The appeal of the Site Evaluation Committee’s (SEC) decision to deny a site certificate to Northern Pass entered a new phase last week when five legal briefs and two memoranda of law were filed with the New Hampshire Supreme Court from parties opposing Northern Pass in response to the brief filed by Eversource and Northern Pass in February.
It is difficult to imagine any reasonable person who has read these briefs and memos of law believing the SEC’s decision should be overturned.
The crux of the problem for Northern Pass and Eversource is that they chose to present an implausible case to the SEC. They contended that 192 miles of high voltage transmission lines and towers running through 32 different towns and cities would have no impact on property values, tourism or land use.
The real beef Northern Pass and Eversource have with the SEC is the factual findings made by the SEC, but since their lawyers know that just last year the New Hampshire Supreme Court again stated it will not second-guess the SEC’s evaluation of the credibility of witnesses and other evidence, they contrived three weak legal issues – 1) the SEC is required to craft mitigating conditions to save a project; 2) the SEC created a new burden of proof and imposed arbitrary standards; and 3) the SEC applied vague terms violating due process.
The briefs and memos filed by the opposing parties shred all three claims.
The crux of the problem for Northern Pass and Eversource is that they chose to present an implausible case to the SEC. They contended that 192 miles of high voltage transmission lines and towers running through 32 different towns and cities would have no impact on property values, tourism or land use. In its 287- page order denying the certificate and its 68-page order denying the companies’ motion for a rehearing, the SEC stated over and over that their expert witnesses were simply not credible.
Their property values expert claimed that only a handful of properties along the 192-mile route would lose any value. Their tourism expert claimed tourism would not be affected at all. Their land use expert claimed even 300 foot towers would not impact local land use plans and that the concerns expressed by municipal officials were irrelevant.
Had Northern Pass presented a plausible case about the real impacts it would have on property owners, small businesses and land use and concrete proposals for how to mitigate those impacts and reimburse affected people for their losses, they may well have been granted a site certificate by the SEC. But they wanted to do this project on the cheap.
“The Applicants took a gamble and lost,” the brief filed on behalf of McKenna’s Purchase, a condo association in Concord that abutted the proposed route, stated. “In the end, the Applicants played a cynical game of dice and lost. In an effort to minimize their mitigation costs, they bet that the SEC would accept the opinion of Chalmers (Northern Pass’s property values expert) that the Project would have no discernible effect on property values. The SEC did not find Chalmers’ opinion to be credible. This created a void since the Applicants had relied exclusively on Chalmers and had not proposed or created a record necessary to fashion an alternative mitigation plan.”
Arbitrary standards? Nope. The Counsel for the Public emphasized that “[t]hroughout their brief, Applicants rely heavily on cherry-picked statements by individual Subcommittee members during deliberations to paint a picture of alleged arbitrary decision-making…. [T]he cherry-picked comments from deliberations and selected phrases from the Order do not demonstrate the application of new standards; rather, they represent the Subcommittee’s attempt to explain the flaws in Applicants’ expert testimony. The Subcommittee was forced to contend with experts who stubbornly held to non-credible opinions and refused, even in the face of contrary evidence, to acknowledge that the 192-mile Project could have any significant impacts.”
A new burden of proof? Nope. The brief for the Society for the Protection of New Hampshire Forests concisely disposed of that claim: “Appellant also argues the Subcommittee created a new burden of proof relative to the views expressed by municipalities and arbitrarily deferred to their opinions. However, the statute and regulations plainly require the Subcommittee to give “due consideration” to “the views of municipal and regional planning commissions and municipal governing bodies” RSA 162-H:16, IV(b)…. Therefore, this obligation is not a new standard; rather, it is a legal requirement the Subcommittee could not lawfully ignore.”
Eversource’s claim that terms like “region” were too vague? Baloney. “NP was not denied its certificate because NP could not understand the quantum or type of proof required. NP was denied relief because its absolutist proof was not credible,” explained the Memorandum of Law filed on behalf of a number of individual property owners.
Affirming the SEC’s comprehensive and well-reasoned decision should be a no-brainer for the Supreme Court. Will it be?