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.
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.
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.
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.