Two decisions this summer may determine the fate of the 192-mile Northern Pass transmission line. The Supreme Court is expected to issue its ruling on Northern Pass and Eversource’s appeal of the Site Evaluation Committee’s (“SEC”) unanimous vote last year to deny Northern Pass a site certificate, and the Executive Council is expected to approve Gov. Chris Sununu’s surprise nomination of SEC chair Martin Honigberg to the Superior Court. Each of these could have a profound impact on the future of Northern Pass.
Under New Hampshire law the chair of the Public Utilities Commission (“PUC”) automatically also serves as the chair of the SEC. Honigberg was appointed chair of the PUC in December 2013 and his term expired at the end of June. No one expected Gov. Sununu to nominate Honigberg to another term as chair of the PUC and SEC, not because Honigberg hadn’t done a good job as chair, but because Gov. Sununu was believed to want a new chair who would be friendlier to utility interests.
That Gov. Sununu chose to nominate Honigberg to the Superior Court is proof that even the governor, the most prominent cheerleader for Northern Pass, recognized that Honigberg had done an outstanding job presiding over the complicated and controversial Northern Pass proceedings.
The SEC is a quasi-judicial body, with procedures much like those of a trial court and the duty to objectively evaluate facts and make legal conclusions based on the evidence.
Presiding over the Northern Pass case Honigberg demonstrated all of the qualities you want in a trial judge. He was patient and respectful to all the parties, including the dozens of citizen intervenors who were not represented by attorneys. His rulings on procedural issues were fair. I attended many of the 70 days of adjudicatory hearings and at the time thought he bent over backwards to accommodate the attorneys for Northern Pass and Eversource, ruling in their favor more often than not. In retrospect, given that the SEC ultimately denied Northern Pass a site certificate, Honigberg’s procedural rulings for Northern Pass and Eversource gave the companies little valid grounds for appeal. He clearly mastered both the complicated procedural issues and dense subject matter, demonstrating his impressive intellect.
Besides recognizing Honigberg’s judicial qualities, Gov. Sununu no doubt had an ulterior motive for nominating Honigberg to the Superior Court. In the event the Supreme Court this summer rules in favor of Northern Pass and Eversource and sends the case back to the SEC for further review, the governor wants someone more friendly to the companies running the SEC. Even if he was not nominated to for a second term as chair the PUC and SEC, Honigberg could have remained in holdover status for six months if a new chair was not approved by the Executive Council. Opponents of Northern Pass already had plans to mobilize the grassroots to urge Council members to keep Honigberg in holdover as chair. By nominating Honigberg to the Superior Court, Gov. Sununu eliminated that possibility.
Of course, if the Supreme Court affirms the SEC’s denial of a site certificate our long Northern Pass nightmare will be over, and Honigberg’s absence from the SEC won’t affect Northern Pass.
The consensus of Supreme Court watchers was that the May 15th oral arguments went well for the Northern Pass opposition. With the usual caveat that you shouldn’t read too much into the questions Justices ask during oral arguments, it appeared that at least three of the five Justices were very skeptical of the arguments the attorney for Northern Pass and Eversource was making.
So knock on wood that the Supreme Court gets it right. But don’t get too giddy if it does. Eversource executives already have hinted they might file a revised application for a transmission line from Canada if they don’t get their way on Northern Pass.