Fundamentals of the site evaluation process

What exactly is the Site Evaluation Committee and why has it become such an issue?

At least nine bills have been sponsored this legislative session recommending changes to the process that the state uses to approve new transmission lines and electric generating projects. These bills have proposed a variety of changes to the Site Evaluation Committee process, running the gamut from requiring local public approval prior to issuance of site evaluation certificates, to requiring electric transmission lines to be buried, to imposing a moratorium on new wind farms and/or new transmission projects.

The House Science, Technology and Energy Committee has retained a number of bills, and has already begun work sessions to hear from parties involved with or concerned about the process. The Senate, meanwhile, passed a bill that would create a study committee. (A similar committee studied the SEC process, issued a report and recommended changes in 1990.)

While it remains to be seen what may result from a legislative study, given the number of expressions of displeasure with the process it seems quite likely that changes to the SEC process will be recommended for legislative action in 2014.

There are two reasons the SEC process is being scrutinized now, more than 40 years after it was first established: the Northern Pass transmission project and wind farms.

Opponents of Northern Pass have been actively seeking legislation that would change the SEC process to make it more difficult to approve the project. The development of wind farms in Lempster, Dixville and Groton, a proposed project in Antrim where the SEC by a 6-3 majority voted not to grant a certificate (though the written order has not yet been issued) and more projects under consideration in the Newfound Lake area, have caused opponents to push for changes to the process to give more local control, establish new criteria or make a variety of other changes to the process.

The SEC was created in 1971, largely in anticipation of the development of the Seabrook nuclear plant. It is composed of state executive branch officials who must review and approve new electric and gas transmission projects and electric generating facilities before they can be built.

The concept from the beginning was to create a one-stop state permitting process that preempted local approval, the idea being that siting energy facilities is a statewide issue, though by law the committee must take into account the views of local and regional governing bodies.

Project approval

The 15-member committee is chaired by the commissioner of the Department of Environmental Services; the chairman of the Public Utilities Commission is vice chair.

Members include the heads of or division directors in various state departments, including DES, the PUC, the Department of Transportation, Fish and Game, Resources and Economic Development, Health and Human Services and the Division of Historical Resources.

By law, the process for a renewable energy facility is supposed to be completed in nine months, though it typically takes longer, and the committee can suspend the time frames in the statute if it is in the public interest.

Transmission and other generation projects take at least 11 months.

At least one public hearing is held in the county were the project is to be located, and there are typically expert reports and expert testimony during the course of the adjudicative hearings before the committee, which often last for many days. (The committee does not review projects between five and 30 megawatts unless petitioned to do so by specific petitioning categories or unless it opts to do so on its own.)

An appeal of a committee decision goes directly to the New Hampshire Supreme Court. Over the years, five appeals have been heard by the court. In two other cases, the court decided not to hear the appeal.

For years, the committee had no administrative rules, but in 2008 it adopted rules when directed to do so by the Legislature. Part of the reason for the delay in adopting rules was that the committee has no full-time staff — only a legal counsel that it hires for each project that comes before it.

To approve a project, the committee must find that the applicant has financial, technical and managerial capability, that it will not unduly interfere with the development of the region, and that it will not have an unreasonable adverse effect on aesthetics, historic sites, air and water quality, the natural environment and public health and safety. When the committee issues a certificate, it typically imposes a number of conditions that vary depending on the type of project and the location.

DES Commissioner Tom Burack told the Legislature this session that the process is almost at a breaking point because of the number of projects it has to review, the lack of staff and resources available to the Committee, and the time it takes to review each application. It thus seems likely that there will be changes, though finding a consensus on what changes are appropriate will be a challenge.

Doug Patch, former chairman of the New Hampshire Public Utilities Commission, is a shareholder and member of the Energy Practice Group at the Concord law firm of Orr & Reno. He can be reached at dpatch@orr-reno.com.