One of the environmental legal issues that is most important to me is the current battle over the pending implementation of the Northern Pass in my home state of New Hampshire. The proposed Northern Pass project would install a 192-mile-long power transmission line down through the entire state, invading private property, conservation land, and government-protected forests like the White Mountain National Forest. (Here is a map of the proposed route: (http://www.northernpasseis.us/library/draft-eis/visual-impact-assessment). At least 130 miles of the transmission line would be above ground. The power would go to Massachusetts and Connecticut (neither of which have anything like a power shortage) at the expense of New Hampshire’s natural resources and wilderness views, both of which are tremendously important for a state that is heavily dependent on view-related tourism. Eversource, the utility company behind the Northern Pass proposal, states that the transmission line would provide power for roughly 1 million homes.
The first thing that the Northern Pass needs in order to proceed is a permit from the NH Site Evaluation Committee (SEC). The SEC predicts that September of 2017 will be the earliest possible date for a decision on the permit. The NH Department of Environmental Services (DES) and the Department of Energy (DOE) have both been requested by the United States Environmental Protection Agency (EPA) to try to have the line buried underground rather than strung above ground. EPA even went so far as to say that no permit should be given to the Northern Pass initiative unless it was guaranteed to be underground. In the meantime, Northern Pass has issued a “Power Purchase Agreement” that supposedly gives some of the power to NH residents as well as MA and CT residents, but this has appears to be a publicity stunt to gain support. The Northern Pass will also need a Presidential Permit and a Clean Water Approval from the Army Corps of Engineers.
At the outset of the project, Northern Pass began attempting to buy off the land they needed to run the transmission line through the North Country of NH, offering landowners inflated amounts for their property. The Forest Society, Conservation Law Foundation, Appalachian Trail Club, and many other organizations countered these offers with a wide-reaching conservation easement campaign and were successful in putting hundreds of acres under conservation easements and blocking Northern Pass’ attempts. Northern Pass’ actions led the state of NH to pass Bill HB648, which confirmed that a merchant transmission line cannot use eminent domain for development purposes. Eversource soon remerged with a new proposal for an alternative route that would build along existing roadways through the North Country and bury a portion of the line as well (https://stateimpact.npr.org/new-hampshire/tag/northern-pass/).
In late 2015, the Forest Society of NH challenged the Northern Pass in the NH Supreme Court in order to prevent Northern Pass’ proposed use of Forest Society land. The Forest Society argued that Northern Pass’ application for the line should be exposed as incomplete, as they do not yet have the rights to use much of the land that they propose to cross. It is important to note here that the Northern Pass transmission line falls under the category of “merchant transmission projects.” In short, these are projects in which a third party runs a transmission line through the territory of another entity. The Forest Society hopes to show that the Northern Pass’ status as a merchant transmission line creates additional limitations on its ability to use NH land. The attorneys for the Forest Society made it clear that the Society is not against the incorporation of the power source into NH’s economy; however, they argued that the line be buried rather than run above ground.
A few months later, in May of 2016, the Forest Society filed against the Northern Pass again in the NH Superior Court. (You can see the lawsuit at https://forestsociety.org/sites/default/files/SPNHF%20NP%20BRIEF%20of%20APPELLANT.pdf). They challenged the court’s view of how utility companies can use easements along a highway and what constitutes a “taking.” They questioned Northern Pass’ claim that they have the ability to use land near a highway that is in a private conservation easement. They also asked that the court consider the potential misuse of private property rights inherent in Eversource’s proposal. In short, they asked 1) Are there limits on Eversource’s ability to use land along a public road for its own purposes? and 2) Can landowners get a legal determination of whether such use violates private property rights? The Superior Court answered “No” to both questions, prompting the Forest Society to argue that the court was treating this issue like a mere licensing matter and not a significant legal issue. The court also unfortunately declined to comment on whether the potential use of the Forest Society’s private easement land constituted as a taking under the doctrine of eminent domain.
The application for a permit that Northern Pass filed with the NH SEC was so hotly contested that the SEC held a series of public hearings around the state to get the perspectives of the citizens on the proposed line (http://www.unionleader.com/New-Hampton-Bury-entire-Northern-Pass-line). This enabled thousands of NH residents to voice their concerns about the line. While this was certainly an excellent step in the right direction, Northern Pass managed to implement a rule that forced those in attendance to leave the hearing if “confidential information” came up. If they wanted to stay, they had to sign a confidentiality agreement (http://indepthnh.org/2016/08/15/northern-pass-experts-to-take-questions-but-not-all-can-hear-the-answers/?utm_source=InDepthNH+Newsletter+List&utm_campaign=ecccee62f5-enewsletter_8_17_168_18_2016&utm_medium=email&utm_term=0_17acd809a7-ecccee62f5-232370181). And the “confidential information” in question happened to be much of the financial information, archeological studies, and data on the line’s environmental impacts. Concerning, to say the least. (Northern Pass’ lawyers also apparently attempted to get many of the public comments taken off the record).
Eversource’s recent partnership with Hydro-Quebec means that they have an increased incentive to not bury the transmission line, for Hydro-Quebec has stated emphatically that they will not help pay for the cost of burying the line. Whatever Hydro-Quebec’s reasons may be for this snub, their statement has given opponents of the Northern Pass ample reason to be concerned that Eversource may try to pass off the costs of burying the line to NH citizens (http://www.unionleader.com/energy/Utilities-reiterate-backing-for-Northern-Pass-03102017). This creates an uncomfortable situation for Eversource, which has repeatedly promised the people of NH (through the Power Purchase Agreement referenced above) that they will not have to pay a dime for the project. With Hydro-Quebec now stating that they will not help pay for the line burial in NH, Eversource is going to have to charge Massachusetts and Connecticut higher rates than they initially promised or charged NH citizens fees that they previously assured would not happen (http://www.protectthegranitestate.org/judys-blog/). Eversource seems optimistic that they will be able to recoup this massive additional cost through the operation of the transmission line for the state of Massachusetts (http://blog.northernpass.us/2017/03/09/understanding-northern-pass-cost-recovery/). Meanwhile, Eversource continues to maintain that everything is running smoothly.
The tension between the Northern Pass project and Hydro-Quebec is clearly exhibited by the lack of a Transmission Services Agreement (TSA) between the two parties, which is the document that determines how Eversource gets paid to build the line (https://forestsociety.org/project/trees-not-towers-no-northern-pass). The previous TSA expired in February of 2017 and has not been renewed. Without it, Eversource is in a tight spot, since they have repeatedly used their TSA with Hydro-Quebec as the primary justification for their claim that no NH residents will have to pay for the line.
There is, however, a current bill in the NH Senate that could change all of this. If implemented, it may give utility companies like Eversource the ability to pass the costs of transmission line construction to consumers (http://www.nhbr.com/March-3-2017/NH-Senate-bill-would-allow-utilities-to-pass-on-costs-of-energy-project-construction/). Bill 128 is worrisome to those, like myself, who are opposed to the Northern Pass and want to hold Eversource accountable if it succeeds in getting permission to build the line.
So what exactly does Eversource say it can bring to NH by building the Northern Pass (http://www.northernpass.us/news.htm)? Their website points to $63 million in annual energy savings, $30 million in additional state and local tax revenues, 5,000 acres dedicated to North Country conservation, and environmentally-healthy power sources. However, the 5,000 acres dedicated to conservation will quickly be outweighed by the acres they will cut to install the line, and the reduced carbon emissions from the new power source will be canceled out by the emissions release from the closing of many of the state’s existing power plants.
Eversource also claims 1) that the Northern Pass will bring additional jobs to NH, and 2) that it will bring cheaper energy to NH (http://www.concordmonitor.com/It-is-time-to-stand-up-and-fight-Northern-Pass-8393298). In response to the first point, we must remember that these jobs would be temporary. Almost all of them would be construction jobs associated with the building of the line, and those jobs would disappear after the line is completed. Not to mention the thousands of jobs that will be lost through the closing down of several of NH’s current power plants to make room for the transmission line. A new study from The Analysis group on behalf of the organization “Protect the Granite State” (http://www.analysisgroup.com/uploadedfiles/content/insights/publishing/pgs_final_northern_pass_report_2017-2-8.pdf ) shows that the number of jobs that would be lost from the closing of other power plants as a result of the Northern Pass would far outnumber the number of jobs the line would create. Eversource’s second claim (that the line will bring cheaper energy to NH) is entirely irrelevant, since all of the power is destined for MA and CT. The claim that the power is not going to NH consumers is one of Eversource’s primary reasons for continually reminding NH citizens that they will not have to pay for any of the power, even in the face of Hydro-Quebec’s unwillingness to pay for it. On top of that, the study mentioned above estimates that the power from the Northern Pass line will cost 5.5 cents per kWh above what it is currently predicted to be. If anything, the Northern Pass might make energy costs higher because it will make NH reliant on Canadian power and stall local clean energy development (http://www.clf.org/making-an-impact/stopping-northern-pass/).
If you’re anything like me, you’re probably wondering why I haven’t mentioned eminent domain yet. I originally thought that eminent domain would be a key issue here, but in fact it isn’t. The NH State Constitution, Article 12A, states that merchant transmission projects are not allowed to use eminent domain for development purposes. Additionally, when the court granted Eversource’s motion for summary judgement and ruled against the Forest Society’s motion last year, it simply left the eminent domain issue untouched. It did not dismiss or engage the issue, but rather stated that it had to wait to see how the NH Department of Transportation would react in order to make an official determination (https://forestsociety.org/blog-post/supreme-court-leaves-northern-pass-eminent-domain-issue-unresolved). (NH DOT is the agency that is responsible for deciding whether or not to give projects like the Northern Pass a construction and development license). Northern Pass’ lawyers continue to claim that they are free to bury their line under roadways, even if the ground under those roadways is privately owned.
The U.S. Department of Energy released the following Environmental Impact Statement about the proposed line that contains several important considerations (http://www.northernpasseis.us/library/draft-eis/). The analysis includes two impact studies (http://media.northernpasseis.us/media/EIS-0463-DEIS-v1-2015.pdf ) and (http://media.northernpasseis.us/media/EIS-0463-DEIS-v2-2015.pdf), as well as a Supplement Draft to the EIS (http://media.northernpasseis.us/media/EIS-0463-S1-DEIS-2015.pdf). Here are a couple of the highlights from the report:
- The line construction process will involve clear-cutting hundreds of acres of forestland and turning it into scrub-land, exacerbating the spreading of weeds and releasing carbon into the atmosphere.
- Watersheds, rivers, wetlands, and vernal pools will be at significant and continual risk of sediment and chemical runoff as a result of the line’s construction and maintenance.
- Hundreds of acres of wildlife habitat will be divided or destroyed, and soil erosion would be exacerbated along many sections of the proposed line.
- Property values, especially those nearest to the line, will plummet. Since the North Country is sparsely populated and has a higher percentage of people in the lower socioeconomic class, a significant portion of the burden of these lesser property values will be borne by those least able to handle it.
- Tourism and hiking income would drop significantly, since hundreds of miles of views will be ruined (This video provides a technological simulation of the height of the towers https://vimeo.com/129027144). This may seem like a relatively inconsequential issue, but NH is a state that relies heavily on view-related tourism for the summer and (particularly) fall months. While the overall percentage of actual ground that would be changed would be relatively small, the impact on the larger vista would be unavoidable.
As the last few points above suggest, the potential environmental side effects aren’t the only thing that make the Northern Pass a bad idea. The economics of the issue say so as well. A recent study from the UNH Carsey School of Public Policy (http://nhpr.org/post/report-new-energy-projects-not-needed-nhs-economic-growth#stream/0) shows that NH does not need to increase its energy production levels. Not only that, but the state is not in need of additional power-related revenues in order to grow its economy. A 2012 paper by the Conservation Law foundation shows that NH is not in any significant electricity deficit (http://www.clf.org/blog/new-study-energy-market-changes-undermine-economic-case-for-northern-pass/). The Forest Society’s website also points out that the Northern Pass is technically an “elective” transmission project, meaning basically that there has been no word as to the necessity of the project. In other words, we don’t need the Northern Pass to keep our lights on and heat running.
The study mentioned above from The Analysis Group on behalf of “Protect the Granite State” sheds some important light on Eversource’s tactics. The primary aim of this study was to shed light on the London Economics International (LEI) study that Eversource had done in order to create public documentation of the perceived benefits of the Northern Pass. The Analysis Group’s research shows a shocking number of omissions, blacked-out paragraphs, and redacted phrases in critical portions of the study. For instance, Eversource’s outlook for electric demand in New England is redacted in the LEI study, therefore making it impossible to verify almost all of their other numbers. Another notable and concerning missing piece is the data on how the costs of constructing the line will be allocated. This is additionally concerning because the numbers that the LEI study does use to create it’s predictions are from a period in NH’s history in which prices were different than they are now. The public therefore has no way to assess the validity of the LEI study’s assumptions. One of the assumptions in the LEI study that can be examined, however, is the prediction that no new sources of power generation will be created in NH before 2024. This assumption has actually already been proven to be incorrect, and therefore any conclusions LEI draws on this basis are also flawed. The LEI study also assumes that New England’s electric costs are rising to out-of-control levels, while in reality they have been slowly decreasing since 2007. Additionally, the LEI study does not mention any of the significant public concerns related to environmental quality, tourism revenues, private property rights, eminent domain, wildlife habitat, and individual costs to consumers.
I’m not against power generation or economic growth through power transmission. If you’ve read any of my previous posts, you know that I am usually in favor of market-oriented solutions that spur growth. I’m also not against the Northern Pass purely for environmental reasons, although those are certainly significant and worthy reasons. Sediment runoff, increased erosion, wildlife habitat destruction, deforestation, carbon release, and more are among the many negative environmental side effects of the proposed Northern Pass. On top of that, the Northern Pass will impose a visual distraction on many of the beautiful landscapes of the North Country and will negatively affect viewers’ experiences.
However, the environmental argument isn’t enough to make a convincing case against the Northern Pass. The breadth of economic, social, and political factors are needed to make this a legitimate argument. Below are the non-environmental (I’m assuming we are all taking those reasons for granted) reasons for my opposition to the Northern Pass:
1) We don’t need the power. Massachusetts, Connecticut, and NH are all producing enough power to meet their needs. The power that Eversource says will bring more lighting and heating capability to 1 million homes is simply irrelevant, since the primary determinant of one’s capacity to light and heat one’s home is one’s income level, not the state’s aggregate production amounts. This is basically just adhering to a basic principle of minimizing waste and not doing work that you don’t have to do.
2) The power won’t go to NH or benefit NH’s economy in any way. The power is for other states, and it will only create net job loss in NH because of the many power plants that will go out of business as a result of the Northern Pass. Those who point to high electricity rates as the reason for businesses leaving NH may or may not be right, but a better fix to this problem is to embrace the current clean energy process and get on board with utilizing new sources of energy other than electricity. One of the main reasons that NH recently restructured its electric industry was to shift the risk from consumers to the utility companies. But the Northern Pass would completely negate this restructuring effort. It would put the risk back on the consumers, and it would do so at a time when the region already has adequate energy to meet its needs. It might also negatively affect the development of clean energy technologies in NH.
3) The proposed line violates private property rights. While this issue may be slightly overblown because of Americans’ unusual tendency to place extremely high value on personal property rights, it is still a significant issue. Even without eminent domain concerns (things could get really interesting if the NH DOT decides to give them a license for their line), the specifics of whether or not Eversource can use land under a roadway that is privately owned or in a conservation easement are extremely important to determine.
4) There have been too many legal and ethical question marks throughout the process for us to trust Eversource. The redacted and blacked-out lines in the public version of the proposal. The confidentiality agreement that intervening citizens had to sign if “confidential’ information related to finances and environmental side effects came up in public hearings; the attempts by Eversource to pay off landowners with huge sums of money; the back-handed attempts by Northern Pass’ lawyers to take public comments about the line off the record; the recent ambiguity as to whether or not NH residents will be exempt from paying for the transmission line (as Eversource has repeatedly promised); and much more.
5) It will hurt NH’s tourism revenues. NH is heavily dependent on tourism revenues, and the state’s tourism industry is built on its beautiful views, mountain experiences, and wilderness areas. As the graphic above shows, a 185-foot-tall transmission line pole will be easily seen from the side of a mountain in the vicinity. Like it or not, that will affect people’s experience and will contribute to a decrease in tourism revenues for the state.
Perhaps you’re thinking that there should be a compromise. Maybe we should try to find the perfect solution that will make everyone happy, like Raff Cody does in E.O. Wilson’s novel Anthill. I feel, however, that potentially allowing 130 miles of the line to be above ground is already a compromise and is, based on the economic, environmental, social, and political reasons outlined above, too much of a compromise. An appropriate compromise would be that, if the line is to be built, it should be completely buried.