Appeal of Northern Pass Transmission, LLC, 071919 NHSC, 2018-0468

Docket Nº:2018-0468
Opinion Judge:HANTZ MARCONI, J.
Party Name:APPEAL OF NORTHERN PASS TRANSMISSION, LLC & a. (New Hampshire Site Evaluation Committee)
Attorney:McLane Middleton, Professional Association, of Manchester (Wilbur A. Glahn, III, Barry Needleman, and Jeremy T. Walker on the brief, and Mr. Glahn orally), for the petitioners, Northern Pass Transmission, LLC, and Public Service Company of New Hampshire d/b/a Eversource Energy. Gordon J. MacDonal...
Judge Panel:LYNN, C.J., and HICKS, BASSETT, and DONOVAN, JJ., concurred.
Case Date:July 19, 2019
Court:Supreme Court of New Hampshire
 
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APPEAL OF NORTHERN PASS TRANSMISSION, LLC & a.

(New Hampshire Site Evaluation Committee)

No. 2018-0468

Supreme Court of New Hampshire

July 19, 2019

Argued: May 15, 2019

Site Evaluation Committee

McLane Middleton, Professional Association, of Manchester (Wilbur A. Glahn, III, Barry Needleman, and Jeremy T. Walker on the brief, and Mr. Glahn orally), for the petitioners, Northern Pass Transmission, LLC, and Public Service Company of New Hampshire d/b/a Eversource Energy.

Gordon J. MacDonald, attorney general (Christopher G. Aslin, senior assistant attorney general, on the brief and orally), representing the public interest.

City Solicitor's Office, of Concord (Danielle L. Pacik, deputy city solicitor, on the joint brief and orally), for intervenor City of Concord; Mitchell Municipal Group, P.A., of Laconia (Steven M. Whitley on the joint brief), for intervenors Towns of Deerfield, Littleton, New Hampton, and Pembroke; and Drummond Woodsum, of Manchester (C. Christine Fillmore on the joint brief), for intervenors Towns of Bethlehem, Bristol, Easton, Franconia, Northumberland, Plymouth, Sugar Hill, and Whitefield.

BCM Environmental & Land Law, PLLC, of Concord (Amy Manzelli on the brief and orally), for intervenor Society for the Protection of New Hampshire Forests.

Wadleigh, Starr & Peters, PLLC, of Manchester (Stephen J. Judge, Jeffrey Karlin, and Stephen Zaharias on the brief), for intervenor McKenna's Purchase Unit Owners Association.

Foley & Lardner LLP, of Boston, Massachusetts (Courtney Worcester on the joint brief), for intervenors Ammonoosuc Conservation Trust and Appalachian Mountain Club, and Melissa E. Birchard, of Concord, on the joint brief, for intervenor Conservation Law Foundation.

Bernstein Shur, of Manchester (Andru Volinsky on the memorandum of law), for intervenors Bradley and Daryl Thompson and Jeanne Menard.

Richard J. Samson, Coos County Commissioner, District Three, and Stephen J. Ellis on the joint memorandum of law, for intervenors Towns of Pittsburg, Clarksville, and Stewartstown.

Philip Bilodeau and Joan Bilodeau joined in the brief for the Society for the Protection of New Hampshire Forests.

F. Maureen Quinn joined in the brief for the Society for the Protection of New Hampshire Forests.

Dalton Whitefield Bethlehem Abutters joined in the brief for the Society for the Protection of New Hampshire Forests.

Pemigewasset River Local Advisory Committee joined in the brief for the Society for the Protection of New Hampshire Forests.

Dummer, Stark and Northumberland Abutters joined in the brief for the Society for the Protection of New Hampshire Forests.

Abutting Property Owners, Bethlehem to Plymouth joined in the brief for the Society for the Protection of New Hampshire Forests.

Non-Abutter Property Owners Stark to Bethlehem joined in the joint brief of the City of Concord and multiple towns.

Bethlehem to Plymouth Non-Abutters joined in the brief for the Society for the Protection of New Hampshire Forests. 1

HANTZ MARCONI, J.

The petitioners, Northern Pass Transmission, LLC and Public Service Company of New Hampshire d/b/a Eversource Energy (PSNH), appeal the decision of the New Hampshire Site Evaluation Committee denying their application for a "Certificate of Site and Facility" (certificate) for the siting, construction, and operation of a high voltage transmission line (HVTL) and associated facilities from Pittsburg to Deerfield (the project). We affirm.

I. The Project

The following facts either were found by the Site Evaluation Committee or are drawn from the contents of documents submitted as part of the appellate record. The petitioners' application proposes to install a 192-mile HVTL to carry 1, 090 megawatts of electricity from Canada into New England. The project's transmission corridor would encompass 3, 161 acres, including approximately 465 acres of new rights-of-way to be used for the overhead transmission corridor, 2, 520 acres of existing rights-of-way to be leased from PSNH and used for the overhead transmission corridor, and approximately 176 acres for the underground transmission corridor. The major components of the project include: a high-voltage direct current transmission line running from the Canadian border to a converter terminal in Franklin; a converter terminal to be constructed at South Main Street in Franklin; an alternating current overhead transmission line running from the converter terminal in Franklin to an existing substation in Deerfield; six high-voltage direct current overhead to underground transition stations to be located in Pittsfield, Clarksville, Stewartstown, Bethlehem, and Bridgewater; and "various access roads, laydown areas, staging areas and marshaling yards." The approximately 10-to-20 laydown areas would consist of open space areas ranging in size from five to 50 acres, located off the right-of-way along the length of the project.

According to the petitioners' application, approximately 60.5 miles of the transmission corridor would be located underground. For that portion of the HVTL using overhead transmission, the petitioners propose to use primarily lattice structures, with some tubular steel monopole structures. The lattice configuration would have an approximate base dimension of 30 feet by 30 feet and taper to a six foot by five foot column half way up the structure, anchored to four concrete foundations at the corners of the base approximately three to five feet in diameter. For the high-voltage direct current transmission portion of the project, the height of the structures would range from 60 to 135 feet. For the alternating current overhead transmission line portion of the project, the height of the structures would range from 48 to 160 feet.

The transmission line would cross existing substations in Northumberland, Whitefield, North Woodstock, Campton, Ashland, New Hampton, Franklin, Concord, and Deerfield. Overhead/underground transmission stations would be installed at each end of each underground segment of the line and occupy an area approximately 75 feet by 130 feet, enclosed with fencing. The Franklin converter terminal would include a variety of buildings occupying approximately 10 acres, enclosed with fencing. The Deerfield substation would be modified to include additional construction requiring the clearing of eight acres. Sixty-three miles of existing lines for the high-voltage direct current portion of the line, and 21 miles of existing lines for the alternating current portion of the line, would be relocated. These lines would remain within the boundaries of the existing right-of-way. A large number of structures associated with these existing lines would be replaced with structures greater in height than currently existing structures.

II. Procedural Background

The petitioners filed their application with the Site Evaluation Committee in October 2015. Pursuant to RSA 162-H:9 (2014), the attorney general appointed a Counsel for the Public (CFP). In November, the chair of the Site Evaluation Committee appointed a Subcommittee. See RSA 162-H:4-a (Supp. 2016).2 The Subcommittee sent notice to the municipalities affected by the project and included procedures for intervening in the proceedings.[3] Following a public hearing, the Subcommittee accepted the application, finding that it "contained sufficient information to carry out the purposes of" RSA chapter 162-H.

In January 2016, the Subcommittee held public information sessions in Franklin, Londonderry, Laconia, Whitefield, and Lincoln. See RSA 162-H:10, I-a (Supp. 2016) (amended 2017). In addition, the Subcommittee held seven public hearings between March and June of 2016 in Meredith, Colebrook, Concord, Holderness, Deerfield, Whitefield, and Plymouth. See RSA 162-H:10, I-c (Supp. 2016) (amended 2017, 2018). The Subcommittee received 160 motions to intervene and, in May 2016, the Subcommittee combined the intervenors into groups by geography and areas of interest. Between March 2016 and October 2017, the Subcommittee conducted seven days of site visits.

The Subcommittee held 70 days of adjudicative hearings between April and December 2017. It received testimony from 154 witnesses and received 2, 176 exhibits. The evidentiary record closed on December 22, 2017. The Subcommittee commenced its deliberations on January 30, 2018, first addressing whether the petitioners had "adequate financial, technical, and managerial capability to assure construction and operation of the facility in continuing compliance with the terms and conditions of the certificate." RSA 162-H:16, IV(a) (Supp. 2016). Although the Subcommittee did not take a formal vote, it "informally agreed" that the petitioners have "sufficient financial...

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