A recent New Hampshire Supreme Court decision did not settle the eminent domain issue regarding Eversource Energy’s (NYSE:ES) Northern Pass transmission project, “but asks us all to wait until the” state Department of Transportation (DOT) acts, the Society for the Protection of New Hampshire Forests (Forest Society) said on Jan. 31.
In a separate Jan. 31 statement, Northern Pass Transmission LLC said that the court “has ruled that the proposal by Northern Pass to use public highways for underground installation of electric transmission lines is clearly allowed under state law.”
The court decision, Northern Pass Transmission said, upholds a previous court ruling.
The Forest Society noted in its statement that it originally filed suit against Northern Pass in Coos County (N.H.) Superior Court in November 2015, citing the Northern Pass application to the state Site Evaluation Committee (SEC) as an improper attempt to make use of lands that the Forest Society owns.
2016 Superior Court decision
As TransmissionHub reported, the Forest Society last May said that it is disappointed by the Superior Court decision in the case in which the group sought to prevent Northern Pass Transmission from conducting activities for the proposed Northern Pass Project on certain land without first obtaining the group’s permission.
As noted in that court decision, Northern Pass and its co-applicant Public Service Company of New Hampshire (PSNH) in October 2015 submitted to the SEC their joint application for a certificate of site and facility to build a new high voltage transmission line and related facilities in New Hampshire – the Northern Pass Project.
The new line, which would extend about 192 miles from the Canadian border through New Hampshire to southern New England, is comprised of a single circuit 320-kV high voltage direct current (HVDC) transmission line linked to a 345-kV alternating current (AC) transmission line via an HVDC/AC converter terminal located in Franklin, N.H., the court said.
In conjunction with the application, Northern Pass and PSNH also submitted a petition to the DOT seeking permission to install the line and related facilities across, over and under certain state highways.
The Forest Society owns land – the Washburn Family Forest – on both sides of a section of Route 3 in Clarksville, N.H. The Superior Court also noted that as part of the project, Northern Pass is seeking the necessary permission, licenses and permits from the DOT to bury a portion of the line about 50 feet to 70 feet below the section of Route 3 that runs through the Forest Society’s property.
Northern Pass has not asked the Forest Society for, and the Forest Society has not granted to Northern Pass, permission to install, use or maintain the proposed line through the Washburn Family Forest, contending that the Forest Society’s permission is not required because the DOT has exclusive power to authorize Northern Pass’ proposed use of the public ROW, the Superior Court said.
Recent Supreme Court decision
The Supreme Court, in its decision, said that because the DOT has not yet acted upon any license application, whether its potential approval of a license might result in inverse condemnation is too speculative a question to be fit for judicial determination. The decision not to address whether a future licensing determination might result in inverse condemnation does not result in hardship, the court said.
“Under the circumstances, we conclude that the trial court did not err by declining to address the constitutionality of a future licensing decision by the DOT,” the court said. “We, likewise, decline to address whether any future license granted by the DOT might result in inverse condemnation.”
Among other things, the court said that it concludes that use of the Route 3 right of way (ROW) for the installation of an underground high voltage direct current electrical transmission line, with associated facilities, falls squarely within the scope of the public highway easement as a matter of law, and that such use is within the exclusive jurisdiction of the DOT to regulate.
In its Jan. 31 statement, the Forest Society said that the Supreme Court’s decision “is unfortunate in that it puts off until later a private property rights issue of extraordinary importance to New Hampshire landowners. In short, the Court punted.”
The Forest Society said that it will be ready when the DOT acts, adding, “As a result, Northern Pass can likely count on additional delays if they continue to pursue their current proposal.”
Referencing the SEC process for the project, the Forest Society said that it “is more confident than ever that we and other intervenors will make it abundantly clear that Northern Pass as currently proposed, with 132 miles of overhead transmission line, will not meet the required standards.”
The Forest Society claimed, “The unreasonable adverse impacts are too great, the purported benefits of the project too transparently a mirage.”
Northern Pass Transmission said in its statement that while the Forest Society has frequently demanded that the project be buried, in this case, had filed the lawsuit to prevent the project’s burial. The Forest Society, the company claimed, has continued to raise the false notion that the use of eminent domain is possible for Northern Pass, when state law prevents it, and the project does not require its use.
Northern Pass also said that it anticipates a final SEC decision later this year, adding that the DOT participates in the state permitting process, and a representative from the agency sits on the SEC.
Northern Pass noted that it proposes to bury 60 miles of the transmission line along public roadways, including a 52-mile stretch that eliminates visual impacts in the White Mountain National Forest, the Appalachian Trail, and the Franconia Notch area.
The company further noted that the federal permitting process continues and includes a full review by the U.S. Department of Energy.