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Thu December 26, 2013
When Siting Utility Projects Those Who Want Local Control Admire Colorado Where A Town Can Say "No!"
For projects like wind farms or the Northern Pass to be built in New Hampshire they must be approved by the state’s Site Evaluation Committee. By the end of the month the state’s Office of Energy and Planning has to submit a report to the legislature on what changes – if any – should be made to the Site Evaluation Committee.
Over the last few weeks the state has held hearings and workshops around New Hampshire to study whether the SEC needs an overhaul. And at those hearings critics have brought up one issue over and over —just who makes up the 15 member committee?
The answer is the staff and heads of state agencies including the Public Utilities Commission, Department of Environmental Services and the Department of Resources and Economic Development. Some people want that to change.
“Towns affected by a particular project such as transmission towers and wind turbines should have a greater say in establishing guidelines which protect its residents’ health, well-being and property values,” said Joanna Tuveson of Holderness, speaking at a public hearing in Plymouth.
Senate Bill 99 – passed earlier this year - calls for a wide-ranging review of the SEC.
But Tuveson is addressing a piece some – including opponents of Northern Pass and wind farms - have seized on. It calls for a look at “the roles of participating municipalities and the public.” Since the legislature formed the SEC in 1971 the state officials on the committee have had the authority to decide what they think is best for the general public and the greater good.
Indeed, the SEC is supposed to consider the concerns and wishes of citizens and various jurisdictions. But the towns and counties don’t have a vote. The state can approve a project over local objections. And some advocates of local control have been pointing to one state – Colorado.
In Colorado companies must get the permission of every county, city and town through which a gas pipeline or electric transmission project wants to pass. That’s a model that Jim Dannis likes. He’s a Northern Pass opponent from Dalton:
“Certainly in New Hampshire, with a strong tradition of local rights, it would be more appropriate to look for a creative solution that leaves authority in local towns and regions for the siting of these projects."
And local officials in Colorado like the system too. Adams County commissioner Eva Henry says she can’t imagine having the heads of state agencies make such decisions.
“Here in Colorado we put a lot of pride in our local control. Who better to know how to run their own community than the people that actually live in that community... In your state’s case where you have fifteen people that are actually deciding for a community they don’t live in, I really don’t think that is right.”
The three Adams County commissioners recently voted down a proposal for a natural gas pipeline. They thought its route would interfere with future development. Developers found a different route and the commissioners approved the project several months later. That scenario worked for everyone.
But Henry admits one downside to such local control is the risk of towns or counties being sued.
“It is always concern and, yes, we have been sued by large utility companies. And sometimes we win and sometimes we lose."
But Adams – located east of Denver - is a huge county with 1,800 employees including 23 lawyers on the payroll. It can handle such legal challenges far better than a little town with a little budget. And while counties might like the approval process, utilities find it frustrating.
In 2011 a Colorado state task force studied local control and whether to change to system where one body would make all such decisions.
The Colorado legislature decided to stick with local control despite concluding it causes utility companies and developers unnecessary delays, increased costs, makes planning hard, and causes “significant uncertainty” due to varying standards.
Thomas J. Dougherty, a Colorado lawyer who often represents utility companies or energy projects:
“The challenge here is that you will have to deal with multiple jurisdictions and obtain multiple permits from each of those jurisdictions. Anyone of those individual jurisdictions could say ‘no’ or could impose a condition that would be extremely expensive or problematic in some way for the larger project."
If a local jurisdiction turns down a project – one possibility is to go to court, Dougherty says.
But he says that would “rarely succeed” because under Colorado law “the local government decision is given considerable deference.”
The more likely approach is an appeal to the state’s Public Utility Commission, but Dougherty said he is only aware of that happening three times. Two of those cases involved the utility challenging a requirement that transmission lines be buried. In each case the utility won. Dougherty says Colorado’s system is not unique. By his count there are six other states that give approval to local authorities.
But in the Northeast centralized control dominates. Vermont and Maine have systems that are somewhat similar to New Hampshire, though in Maine towns can delay projects with temporary moratoria. Proponents say a statewide system such as that in New Hampshire do a better job of considering the big picture.
“The advantages of the New Hampshire system – as I see it – are that New Hampshire takes a statewide look at issues related to transmission and generation in large part because energy infrastructure is such a critical part of the state’s underlying community, its economic development, its need for power in terms of looking at all those issues,” said Doug Patch, a former vice chair of the New Hampshire SEC and former chair of the state’s Public Utilities Commission.
And chances are slim of New Hampshire adopting a system like Colorado.
“I don’t think we want to turn over to towns which are actually all creations of state authority the sole and exclusive responsibility to decide the fate of energy projects that may be important to the state and or the region,” said Bob Backus, a state rep from Manchester who’s on the Science Technology and Energy Committee.
But a reform that Backus does think is possible is for the SEC to make room for citizen representatives.
“But we do want to make sure the towns have very broad opportunity for input and their voices will be heard."
Meanwhile, local input and representation is only one piece of the SEC review.
Also on the docket are other issues:
- Whether the committee needs its own dedicated staff and funding.
- Whether there should be more specific guidelines including visual and noise impacts.
- Whether to link project approval to the state’s need for energy from the project.
- Whether to link the project to a broader state energy strategy.
- Whether to require an applicant to provide an alternative route.
- Recommendations for how to change the committee are due by January 1st.
Depending on the changes approval would be required by either the SEC or the legislature.