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What Is Northern Pass? Northern Pass is a proposal to run 192 miles of new power lines from Canada, through northern New Hampshire, south to Concord, and then eastward to Deerfield. The project is a collaboration between Eversource (previously known as Public Service of New Hampshire) and Hydro-Quebec, which is owned by the provincial government of Quebec. The utilities say the $1.6 billion Northern Pass project would transport 1,090 megawatts of electricity from Quebec – which derives more than 90 percent of its power from hydroelectric dams – to the New England power grid.The ControversyNorthern Pass has proved an incredibly controversial issue in New Hampshire, especially in the North CountryThe project has generated considerable controversy from the beginning. Despite its statewide impacts, many of the projects most dedicated opponents come from the sparsely-populated and heavily forested North Country.Eversource says the new lines would bring jobs and tax revenue to this struggling part of the state. But opponents of the project say it would mean only temporary jobs for residents when it's under construction. They also say it will deface New Hampshire's forestland, hurting tourism and lowering property values. Depending on the location, developers say the project's towers will range from 85 to 135 feet tall.Polls have consistently found the public remains sharply divided on this issue.Some critics have pushed for the entire project to be buried. Politicians ranging from Sen. Maggie Hassan to former Sen. Kelly Ayotte to 2012 GOP presidential candidate Newt Gingrich have floated this move as having the potential to soften opposition. Eversource maintains this would be too expensive, and would effectively make the project impossible to pursue. The Route: Real Estate Chess Plays Out In The North Country Northern Pass and its opponents have been fighting over control of land along potential routesNorthern Pass has considered a number of routes for the project, but has publicly announced three. The first, unveiled in 2011, faced major backlash from North Country residents and environmental groups. Over the next couple of years, the project and its primary opponent the Society for the Protection of New Hampshire Forests played a prolonged chess match over parcels of North Country land. Northern Pass ultimately spent more than $40 million purchasing acres of undeveloped land in the North Country. Meanwhile, the Forest Society undertook an aggressive fundraising campaign and sought a slew of conservation easements to block potential routes.This maneuvering narrowed the options for Northern Pass. One lingering possibility was exercising eminent domain. Northern Pass publicly stated it was not interested in pursuing eminent domain. But in 2012, in response to strong statewide opposition, the Legislature closed the option altogether, outlawing the practice except in cases where a new transmission line was needed to maintain the reliability of the electric system.By the spring of 2013, Northern Pass opponents believed the project was essentially "cornered" into trying to route the power line through a large conservation easement, called the Connecticut Lakes Headwaters. The governor at that time, Democrat Maggie Hassan, said she opposed such a move on the part of Northern Pass.Second Time Around: Northern Pass Announces Alternative RouteIn June of 2013, Northern Pass unveiled its second proposed route. Abandoning its previous strategy (and $40 million in land purchases) altogether, the project proposed building along existing state and local North Country roadways in Clarksville and Stewartstown. In a nod to project opponents, Northern Pass also said it will bury 7.5 miles of line in Stewartstown, Clarksville, and under the Connecticut River. That raised the price tag on the project from $1.2 billion as initially proposed to about $1.4 billion. While opponents said this move was progress, many – including the Forest Society – maintained that Northern Pass should be able to bury all 180 miles of power lines.Final Route: Burial through the White Mountains0000017a-15d9-d736-a57f-17ff8a620000 After years of continued opposition, Northern Pass made its final concession to critics. It downsized the powerline from an initial proposal of 1,200 megawatts to 1,090 to take advantage of a new technology, known as HVDC lite. This move made it more economical to bury portions of the line, and Eversource said it was now willing to bury 52 additional miles of the project. The new route would be alongside state roadways as the project passed through the White Mountain National Forest.While the governor called the change “an important improvement,” she also said “further improvements” to the project should be made. The partial burial did not placate the project’s fiercest opponents, but some speculated that it would help the project clear one significant hurdle: whether it would get approval to use public lands from the top official at the White Mountain National Forest. The move pushed the estimated price tag up again, to $1.6 billion, now for a project that would deliver less power.With its new route in hand, project officials filed to build the project in October of 2015.Before the Site Evaluation CommitteeThe application to state officials was likely the longest and most complicated in the state’s history, and 161 individuals, interest groups, and municipalities asked to be allowed to participate in the process to evaluate the merits of the project.Given the size and complexity of the project, many of the interveners pushed for a longer review than the standard one year that state law dictates. In May of 2016, those groups got their wish, and the decision was pushed back 9 months. The final deadline was set for September of 2017. However, once the proceeding got under way, it was clear that even this delay would not allow time to hear from all of the witnesses called by the various interveners. Early in September of 2017 it was delayed again, with a final decision set for February 2018.DeniedOn February 1st, 2018, the New Hampshire Site Evaluation Committee voted unanimously to deny the permit for Northern Pass, a decision that triggered an appeals process that was taken up by the New Hampshire Supreme Court in late 2018.In May of 2019, the court heard orgal arguments on the appeal.On July 19, 2019, the court issued its ruling. In a unanimous decision, the SEC's rejection of the project was upheld, likely marking the end of Northern Pass as it was proposed.

At N.H. Supreme Court, Eversource Argues It ‘Could Not Win’ On Northern Pass

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Annie Ropeik
/
NHPR

The New Hampshire Supreme Court heard oral arguments Wednesday in Eversource's bid to revive its Northern Pass transmission line.

The justices are considering whether the proposal – a nearly 200-mile high-voltage power line to bring Canadian hydropower through the White Mountains to New England – should get a new hearing with the state Site Evaluation Committee, or SEC.

The court’s ruling in the case, which isn’t due out for several months to a year, could also provide new insight on how the SEC functions and whether the legislature should reform it.  The committee has existed in some form for decades, but underwent major reforms in 2015.

The central questions of this case are whether the SEC followed its own rules in how it considered Northern Pass – and whether Eversource did enough to show the SEC that the project would not have an “undue adverse impact on the orderly development of the region.”

That’s one of four tests that large-scale energy projects have to pass to get SEC approval, which is generally the last major green light needed in the development process.

'WE COULD NOT WIN'

The orderly development test is also what the SEC decided Eversource could not meet when the committee denied the project, days earlier than expected, in February 2018.

At Wednesday's oral arguments, Eversource attorney Bill Glahn contended the utility did pass that test – the SEC just didn't look properly at all the evidence made available to them.

"What they did was put us in a position where we could not win,” Glahn said.

Glahn said the project was "stiff-armed" by towns on its route, limiting the compromises Eversource could present to the SEC. He also argued the SEC didn’t fairly consider the benefits of the project, or account for conditions proposed by the state for its construction.

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Credit Annie Ropeik / NHPR
Eversource attorney Bill Glahn argues on behalf of the project before the state Supreme Court.

Glahn downplayed one legal interpretation still held by other Eversource officials – that the SEC is legally required to consider all four of its tests for project approval before taking a final vote.

But Chief Justice Robert Lynn suggested during one exchange with Glahn that the SEC had no legal obligation to do more than they did. He said Eversource seemed to expect an easier path to approval through the committee.

"There's sort of some presumption that if there's a way to get to this, you should allow it,” Lynn said. “And that seems to me to be, in some ways at least, inconsistent with the burden of proof."

PASSING THE TEST

Opposing attorneys, representing environmental groups and municipalities on the project’s route, agreed that the SEC is not legally required to go out of its way to side with developers.

"That's not the way development works,” said Amy Manzelli, arguing on behalf of the Society for the Protection of New Hampshire Forests, a long-time Northern Pass opponent. “Developers have to present the required evidence, and it has to be credible."

The SEC did not find some Eversource witnesses to be credible.

Senior assistant state attorney general Chris Aslin, acting as counsel for the public, argued that was just one way the utility hadn’t passed legal muster on specific tests in the SEC’s charter.

“If you have seven buckets to fill and three of them are empty, it’s pretty hard to weigh the factors,” Aslin said, “and it’s pretty hard to show that you’ve met your burden of proof, which is clearly put on the applicant in this case.”

Eversource’s Glahn, and at least one Supreme Court justice, pointed out that the SEC has favored the same utility experts and arguments rejected during Northern Pass when those experts and arguments were used in past SEC cases.

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Credit Annie Ropeik / NHPR
Opponents of the project held their now-familiar orange signs outside the state Supreme Court.

Eversource has had two smaller-scale power lines approved by the SEC in recent years. Opponents appealed the latest one, a transmission line on the Seacoast, to the state Supreme Court on fairly narrow grounds just this week.

In fact, Northern Pass was one of only two projects the SEC has ever denied. The other, Antrim Wind, was rejected so applicants could submit a revised application, which was approved.

The state Supreme Court upheld that approval last year.

ROOM FOR REFORM

Aslin, Manzelli and Danielle Pacik, the city attorney in Concord who represented municipalities in the case, repeatedly argued that the legislature and state statute have intentionally designed the SEC to have broad, even vague or subjective authority.

Lynn, the chief justice, suggested this shows state lawmakers punting “political responsibility” for projects like Northern Pass onto the SEC.

“Orderly development, I think a strong argument could be made, is sort of in the eye of the beholder,” Lynn said during Glahn’s argument. “Doesn’t that sort of say that what the legislature really did here, whether it was a good idea or not, is they effectively delegated a political decision to the Site Evaluation Committee?”

When the court rules on this case, it will decide whether to uphold the SEC’s denial of Northern Pass, or send the project back to the committee for a new hearing.

It’s not clear yet what form that hearing would take – whether it would start the process over or begin at a midpoint.

The SEC held dozens of days of adjudicative hearings on Northern Pass, and fielded reams of public input. They used about three of 12 scheduled days of deliberation.

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Credit Annie Ropeik / NHPR
Residents and attorneys line up outside the state Supreme Court to hear Northern Pass oral arguments.

The overall project has been in the works since 2011, and first went up for state approval in 2015. It’s thought to have received the most intensive review of any such project in state history.

If Eversource doesn’t get the new hearing it wants, New Hampshire CEO Bill Quinlan says they’re open to filing an entirely new application for the project, and starting from scratch.    

But the project no longer has a buyer – so Eversource would need to find a way to pay for it during development. The utility lost a long-term contract to sell power from Northern Pass to Massachusetts after the SEC’s denial.

Massachusetts now plans to contract with a similar project in Maine, pending state approvals.

More broadly, the New Hampshire Supreme Court’s order in the Northern Pass case may send signals to the legislature on future SEC reforms – and may set new precedent on the application and interpretation of current SEC rules, including some adopted relatively recently.  

CORRECTION: An earlier broadcast version of the audio in this story incorrectly stated that the Site Evaluation Committee was formed in 2015. In fact, it has existed for decades and was substantially reformed in 2015. The error has been removed from the audio in this post. 

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