November 18, 2015
New Hampshire

New rules for Site Evaluation Committee dismay energy companies, but will the SEC back off?

By Chris Jensen | New Hampshire Public Radio | November 17, 2015 | nhpr.org

Over the next year, the state’s Site Evaluation Committee will consider whether to okay the controversial Northern Pass project.  Eventually it is also likely to weigh in on at least one wind farm and the Kinder Morgan pipeline.  That puts a spotlight on the committee– made up of seven state officials and two members of the public.

But behind the scenes the SEC is undergoing big changes.  Legislators want more protections for property owners, more requirements on utilities and more public input.  Now the SEC is proposing some new regulations.

Overall those recommendations have pleasantly surprised environmentalists and some legislators. But they’ve also upset some energy companies.

This Wednesday, the SEC will hold a public meeting to go over the issue of whether it has gone too far in drafting its new rules.

North Country reporter Chris Jensen talks with Morning Edition Host Rick Ganley.

Why are these changes important and what’s at stake for the state?

Once these rules are formally adopted they will determine for decades how the state handles utility projects. Utilities want a simple, streamlined process. Others – including many legislators – argue specific requirements are needed to protect the state’s residents and the environment.

Why have some of these proposals emerged as sticking points?

Well, the legislative committee overseeing this is called the Joint Legislative Committee on Administrative Rules.  It’s concerned that in some cases the SEC’s proposed rules are going beyond what the legislature intended when it ordered the SEC to reorganize. That’s a concern shared by some utility companies.  And so the committee is questioning the changes.

One of the issues is the requirement that the SEC consider whether a project will have an “unreasonable adverse effect.”  What does that mean and what else has been troublesome?

The unreasonable adverse effect requirement means the committee must weigh a project’s impact in areas including scenery, air quality, wildlife, historical sites, public health and safety.

Another controversial, proposed rule looks at whether a project “will serve the public interest.” Basically that means the committee would weigh the cost and benefit of changes to energy prices, property values, tax revenue, employment opportunities, a whole host of factors.

Whether those will be changed is one of the things the SEC is expected to consider on Wednesday.

What’s been the reaction to these?

Well the state senators and representatives who were sponsors of SB 245 – which led to the reorganization – are pretty happy.

They say the SEC has done a remarkable job with an incredibly complex issue, dealing with intense lobbying from energy companies and demands of citizens and environmental groups.

Many opponents of Northern Pass are happy too, as well as groups such as the Appalachian Mountain Club and the Society for the Protection of New Hampshire Forests.

One exception is that they would still like a regulation requiring the utility to have the legal agreements to use the land on which it will build before the SEC begins its deliberations. If that was adopted it could pose a big problem for Northern Pass which does not have legal control over all the land in its proposed route. Northern Pass spokesman Martin Murray says it has not been proven that Northern Pass lacks legal control over the route. However, it does not have permission from The White Mountain National Forest to bury the line alongside roads going through the forest. A spokeswoman from The White Mountain National Forest has said it must still grant permission despite the new burial plan.

But utilities, including Northern Pass’ parent company, Eversource, see some of these requirements as unfair and burdensome.

And it’s that “public interest” provision that’s a real point of contention.  Generally the utilities says such a requirement goes beyond the intent of the legislature. They say the legislature didn’t want a laundry list of things to be considered. Instead, they say, it should just say in the “public interest.” That apparently means the SEC would decide what “public interest” means on a case-by-case basis.

But sponsors of the bill that started the reorganization – including Democrat Rep. Sue Ford of Easton and Republican Sen. Jeanie Forrester of Meredith – say a detailed list is exactly what they intended.

Can you give us another example where the SEC’s language has become controversial?

Sure.  One is a requirement to examine the extent to which construction and operation of the proposed project will be consistent with “local plans and policies.”

This is a hot issue because it says the project won’t go against what local zoning or planning boards want.

There are a lot of towns that strongly support that. They say the SEC shouldn’t be able to overrule them.

But Eversource is arguing that requirement is illegal. It interprets a 1980 New Hampshire Supreme Court decision – involving its ancestor, Public Service of New Hampshire – as saying when the legislature created the SEC it intended the SEC’s decisions would overrule local planning.

Back in April, at a hearing, that preemption concept was supported by Tom Burack, who heads up the Department of Environmental Services and is vice chairman of the SEC. He said he couldn’t support any provision that would “be counter to what the Legislature intended.”

What happens next?

Well, at the meeting Wednesday in Concord the SEC will discuss the concerns raised by the Joint Legislative Committee and whether to change their proposals.

That’s worried some of the people who were so pleased with what the SEC is proposing.  They are urging the SEC to stick to its guns.

If the SEC won’t change its rules, and push comes to shove, the SEC would be required to prove it has the authority.

For copies of the proposed regulations go here and here.

URL to article:  https://www.wind-watch.org/news/2015/11/18/new-rules-for-site-evaluation-committee-dismay-energy-companies-but-will-the-sec-back-off/