Why Eminent Domain Bills Are Center Stage In Northern Pass Controversy

NHPR

Northern Pass opposition has shifted from private land transactions to legislation with the start of the session

Thanks to the ongoing Northern Pass controversy, eminent domain–when the government forces landowners to sell their property to benefit a project for the public good–has become one of the 2012 legislative session’s key issues.

And thanks to the Forest Society, the issue’s gained a greater sense of urgency

Here’s the nutshell version:  Last month, the Tillotson Corporation made waves by declining Northern Pass’ $3 million bid for some land on the Balsams Grand Resort property.  Instead, the Corporation accepted an $850 thousand bid from the Forest Society to put the land into a conservation easement.  According to Concord Monitor reporter Annmarie Timmins, that move all but dealt a death-blow to the proposed Northern Pass route.  The utility’s only hope of getting that land back was the Forest Society failing to raise the necessary $850 thousand by this week.

But as Edith Tucker at the Coos County Democrat reports, the Forest Society (or more formally, the Society for the Protection of New Hampshire Forests) did manage to raise the money:

“‘Interest in the Balsams conservation project ballooned when Northern Pass, LLC, attempted to interfere with the transaction, arguing that siting its proposed private, commercial HVDC overhead transmission line project was a better fit,’ noted SPNHF communications director Jack Savage in a Monday e-mail exchange.

‘Based on the notes and comments we’ve received along with donations, it’s evident that many people saw the Balsams’ landscape campaign as a referendum on Northern Pass,’ [Society President-Forester Jane] Difley said. ‘Our success is one more strong statement by those who understand the true value of New Hampshire’s forested landscape: the proposed Northern Pass transmission line is not wanted and offers little or no benefit to the state.'”

While on the one hand, that move has Northern Pass opponents breathing a collective sigh of relief, on the other, it’s ratcheted-up tension on the related issue of eminent domain.

Simply put, their fear is that with the original Northern Pass plan stymied, the project will eventually invoke eminent domain.  So the next move, as the Monitor‘s Annmarie Timmins reports, is to block Northern Pass with one of two Senate bills (brought up yesterday in the Judiciary Committee):

Steve Soblick / Flickr

Eminent Domain has been a controversial issue all over the country

“One, sponsored by Senate President Peter Bragdon of Milford and Sen. Jeanie Forrester of Meredith, both Republicans, would prohibit public utilities from taking land by eminent domain if the project is a private development or “participant-funded,” meaning a project not paid for by ratepayers. Northern Pass, as proposed, would be paid for by HydroQuebec and provide revenue for Northeast Utilities and Public Service of New Hampshire.

A second bill, proposed by Republican Sen. Jeb Bradley of Wolfeboro, would allow a public utility to request use of eminent domain for a electric transmission project like Northern Pass only if the Public Utilities Commission finds the project improves the system’s reliability, lowers electricity rates in the state or provides an environmental benefit in the state.

Bradley’s proposal would also forbid a developer from suggesting they will use eminent domain in land negotiations unless the commission has already authorized its use.”

Meanwhile, determining where, exactly, Northern Pass stands on the issue of eminent domain is a murky proposition.  As Timmins reports, state law already on the books and the New Hampshire constitution don’t allow private projects to invoke the law.  But, she cites a lobbyist at yesterday’s committee hearing saying that Northern Pass would likely get an exemption, because of the public benefits of the project.

So it sounds like Northern Pass will play the eminent domain card.

Not so fast, says Northern Pass.  Here’s more from Timmins:

Karen Kleis / Flickr

Northern Pass contends that while it doesn't plan on using eminent domain, theoretically, the project would be considered a public benefit

“In a hearing before the House Judiciary Committee, Northern Pass lobbyist Donald Pfundstein, an attorney, said Northern Pass does not intend to ask the state Public Utilities Commission to use eminent domain but said if it does, the state will have to decide whether the project’s public good ‘outweighs’ the burden of landowners losing their land.

Republican Rep. Robert Rowe of Amherst, who chairs the judiciary committee, asked Pfundstein if he considered Northern Pass’s energy to be a qualifying public benefit.

Pfundstein replied, ‘New Hampshire will receive a significant benefit as a result of Northern Pass. The (state Public Utilities Commission) could say Northern Pass constitutes a public benefit.'”

So while the project’s representatives say they won’t play the eminent domain card, they acknowledge that they theoretically could.  Northern Pass’ publicly-stated–and demonstrated–preference is to buy a patchwork of North Country properties at prices that are tough to refuse.  Then, the project can put up its towers and transmission lines without the muss and fuss of messy eminent domain disputes.

Meanwhile, Timmins reports the Senate decided to hold back a planned vote targeting Northern Pass vis-a-vis eminent domain in order to consider the “competing” Bragdon/Forrester and Bradley bills.

And on the other side of the legislative branch, NHPR’s Sam Evans-Brown reports the House Judiciary Committee heard three bills relating to eminent domain–and, by extension, Northern Pass.