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.
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.