Siting Energy Facilities In New Hampshire

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

Q: What is the regulatory framework for the approval of the proposed Northern Pass Transmission Line?

A: Anyone seeking to construct, operate, maintain, or connect an electric transmission facility crossing the borders of the United States must first obtain a Presidential permit issued by US Department of Energy (DOE) under Executive Order (E.O.) 10485, as amended by E.O. 12038. Eversource Transmission Ventures, Inc., (Northern Pass) proposes to build a transmission line that will cross a U.S. border, and has applied to DOE for a Presidential permit. DOE’s role is limited to deciding whether to issue a Presidential permit. In order to build its proposed transmission line, Northern Pass also will be required to obtain the approval of the New Hampshire Site Evaluation Committee under RSA Chapter 162-H.

Q: Must the proposed Northern Pass Electric Transmission complete an environmental impact statement?

A: A proposed interstate or international electricity transmission power line is reviewed under the National Environmental Policy Act (NEPA) of 1969—42 U.S.C. Section 4321 et seq. The Department of Energy (DOE) regulations that implement NEPA require DOE to determine whether a proposal requires preparation of an Environmental Impact Statement (EIS), an Environmental Assessment (EA), or a Categorical Exclusion (CX).

Q: What significant events have occurred so far related to the issuance of a Presidential Permit for Northern Pass?

A: On October 14, 2010 Northern Pass applied for a Presidential Permit to construct an electrical transmission line from the Canadian border to Franklin, NH, with related trunk and distribution lines from Franklin to Concord. In 2011, scoping hearings were held in Pembroke, Franklin, Lincoln, Whitefield, Plymouth, Colebrook, and Haverhill to develop the issues the Environmental Impact Statement would cover. On July 2, 2013, Northern Pass filed an amended application modifying the proposed route for the Project. On March 12, 2014, DOE issue its scoping report detailing the 7,560 separate comments received on what subjects should be covered in the EIS for Northern Pass.

Q: What is the next phase in the development of the EIS for Northern Pass now that the scoping phase is completed?

A: Scoping is the first phase of the National Environmental Policy Act (NEPA) analysis process. It is intended to give interested parties the chance to comment on a proposed action and to offer suggestions about the issues to be considered in the EIS analyses. Commenting on the Draft EIS is the second major phase of public involvement. The Draft EIS has not been prepared at this time. Interested parties are given the chance to participate in the Northern Pass Transmission Project EIS by submitting their comments and questions concerning the Draft EIS, attending public hearings, and reading EIS publications and related materials. Future public involvement activities for the EIS include public distribution of the Final EIS and Record of Decision. DOE maintains a website dedicated to the EIS process for Northern Pass: http://www.northernpasseis.us/.

Q: Who issues permission for the construction of a new interstate natural gas pipeline?

A: Federal Regulatory Commission (FERC) is the federal agency that regulates the interstate transmission of electricity, natural gas, and oil and also reviews proposals to build liquefied natural gas terminals and interstate natural gas pipelines and to license hydropower projects.

Q: What criteria does FERC use to decide whether to approve a natural gas pipeline?

A: Under the Natural Gas Act, 15 U.S.C. §§ 717-717z, before an applicant can construct or extend an interstate facility for the transportation of natural gas, it must obtain a “certificate of public convenience and necessity” from FERC. FERC will first confirm whether the project can proceed without subsidies from the existing pipeline’s customers. In conjunction with the certificating process, FERC must also complete an environmental review of the proposed project, as mandated by the National Environmental Policy Act (NEPA). Under NEPA, it is FERC’s obligation that it identify the reasonable alternatives to the proposed pipeline and look hard at the environmental effects of its decision. Minisink Residents for Preservation & Safety v. FERC, 762 F. 3d 97 (D.C. Cir., 2014)

Q: Must a new interstate natural gas pipeline receive a permit from the NH Site Evaluation Committee or comply with local zoning ordinances and building codes?

A: Although the Natural Gas Act arguably preempts almost all state or local regulation, in the past applicants seeking to construct natural gas pipelines in New Hampshire have sought and obtained approval from the state Site Evaluation Committee. While local and state regulations may legally have only an indirect effect on, and must not interfere with FERC’s authority or the ability of the pipeline builder to carry out its public convenience and necessity certificate, the state has in the past imposed some conditions on the approval of a proposed interstate natural gas pipeline that address local and state concerns. Nonetheless, it should be noted that federal case law has made it clear that municipal zoning regulations are preempted by the Natural Gas Act. See, Algonquin Lng v. Loqa, 79 F.Supp.2d 49 (D.R.I. 2000) (federal court in Rhode Island holds that local zoning ordinance requiring pipeline builder to obtain variance from ZBA was preempted).

Q: What energy facilities must be approved and receive a certificate of site and facility from the New Hampshire Site Evaluation Committee (NHSEC) in order to operate in NH according to state law?

A:

• Any industrial structure that may be used substantially to extract, produce, manufacture, transport or refine sources of energy, including ancillary facilities as may be used or useful in transporting, storing or otherwise providing for the raw materials or products of any such industrial structure. This shall include but not be limited to industrial structures such as oil refineries, gas plants, equipment and associated facilities designed to use any, or a combination of, natural gas, propane gas and liquefied natural gas, which store on site a quantity to provide 7 days of continuous operation at a rate equivalent to the energy requirements of a 30 megawatt electric generating station and its associated facilities, plants for coal conversion, onshore and offshore loading and unloading facilities for energy sources and energy transmission pipelines that are not considered part of a local distribution network. Electric generating station generating 30 megawatts or more.
• An electric transmission line of design rating of 100 kilovolts or more, associated with a generating facility over a route not already occupied by a transmission line or lines.
• An electric transmission line of a design rating in excess of 100 kilovolts that is in excess of 10 miles in length, over a route not already occupied by a transmission line.
• A new electric transmission line of design rating in excess of  200 kilovolts.
• A renewable energy facility capable of generating more than 30 megawatts and powered by wind energy, geothermal energy, hydrogen derived from biomass fuels or methane gas, ocean thermal, wave, current, or tidal energy, methane gas, biomass technologies, solar technologies, or hydroelectric energy.
• Any other facility and associated equipment that the committee determines requires a certificate, consistent with the findings and purposes of RSA 162-H:1, either on its own motion or by petition of the applicant or 2 or more petitioners

Q: Who sits on the NHSEC?

A: The three commissioners of the public utilities commission, the commissioner of the department of environmental services, the commissioner of the department of resources and economic development, the commissioner of the department of transportation, the commissioner of the department of cultural resources or the director of the division of historical resources as designee; and two members of the public, appointed by the governor, with the consent of the council, at least one of whom shall be a member in good standing of the New Hampshire Bar Association, and both of whom shall be residents of the state of New Hampshire with expertise or experience in one or more of the following areas: public deliberative or adjudicative proceedings; business management; environmental protection; natural resource protection; energy facility design, construction, operation, or management; or community and regional planning or economic development. When considering an application for a certificate the Committee must have at least seven members involved as a subcommittee to consider the application. The state officials named to serve on a subcommittee may delegate their service on this Committee to a senior administrative employee or a staff attorney in their agency.

Q: What manner of local hearings and involvement is mandated in order to receive approval from the NHSEC under RSA Chapter 162-H?

A:

• At least 30 days prior to filing an application for a certificate, an applicant shall hold at least one public information session in each county where the proposed facility is to be located.
• Within 45 days after acceptance of an application for a certificate, pursuant to RSA 162-H:7, the applicant shall hold at least one public information session in each county in which the proposed facility is to be located.
• Upon request of the governing body of a municipality or unincorporated place in which the proposed facility is to be located, the NHSEC committee may order the applicant to provide such additional information sessions as are reasonable to inform the public of the proposed project.
• Within 90 days after acceptance of an application for a certificate, pursuant to RSA 162-H:7, the NHSEC shall hold at least one public hearing in each county in which the proposed facility. RSA 162-H:10.
• The Committee also often finds time during the adjudicative portion of the proceeding to accept statements from members of the public who attend these hearings.
• Municipalities and municipal boards often become intervenors in proceedings before the Committee.

Q: What information is the NHSEC obligated to consider in reaching its decision whether to approve a proposed energy facility?

A: The NHSEC must consider and weigh all evidence presented at public and adjudicative hearings and evidence introduced during the adjudicative portion of the proceeding, and must consider and weigh written information and reports submitted to it by members of the public before, during, and subsequent to public hearings but prior to the closing of the record of the proceeding. The NHSEC shall consider, as appropriate, prior committee findings and rulings on the same or similar subject matters, but shall not be bound thereby. RSA 162-H:10 (III).

Q: Has the NHSEC adopted rules that govern the specific criteria for the siting of energy facilities?

A: By July 1, 2015, the NHSEC must adopt rules that govern its organization, practices, and procedures and the criteria for the siting of energy facilities. If SB 170 passes this year and is signed into law, this deadline will be extended to November 1, 2015. The rules that NHSEC must adopt will provide more detail but must still be consistent with the statutory requirement (RSA 162-H:16, IV) that the NHSEC make the following findings in order to approve an energy facility:

(a)  The applicant has 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.

(b)  The site and facility will not unduly interfere with the orderly development of the region with due consideration having been given to the views of municipal and regional planning commissions and municipal governing bodies.

(c)  The site and facility will not have an unreasonable adverse effect on aesthetics, historic sites, air and water quality, the natural environment, and public health and safety.

 (d) Issuance of a certificate will serve the public interest.

Stephen Buckley is Legal Services Counsel with the New Hampshire Municipal Association. Steve may be contacted at 800.852.3358 ext. 3408 or at legalinquires@nhmunicpal.org.  Douglas Patch is shareholder with Orr and Reno, PA, based in Concord, and represents clients on energy matters. Doug may be contacted at 603.223.9161 or at dpatch@orr-reno.com.