Legal Scholar: Northern Pass challenge faces stiff challenge
CONCORD, N.H. >> A lawsuit claiming a utility company doesn't have the right to bury a power line under a North Country highway faces steep legal challenges against long-established property law, according to a legal scholar.
Hartford, Connecticut-based Eversource wants to run a 192-mile transmission line from Pittsburg to Deerfield, carrying 1,090 megawatts of hydropower from the Canadian company Hydro-Quebec to southern New England markets. Sixty miles of the line will be buried, including an 8-mile stretch in the Clarksville-Stewartstown area in the far north.
The Society for the Protection of New Hampshire Forests owns a plot of conservation land within that 8-mile span called The Washburn Family Forest, which straddles Route 3. The society is suing the utility, saying it doesn't have the right to bury the line under society land.
"Northern Pass is a private entity seeking to make use of Forest Society lands for the exclusive use of Hydro-Quebec," said Tim Masland, a lawyer representing the society. "It is our strongly held view that they cannot do so without the forest society's permission."
The society maintains that its property rights extend above and below the surface of the road, but Marcus Hurn, who has practiced property law for 35 years and taught it at the University of New Hampshire for 25, said the society has a "very difficult problem:" overcoming state law that dates to the mid-19th century and that has consistently said utilities can — and in many cases, should — use things like highways and railroad beds as rights of way to put their electrical wires or pipelines.
"When it's a close case, and the courts aren't sure that some new, more intensive use is permitted, they look to the burden on the landowner," Hurn said. "Well, the forest society isn't doing any mining. They have no purpose or interest in using anything below the surface so they're going to have a hard time saying that the temporary construction activities burden their use of their land in anyway. They're in the worst possible position."
Northern Pass, which is one of several projects being considered in Maine, New Hampshire and Vermont to take Canadian power to southern New England, has been controversial since it was first proposed more than five years ago.
Backers say the $1.6 billion project will create jobs and lower energy costs in a region that routinely pays the nation's highest average cost for electricity. The U.S. Energy Information Administration reports that New England consumers will pay 19.29 cents per kilowatt-hour in 2015, more than 50 percent higher than the national average of 12.56 cents.
But opponents have argued that the project, with its taller power poles, will hurt property values, tourism and the environment. Initially, only 8 miles of the line was proposed to be buried, but opponents succeeded in getting Eversource to propose burying an additional 52 miles through the White Mountains. They're still not happy and want the entire project buried, something Eversource says would make it too expensive.
Hurn said the arguments before the judge in this case would have been the same ones raised when electricity was new or when the telegraph was born.
"As is typical in a case like this, the landowner naturally wants to emphasize how different, strange, unexpected the use is, but, frankly, most of the petition is political rhetoric," Hurn said. "I don't say that as a criticism. I don't have any particular views about Northern Pass or this case. There's a lot of appeal to the way they tell the story, but it's the same kind of argument that was first made about electrical transmission poles on a right of way. When they first arose, they were new, they were above ground, they were ugly, and yet every state that I've ever heard of allows electrical transmission in a highway right of way."
The society will argue that because the Northern Pass project is a "merchant" project that is not required for grid reliability and is proposed by a privately held company, existing law doesn't apply. Such a merchant project could try to take the land by eminent domain, but Hurn said Eversource might have a tough time going that route.
Mark Hodgdon, the lawyer handling the property rights issue for Eversource, said the company is confident case law will uphold its position and allow the lines to be buried under Route 3.
"The public right of way extends beyond the road or the shoulder or the ditches, and we're staying literally within the disturbed areas, what is clearly part of the highway," Hodgdon said.
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