Sep 9, 2016 3:55 PM
Northern Pass complex legal proceedings frustrate some opponents
CONCORD – Lawmakers worked two years ago to afford citizens more say in siting utility projects, but Northern Pass – the largest such proposal in state history – frustrates some who oppose it, especially intervenors who are fighting without an attorney.
Changes in the Site Evaluation Committee process since 2014 require applicants to hold public information sessions before and after they file an application. And two public members were added to the evaluation committee comprised of state department heads, which will ultimately decide whether a project wins state approval.
But there have been no major changes to the complex legal proceedings, according to Senior Assistant Attorney General Peter Roth. As Counsel for the Public, Roth represents the public’s interests in the siting proceedings.
“It’s a legal process. It is difficult,” Roth said.
So difficult, in fact, that many of the two dozen intervenors – including municipalities, businesses, advocacy groups and individuals - hired attorneys.
Environmental engineer Bob Cote said it’s tough for small intervenor groups like his Deerfield abutters without hiring an attorney. He occasionally acts as spokesperson for his group where members take turns depending on their interests and expertise.
“We’re all just citizens with other things to do,” said Cote who spends anywhere from a couple of hours to as many as 20 hours a week on the project.
Cote complained that his group hasn’t received the responses to data requests from Northern Pass that it needs for the technical sessions. About a dozen informal technical sessions were scheduled for September in Concord to allow intervenors to question Northern Pass experts.
But Cote said his group, like a number of intervenors, is ill-prepared for the technical sessions without the full responses from Northern Pass.
“A lot of our discovery questions were not answered,” Cote said. “It’s silly to be proceeding without complete information.”
Cote backed a motion filed Wednesday by the city of Concord asking the evaluation committee to delay the technical sessions and to rule quickly as another one is scheduled for today (Friday).
Danielle Pacik, Concord’s deputy solicitor, filed the motion with three other intervenors. The Counsel for the Public and seven other intervenor groups assented, meaning they agree with Pacik's motion.
“In short, the technical sessions should be stayed because too much required information is unknown and still has not been produced,” wrote Pacik. She participated in the technical sessions on Tuesday and Wednesday that focused on project reliability and stability and health and safety.
A number of issues beyond the intervenors’ control have made it impracticable to proceed with any further technical sessions “without jeopardizing their due process rights to meaningful participation,” Pacik wrote.
She said some intervenors are still waiting to receive a large number of confidential documents. “These confidential documents are important to these proceedings because they pertain to issues regarding the proposed public benefit of the project,” Pacik wrote.
Pacik said the lack of information will likely hinder the technical sessions so much so that postponing them is the better option. “Rescheduling them to a later date …will allow the technical sessions to proceed in an orderly and more efficient manner,” Pacik wrote.
Spokesman Martin Murray said Northern Pass will file an objection to Pacik's motion, but it addressed some of the issues in a previous objection.
"...Detailed information concerning the location of the proposed transmission line has been provided to the parties and additional information will be made available as the permitting process moves forward," the objection stated. "Any further delay or suspension of these proceedings is unnecessary and is counter to the SEC's obligation to avoid undue delay and resolve all issues in an integrated manner."
Attorney Christine Fillmore also signed onto Pacik’s motion representing Bristol, Bethlehem, Easton, Franconia, Northumberland, Plymouth, Sugar Hill and Whitefield.
The legal process is even difficult for lawyers, Fillmore said.
“This project is more complex than anything we’ve seen before in New Hampshire,” she said. “It’s a tremendous amount of information for anyone to digest and has more moving parts than the average project or in most litigation.”
The intervenors are not large multi-state corporations and are not well-funded individuals or non-government organizations, she said.
“They are much smaller than the applicant and municipalities are always mindful of how they are spending the public’s money,” Fillmore said.
The Legislature has also mandated that a project must serve the public interest and not unduly interfere with the orderly development of the region, Fillmore said. The Site Evaluation Committee is also now required to assist the public in understanding the proceedings, she said.
Bob Cote said that just didn’t happen in his experience in Deerfield.
“One thing that is very frustrating for somebody entering into the process is that you have no guidance on how to do it,” Cote said. When he asked about the process, he was told he should hire a lawyer.
“Why should I have to hire a lawyer to defend my basic property rights?” Cote said.
Pamela Monroe, administrator for the Site Evaluation Committee, said she does try to walk people through the process when they contact her. But she can only go so far.
“I can’t give them legal advice,” Monroe said.
The evaluation committee hadn’t ruled on the motion to delay the technical sessions as of late Thursday afternoon, according to its website. The Friday session was still on the schedule.
Experts for the technical sessions on Tuesday and Wednesday included Robert Andrew, Dr. William Bailey, Dr. Gary Johnson and Douglas Bell. In a third-floor conference room in downtown Concord, they answered questions posed by intervenors.
The questions and answers were highly technical and intended to assist intervenors prepare for the final adjudicatory proceedings. Northern Pass will have the same opportunity later on to question experts who will testify for intervenors.
Northern Pass, a joint project with Eversource Energy, plans to build a high voltage transmission line to bring 1,090 megawatts of hydropower from Hydro-Quebec along a 192-mile route from Pittsburg to Deerfield, then on to the New England grid.
This discovery phase will be used by both sides to formulate their arguments for the final proceedings that will be very much like a trial with the Site Evaluation Committee's designated subcommittee acting as judge.
The adjudicatory proceedings haven’t been scheduled yet, but the evaluation subcommittee is required to make its final decision by Sept. 30, 2017.