The New Hampshire Public Utilities Commission on May 25 denied motions for rehearing of an April 6 order in which the commission determined that, in relation to the Northern Pass electric transmission project, Public Service Company of New Hampshire d/b/a Eversource Energy (NYSE:ES) had made a prima facie showing that it has legal authority to lease and divide the rights of certain easements it holds to Northern Pass Transmission LLC (referred to in the order as NPT).
In other words, the commission could not find that Eversource is precluded from entering into the lease with NPT, the commission said, adding that it made the ruling for the limited purpose of allowing the consideration of the merits of the lease agreement between Eversource and NPT under Revised Statute Annotated (RSA) 374:30.
The commission noted that it stated clearly that the April 6 order should not be construed as determining any property rights among Eversource, NPT, and any of the owners of the properties that are subject to the easements – the commission stated that only a court of competent jurisdiction may determine the property rights of individual owners.
One motion was filed by Deerfield Intervenors and a joint motion was filed by the Society for the Protection of New Hampshire Forests and City of Concord (referred to in the order as the joint movants), according to the order.
The commission noted that Eversource sought approval of a lease agreement between Eversource and NPT. In the lease, Eversource proposes to lease rights of way (ROWs) principally comprised of electric utility easements over land owned by third parties, the commission said.
Eversource obtained most of the easements through negotiation with individual landowners, the commission said, noting that the company acquired three of the easements through eminent domain proceedings conducted by the commission.
In some instances, the lease contemplates an outright lease of the ROWs to NPT, and in others, Eversource proposes to share the easement rights with NPT, the commission said.
In their motion, the Deerfield Intervenors asserted that it is settled case law in New Hampshire that an easement in gross is not transferable, the commission said. The Deerfield Intervenors claimed that the commission ignored established law and instead, speculated as to how the New Hampshire Supreme Court might decide the issue, primarily turning to various provisions of the “Restatement of Property” for guidance, the commission said.
The Deerfield Intervenors argued that it was erroneous to reach the conclusion that nothing barred Eversource from transferring easement rights by relying on provisions of the Restatement that contradict established precedent in the state, the commission said.
The Deerfield Intervenors said that “[b]y speculating how the New Hampshire Supreme Court may decide certain issues when it has the statutory ability to receive direct answers from the Supreme Court itself, the commission exceeded its authority,” and unlawfully created a presumption in favor of divisibility and alienability of the easements in question, the commission said.
The motion argued that that action by the commission creates a “rebuttable presumption” that shifts the burden of proof to the landowners, and that Eversource has the burden of proof to demonstrate the alienability of the easements under state law, the commission said.
The Deerfield Intervenors said that the Supreme Court has held that easement deeds should be interpreted using the rule of reason, and claimed that the commission should have required Eversource to explain how it met that burden.
The commission added that the joint movants argued that the commission’s decision to treat the easements acquired through eminent domain proceedings the same as those acquired through negotiation is unlawful and unreasonable. The joint movants asserted that the commission did not offer an analysis for that conclusion and that such an omission is contrary to RSA 363:17(b), the commission said.
The joint movants also criticized the commission’s finding that nothing in the easement deeds bars Eversource from leasing or apportioning easement rights to NPT, the commission said, noting that the joint motion pointed out that the easement deeds contain language stating that easement rights may be transferred to “successors or assigns.”
The joint movants argued that Eversource’s easements are easements in gross and that the transfer of leasehold interest in those easements to NTP is neither an assignment nor transfer to a successor, the commission said.
Furthermore, according to the joint movants, the failure to examine whether the lease creates an additional burden on the easement created a presumption in favor of Eversource, and “[b]y effectively creating a presumption in favor of Eversource, and not exercising its jurisdiction to decide this issue or certifying a question…, the PUC unlawfully exceeded its authority.”
The commission added that according to Eversource, there is nothing in the commission’s ruling that requires reconsideration, and that neither the Deerfield Intervenors nor joint movants cited new law or fact in support of their position.
Eversource noted that the commission stated that it is not ruling, and cannot rule, on the rights of the underlying landowners, and that as a result, the commission cannot determine whether some act may or may not result in a burden on an easement.
The commission also said that Eversource disputed the movants’ claims that the commission created a presumption in favor of transferability and apportionment of Eversource’s easements. The company said that the commission has repeatedly stated that it does not have jurisdiction over the issue of property rights of parties and that its jurisdiction in the proceeding relates to the terms of the lease and whether Eversource customers are appropriately compensated for leased property.
The commission also said, in discussing its analysis, that the Deerfield Intervenors and joint movants essentially repeat the same arguments that they made in briefs filed in the docket last October.
“We understand that they disagree with our conclusion that it is appropriate to proceed with those matters under our jurisdiction related to this filing; however, we are not persuaded to reconsider our decision,” the commission said. “The moving parties did not offer any new evidence that was not available at the time of the initial decision, nor did they cite any misunderstanding or error in the commission’s decision. On that basis, we deny both motions for rehearing.”
The commission said that it also disputes that it created a presumption in favor of Eversource’s request, noting that the conclusion it reached was that no language in the easement deeds on their face barred Eversource from transferring or subdividing the easement deeds granting it a utility ROW over private land.
Noting that it does not have authority to determine the property rights of Eversource and landowners, the commission said that unless the proceeding is stayed by a court, it will proceed with review of Eversource’s petition.
“The commission emphasizes that this proceeding is not about the merits of the Northern Pass Project,” the commission said. “The Site Evaluation Committee [(SEC)] is charged with reviewing that project and all of the associated issues. Our review here, as we have consistently stated, will be about whether the terms of the proposed lease between Eversource and NPT are reasonable and in the public interest, and whether Eversource’s customers are appropriately compensated by NPT for the use of Eversource’s” ROWs.
As TransmissionHub reported, the SEC began final evidentiary hearings for the Northern Pass Transmission project in April, and hearings are scheduled to run through early August.
The Northern Pass project, which would extend about 192 miles from the Canadian border through New Hampshire to southern New England, is comprised of a single circuit 320-kV high voltage direct current (HVDC) transmission line linked to a 345-kV alternating current (AC) transmission line via an HVDC/AC converter terminal located in Franklin, N.H.