Fearing A Losing Battle, The Site Evaluation Committee Modifies A Key Regulation
Citing a desire to avoid a confrontation with a legislative committee, the Site Evaluation Committee Wednesday softened proposed a rule involving "public interest" as part of its consideration of new utility projects.
The issue at the meeting was whether the Site Evaluation Committee had gone beyond what the legislature intended when it ordered the body’s reorganization so it would better serve "the public good" and "provide clarity" about its rules and how it makes decisions.
The question of overreaching was raised by the Joint Legislative Committee for Administrative Rules, which has oversight for such changes.
Utilities including Eversource, the parent company of Northern Pass, have also argued that the rules go too far.
But SEC chairman Martin Honigberg insisted the body acted properly when it created them.
“With respect to the rules as we developed them, I think they are fully consistent with the legislative intent,” he said during the meeting in Concord.
Sponsors of House Bill 245- the legislation that resulted in the reorganization - also said the rules were what they intended.
But the SEC - which is now made up of nine membersincluding two new public members and seven government officials – decided not to stand its ground, saying they worried that a confrontation with the Joint Legislative Committee could end badly, in the worse case with rules being completely eliminated.
One change was making a key rule dealing with whether a project is in public interest far less demanding.
For example the proposed “public interest” rule provided far more detail than in the past. One section would have required the SEC to consider “whether the beneficial and adverse effects of the facility, including the costs and benefits to energy consumers, property owners, state and local tax revenues, employment opportunities, and local and regional economies serve the public interest.”
As amended the rule is less specific, simply saying that the SEC must consider a list of items including private property, "the environment of the state" and "the overall economic growth of the state."
That provides more flexibility for utilities to argue their case and for the SEC to make decisions, but it is also more vague, a problem the SEC was originally told to correct.
Despite being weakened, it is still more demanding than what some utilities wanted: a simple notation of of "public interest," without any list of what was to be considered.
At a meeting last month with the Joint Legislative Committee, Honigberg recognized there was criticism about a high level of detail for determining public interest and said he was willing to make changes. "If it is the will of the committee that we remove all that language and just leave with 'public interest,' we understand that and we will adjust," he said.
Also gone from 'public interest' is a provision that required considering whether construction and operation of the facility “will be consistent with federal, regional, state and local policies.”
SEC members have noted that a 1980 New Hampshire Supreme Court case involving Public Service of New Hampshire - now known as Eversource - has long been interpreted as saying that the SEC overrules local planning.
Sue Ford, a Democrat and state representative from Easton who was one of the sponsors the the bill that resulted in the SEC's reorganization, said she could live with the changes and they are a significant improvement over what the SEC used previously.
The change - and several others - now go to the Joint Legislative Committee. The committee could accept them or demand more modifications.
When Gov. Hassan signed House Bill 245 in 2014 she said "As we work to diversify our energy sources, reduce energy costs, and provide predictability for businesses, we must ensure that the siting process for new energy projects includes the views of local communities and protects what makes our state special."