The next shoe to drop on Northern Pass’ struggling proposal to build a system of massive transmission towers and line across New Hampshire could be a Public Utilities Commission decision that PSNH cannot lease its transmission corridors to Northern Pass.

Most of the 192-mile route Northern Pass has proposed relies on leasing rights of way PSNH obtained over many decades through eminent domain takings and easements it purchased from private property owners. The problem for Northern Pass Transmission LLC is it may have no legal right to use this property, and that issue is now pending in an open PUC docket.

New Hampshire’s restrictive eminent domain law is not on Northern Pass’s side. 

In 2012 the legislature, in response to concerns that Northern Pass might try to take property by eminent domain, passed legislation to make it clear property could not be taken for a private merchant energy project like Northern Pass. Just a few years earlier the people of New Hampshire voted to include in the state constitution very strong language to protect people from having their property “taken by eminent domain and transferred, directly or indirectly, to another person if the taking is for the purpose of private development or other private use of the property.” It’s hard to argue that PSNH leasing its rights of way to Northern Pass is not an indirect taking of private property for private development in clear violation of N.H. Constitution Part I, Article 12-a and RSA 371:1.

As for PSNH leasing to Northern Pass rights of way it purchased from private property owners, let’s simply consider the fact that PSNH itself took the position a few years ago that these rights couldn’t be leased to a third party when a telecommunications company merely wanted to lease space on PSNH utility poles for fiber optic cables. PSNH argued then to the PUC that adding cables from a third party to existing PSNH poles would be an impermissible burden on the underlying owners of the property.

How times have changed. Now PSNH argues to the PUC that it would be no burden at all for a third-party – Northern Pass – to construct massive transmission towers and lines on these rights of way. Certainly the underlying property owners consider it an unacceptable burden, given how many of them have intervened in the PUC proceeding to object to the leases.

The PUC hasn’t set a date for when it will rule on the legality of these leases, but when it does I expect it will send Northern Pass back to the drawing board to design a whole new transmission route.