Mitigation: Making It Better?

Mitigation (noun) 1. to act in such a way as to cause an offense to seem less serious. 2. a partial excuse to mitigate censure; an attempt to represent an offense as less serious than it appears by showing mitigating circumstances. (The American Heritage Dictionary, 4th. ed., 2000).

U. S. environmental law recognizes the principle of mitigation, by which disruption of or impacts to the human and natural environment are avoided, minimized or compensated by other actions, strategies, programs, and the like. Thus, in the case of wetlands, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) set forth a "mitigation sequence" in 2008: anyone wishing to obtain a permit to impact a wetland must first seek to avoid and minimize that disruption, and then to compensate for unavoidable impacts. A sample compensatory scheme might be that a Wal-Mart, which wants to build on wetlands, as in Littleton, would create equivalent wetlands somewhere else. Wetlands compensation has had a low success rate, critics argue. Studies have shown that compensatory schemes have actually led to a net loss in wetlands and that equivalencies are difficult to establish; a wetland lost to development or construction may have unique features that cannot be created elsewhere. Monitoring and enforcement are low.

Environmental justice advocates also question the practice of compensatory mitigation. This is especially true in the case of siting locally unwanted land uses (with the apt acronym, LULUs) such as hazardous waste sites. In these cases, a would-be developer might offer to compensate a community or an area for the harms that the LULU causes. Money or an amenity (a new school, recreation center, housing complex, or the like) might be the remedy proposed to make the community whole for the damages it will suffer as a result of the facility.

However, NYU law professor Vicki Been notes that a "relatively small number of people are willing to change their minds about a facility in exchange for compensation."* Further, Professor Been calls upon the environmental justice movement to articulate the circumstances under which compensation schemes are "morally objectionable" and why. She lists four major moral questions that must be considered:

• First, if the siting of a LULU involves risks to health and safety, "the question arises whether compensation schemes commodify, or subject to the free market, matters that should not be bought and sold. Society has chosen not to allow people to sell their kidneys to the highest bidder; should a similar judgment be made about whether people can sell their freedom from the health risks posed by nearby LULUs?"
• Second, it is "likely that the communities that accept LULUs under compensated siting programs will be our poorest communities, because those communities lack alternative sources of funds. The distributional consequences of compensated siting programs therefore raise fundamental questions about our treatment of the poor and about the voluntariness of any site accepted by the communities."
• Third, should a community be able "to trade away the rights of future generations, who aren't represented at the bargaining table"?
• Fourth, "what are the essential elements of a voluntary agreement? Is an agreement voluntary, for example, if communities are, relative to site developers, ignorant about the risks and harms the facilities will impose?"

Thus, when Richard Cacchione, Hydro Quebec Production president, writes in his scoping comment on Northern Pass dated April 11, 2011, that the Eastmain-1-A/Sarcelle/Rupert diversion project was "socially and environmentally acceptable to the Crees" because it received 70% approval in a referendum, with the Crees compensated with a "number of funds" through another agreement, one must evaluate the voluntariness of that acceptance in terms of the fundamental moral questions about compensation schemes and environmental justice that Professor Been and others raise.**

The standard definition of environmental justice set forth in 1998 by the EPA's Office of Environmental Justice mandates "the fair treatment of all races, cultures, incomes, and educational levels with respect to the development and enforcement of environmental laws, regulations, and policies. Fair treatment implies that no population should be forced to shoulder a disproportionate share of exposure to the negative effects of pollution due to lack of political or economic strength."

As Robert R. Kuehn notes, the EPA further elaborated that environmental justice "is based on the premise that . . . it is a basic right of all Americans to live and work in 'safe, healthful, productive, and aesthetically and culturally pleasing surroundings'."***

Living under or in sight of a high voltage transmission line with 80'-130+' towers is not an aesthetically and culturally pleasing surrounding, and there is evidence that questions whether it is safe, healthful and productive as well.

What compensation would you accept for this LULU in your community? Is there morally acceptable mitigation? Is it the promise of installing high capacity broadband technology for Coos County?

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*Vicki Been, "What's Fairness Got to Do With It? Environmental Justice and the Siting of Locally Undesirable Land Uses," Cornell Law Review (1993).

________ , "Compensated Siting Proposals: Is it Time to Pay Attention?," Fordham Urban Law Journal (1994).

**See also the letter written on behalf of the Uashaunnuat, Innu of Uashat mak Mani-Utenam, December 2, 2010, to the DOE concerning the Presidential Permit application for the Champlain Hudson Power Express project.

***Robert R. Kuehn, "A Taxonomy of Environmental Justice," Environmental Law Reporter (2000).

Scoping Comment Tally (with weekly updates through June, 2011)

All figures are calculated from the tallies on the Department of Energy Environmental Impact Statement website.

This post will be updated weekly. Last updated: April 20, 2011.

The comment period closes June 14, 2011. Register your comment here, or write to Brian Mills at brian.mills@hq.doe.gov to enter your comment in a different format.

Scoping Comments

Total scoping comments recorded on file to date: 670

Highest town tally to date: New Hampton and Plymouth are tied at 46

Furthest town from which a comment is registered to date: Tujunga CA

Intervener Comments Received During Scoping: 81

Easton Conservation Commission's Meeting on Northern Pass (April 16, 2011)

Easton Town Hall Sign

On April 16, 2011, the Easton Conservation Commission (ECC) sponsored a meeting on the proposed Northern Pass project in its ongoing "Pastry & Preservation" series. Will Abbott, SPNHF, talked about the "unanswered questions" raised by Northern Pass. All ten ECC members and alternates attended as well as 120 other people. 60% of the land in Easton belongs to the White Mountain National Forest, and the entire town lies within the forest proclamation boundary. The towers would cross the Easton Valley, entering at an elevation of 1800' on the northwest corner, dropping to 1200' on the valley floor, then climbing to 2600' on the southeast corner in the WMNF. In the fragile habitat of high-elevation spruce-fir forest, 2600' is the highest point for towers along the entire proposed 180-mile route. (This year, Easton has been accepted into NH Fish & Game's Taking Action for Wildlife  program in recognition of its critical habitats for wildlife.) The towers would directly cross some 22 parcels of private land in Easton, with a dozen or so abutting private parcels. 80'-130' towers (with towers in excess of 130' in the WMNF) on the especially high elevation ROW would be seen widely throughout town from numerous other private parcels and beyond from both the WMNF and Franconia Notch State Park. At town meeting this year, Easton adopted a neighbor-friendly ridgeline ordinance to limit the visual impact of new structures above the 1300' elevation. Easton also voted unanimously to oppose Northern Pass at town meeting and appropriated $2500 for that purpose.

Councilor Ray Burton attended the April 16th meeting and told the crowd that we are all going to help the New Hampshire Site Evaluation Committee "write history" next year when it issues its first denial to a transmission project. (Northern Pass is a private merchant line unrequested by the regional planning group, ISO-New England.)




Proposed Northern Pass "preferred" route through Easton and the WMNF





ECC Chair Maria Hynes opens the meeting



Will Abbott, SPNHF, speaking on "Northern Pass: Unanswered Questions"

Six of the ten ECC members who attended

Some of the 120 members of the audience

More audience members

Northern Pass: A Plan B Coos Loop?



Northern Pass has evidently decided that it cannot (or will not be able to) use eminent domain to seize private land for its 40-mile "preferred" route from the border crossing at Pittsburg (Point A) to Groveton (Point B), where PSNH's existing ROW starts. One would hope that had led to the recognition that not only does the North Country reject the project, but the entire length of New Hampshire, another 140 miles on the "preferred"  route, rejects the project. (All except Franklin.) Instead, Northern Pass is apparently developing Plan B, searching for another route through Coos County. It looks like NP will try to go east through the Dixville area and then loop around to the west again and join up at Lost Nation (Groveton). But, if that route succeeds, Fred King has something to say about where the big fight will then be, as reported in today's Colebrook Chronicle.



Point A > Point B Black Line = Current 40-mile "Preferred" Route with no ROW
Blue Dotted Overlay = Alternate "Preferred" Route with no ROW
Yellow Line = Existing PSNH ROW
Red Line = Approximate Existing Coos Loop 115 kV Transmission Line
Green Line = Approximate Granite Windpark Line
(Windpark map)

The Chronicle reports that NP has recently talked with selectmen in the town of Dummer and with residents in the unincorporated places of Dixville and Millsfield. In Millsfield, NP said it was "looking at potentially creating a [150 foot] ROW near the windpark as an alternative route away from Stratford, Columbia, and Colebrook," the Chronicle notes. Among Millsfield residents' concerns was whether they would see the towers behind the windmills. NP also visited the general manager of the Balsams Grand Resort Hotel, Jeff McIver. McIver told NP that it should bury the line, but NP said it was "cost prohibitive," the Chronicle reports. If Plan B in Coos is forming up, Fred King supports it. But, asked about NP using existing PSNH right of way from Groveton to Deerfield, King said that "'fight has yet to be fought--and that can be the ungluing of the whole thing. Those people in the south have a legitimate concern. I think that's where ultimately [NP] is going to have a big fight'."

The North will fight, the South will fight, and we'll continue fighting together as we have since we first heard about Northern Pass. The possible Plan B Coos Loop is not going to change New Hampshire's mind that this project is bad policy for the entire state. And we doubt that Colonel Timothy Dix will smile down upon a Coos Plan B either.

Read the entire article, "Northern Pass Looking Into Placing Line Further East?," in today's Colebrook Chronicle, and thanks again to the Jordans for continuing high quality, in-depth investigative reporting.

New Hampton Concerned Citizens Meeting (4/12/2011)

60 concerned citizens gathered in New Hampton tonight to hear a talk by Will Abbott, SPNHF, and to discuss Northern Pass. New Hampton will meet again on Saturday morning to vote on a resolution that will authorize the selectboard to register the town's opposition to Governor Lynch, state and federal officials.

Neil Irvine, meeting moderator

Standing: Will Abbott (left) and Neil Irvine (right)

Scale model of human, existing poles, and tower with maple and pine tree heights, made by three New Hampton residents, ages 9, 11, and 13

Electrosmog and the Bicknell's Thrush in the Franconia Range

This post draws upon the research and writing of Tim and Janet Williams, Swarthmore College emerti who live in the White Mountains and oppose Northern Pass as proposed. Thanks to Tim and Janet for reviewing a draft of this post.




Bicknell's Thrush, a species of high conservation concern



They've begun to arrive again--those brightly-colored song birds that winter from southern Florida to South America. And high on the list of "how do they do that?" is the question of how our New Hampshire migratory birds navigate their way thousands of miles to and from the neotropics every year. The answers have started to come in. Research has established that some birds navigate by means of “magnetoreception." Robins, for example, have an extraordinary ability literally to see the earth’s magnetic fields and thereby orient north and south for biennial migration. First detected in 1968, the mechanism is not fully understood yet, but some birds have visual receptors in the retina of the right eye that allow them to see these fields and to use them as markers, signposts pointing north and south, for migration. Other birds, such as pigeons, have magnetite in their beaks that may function as a kind of internal compass. As the research on magnetoreception expands, so does the concern among ornithologists, biologists, and others that the EMF “electrosmog” caused by proliferating wireless devices, cell towers, and transmission lines may affect avian navigation during migration.

Within a few miles from the proposed HVDC power line in the WMNF are two major bird migration pathways, according to research on autumnal routes by Timothy C. Williams, Janet M. Williams, and others. (See “Bird Migration through a Mountain Pass Studied with High Resolution Radar, Ceilometers and Census,” The Auk 118(2), 2001: 389-403). One pathway runs north to south over the mountains of Franconia Notch, and the second runs northeast to southwest along the face of the Franconia Range following the line formed by Lafayette, Cannon and Kinsman mountains.

In their scoping comment, the Williamses write that this area of the White Mountains appears to be a crossroads of migration. Birds concentrate along these two routes especially on nights of heavy migration and use both routes simultaneously. As the proposed HVDC power line cuts across the Easton Valley, rises to 2500’ to crest the Kinsman Ridge, and then drops down into Woodstock, it crosses these migratory highways. The Williamses estimate that about 11,000 birds cross each kilometer of migratory front per hour during heavy migration. Thus, on a single night, about 3.5 million birds would cross the proposed power line route at low altitude which would be a 40 KM distance passing through the western White Mountains. Since migratory birds are known to use magnetic fields for orientation, the Williamses continue, the proposed Northern Pass HVDC power line could disorient them, altering their long distance flights both north and south.

Of especial concern is the Bicknell's Thrush, a species of high conservation importance that biologists estimate now numbers only between 20,000 to 50,000. This neotropical bird breeds almost exclusively at higher altitudes, at or above 4000', in sub-alpine spruce-fir forests of the northeastern U.S. and a few Canadian provinces. In NH, the elusive Bicknell's Thrush is found in Presidential range mountains, including Washington, where birders on Auto Road tours listen for its call and hope to catch sight of it. In the Franconia range, it may be seen just below the summit of Cannon Mountain on the south and west sides and on Mount Lafayette between Greenleaf Hut and timberline, locations within a few miles of the proposed HVDC line. This vulnerable species could be affected by electromagnetic interference during premigratory flights, the Williamses conclude. (The Eagle Cliffs on the west side of Lafayette have a peregrine falcon aerie as well.) 

When augmented by the proposed additional HVDC line within the 150’ WMNF special use corridor, the EMF radiation from the current HVAC line could produce a disorienting electrosmog that has long term consequences on the animal world, including species already in decline like the Bicknell's Thrush that migrate through Franconia Notch. We in New Hampshire have the extraordinary privilege of hosting this rare and vulnerable bird as well as the responsibility not to contribute further to its decline by siting the potential threat of an unneeded and unrequested merchant transmission line in its documented migratory pathway. Just as physicians and major health organizations recommend prudent avoidance of schools and other places where humans congregate when siting high voltage transmission lines, so this precautionary principle should guide our actions as stewards of the animal kingdom. We know we've made too many mistakes already. Please keep this in mind as you hear our brightly-colored annual guests announce their arrival this spring.

Bicknell's Thrush summer breeding range

"Freedom Is Not Something We Can Claim Alone": A Guest Blog by Elizabeth Terp

                             

Elizabeth Terp, Campton, wrote the essay in this post in early March just before the DOE meetings. The solidarity achieved through community action that she discusses was evident today in Easton, as neighbors came together at the town hall to stencil "Stop the Towers" signs (left) and to tie 100 orange bows for roadside trees (photos below).

   

                          Stop Northern Pass: The Power of Peaceful Protest

                               Reprinted by permission of the author, Elizabeth Terp

Egyptians have given us a valuable lesson in the power of peaceful protest to promote public health and well being. All ages and walks were represented amidst that sea of young people, a strong expression of solidarity. Lots of homemade banners made their mission clear.

As a nation, we have become increasingly caught up in what Philip Slater called The Pursuit of Loneliness. One in every 4 households now consists of one person only. Even in a family, we each have our own car, cell phone, TV; the list goes on. We all complain about Congress, no matter what party is in, and we worry about freedoms we’ve taken for granted that are now slipping away.

For years, we’ve kept ourselves asleep at the switch re: our food, air and water supplies. We have a long list of conditions spawned by monkeying around with what makes money for corporations, including health facilities, while we groan through health challenges. Now, we risk taking on the health effects of electromagnetic pollution.

However, the value of standing up to this potential loss of yet another freedom is two-fold. First, we can avoid the health problems generated by the Northern Pass and second, we can reclaim a sense of solidarity, of belonging as fellow citizens who need each other to reclaim freedom to live healthy lives.

Freedom is not something we can claim alone. The website www.livefreeorfry.org  keeps us posted on peaceful gatherings and our homemade STOP NORTHERN PASS signs, placed in strategic locations, will strengthen our message (yes, ‘our’; it’s from all of us.)

We need to recycle those building scraps of materials in our barns or garages into signs. We need to check with our neighbors and friends for materials, for orange and black paint to share, and to have sign painting parties. We need to attend the Environmental Impact meetings in our areas and bring our friends.

This may well be the first big step we take to reclaim freedom for ourselves, our families and our neighbors to be able to enjoy great health. Remember: ‘As New Hampshire goes, so goes the nation.’ Think about that.

Elizabeth Terp draws on her experiences as School Nurse-Teacher, Psychiatric Nurse Practitioner, Yoga Instructor

and Home Health Nurse. She welcomes your comments at PO Box 547, Campton

                                                                                          

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"My Back Yard": A Guest Blog by Alicia Abbott

Alicia Abbott, Holderness, wrote the essay posted below several months ago. It coincides with the recent reclamation of the derisive term, NIMBY, "Not In My Back Yard," as NHIMBY, "New Hampshire Is My Back Yard," first used by an opposition member in a comment on a Union Leader article. Another opposition member has designed the graphic to the left and given permission for all to use it. (Email burynorthernpass@gmail.com for a larger format version.) Three unrelated people from different parts of the state have come together and created a powerful new identity that proudly proclaims who we are and why we are engaged in this battle to save New Hampshire from unnecessary industrialization of the landscape.

My Back Yard

Reprinted by permission of the author, Alicia Abbott

I’m sure you have heard that Northeast Utilities, the parent company of Public Service of New Hampshire, along with NSTAR and Hydro-Quebec wants to run a 180 mile “extension cord” from the Quebec border to Deerfield, NH and then on to southern New England. Currently New England has no need for this additional power and, in fact, has the excess capacity to generate 5,000 megawatts of electricity beyond what consumers demand on peak days.  Opposition to Northern Pass is great and is growing.

Late last month, in an interview with the Laconia Citizen, Public Service of NH President, Gary Long suggested that the opposition to the Northern Pass project was mostly a “not-in-my-backyard kind of thing.”  At first I was incredibly angered by this statement.   How could he trivialize the concerns of citizens up and down the proposed project corridor by saying, their concerns are just self-serving ‘NIMBY’ concerns.  Then I got thinking, maybe he is right…let me explain.

I DON’T want this project in “my back yard” but you see, I have rather a large back yard.  It starts way up north in Pittsburgh where my, then new, husband and I spent our first, very chilly, Easter weekend.  It includes Colebrook where, as a child, I spent winter weekends with my family and friends snowshoeing and snowmobiling and enjoying a “winter wonderland”.   It continues south to Lancaster were my father’s family, the Amadon family, all lived and had homes and where his brother, my uncle and Godfather, kept a home as his own escape from the busy streets of Manchester.   I have particularly pleasant memories of time spent in that house on Grange Rd and my lovable Uncle Russ. 

Also in my back yard are the towns of Thornton, Campton, Plymouth, Ashland and, our current town of Holderness.  Seventeen years ago my husband and I chose to move to this area because of its small town wholesomeness and multi-town community.  We fell in love with the scenic beauty of the lakes and mountains.  We’ve raised three children here, in a neighborhood that borders on the existing power corridor.   Never did we think that we could find ourselves living in the shadow of 135’ utility towers that would scar our hillside neighborhood.

Moving south in my backyard you’ll see the city of Concord where my parents worked and where I got my first job right out of college.  Turn a little to the east and you’ll see Chichester – such a memorable part my backyard.  Here you see the Sanborn Family farm, on Smith Sanborn Rd, where my great-grandfather, grandfather and mother were born and raised.  Just this week I told my 80-year-old mother of the possibility of the construction of 135’ towers on the hills behind “the farm”.   It made her sad to think that her childhood playground could be forever marred.   Chichester is also where my husband and I started our lives together and from where we traveled all that way to Pittsburgh for our first Easter.

And finally, my backyard extends from Manchester where I was born, Claremont where I grew up, New London where I went to College and Portsmouth where we love to escape to the ocean.  Maybe you’ve gotten the idea already, but my backyard is 9,351 square miles large, it contains big cities, small towns, hills, mountains, lakes, ponds, rivers, streams, fields and forests.  It is a rare gem among states and a refuge for many who are not fortunate enough to live here.  

The proposed Northern Pass project which would forever scar 180 miles of our state, including a brand new 40 miles of eyesore in the most scenic areas north of the notches, stands to threaten so much of what we in NH love about our ‘backyard’. So, yes, maybe Gary Long is right, this is a “NIMBY” issue or better yet, a “NIMSBY” issue – Not In My STATE’S Back Yard.