties with opposing interests.  The Applicant did not provide testimony that would indicate how the Administrator and a consultant would be in any better position than DOT to resolve these issues.  There is good reason for long standing statutory and state agency policy of vesting municipalities with control over their own roads. 

Throughout the 70 days of testimony, Northern Pass complained that municipalities were refusing to cooperate and claimed that all their concerns could be addressed in memoranda of understanding. However, it turned out that all Northern Pass would agree to in a MOU was to cooperate if it was “practicable” and to follow existing laws and regulations. Here’s an ecerpt from the MOU between the company and the Town of Thornton:

To the extent practicable, NPT would work collaboratively with the Town to minimize any impact that construction activities may have on traffic on Route 175 in the Town, specifically during the annual Blue Grass Festival and Blues Festival located at the Sugar Shack Campground in the Town. NPT agrees to comply with applicable New Hampshire Department of Transportation regulations. NPT further agrees to comply with any traffic control plans and/ or traffic management plans, where applicable, to reasonably minimize the impact of construction activities of the Project Facilities on traffic. (emphasis added)

Officials from several municipalities testified that Northern Pass was unwilling to negotiate and simply presented them with toothless MOUs like this one.

III. Present a Case that Defies Credibility

Eversource and Northern Pass then chose to present a case to the SEC that defied credibility. For example, the companies took the position that this 192-mile transmission project would have no impact on tourism or land use and would only affect the values of six to nine properties. Rather than acknowledging obvious negative impacts and presenting evidence on how the companies would address the impacts, they presented expert testimony that was not credible and asked the SEC members to close their eyes and ears. It didn’t work.

The companies’ absolutist testimony that local land use would not be impacted backfired. In its written decision, the SEC summarized the failure of this approach:

“Mr. Varney testified that increased vegetation and buffer removal, increases in structure heights, usage of different types of structures, the addition and relocation of existing structures and the reconfiguration of existing conductors required for the construction of the Project, would not interfere with the prevailing land uses because it all would be done within the existing right of-way.  When tested on cross-examination by the Subcommittee on this point, Mr. Varney opined that even the installation of 300 foot towers would not adversely affect or change the land use…. In essence, Mr. Varney suggests that as long as a corridor is used for transmission lines, there can never be a “tipping point” where the effect of transmission infrastructure on the land use becomes too intense.  We disagree. (emphasis added)”

 The SEC members found some of the companies’ experts to not be credible.  For example, with respect to their property values expert, the SEC found “many of Dr. Chalmers’ conclusions from the case studies to be unreliable…. His report also contained errors in identifying comparable sales.  Confronted on cross-examination Dr. Chalmers acknowledged errors in the studies he relied upon, but failed to adjust his ultimate opinion on the Project’s effect…. He gave little, if any, consideration to commercial property, condominiums, multi-family housing, vacant land, second homes or to property along the underground portion of the route….Dr. Chalmers presents no cogent explanation why properties beyond 100 feet from the right-of-way that experience a significant change in view would not suffer a drop in value as a result of the Project.”  Yup, in a state that not too long ago had a rip-roaring debate about a “view tax,” Northern Pass actually took the position that diminished views would not affect property values.   

 With respect to the companies’ tourism expert, the SEC “did not find the report and testimony submitted by Mr. Nichols credible.  Despite his prior engagement for the State of New Hampshire, Mr. Nichols did not exhibit familiarity with the New Hampshire tourism industry and tourism destinations in the North Country.  While reaching his conclusion of “no impact,” Mr. Nichols relied, in part, on the results of poorly designed listening sessions and a dubious online survey.” 

Northern Pass, like any applicant for a site certificate, had the burden of proving it would not unduly interfere with orderly development, but you wouldn’t know that from the case it presented.  

IV. Assume You Can Trample on Individual Property Rights

New Hampshire is a state that fiercely values individual property rights, but for some reason Northern Pass chose to not establish the boundaries of the rights-of-way it was going to build under.  The company testified that it wouldn’t do that until after the SEC gave it a permit, and then would only inform abutters six weeks before construction began where the company believed the boundary lines were.

This clearly bothered the SEC members, who wrote: 

When we closed the record, we did not have a final survey of the right-of-way that was deemed acceptable by DOT.  To this day, DOT has not approved the final boundary survey of the right-of-way….In the future, we expect applicants wishing to construct projects under State or local roads and in energy infrastructure corridors to present a right-of-way boundary survey that is acceptable to DOT.

In effect, Northern Pass wanted to shift its burden to prove it has the legal right to use property to individual landowners, forcing them to undertake expensive litigation to protect their property rights. 

V. Conclusion

Northern Pass is one of only two projects that have ever been denied a site certificate by the New Hampshire Site Evaluation Committee, and the other developer quickly revised its project and filed a new application which ultimately did receive a site certificate. While Eversource and Northern now whine that the SEC was unfair and wrong, the fact is they made mistake after mistake. Their original sin was arrogance, and it’s clear that has not changed.
 

Northern Pass Intent on Throwing Good Money after Bad

Northern Pass Intent on Throwing Good Money after Bad

Northern Pass was a fatally flawed transmission project from the day it was announced eight years ago. Despite the strong objections of 29 of the 31 municipalities that the line would run through, businesses large and small along the proposed route and tens of thousands of people across the state, Eversource Energy pushed forward. As of last October Eversource had spent $249.5 million – a quarter of a billion dollars - on development costs, like engineering, attorneys’ fees, land purchases, advertising, public relations and countless consultants. 

Now after a clearly reasoned, unanimous decision by the seven members of the state Site Evaluation Committee denying Northern Pass a site certificate, Northern Pass and Eversource are saying they are “shocked and outraged” and will appeal the SEC decision to the New Hampshire Supreme Court if the SEC doesn’t reconsider its decision. But Northern Pass does not have a strong appellate issue. Appealing the SEC’s decision is just throwing good money after bad.

In an interview shortly after the SEC decision Martin Murray, the spokesperson for both Northern Pass and Eversource NH (PSNH), stated three rationales for appealing: 1) the SEC should have continued to deliberate even after it was clear all seven members had found that Northern Pass had failed to prove it satisfied one of the four required criteria; 2) the SEC members did not correctly analyze the evidence; and 3) the SEC should have issued a certificate with conditions instead of denying the site certificate. All three are weak grounds for appeal.

First, let’s look at Northern Pass’s complaint that deliberations should have continued. 

An applicant to obtain a site certificate for an energy facility in New Hampshire has the burden of proving that it meets all four criteria set forth in NH RSA 162-H:16, IV. You can read the exact language here, but in brief the four criteria are:

  1. The applicant has the financial, technical and managerial capability to construct and operate the facility;
  2. The facility will not unduly interfere with the orderly development of the region;
  3. The facility will not have an unreasonably adverse impact on aesthetics, historic sites, air and water quality, the natural environment, and public health and safety; and 
  4. The facility is in the state’s public interest.

After hearing 70 days of oral testimony; receiving thousands of pages of pre-filed written testimony, 4,500 written comments from members of the public, thousands of exhibits, and final memoranda from Northern Pass, the Counsel for the Public,  and many of the intervenors; and spending several days in the field looking at various locations  the proposed transmission line would run through, the seven members began deliberating in public (picture a jury deliberating in public) on January 30th about the evidence and whether Northern Pass had satisfied its burden of proof.

The SEC took up the four criteria in the order they are listed in the statute, so they first deliberated about whether Northern Pass had the financial, technical and managerial capability to build and operate a 192-mile high voltage transmission line, 60 miles of which would be buried. After discussing the first criterion for a few hours, each of the seven members indicated they believed Northern Pass had met the burden of proof for that one, although the fact the SEC members expressed some doubt about the company’s managerial capability should have been a sign to Northern Pass’s lawyers and executives that getting SEC approval was not going to be as easy as they had been telling the Massachusetts Clean Energy RFP evaluators and Wall Street energy analysts for years.  

The SEC then moved on the afternoon of the first day to begin deliberating the second criterion, undue interference with orderly development, and spent the entire next day deliberating about the evidence relating to that and whether the company had met its burden of proof. It was increasingly clear that all seven members had doubts about the case Northern Pass had presented on some aspects of orderly development, including the credibility of Northern Pass’s expert witnesses. I’m guessing Northern Pass now regrets putting up an expert who said only eleven homes along the entire 192-mile route would decrease in value and claimed that obstruction of views would not reduce the value of properties that didn’t directly abut the transmission line. Tell that to the people in New Hampshire whose property is assessed higher because of its views, the so-called view tax.  It was clear to everyone except Eversource that this testimony was simply not credible.

On the third day of deliberations the SEC chair asked the other members if it would be helpful for each of them to say what their thinking was on whether Northern Pass had met its burden of proving the transmission line would not unduly interfere with orderly development in the region. One by one they each explained his or her thinking in great detail, and each ended their analysis by saying they didn’t think Northern Pass had met its burden of proof. This took the entire morning of the third day.

After lunch one of the members moved to deny Northern Pass a site certificate on the basis that it had failed to prove the project would not unduly interfere with orderly development in the region. All seven agreed with that motion, but two of them thought they should go on to deliberate the next two criteria so that a record could be made of their findings on those. Five of them didn’t think there was any point to that because Northern Pass had to satisfy all four criteria so they knew at that minute that a certificate would be denied. As one of the members said, “It’s a four-legged stool. If one of the legs is broken, the chair falls.” A substitute motion to end deliberations passed 5-2. Next all seven voted that Northern Pass had failed to meet its burden on orderly development and then unanimously voted to deny a site certificate. 

It is inconceivable that the N.H. Supreme Court would find that the SEC made a reversible error by not wasting everyone’s time deliberating on the next two criteria for the sake of deliberating. The law is clear that Northern Pass had to satisfy all four criteria to get a site certificate. Look at the wording of the statute. It says “and” between the third and fourth criteria not “or.”  And Northern Pass knows that. It was right there on their official Northern Pass website – until yesterday. Continuing to deliberate would only have been good for the myriad of Eversource lawyers who were getting paid by the hour.

Now let’s look at Northern Pass’s second complaint – that the SEC’s decision to deny the site certificate wasn’t supported by the evidence. This basis for appeal has even less merit than the endless deliberations one. The Supreme Court will only overturn a regulatory body’s findings if it was an abuse of discretion or arbitrary, capricious and unreasonable. The test is not whether the Supreme Court justices would have reached a different conclusion than the SEC members did. The SEC deliberated for almost two full days on the orderly development criterion, and it’s clear each member had thoroughly reviewed the volumes of evidence before voting. You can read the transcript here.  I don’t know how Northern Pass can contend with a straight face that the SEC’s decision was arbitrary, capricious and unreasonable or an abuse of discretion. 

On to their third complaint – that the SEC should have granted Northern Pass a site certificate with conditions instead of denying the certificate. Weak. The N.H. Supreme Court is not going to substitute its judgment for that of the SEC on this one either.  

Northern Pass would probably include in an appeal a claim that the SEC chair had erred on some procedural decisions, such as a ruling on an objection to the relevance of a question posed to a witness. I was present for many of the evidentiary hearing days. The Chair bent over backwards to rule in Northern Pass’s favor on procedural issues. For an opponent of Northern Pass like me it was very frustrating that the Chair almost always ruled in Northern Pass’s favor. In any case, the Supreme Court would only overturn the SEC on these grounds if a procedural error impacted the outcome of the case. That’s just not going to happen.

Northern Pass may also challenge how long the SEC process took. But the reason it took so long is its application for a site certificate was deficient and the proposal so bad that it generated an unprecedented number of opposing parties in the proceeding.  It would also be inconsistent to contend it was wrong for the SEC members to end deliberations so soon and that the SEC process took too long. 

I understand that Eversource executives are upset and disappointed with the SEC’s decision, but that’s not what they were saying a few short months ago.   During its 2017 Q3 investor call, Eversource’s Executive Vice President for Strategy and Business Development stated in response to a question about the status of Northern Pass “…we think from our long experience with the SEC process that it’s, quite frankly, long.  It’s very judicious.  It’s very comprehensive.  But when it’s complete, it has always withstood legal challenge.”   

Those were wise words a few months ago.  What has changed?   Only that the SEC rejected Northern Pass.   I don’t see how it’s in their shareholders’ interest to spend more money appealing the SEC’s decision. And it’s not in the interest of the people and businesses of New Hampshire. An appeal would string out this saga for at least another year. It’s time to move on.

Is Northern Pass Full of Gas?

Is Northern Pass Full of Gas?

Are we too dependent on natural gas in New England? Or do we need more natural gas in New England? For Eversource, it depends on which project it’s pushing.

While Eversource subsidiary Northern Pass Transmission LLC took advantage of the recent cold snap to repeat its claim that Northern Pass is needed to address New England’s dependence on natural gas, a Massachusetts Eversource subsidiary remains committed to a pipeline project to bring even more natural gas to New England.  

Eversource is one of three partners in the Access Northeast to New England Access Northeast to New England natural gas pipeline project.

Not surprisingly, Eversource NH wanted to have New Hampshire electricity consumers help pay for its sister subsidiary’s natural gas pipeline by committing to a 20-year contract because, well, they said we need more natural gas. 

According to Eversource NH president Bill Quinlan, "There is universal recognition that we need to bring more natural gas into the region."

But in his testimony to the Site Evaluation Committee in support of Northern Pass, the same Bill Quinlan said, “The Project will directly address the volatility of electricity prices during winter months by reducing the region's dependence on natural gas by adding 5% of non-gas fired generation to the regional supply mix.”

Maybe Bill Quinlan is the only Eversource employee who takes both sides on natural gas, you wonder.

Nope.

Martin Murray, the spokesperson for both Eversource NH and Northern Pass, has demonstrated this habit as well.

In support of the Access Northeast natural gas pipeline, Martin Murray said, “the constrained supply of natural gas into the region is contributing to unacceptable electric price volatility.”

But last week during the cold snap, with his Northern Pass hat on, Mr. Murray (@nhmurrays) tweeted, “#northernpass offers clean, base-load energy to a region that relies too much on nat gas.”

The official websites for these two Eversource projects also make opposite claims about natural gas.

The official website for the Access Northeast pipeline project states: “The project's partners continue to pursue a viable commercial and operational model to provide clean-burning natural gas to electric generators in New England in support of the region's emission goals.”

But the official Northern Pass website begs to differ, stating: “New England’s growing dependence on natural gas is an ongoing concern for state and federal officials, who believe that a diverse energy portfolio ensures both energy reliability and economic stability.”

Seriously, have these people heard about Google? How stupid do they think we are?

It’s all about the money. Eversource doesn’t really care about whether we need more natural gas or not. The company will make money if Access Northeast goes forward bringing more natural gas to New England. And the company will make money if Northern Pass goes forward on the argument that it’s needed to reduce our dependence on natural gas. It’s the profit margin that matters.    

In three weeks the N.H. Site Evaluation Committee will begin its deliberations on whether to approve Northern Pass. As they consider the credibility of testimony and arguments, the SEC members need to keep in mind that Northern Pass is full of gas.  

Northern Pass-Hydro Quebec Agrees To Bury Transmission Lines…in Canada!

Northern Pass-Hydro Quebec Agrees To Bury Transmission Lines…in Canada!

And New England Customers Will Pick Up the Entire $48 Million Cost

For years the City of Concord has been asking Northern Pass to agree to bury the high-voltage transmission line that would run through our Capital City. Northern Pass has said no. This  drove the City of Concord, where some transmission towers would be taller than the State House, to intervene in the Site Evaluation Committee proceedings that will decide whether Northern Pass can be built.

All Concord wants is for Northern Pass to agree to bury eight miles of transmission. Northern Pass has always said that would be too expensive.

So the announcement last week by Northern Pass’s partner Hydro Quebec that it had agreed to bury 11 miles of the project’s transmission line in Canada was startling.

Worse, Hydro Quebec assured the people of Quebec that they shouldn’t be concerned about the price tag because New England ratepayers will bear the entire $48 million cost of burying the lines.

That’s right. If Northern Pass is approved by the Site Evaluation Committee and ever becomes operational, the entire cost of constructing 192 miles of new transmission lines in New Hampshire and 49 miles in Quebec will be recouped as part of the price we will pay for the hydro power transmitted from Quebec into the New England market.   

It’s hard to reconcile why it’s acceptable for New Hampshire cosumers to pay for burying 11 miles of the Canadian transmission line with Northern Pass’s position that burying eight miles in Concord, New Hampshire would break the project’s back.

The new additional cost of burying the transmission lines in Quebec also makes it even less likely that New Hampshire businesses and families will see any reduction in electric rates from Northern Pass. That’s because the additional cost of the Canadian burial makes it more improbable that the power transmitted over Northern Pass could be sold into the New England forward capacity market, and any possible benefit to New Hampshire consumers from Northern Pass depends entirely on the power it transmits qualifying to be sold into the forward capacity market.  Even without the additional $48 million in cost for burial in Quebec, it's very possible that this power could not be sold into the forward capacity market due to the overall cost of the project, according to the electricity markets expert for the Office of Public Counsel, Dr. Samuel Newell.   

Northern Pass acknowledges there will be adverse impacts to New Hampshire from the Northern Pass project – the company just contends they aren’t unreasonable adverse impacts. In previous blogs I’ve questioned how the very modest rate reduction predicted by Northern Pass’s own expert justifies its negative impacts.

Dr. Newell’s testimony made it clear that it’s  likely that Northern Pass won’t lower our monthly bills by one cent, so now  there’s a new question – how can the Site Evaluation Committee approve Northern Pass without a guaranty it will lower electric rates for New Hampshire businesses and families?      

 

 

Northern Pass – Lessons from Eversource’s Track Record with Big Projects

Northern Pass – Lessons from Eversource’s Track Record with Big Projects

What are the chances that the actual cost of developing and constructing Northern Pass will greatly exceed the company’s estimate of $1.6 billion? Based on Eversource’s recent track record in New Hampshire with the auction of its power generating assets and the scrubber boondoggle at its coal-burning plant in Bow, it’s a safe bet the cost will soar well beyond $1.6 billion.

Last month Eversource subsidiary PSNH announced its oil, coal, wood-burning, and hydro power generating plants plus fuel and other inventory fetched a combined auction price of $258.3 million, a whopping $458.1 million less than their net book value of $746.4 million. 

If that $458.1 million loss figure is kind of ringing a bell with you, you might recalling the controversy around the fact PSNH drastically increased the estimated cost of the scrubber project to reduce mercury emissions at its coal-burning plant in Bow (Merrimack Station) to $457 million after initially estimating a cost of $250 million.  

PSNH ratepayers will be footing the bill for both.

How did we get here?

Let’s start with the scrubber boondoggle. When it became clear at the beginning of this century that the mercury emissions from the Bow plant were a danger to public health, PSNH convinced the legislature and Governor Lynch that the best way to address this health hazard was to require PSNH to install a wet flue gas desulphurization system (commonly known as the scrubber). When the legislation requiring the scrubber was passed in 2006, the estimated cost was $250 million. At the time this seemed like a better option than shutting down Merrimack Station because the energy produced from burning coal was relatively cheap compared to other sources of energy.

Just two years later, PSNH admitted that its estimate for the scrubber cost had ballooned to $457 million. Meanwhile, the cost of natural gas had begun to drop. A coalition of New Hampshire businesses in 2009 asked the legislature to revisit whether the scrubber made sense before construction of the scrubber commenced. This effort was defeated based on PSNH’s assurances that even if the scrubber cost $457 million, the price of energy produced by Merrimack Station would be less than natural gas prices.

But in 2012 when PSNH asked the NH Public Utilities Commission to allow the company to start recouping the entire cost of the scrubber plus “a reasonable rate of return,” i.e. a guaranteed profit, from its ratepayers, the Staff of the PUC, several ratepayers, environmental groups, and the Office of the Consumer Advocate objected. 

The core of the argument made by the PUC staff and the Consumer Advocate was that PSNH had not been candid in 2008 and 2009, before construction began, to the PUC and the legislature about what the company knew then about the impact of falling natural gas prices on the economic viability of the scrubber.  The Consumer Advocate argued that the PUC should disallow a large portion of the scrubber costs, stating:

It is not known, however, how the Legislature would have responded to the information of large ratepayer losses. Nonetheless, PSNH must be held accountable for failing to adequately disclose key Financial Sensitivities of the Scrubber Project to decision makers; failing to study Scrubber Project economics throughout the construction period of the project; and failing to adequately keep decision makers informed of critical implications of changing economic and market conditions. 

The dispute about how much of the scrubber cost PSNH could collect from ratepayers was still raging in 2014 when PSNH, after 20 years of fighting against any requirement that it sell off its power generating plants, suddenly became interested in reaching an agreement to sell these assets, including the controversial Merrimack Station. A coincidence, no doubt.

This is how we got to the recent auction that resulted in $458.1 million of “stranded costs” that PSNH ratepayers will be required to pay as part of their monthly electric bills.

A settlement agreement was reached between PSNH and interested parties that was subsequently approved by the PUC and blessed by the legislature that established the terms of the auction and provided for PSNH recovering the entire cost of the scrubber, less $25 million.

Once the deal is fully consummated, the stranded cost recovery charge per kilowatt hour for PSNH customers will increase by a little under one dollar.

Remember, as discussed in a previous blog, there are several different components to electric rates. There are distinct rates for stranded costs, transmission costs, distribution costs, energy costs, and a few other items.

For customers who get their energy from PSNH’s default service, the increased stranded cost recovery charge will likely be offset by a reduction in the energy rate because the energy will no longer come from PSNH’s white elephant generating plants.  

However, there is going to be a big and unpleasant surprise for PSNH customers, mainly businesses, who have been buying energy from a competitive supplier. There is no offset to the increase in the stranded cost recovery charge for them.      

Given the Eversource track record in New Hampshire, is it really in the public’s best interest to grant Eversource siblings Northern Pass and PSNH a site certificate to construct and operate the 192-mile high voltage transmission lines and towers?

Which Northern Pass Sister Company Is in Hot Water Now?

Which Northern Pass Sister Company Is in Hot Water Now?

One of Northern Pass’s sister companies, the Massachusetts natural gas subsidiary of parent company Eversource Energy, may have manipulated the natural gas market, driving up the cost of electricity and natural gas to consumers in New Hampshire and other New England states by $3.6 billion over three years, according to a study by university researchers for the Environmental Defense Fund.

The study revealed that Eversource and another Massachusetts natural gas distribution utility routinely placed large orders for natural gas and then cancelled orders at the end of the day, too late for other companies to buy the excess natural gas, thereby artificially limiting supply and driving up prices.

Massachusetts Attorney General Maura Healey is reviewing the study, which her office called "concerning."

Naturally one of the many Eversource spokesmen calls the Environmental Defense Fund study a "complete fabrication" but Eversource did not dispute the finding that its subsidiary routinely reserves more natural gas than it needs and then cancels orders at the last minute.

It’s difficult to untangle the web of Eversource subsidiaries. The one that is the subject of the Environmental Defense Fund study is NSTAR Gas Company d.b.a. Eversource Energy. It is a wholly owned subsidiary of Yankee Energy System, Inc., which is a wholly owned subsidiary of Eversource Energy, the parent holding company.

It’s confusing. In New Hampshire we have Public Service Company of New Hampshire d.b.a. Eversource, a wholly-owned subsidiary of Eversource Energy, the holding company. We also have its sister, Northern Pass Transmission LLC, a wholly-owned subsidiary of Eversource Energy Transmission Ventures, which in turn is a wholly-owned subsidiary of Eversource Energy, the holding company. Then there’s Renewable Properties, Inc., which owns real estate in New Hampshire needed for Northern Pass and is another wholly-owned subsidiary of Eversource Energy Transmission Ventures.    

This tangled web presents possible conflicts of interest. As discussed in a previous blog, Northern Pass is one of the companies bidding on a RFP for wind and hydro power issued by the electric utilities in Massachusetts, including Western Massachusetts Electric Company d.b.a. Eversource, a wholly-owned subsidiary of Eversource Energy, the parent company. This Massachusetts Eversource subsidiary has 45 percent of the votes on the team evaluating the competing bids, but Northern Pass’s bid says we needn’t worry about the conflict of interest because “Eversource Energy has established separate teams for bidding and evaluation.  Each person involved with either team receives a copy of the Utility Standard of Conduct….”

Meanwhile, the Northern Pass route relies on leasing rights of way from its sister PSNH d.b.a. Eversource.  The New Hampshire legislature passed legislation in 2012 making it crystal clear that Northern Pass cannot take property by eminent domain. But PSNH d.b.a. Eversource can, and the rights of way it wants to lease to Northern Pass were acquired through eminent domain and easements purchased decades ago from people who wanted to help their neighbors get electricity. There’s no question that PSNH d.b.a. Eversource would never lease these rights of way to a company that was not a subsidiary of Eversource. Indeed, some people believe Eversource Energy purchased the bankrupt PSNH 25 years ago with the goal of one day using its rights of way to build a high-voltage transmission line to bring hydro power from Canada to New England.  
    
All of this raises the question of who will protect consumers from the tangled web Eversource continues to weave?

It’s Halftime at the Northern Pass Hearings. What’s the Score?

It’s Halftime at the Northern Pass Hearings. What’s the Score?

This week’s testimony from witnesses for Northern Pass will conclude at the Site Evaluation Committee. Witnesses for the Counsel for the Public and intervenors who oppose the 192-mile high voltage transmission line will begin to take the stand.  Northern Pass made its case – despite the massive adverse impacts on New Hampshire – that the project is just “too big to fail.”  Well, that’s not how we do things here in New Hampshire. Now it’s the people’s turn, those of us who will pay the bill and live with the consequences if this line is built.

Despite the fact that only witnesses who support Northern Pass have testified so far, public opposition to Northern Pass has grown by leaps and bounds. Thousands of people from across New Hampshire, not just the communities along the transmission route, have taken the time to submit written comments to the SEC opposing Northern Pass.   To date, comments opposing Northern Pass outnumber those supporting it by an overwhelming 12 to 1 ratio.  In fact, opponents to Northern Pass have dominated the four public statement hearings held by the SEC. More than 100 state legislators have come out in opposition. Petitions with 20,000-plus signatures opposing Northern Pass have been submitted to the SEC.   Business leaders, elected officials, Republicans and Democrats alike, all have united to say ‘No’ to Northern Pass.

Northern Pass’s biggest talking point for why New Hampshire should bear the burden of an enormous transmission line that would gash the state from the Canadian border to Deerfield - that it will lower our electric rates here – was undercut by its own economic expert, Julia Frayer. To the extent Northern Pass lowers electric rates, it will do that in all the New England states, not just New Hampshire, according to Frayer.   And that best case extent to which Northern Pass’s own expert says it will lower your electric rates?   Enough for a family to buy a cup of coffee per month.  A SMALL cup of coffee. 

The truth is, New Hampshire gets no special benefit from Northern Pass but will shoulder all the downsides of this 192-mile behemoth. According to Frayer, only half of the construction workers will come from New Hampshire and only two permanent direct jobs – just TWO JOBS - will be created in the state.  And that best case scenario Northern Pass’s expert presented, saying rates will be reduced enough to get you that extra small cup of coffee?   Well, soon we will hear from the economist for the Counsel for the Public that at best the reduction will be less than one third of a cent per kWh.  Now we’re literally talking savings to buy penny candy with.  Under questioning from the Chair of the SEC, Frayer begrudgingly admitted that almost all of the economic benefits she claimed for Northern Pass would disappear if another hydro project came on line first.

In order to get a site certificate from the SEC, Northern Pass must prove that it will not have an unreasonable adverse effect on aesthetics, historic sites, air and water quality, the natural environment, and public health and safety in New Hampshire. Northern Pass also must prove that it will not unduly interfere with orderly development. Their expert witnesses fumbled the ball again and again in making their case.  A few highlights from their testimony of its expert include the following facts:

  • Its safety expert did not know how close the transmission line would be to homes and a playground in Concord;
  • There is no written plan yet for how traffic would be managed while the transmission line is built and one won’t be prepared until after the SEC hearings end;
  • If the buried portion of the line can’t avoid disturbing gravesites, Northern Pass will move the graves;
  • Northern Pass already has asked the state Department of Transportation for nearly 200 exceptions to conditions imposed by the DOT;
  • Its environmental expert testified that NH Fish & Game will be responsible for managing the replacement of damaged rare species, while admitting they have no idea how much it will cost and that they have no agreement with NH Fish & Game;
  • Northern Pass still hasn’t provided the DOT with required boundary surveys;
  • Its historic preservation expert didn’t speak with any local historic commissions;
  • The company rejected the recommendation from its visual impacts expert that he survey the public about reactions to visual impacts from the lines and towers; and
  • Their tourism ‘expert’ from 3000 miles away somehow concluded that building enormous transmission towers somehow won’t impact tourism in New Hampshire.

It’s clear there will be countless adverse impacts from Northern Pass, but their experts concluded that because the project is 192 miles long, none of the various harms to New Hampshire jobs, economy and environment are unreasonable because…wait for it… the project is 192-miles long.

It’s a twist on “too big to fail” - if you propose a big enough project, the SEC must approve it.

That’s the case Northern Pass made with its witnesses for six months, and for six months Protect the Granite State has joined so many thousands of others in throwing the flag on this disastrous proposal. We now look forward to hearing the opposition make its case in chief against Northern Pass. 

So Many Alternatives to Northern Pass

Supporters of Northern Pass generally rely on two arguments for the 192-mile high voltage transmission line that will run through New Hampshire from the Canadian border to Deerfield. We need the power and we need to lower electric rates, they say. Putting aside for the moment that it is Massachusetts that needs the power, not New Hampshire, and that even Northern Pass’s economic expert projects a very small reduction in electric rates, it is clear from the responses to the Massachusetts Clean Energy RFP that there are many alternatives to Northern Pass being proposed in New England that would provide additional power and provide the same minimal reduction in electric rates. 

 As previously discussed on this blog, the New England Clean Power Link transmission project in Vermont would bring the same amount of hydro power from Canada, has a much lower estimated price tag, and is fully permitted, which means it could break ground much, much sooner than Northern Pass. Central Maine Power is also proposing a transmission line to bring hydro power from Canada to New England, and Emera has proposed an undersea transmission cable to bring hydro power from Canada.  

There are also a number of proposals to bring more wind power to New England that have been submitted in response to Massachusetts RFP.

It’s hard to understand why anyone, other than Eversource Energy, a Connecticut company, would think it’s in New Hampshire’s interest to have a new 192-mile high voltage line scar New Hampshire when we can get the same energy supply and rate benefits, however modest, from transmission projects in other states. 

It’s hard to understand why anyone, other than Eversource Energy, a Connecticut company, would think it’s in New Hampshire’s interest to have a new 192-mile high voltage line scar New Hampshire when we can get the same energy supply and rate benefits, however modest, from transmission projects in other states. 

But if there is someone who sees an advantage to New Hampshire hosting a high voltage transmission line project, let’s take a look at National Grid’s Granite State Power Link proposal to bring wind power from Canada to New England by primarily upgrading its existing high voltage transmission line in New Hampshire.

Granite State Power Link would deliver 1,200 megawatts of power from Canada to New England. Northern Pass would deliver 1,000 megawatts. 

The tallest Granite State Power Link transmission towers would be 100 feet high, shorter than the existing Grid transmission towers in the same spots that are 110 feet. Mainly Granite State Power link intends to increase existing towers from 60 to 80 feet, again in the same place that existing Grid towers are 110 feet. In contrast, the tallest Northern Pass towers will be 165 feet high and every single one of its towers will be significantly taller than the PSNH towers in the same transmission corridor.   

Both have agreements with the IBEW to employ some New Hampshire union members during their construction phases.

Granite State Power Link estimates its cost at $1.1 billion. Northern Pass two years ago estimated its cost at $1.6 billion.

 A study by the Brattle Group commissioned by Granite State Power Link found the amount of reductions in greenhouse gas emissions it would achieve dwarfs the amount Northern Pass would achieve. For some reason Northern Pass’s argument that its analysis of GHG emissions is confidential has been accepted by the N.H. Site Evaluation Committee and the architects of Massachusetts RFP (note: Eversource is the largest electric utility in Massachusetts and has the most members of the RFP evaluation team) so the public doesn’t have access.   
      
So, compared to Northern Pass, Granite State Power Link would deliver more power, have little visual impact, cost $500 million less, and could achieve a higher reduction in greenhouse gases. 
 

Topsy Turvy Land: The SEC and Northern Pass

Topsy Turvy Land: The SEC and Northern Pass

“There’s strength in numbers,” we’re told. “The more people on your side, the better,” right? That’s true in just about everything we do, but not in the Site Evaluation Committee’s hearings on whether Northern Pass should be granted a site certificate. There the process is skewed against you if you are one of the many parties opposing Northern Pass.

Last week the chair of the SEC issued an order requiring the parties opposed to Northern Pass to tell the SEC and Northern Pass’s attorneys now in writing what questions the party will ask in cross-examination of witnesses appearing for the other parties opposing Northern Pass, some of whom won’t take the stand until the end of December. The chair will decide whether or not the questions can be asked.

Northern Pass has been asking the SEC to issue an order like this for months.  The first time back in March the chair of the SEC rejected this unreasonable request, explaining that he would address repetitive questioning with a different course:

We encourage the parties to bring to the Subcommittee's attention any cumulative, redundant lines of inquiry that add nothing new to the record. If such an objection is made during the adjudicative hearing, the party conducting the examination should expect to be asked to explain why its line of questioning should be allowed. A ruling will be made after considering the arguments of the parties as applied to each line of questioning and after considering the subject matter and purpose of the questioning.

That was a reasonable and fair order.

But recently the SEC has faced biting public criticism from Gov. Chris Sununu and other powerful interests who support Northern Pass about the process taking longer than expected. This criticism is uninformed and misplaced. From what the Governor and others have said, you’d get the impression that the members of the SEC are sitting around just talking among themselves month after month, delaying a decision because of their dithering. This is plain wrong.

What’s going on is a trial, with witnesses who appear and get cross-examined. It’s about a 192 mile transmission line from the border of Canada to Deerfield. There are 153 intervenors who oppose granting a site certificate to Northern Pass. Northern Pass has the burden of proof and so its witnesses appear first. Even if Northern Pass’s witnesses were cooperative and forthcoming, it would take a long time to get through their witness list, but they’re not. I’ve attended a good number of the evidentiary hearing days and I don’t think I’ve seen Northern Pass’s expert witnesses once give a yes or no answer to a yes or no question if the answer would be detrimental to Northern Pass’s case. Instead they filibuster and obfuscate, requiring the examiner to ask the question over and over and over until they get a direct answer or just give up and move on to another question.        

Things would be going a lot faster if Northern Pass’s witnesses gave direct answers and if Northern Pass had filed a complete application in the first place. The Governor should direct his criticism at Northern Pass, but he didn’t and won’t.

So the SEC chair decides to show he’s trying to speed things up by limiting the cross examination that parties opposing can ask of each other’s witnesses.  Unless you can explain now how a particular witness’s testimony is hostile to your position or how what you would ask will add something new to the SEC members’ understanding of the issues, you can’t ask questions.

His order is unfair and unreasonable and violates the due process rights of the parties in opposition.

First off, these restrictions were not imposed on the tiny number of parties who intervened on the side of Northern Pass. They were allowed to ask friendly questions of Northern Pass’s witnesses. The chair of the SEC has a lot of discretion in how he manages SEC proceedings, but he doesn’t have the discretion to apply different rules to different parties. This will be a significant appellate issue if the SEC grants Northern Pass a site certificate.

Second, it is unreasonable to require parties to predict now whether an otherwise friendly witness taking the stand in December will say something hostile to their interests when subjected to withering cross-examination by one of Northern Pass’s stable of lawyers. It’s also quite possible that a friendly witness might make an unanticipated point about impacts on one community that could apply to your community and you need to ask a couple of questions to draw that out. In both of these situations, the party will be precluded from asking questions unless they have psychic abilities to predict the future. This requirement is particularly unfair to the many intervenors who can’t afford an attorney and are appearing pro se at the SEC hearings.

There are other due process issues raised by this order, such as normally you’re not required to give your opponent a heads-up about what questions you’re going to ask a witness.

This order would not have been issued if there were only five intervenors opposing Northern Pass. This restrictive, unfair order is being imposed only because Northern Pass poses such a threat to so many parts of New Hampshire that there are 153 intervenors opposing Northern Pass at the SEC.  So, perversely, with this order Northern Pass is actually benefiting from generating so much opposition. That doesn’t make sense. The SEC should reconsider this ill-conceived order.          

The Legislature Should Bar Northern Pass from Tearing Down People’s Stone Walls

The Legislature Should Bar Northern Pass from Tearing Down People’s Stone Walls

Five years ago the New Hampshire legislature passed a law shutting down Northern Pass’s ability to use eminent domain. Now it needs to act as soon as possible to make it clear Northern Pass has no right to tear down people’s stone walls, fences and other property to build its transmission line. 


Recognizing that the Northern Pass transmission line is not a typical utility transmission line – but rather a merchant energy venture intended to benefit the bottom line of Connecticut and Canadian companies Eversource Energy and Hydro Quebec – the legislature, with overwhelming bipartisan support, passed a bill in 2012 making it clear that eminent domain could not be used for a project like Northern Pass. 


That action closed the door on one way Northern Pass could take private property away from people.


But there’s a backdoor way Northern Pass might still be able to take people’s stone walls, fences, trees, shrubs and even houses, and the legislature needs to close that door, too.  
Northern Pass would like to bury some of its 192-mile high voltage transmission line under state roads. The state Department of Transportation has given Northern Pass preliminary approval to do that, with 50 conditions, including the line cannot be buried under the paved part of the roads and Northern Pass must provide a survey meeting NHDOT’s standards establishing the boundary lines of these roads.

As has been reported, Northern Pass still hasn’t produced the survey and many landowners believe the Northern Pass burial route actually passes through their private property, not the state road right of way. One way or another, those boundaries will probably be determined, and because of the legislature’s action five years ago, Northern Pass will not be able to tear down any property outside the state’s right of way.

But what about the people who have stone walls, fences and other property on land they have always believed they owned but it turns out the state owns the land? Can Northern Pass tear down those walls and fences? 

There’s a long-established legal concept known as adverse possession. If person A has plainly and openly used person B’s land for more than 20 years, for a stone wall, for example, and person B never objected to that use, then person B can’t come along now and legally remove the stone wall.

Person B can’t, but the State of New Hampshire can. If NHDOT needed to widen Routes 18, 112 and 116 to make them safer for cars and trucks, it could take down someone’s stone wall or fence even if it’s been there for 30 years. It should be noted that stone walls deemed historic get special protections, but non-historic stone walls are fair game.  

It’s not clear that a private company like Northern Pass can take advantage of the government’s exemption from the adverse possession doctrine and tear down someone’s fence or stone wall, even if NHDOT has given the company permission to bury its transmission line under the state’s right of way, but you can bet your house Northern Pass will take the position that it can do so with impunity.

The legislature should act swiftly when it returns in January to make it absolutely clear that Northern Pass has no right to tear down any privately-owned stone wall, fence, tree, shrub or other property. 

Last Chance

Last Chance

The N.H. Site Evaluation Committee - which will decide whether Northern Pass can be sited in our state - has added a fourth and final public statement hearing for August 30 from 5 pm to 8 pm at 49 Donovan Street in Concord.

This is your opportunity to tell the members of the SEC about why you oppose Northern Pass. And to make it impossible for Northern Pass to pretend you don’t exist. As discussed in my blog last week, Northern Pass actually suggested it was not aware of any opposition in the bid it submitted for the Mass Clean Energy RFP.

Please sign up to speak by emailing marissa.schuetz@sec.nh.gov.

The SEC needs to hear from you in person why Northern Pass is wrong for New Hampshire.

This is your last chance to appear before the SEC in person. To reserve a speaking slot you need to email marissa.schuetz@sec.nh.gov. no later than August 21.

Your voice does matter.

Significant Omissions in Northern Pass Bid in to Massachusetts Clean Energy RFP

Significant Omissions in Northern Pass Bid in to Massachusetts Clean Energy RFP

Countless taxpayer dollars and the resources of nonprofit organizations, businesses, and scores of individual people are being expended in Concord on the Site Evaluation Committee proceedings to determine whether Northern Pass Transmission will be granted a site certificate in New Hampshire, but the fate of Northern Pass may actually be decided in Massachusetts.

It’s widely understood that Northern Pass will not go forward unless its bid in response to the Massachusetts Clean Energy RFP is successful. Even Lee Olivier, executive vice president of Eversource Energy, reluctantly admitted in the company’s recent quarterly investors' call that if they don’t win the Mass RFP they would have to sit down with Hydro-Quebec and decide whether to proceed with Northern Pass.

And there are serious deficiencies in the bid proposal submitted by Northern Pass, including significant omissions.

Hydro-Quebec Hedging Its Bets

Hydro-Quebec certainly isn’t putting all of its eggs in the Northern Pass basket. Along with its joint bid with Northern Pass, the Canadian hydro power producer also submitted competing bids in response to the Mass RFP with two other transmission line developers, TDI in Vermont and Central Maine Power in Maine. The details of all of the bid proposals can be found here.

While all of the proposals are heavily redacted, with the bid prices and other financial information kept from the public, the proposals are still quite revealing.

Shovel Ready?

Though Northern Pass claims its transmission line is “shovel ready,” the company admits not only does it not have a Presidential permit or the SEC site certificate, it also lacks necessary easements and permits from the Army Corps of Engineers and a special use permit from the U.S. Forest Service. In contrast, TDI in Vermont has already secured all of its necessary permits.   

Site Control

And while Northern Pass dances around whether it has site control over its proposed transmission route (it doesn’t, and litigation is anticipated over its lease of rights of way from sister Eversource company PSNH, though they don’t mention that possibility), TDI does have complete site control over its planned route.

Conflicts of Interest

As discussed in a previous blog, one advantage Northern Pass has over TDI and Central Maine Power is representatives of two of its sister Eversource companies are members of the team that will evaluate bids. Its proposal states we need not worry about this conflict of interest, though, because “Eversource Energy has established separate teams for bidding and evaluation.  Each person involved with either team receives a copy of the Utility Standard of Conduct….” Very comforting, don’t you think, particularly since another section of the proposal argues that the fact it’s all one big Eversource family is a strength:  “Eversource Energy will participate in the Project through NPT, an indirect wholly owned subsidiary of Eversource Energy.  NPT has access to Eversource Energy's financial resources.  Similarly, most personnel involved in managing NPT are employees of a service company affiliate of Eversource Energy.”

Lying by Omission

But for anyone following the Northern Pass saga in New Hampshire, the most vexing part of its proposal is its claim of broad support in the state and its failure to mention any opposition, despite the fact that section 7.4 of the RFP expressly requires bidders to “[i]nclude information on specific localized support and/or opposition to the project of which the bidder is aware.”

Are we to believe Northern Pass Transmission executives are not aware that municipalities and local commissions up and down the route, scores of individuals appearing pro se, and environmental groups are actively opposing Northern Pass before the SEC?

Not aware that written public comments submitted to the SEC are running 12 to one against Northern Pass?

Not aware that people who showed up to speak at the three public statement hearings held by the SEC were overwhelmingly opposed to Northern Pass?

Not aware that more than twenty thousand signatures in opposition to Northern Pass have been presented to the SEC?

And the company couldn’t even be fully transparent in describing support for Northern Pass.

Take Les Otten, for example. Eversource must think the evaluators are impressed by Les Otten, because his support is touted prominently and more than once in the bid proposal, though he’s probably best known in Massachusetts for his cringe-inducing behavior as a short-lived minority owner of the Red Sox: “His sometimes-clumsy attempts to involve himself in team governance - arriving uninvited for management meetings, and even showing up at spring training in full Red Sox uniform to take grounders from Johnny Pesky - made him persona non grata, and his eventual severance from the team was awkward and a bit messy.” (Red Sox Confidential, Doug Bailey, Boston Magazine, January 2012)  

In any case, neither the text of Northern Pass’s bid proposal or the attached letter from Mr. Otten bother to mention that he has been the major beneficiary to date of the company’s so-called Forward NH Fund, receiving millions in loans from the fund for his plan to redevelop The Balsams in Colebrook.

Given the level of lying by omission in its proposal, one wonders whether Northern Pass should be disqualified from bidding on the Massachusetts Clean Energy RFP. Certainly the bid evaluators should be made aware of the deep opposition to Northern Pass across New Hampshire.

Northern Pass Worried It Won’t Provide A Net Benefit to New Hampshire

Northern Pass Worried It Won’t Provide A Net Benefit to New Hampshire

Eversource NH and Northern Pass Transmission seem to have serious doubts about whether the 192-mile transmission project would provide a net benefit to New Hampshire. Why else would the two Eversource subsidiaries vociferously argue in a 16-page motion filed with the Site Evaluation Committee that the SEC should not consider whether Northern Pass would provide a net benefit in determining whether to grant a siting certificate?

One of the four findings the SEC must make in order to grant Northern Pass a certificate is that it “will serve the public interest.” RSA 162-H:16,IV(e).  The Eversource companies are actually contending that the SEC can only look at the positive benefits of Northern Pass in making that determination and that the committee cannot consider any of its negative impacts.

It’s easy to understand why the Eversource companies desperately want the SEC not to use a net benefits test to determine whether Northern Pass is in the public interest. After all, even their own economist recently testified that Northern Pass would only reduce electric rates by half a cent, and the best-case scenario in a report by the economist for the Public Counsel showed Northern Pass would only reduce rates by .28 of one cent. As I explained in a previous blog, that would save me a little over one dollar a month. When you weigh that against the damage Northern Pass will do to New Hampshire’s scenic special places, threatened and endangered species, and our tourism industry, it is kind of difficult to see how a net benefit would be derived from Northern Pass.  

The Public Counsel makes the legal case for why the SEC can and should apply a net benefits test in its objection to the Eversource companies’ motion.

If you think about it, it’s really just common sense.

At some point in all of our lives when we’ve faced a big decision like whether to accept a job offer or quit a job or move to a new place, we’ve pulled out a piece of paper and made two columns, one for the pluses and one for the minuses.  You list the pluses and minuses, consider them, and then you decide whether it’s in your interest to decide one way or the other. You don’t just look at the pluses – but that’s what the Eversource companies want the SEC to do.

Northern Pass just isn’t worth it. And Eversource apparently knows that.

Guest Blog: DOT Should Follow the Law for Northern Pass Burial Route

Guest Blog: DOT Should Follow the Law for Northern Pass Burial Route

By Nancy Martland, Sugar Hill

When Northern Pass announced its intent to bury a 52 mile segment in and around the White Mountains, property owners along the new route faced a rude awakening.

In a stunning move, Northern Pass chose not to use the obvious corridor, Route 93, now a state-designated energy infrastructure corridor. It elected instead to use a torturous route along small state roads, many of which are scenic byways winding through wild countryside, farms and fields, and historic town centers.

We can only speculate upon the reason for this choice. Perhaps Northern Pass selected this route in order to avoid paying our state a lease fee for use of Route 93, a fee which could be used for highway maintenance.

Whatever the reason, the selection of smaller state roads has been fraught with challenges that would be absent in the Route 93 corridor.  Smaller roads such as Route 116 in Franconia and Easton are simply too narrow to accommodate burial of HVDC lines without encroachment upon private property.

Direct burial can be used along wider, limited access corridors such as interstate highways – a 4 foot wide trench dug 4 feet deep, with cable laid directly in the ground covered by heat-dissipating sand with a thin concrete warning layer. Smaller roads with narrow shoulders necessitate a more intrusive type of burial involving deeper trenches and beefed-up duct banks in concrete casing.  It would be just about impossible for an HVDC line to be buried in this fashion using a road easement right of way narrower than four rods (66 feet.)

In both cases, the area above buried installations will need to be a “no-fly zone." For private property owners whose land abuts the buried line, not only would Northern Pass have the right to remove trees, walls, fences and other features, but homeowners would be prohibited from ever replacing them. Property owners would involuntarily lose the use of their land near these installations.

So, here’s the rub.  New Hampshire roads are tricky. They are not usually owned outright by the state but depend on easements on private land stretching back in some cases to the 1700s. The state’s easement rights to its roads vary greatly. The width of the right of way is not standard and is often not clearly established. Northern Pass and DOT have both known from the start that significant portions of the proposed underground route are of undetermined width. 

This is true for Route 116 in Franconia and Easton, for example. This country road is lined with old stone walls, large trees, farm buildings and homes that are very close to its edge.  Northern Pass has submitted a survey claiming the right of way width of four rods that it needs in order to install its line, which will involve removal of walls and trees, lawns, fences and gardens that private property owners believe are outside of the right of way. In some cases NP’s line goes through homes. Usage and the historic record indicate widths of only two rods (33 feet) over significant segments of the route.

Statute (RSA 228:35) outlines a process for the DOT Commissioner to reestablish undetermined boundaries. It includes notification of property owners and an opportunity to petition for redress of grievances if the determined easement width is disputed. This procedure has not been followed. Apparently, DOT has chosen instead to accept Northern Pass’s determination of a uniform sixty-six feet width. The department seems poised to subject property owners along Route 116 to a taking of their land without proper procedures taking place.

Northern Pass has applied pressure to a number of state regulatory agencies to get what it wants. The NH Department of Transportation should resist the pressure to accept a survey advantageous to the project, supplied by the project, and follow New Hampshire statute to determine fairly the relevant road easement widths. To do otherwise involves the state in a questionable taking of private citizens’ land, because in 2012 the legislature ruled that elective projects like Northern Pass have no right to eminent domain, whether the Public Utilities Commission overtly grants it, or, as would be the case here, the DOT tacitly facilitates it. 

Is the Massachusetts Clean Energy RFP Rigged for Northern Pass?

Is the Massachusetts Clean Energy RFP Rigged for Northern Pass?

Last year Massachusetts enacted a law requiring the state’s electric utilities to enter into long-term contracts for the purchase of wind, hydro and solar power, and a few months ago the Commonwealth and its utilities issued a Request for Proposals (“RFP”).   

This well-intentioned law has the goal of increasing the use of renewable energy in Massachusetts and achieving reductions in carbon emissions. However, the statute built serious conflicts into the selection process.

A basic principle of government procurement is that the decision makers need to be impartial and fair. However, under the Massachusetts law, companies can be both part of the team evaluating bids and bidders as well!

Eversource Massachusetts – a subsidiary of Eversource Energy – is one of the utilities that will judge the proposals submitted in response to the RFP. Meanwhile, Northern Pass Transmission, which is wholly-owned by another subsidiary of Eversource Energy, is planning on submitting a bid. While employees of Eversource Massachusetts are prohibited from directly discussing the RFP with employees of Northern Pass, it’s impossible to erase from the judges’ minds the fact that a sister subsidiary is bidding on the RFP.  Notably, in a quarterly earnings call in February, Lee Olivier, executive vice-president of Eversource Energy, stated, “We will bid Northern Pass into a clean energy RFP that Massachusetts will be running in the spring” and “Northern Pass is very well-positioned for this RFP.” It’s all one company, folks. If you have any doubt of that, read the transcript of the Eversource Energy quarterly earnings call.

What makes a bidder “very well-positioned for this RFP”?

Another hydro transmission project, the New England Clean Power Link, which will be fully buried in Vermont, is also expected to bid into the Massachusetts RFP. Its estimated cost of $1.2 billion is $400 million less than the estimated cost of Northern Pass. It has all of its federal and state permits, which Northern Pass does not. On the surface, you’d expect its bid to score higher than a bid made by Northern Pass. Significantly less expensive, fully permitted, same type of power – it would seem to be a much better deal for the Massachusetts ratepayers who will bear the cost of any procurement contracts. But, TDI, the owner of the New England Clean Power Link may be missing that intangible advantage - it doesn’t own an electric utility in Massachusetts, which may mean it isn’t “very well-positioned for this RFP.”

Earlier this year Eversource New Hampshire unsuccessfully attempted to get the Public Utilities Commission to approve a no-bid contract to buy power from its sister subsidiary, Northern Pass.  This type of self-dealing no doubt benefits the shareholders of Eversource Energy, but it doesn’t serve the interests of ratepayers.  It’s time to put an end to it.

Northern Pass: About those Jobs

Northern Pass: About those Jobs

Listening to the economic expert for Northern Pass testify at the Site Evaluation Committee hearings during the last two weeks, I got to thinking: why doesn’t the company ever talk about what Northern Pass will do for individual businesses? Here’s why: Northern Pass will do very little to help individual businesses in New Hampshire create jobs, and it’s almost impossible to imagine the business that would decide to relocate to our state because of Northern Pass.

Under cross-examination at the SEC last week, Julia Frayer, the economic expert for the company, testified that Northern Pass on average would provide residential, industrial and commercial consumers using 300 kWh/month of electricity savings of about $1.50 on their monthly bill.  That translates to a rate reduction of one half of one cent.

Keep in mind that the economic expert for the Counsel for the Public found it’s likely that at best Northern Pass would reduce rates by about half that amount, but I’ll use Northern Pass’s much higher number to look at how it will impact individual businesses.     

With Northern Pass, an industrial consumer on average would save $251.68 a month based on the average monthly industrial consumption of 50,377 kWh in New Hampshire. That’s $3,020.22 year. Even a small amount of savings is a good thing, but, let’s face it, no manufacturer can hire someone for an annual salary of $3,000.  

What if the manufacturer used ten times as much electricity as the average? Then they’d save $30,202 a year, but in New Hampshire that’s not enough to hire even one electronic equipment assembler (average NH salary $34,060) or one machinist ($46,150), never mind a mechanical engineer ($87,040). And those figures are just salaries, no benefits factored in.

How about commercial consumers like retail stores, offices and restaurants? They’d save $17.68 a month at the average monthly consumption of 3,536 kWh in New Hampshire or $212.15 a year.

What if the retail store or office or restaurant used 50 times as much electricity as the average? Then they’d save $10,607.50 a year, not enough to hire one retail salesperson (average NH salary $27,490) or one secretary ($34,770) or one fast-food cook ($20,240).

How about a really big grocery store? At the SEC public hearing last week the president of the NH Grocers Association said a 60,000 square foot supermarket pays about $450,000 for electricity every year. Northern Pass would lower a big grocery store’s yearly electric bill by about $22,500, just about enough to hire a cashier (average NH salary $21,400) as long as the store doesn’t provide any benefits to its employees.

And, don’t forget, if the Public Counsel’s expert is correct, the savings are about half as much for these different businesses.

With the modest amount of savings Northern Pass’s economic expert said it would provide, it is very hard to picture the business that would relocate to New Hampshire because of Northern Pass, especially since the one-half-of-one-penny rate reduction would occur throughout New England. So, if you’re trying to decide between locating in Massachusetts or Connecticut or New Hampshire, the rate impact of Northern Pass just wouldn’t be a factor. And, sadly, with its 192 miles of transmission lines and towers cutting through New Hampshire and New Hampshire only, we would lose some of the natural-environment advantage we have over those two states.