Published in the American College of Environmental Lawyers Newsletter "ACOEL"
Ever since the shock of the oil embargo in 1973 we have been a
nation in search of a comprehensive, sound energy policy. It was
only a year later, in response to the proposal by Aristotle Onassis
to locate an oil refinery on the coast of New Hampshire, that the
New Hampshire Legislature adopted the first version of the
State's energy facility siting law.
Today, New Hampshire's siting law, representing a balance of
the need to develop new energy facilities with appropriate
protection of the environment, preempts local authority and
requires each project to undergo a rigorous comprehensive,
consolidated evaluation before a panel of high-ranking State
officials from the several different departments having
jurisdiction over all the relevant permits. To obtain all State
permits and a Certificate from the siting committee, the applicant
must be prepared to present the project in a consolidated process,
subject to formal discovery, at an adjudicative hearing before the
committee. Interested parties and municipalities may intervene and
the Attorney General appoints Public Counsel for the case to
represent the broad public interest. To take positions in the broad
public interest, Public Counsel is charged with the responsibility
to represent the interests of the public as a whole, and not simply
the narrower positions adopted by intervening parties. To discharge
this responsibility, which derives directly from that of the
Attorney General in all other cases, the Public Counsel must take
positions that balance the public interest in developing new,
diversified energy facilities and the need to take into account
environmental regulation.
This highly structured, energy facility permitting process is
significant regionally and nationally because its standards tend to
drive the design of interstate facilities. Current energy policy
and its direction may be discerned from trends reflected in the
written decisions of the siting committee over time. Other
states may be developing approaches to these issues.
Beginning in the late 1990s, a steady stream of energy projects
have been presented to the committee. Until the mid-2000s, the
majority of those projects involved fossil fuel generation, and in
particular natural gas generating stations and transmission lines.
As public policy, driven by concerns for global warming, has put
increasing emphasis on renewable energy sources, there has been a
significant increase in proposals to construct wind energy
facilities. What is most striking from this perspective is that no
energy project was rejected until 2013, although some facilities
were subject to hundreds of conditions in their certificate.
This year, a proposed 30 megawatt wind farm in Antrim was rejected on its "aesthetics", an
indisputably highly subjective standard in search of criteria that
will avoid arbitrary and capricious adjudications. Three previous
wind power projects have all been approved with essentially the
same characteristics, but for the first time the committee, at the
urging of public counsel, has declined to approve the project
rather than setting forth criteria and conditions that would bring
essential predictability to this important technological advance in
energy production.
The region and the nation will be well served by a steady expansion
in the number of renewable energy projects, and this opportunity
has the attention of large, even international, experienced and
capable developers. Does the rejection of the Antrim project,
despite public support, on the basis of the objections of special
interests actively supported by public counsel risk a slowing down
or abandonment by developers to the detriment of the region's
public interest in a diversified energy portfolio? Is it
coincidence that a wind energy project was rejected recently in
Maine, also on highly subjective grounds of aesthetics, a case that
was referenced in the New Hampshire proceedings? And shouldn't
we ask whether advancing wind turbine technology is something we
find in most places attractive, when it represents a great benefit
to the environment and the public interest?
These cases bear watching. The New Hampshire case appears to be
headed to the State Supreme Court. Will it turn out that these
developments represent a turning away from favorable conditions
promoting wind energy, so that wind energy development will decline
in the years ahead? For environmentally sound economic development
in this region and elsewhere we should hope not.
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