By William Opalka
The developers of the Northern Pass transmission line may have to fight in court before they turn the first shovel of dirt on their project to deliver Canadian hydropower to the New England grid.
The Society for the Protection of New Hampshire Forests on Thursday sued Northern Pass Transmission to prevent it from using land the society owns. The lawsuit says Northern Pass does not have the legal right to access Forest Society lands and should be permanently barred from using it.
The suit came three days after New Hampshire environmental officials said that the developers’ siting application is incomplete because they had not shown they have property rights along the entire 192-mile route.
The letter from the state Department of Environmental Services to the New Hampshire Site Evaluation Committee said the application lacks “proof that the applicant will have a legal right to undertake the project on the property if a permit is issued.” The department was asked to weigh in on the application due to the project’s “alteration of terrain” and wetlands disturbances.
Northern Pass filed the siting application last month, starting a process that is expected to take 14 months. Developers hope to put the line in service in 2019. (See Northern Pass Files for Siting Approval, Revises Cost.)
In announcing the Forest Society’s lawsuit, President Jane Difley said the group “has a legal and ethical obligation to defend” its land against commercial development.
“Northern Pass cannot show that it has the property rights it would need to build the facility it is looking to permit through the Site Evaluation Committee. Nor does Northern Pass, as a merchant transmission project, have the ability to use any form of eminent domain to acquire those rights,” Difley said in a statement.
The lawsuit asks the Coos County Superior Court for a declaratory judgement that Northern Pass has no right to excavate along Route 3 in land known as the Washburn Family Forest. The land is in an 8-mile section near the Canadian border where the developers have proposed to bury the line. The Forest Society is also seeking intervenor status before the siting committee.
“Northern Pass is a private entity seeking to make use of Forest Society lands for the exclusive use of Hydro-Quebec,” said the group’s attorney, Tom Masland. “It is our strongly held view that they cannot do so without the Forest Society’s permission.”
The society says the project, as a merchant transmission line not deemed necessary by the state Public Utilities Commission, is not entitled to use highway rights of way the same way as other utility infrastructure.
“We are disappointed but not surprised that the Forest Society has today taken legal action to circumvent the N.H. Site Evaluation Committee’s authority,” Northern Pass said in a statement. “We are confident that our [siting committee] application meets the standards outlined in N.H. statutes and SEC rules, and that the Forest Society’s claims to the contrary have no basis in fact or law.”
Northern Pass also said that use of a public road is a legitimate use for projects that would benefit the region by providing access to affordable electricity.
“It is hypocritical that the Forest Society has long argued for additional underground construction but is now challenging our proposal to do just that,” the developers said.
The New England Power Generators Association also raised objections to the project in a letter to the site committee.
It said the relationship between Northern Pass and its parent company Eversource Energy raises “concerns about potential undue preference and a slanted playing-field harming competitive outcomes for the electricity marketplace and consumers. This is particularly true when a competitive energy affiliate may use property, services or receive other benefits provided by utility ratepayers for utility purposes.”
A Northern Pass spokeswoman said it is not uncommon for applicants to be asked for additional information.
“We are confident that any potential issues will be resolved in a timely manner and our application will be deemed complete by the SEC,” Lauren Collins said.
The project is in a 60-day window for the siting committee to determine if the application is complete.
The Environmental Services Department said enough information was provided to begin its technical review while the application’s deficiencies are addressed.