The public use of public roads

Northern Pass’ proposed use of the public roads for its power line is an entirely legal and proper use of public road easements

The Northern Pass project recently proposed a new route with plans to bury a portion of the transmission line under existing public roads. The Society for the Protection of New Hampshire Forests previously advocated for line burial, yet, in an orchestrated barrage of publicity, this group is now loudly trumpeting its “right” to deny Northern Pass permission to use these public roads because the society owns the adjoining land.

The notion that anyone, including Northern Pass, has to obtain the society’s approval to use a public right of way is simply and plainly wrong.

Northern Pass, like all projects of its size and scope, is required to follow the process established in law, and it will be subject to a rigorous review by the New Hampshire Site Evaluation Committee.

Nevertheless, Northern Pass’ proposed use of the public roads for its power line is an entirely legal and proper use of public road easements. Most of us realize that putting power lines within roadways is not at all “groundbreaking,” as one errant news account claimed.

For more than 100 years, the siting of electric lines has been a legitimate use of public roads because they convey a valuable commodity — electricity. After all, that is the very purpose of a public right of way — to provide for the conveyance of people, goods and services from point to point. Sometimes products are transported in vehicles. Other times they are carried in pipelines or along cables or wires. But, they are all well-recognized uses of a public road.

Consequently, power lines along roads are a ubiquitous presence, common sights to all of us. Though less visible, our roads are also rife with buried utilities of all sorts, including gas pipelines, water and sewer pipes, fiber-optic and electric cables, to name just a few. They are not there by accident.

Our Legislature long ago enacted a statute specifically authorizing utility services, including underground power lines, within public roads. Legally, it makes no difference whatsoever whether the power line is above or below the surface. So long as it remains within the footprint of the public easement and doesn’t unreasonably infringe on other users’ rights, transmitting electricity is an appropriate and legal use of a public road.

The Forest Society is correct in that most public roads are right-of-way easements and abutters technically own the land to the center of the road, as well as the air space above it, for that matter. That does not mean, however, that as an abutter the Forest Society gets to arbitrarily veto the use of the public road by those they don’t approve of. Public roads exist precisely so that users don’t have to get permission from each landowner every time they choose to use the right of way.

Perhaps it is worth reminding the Forest Society that the roads belong to all of us.

Attorney Mark Hodgdon of the Law Office of Mark P. Hodgdon in Concord represents Northern Pass. As a member of the Attorney General’s Office, he represented the Department of Transportation.