Cart Before the Horse for Eminent Domain

Whatever the legislative outcome of HB648, the bill that would restrict the use of taking of land through eminent domain for the purpose of a private, large-scale transmission line, yesterday's committee hearing served to air important legal and constitutional issues surrounding the Northern Pass proposal. More than 150 landowners and others opposed to Northern Pass showed up to express their support for the bill.

Issue #1: Jim Dannis of Dalton summarized one of the most troubling issues, pointing out that because Northern Pass is a commercially funded proposal (not in the rate base of the public utility), it has essentially sidestepped a crucial part of the process--the determination of public benefit or need great enough to warrant the use of eminent domain. The private nature of the proposal is reinforced by the fact that the transmission line would be for the sole use of Hydro-Quebec and its client, Northern Pass. "In other states," Dannis testified, "the process of determining need comes at the front of the process. [With Northern Pass] we are left to twist in the wind for years as a result of the process here." Dannis argued that HB648 fixes that problem and "puts into legislation what is in the constitution."

Issue #2: Which brings us to a second big issue. As Bob Baker of Columbia pointed out, the Northern Pass proposal would almost certainly be challenged on consitutional grounds on the basis of Article 12-a in the New Hampshire Bill of Rights.
[Art.] 12-a. [Power to Take Property Limited.] No part of a person's property shall be taken by eminent domain and transferred, directly or indirectly, to another person if the taking is for the purpose of private development or other private use of the property.

It would seem that at the very least Northern Pass as proposed is facing years of litigation regardless of the outcome of its Presidential Permit and state Site Evaluation Committee. As landowners pointed out, the mere spectre of this proposal has dropped property values in towns along the proposed 180-mile corridor and brought real estate transactions to a virtual halt.


You can read a fair summary of the hearing by Paula Tracy in the Union Leader here. Kathy McCormack's Associated Press story ran in the Concord Monitor.

The bill is sponsored by Colebrook Rep. Larry Rappoport, among others, and is coming out of the Science, Technology and Energy Committee.