“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.