March 11, 2014

Talking Points for SB 200 and SB 245

SB 200: State-Owned Transportation Corridors as Energy Facility Corridors

This bill is designed to address urgent concerns raised by communities and landowners directly in the path of a non-reliability, elective, merchant transmission line proposed to bring Canadian electricity to southern New England through New Hampshire. If this power is wanted to meet southern New England’s energy needs, it should not be transmitted through New Hampshire on towers well above tree height if the communities and landowners directly affected do not want these large overhead transmission facilities.    

The SB 361 Commission reported that there was a feasible alternative to large overhead transmission systems: undergrounding along state-owned transportation corridors.  SB 200 provides statutory authority for the New Hampshire Department of Transportation to identify state-owned transportation corridors that could be used for underground energy facilities --- like electric transmission lines or gas pipelines.  It provides the SEC with authority to request proposals from energy facility developers and to lease at fair-market value energy corridors designated.  It also provides the SEC with the authority to prioritize underground siting of merchant electric transmission lines in cases where the projects are not required for system reliability.

This process will be a triple win for the State of New Hampshire.  First, it provides developers of energy transmission facilities workable, long distance corridors.  Second, it provides an underground alternative to unsightly overhead transmission lines.   And third, it provides the state with a new revenue stream for road and bridge maintenance.  New Hampshire should be on the front edge of new technologies that offer innovative ways of meeting present and future energy needs.  SB 200 provides a pathway for New Hampshire to be on the leading edge.

As a North Country business owner wrote in Monday's Berlin Daily Sun, SB 200 is good for business and good for people: the bill "provide[s] some stability and foresight in the planning of certain large energy infrastructure projects. Energy developers will know that certain types of projects will have a corridor available and correspondingly are not appropriate outside the corridor. This will reduce if not eliminate a lot of the wasted time, effort and money expended in trying to site controversial projects. The efficient use of human and capital resources in developing large projects is of critical importance. As an investor and shareholder of energy related projects, greater efficiency makes sense to me."

SB 245 – Reforming the Site Evaluation Committee

In the spring of 2013, Commissioner Burack told a House committee that the current SEC process was close to the “breaking point” and that legislative reform was needed.  In response, the Legislature passed SB 99, requiring the Office of Energy and Planning to conduct a public stakeholder process to identify the issues of greatest concern and to issue a report to assist the Legislature in identifying reforms.  That report was presented on December 31, 2013, and informs many of the provisions contained in SB 245. Failure to act this session on SB 245 will likely mean picking up the pieces of a broken process after it happens.

The SEC is presently structured as “one stop shopping” for developers of energy facilities that generate or transmit electricity in volumes of 30 megawatts or more.  Under current law, 15 state agency heads serve as standing members of the SEC; they sit as judges on applications for new energy facilities in an adjudicative process established in RSA 162-H. These "judges" approve the application as presented, approve it with conditions, or deny it.

SB 245 addresses the following problems in the present structure and process:

1. Disconnect between the statute's core purpose and the decision-making the SEC is tasked to perform: no public interest finding required.The fundamental purpose of RSA 162-H is to serve the public interest in balancing the environment with the need for new energy. Yet none of the statutory findings the SEC is now required to establish in rendering a decision includes answering the big picture question of whether a proposed project is actually in the public interest.

SB 245 adds two new required findings to the three currently required by the statute (RSA 162-H:16). The first new finding is that the SEC must make a determination that the project is in the public interest. The second is that the SEC must make a determination that the proposed project is consistent with the State’s energy policy presently being developed by the Office of Energy and Planning.

2. The absence of a role for municipalities in the decision-making process. Municipalities have no seat at the SEC table where land use decisions directly impacting the community are made.

SB 245 does not remedy this deficiency by placing a member of the impacted community on the SEC, but it does require regional representation of public members to serve on the SEC.  It also requires the new public interest finding to specifically consider local zoning ordinances and municipal master plans in reaching a determination on the question of whether the project proposed is in the public interest.  

3. Public engagement in the SEC process is drastically compressed. Under current law, there is only one required public hearing on a proposed application, which must occur within 30 days of an SEC determination that an application is complete and ready for SEC consideration.  The public learns about the details of the project at the same hearing at which it is expected to comment.

SB 245 changes this by requiring the applicant to hold a pre-application public information meeting and by requiring the SEC to hold a post application public information meeting followed by a later public hearing.  This provides the applicant with the opportunity to share the project formally with the public before submitting an application, and it provides the public with an opportunity to learn about the application as proposed BEFORE it is afforded the opportunity to make substantive comments on the proposal.  SB 245 also clarifies the role of the “public counsel” in SEC proceedings; the public counsel is an assistant attorney general appointed by the Attorney General to assure that the public interest in a well-informed SEC decision is attained with each application considered by the SEC.

4. The 15 statutory members of the SEC do not have the time necessary to fulfill the task of sitting on today’s SEC as judges.  One application alone can consume 25 or more full days of a commissioner’s work year.  This makes it extremely difficult for them to do the primary jobs they are each hired to do.  

SB 245 proposes to replace the current statutory members of the SEC with an independent panel of seven individuals, nominated and vetted through the same process that senior agency leaders are now nominated and vetted.  Under SB 245 the state agencies will continue to provide the SEC with information critical to the decisions the SEC makes, but they will no longer be required to have their leaders serve as SEC judges.  

5. The SEC has no staff or resources to do one of the most important and high profile responsibilities performed by state government on behalf of the state’s citizens.  No application fee is charged to an applicant, yet the state spends thousands of taxpayer dollars in payroll and benefits alone for each day that the members of the SEC meet, take testimony and deliberate on an application.

SB 245 rectifies this resource drain by providing a means to charge fees to recover the costs of doing the SEC’s work and by providing the SEC with a staff director.

NOTE: See the amended versions of HB 200 and HB 245 in the N.H. Senate Calendar.

If you have questions or comments regarding SB 200 or SB 245, please contact Will Abbott at or 224-9945.

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