Conservation Law Foundation's Objection to WMNF's "Draft Record of Decision" on Northern Pass
Synopsis with Excerpts
Contact e-info@clf.org for a copy of the full 35-page text with documentation and references.
Contact e-info@clf.org for a copy of the full 35-page text with documentation and references.
(For SPNHF's objection, click here.)
(For AMC's objection, click here.)
October 13, 2017
By Electronic Delivery (objections-eastern-region@fs.fed.us) & Overnight Delivery (FedEx)
Mary Beth Borst, Reviewing Officer
USDA Forest Service, Eastern Region
626 East Wisconsin Avenue, Suite 700
Milwaukee, WI 53202
Re: Objection to U.S. Forest Service Draft Record of Decision, Northern Pass
Transmission Line Project (White Mountain National Forest, Grafton County, New
Hampshire)
Dear Ms. Borst:
Conservation Law Foundation (“CLF”) hereby objects to the Draft Record of Decision
published on September 1, 2017 by the U.S. Forest Service, Eastern Division, White Mountain
National Forest (Grafton County, New Hampshire) authorizing use and occupancy of National
Forest System lands by Northerrn Pass Transmission, LLC for the construction, operation and
maintenance of its proposed electric power transmission line crossing portions of the White
Mountain National Forest. . . .
CLF objects to the Draft Record of Decision on the ground that it is premised on a
grossly deficient NEPA analysis and, further, that it is contrary to the public interest. With the
exception of one issue that has arisen as a result of concerns expressed by the U.S.
Environmental Protection Agency by letter dated September 26, 2017, the bases for CLF’s
objection have been raised by CLF in specific written comments submitted during the NEPA
process and are set forth below.
I. The FEIS Fails to Establish that the Project is Needed in the Context of Other
Regional Developments and Current Grid Management Capabilities
The Draft Record of Decision discusses the purported “Project Objectives” of the the
Northern Pass transmission line as addressing electricity diversity, low carbon electricity supply,
and non-intermittent power supply. Draft Record of Decision at 3-5. It then proceeds – in
explicit reliance on the FEIS, to review the merits of the project on the basis of those objectives.
Importantly, however, the FEIS (and by extension the Draft Record of Decision ) does not
establish that there is a specific need for or benefit to the Project, in the context of other regional
developments and capabilities.
The FEIS and Draft ROD have failed to analyze the need for Northern Pass in the context
of other major transmission and generation development underway and proposed throughout the
region. There is a range of solutions available to meet each of the three project objectives
enumerated in the FEIS and Draft ROD, individually or in combination. The 35 proposals
submitted in response to the Massachusetts Request for Proposals (“RFP”), some of which
contain multiple bids or project alternatives, underscore this fact.
Among the RFP bids, “like-competitors” to Northern Pass may include:
1. Granite State Power Link (Grid America/National Grid): 1200-MW line from
Quebec to VT & NH + 500-804 MW wind + uncontracted capacity for hydro/other.
2. New England Clean Power Link (HQ & TDI): 1000-MW line from Quebec to VT +
1000 MW hydro/wind.
3. Atlantic Link (Emera): 1000-MW subsea transmission line from New Brunswick to
MA + wind/hydro.
4. Maine Clean Power Connection (CMP-Avangrid): 345 kV line through ME + multiple
renewable energy proposals + energy storage.
5. New England Clean Energy Connect (CMP-Avangrid): 1200-MW line from Quebec
to ME + wind/hydro.
The projects identified above could serve the objectives of enhancing access to diverse,
low-carbon, and non-intermittent energy supplies, and like Northern Pass are designed to provide
a substantial amount of total energy to the New England region.4
Although the FEIS references
some of these projects, such as Granite State Power Link and New England Clean Power Link,
the FEIS and Draft ROD fail to adequately address them due to the FEIS’s unlawfully narrow
purpose and need statement (discussed infra at Part II).
At the same time, it is important to note that there is no particular magic to the size of the
Northern Pass project or like-sized competitors. For example, there is not necessarily an intrinsic
benefit to Massachusetts accepting one large bid as opposed to two or three (or more) smaller
proposals. Indeed, there may be some benefit in accepting a combination of bids, whether that
benefit be hedging against failure to build, minimizing overall environmental impact, additional
resource and geographic diversity, or reducing the need for the most lengthy transmission lines.
DOE fails to address these issues.
The FEIS also fails to meaningfully address the extent to which rooftop solar, energy
storage and demand-side resources, in combination with energy efficiency, could defer, reduce,
or eliminate the need that the FEIS and the Forest Service identify for Northern Pass. As
discussed in more detail later in these comments, these resources are increasingly prominent in
New England and have played an important role in constraining demand, cost, and the need for
new large-scale generation resources. Although the FEIS attaches a technical report that
indicates increased regional reliance on these resources,5
it does not adequately address these
resources in drawing conclusions on the preferred alternative. The FEIS declines to address
them in detail. . . .
There are no other grounds to assume that Northern Pass is needed to maintain reliability.
When new transmission is needed to support the reliability of the electric grid in New England,
the cost of that transmission is shared among all users and such projects are considered reliability
transmission upgrades (RTUs).7
Northern Pass is not a reliability transmission upgrade, and as
acknowledged in the FEIS, it has never been advanced as a reliability transmission upgrade. It is
not needed to support the stability of the electricity grid and it is not a project for which all
utilities in the region will pay based on their share of demand on the grid. Even while
acknowledging that the Project is elective rather than reliability-based, the FEIS erroneously
seeks to characterize Northern Pass as needed to ensure reliability in the region.
II. The Purpose and Need Statement is Unlawfully Narrow, Establishing a Self-
Fulfilling Prophecy in Favor of the Project and Unlawfully Constraining the
Alternatives Analysis
. . . .
For these reasons, and for the reasons set forth in CLF’s prior comments, the FEIS is
based on an unlawfully constrained purpose and need statement, rendering unlawful any Forest
Service Record of Decision premised upon the FEIS. Separate and apart from its reliance on the
FEIS, the unlawfully narrow purpose and need statement adopted by the Forest Service in its
Draft Record of Decision further renders unlawful any final decision granting a special use
permit.
III. The EIS Alternatives Analysis is Flawed as a Matter of Law
A. The FEIS’s Alternatives Analysis is Fatally Flawed because it is Premised on an
Unlawfully Narrow Purpose and Need Statement.
B. The FEIS’s Alternatives Analysis is Deficient Because It Excludes From Detailed
Analysis a Number of Reasonable Alternatives
(1) The FEIS is Deficient for its Failure to Include Power Generation
Alternatives among the Reasonable Range of Alternatives For Detailed
Analysis
(2) The FEIS is Deficient for its Failure to Include Other Transmission Projects
among the Reasonable Range of Alternatives for Detailed Analysis
(3) The FEIS is Deficient for its Failure to Consider Demand-Side Management,
Including Energy Efficiency, among the Reasonable Range of Alternatives
for Detailed Analysis
(4) The FEIS is Deficient for its Failure to Include a Detailed Analysis of
Underground Transmission Cable in Railroad Rights-of-Way
The FEIS specifically eliminates from its reasonable range of alternatives the burial of
transmission cable in railroad rights of way. FEIS at 2-51 to 2-52. While the FEIS includes brief
additional discussion of how DOE arrived at its determination to exclude the use of railroad
rights of way from detailed analysis, it does nothing to cure the deficiencies identified by CLF in
its comments on the DEIS/SDEIS. Specifically, the FEIS explains that DOE considered “the
entire range of active, inactive and abandoned railroad ROWs” and then, “[b]ased on all these
permutations,” assembled a combination of rights of way to form the single route that was
considered and rejected. FEIS at 2-51. Rather than identifying a single route and then
eliminating that route from consideration as a result of space constraints, the FEIS could have
and should have assessed other potential right-of-way combinations / routes to determine their
feasibility, including but not limited to combinations incorporating railroad right-of-way in
Vermont. Its failure to do so render the FEIS and the Forest Service’s reliance thereon deficient
as a matter of law. CLF hereby reiterates and incorporates by reference its prior comments
related to DOE’s improper assessment of railroad rights of way. See CLF’s Comments on
DEIS/SDEIS at 20-22.
(5) The FEIS is Deficient for its Failure to Include a Detailed Analysis of
Alternative Border Crossings
C. The FEIS is Deficient for its Failure to Adequately Assess Certain Alternatives
Selected for Detailed Analysis
(1) The FEIS Is Deficient Because It Fails to Include Meaningful Analysis of
the No-Action Alternative
(2) The Analysis of Underground Cable Alternatives in Highway Corridors
is Deficient
CLF appreciates DOE’s and the Forest Service’s consideration of I-93 for purposes of
burying HVDC cable and its determination that, as considered within certain enumerated
alternatives, I-93 presents a viable option. With specific regard to I-93, however, CLF reiterates
its position that the EIS should have analyzed an alternative that relies on burial in the I-93
corridor north of Franconia notch, into Vermont, with continued burial in the I-91 transportation.
It also should have considered use of I-91 in Vermont in combination with the use of
I-89 and/or railroad rights of way, such as those that would allow access from the west and
northwest. Highway corridors provide an opportunity to avoid the use of overhead transmission
lines and their long-term impacts and potentially at lower cost than other routes not located on
transportation corridors. The FEIS, and decision-makers relying on it, have not adequately
assessed the important opportunity highway corridors could serve.
D. The Alternatives Analysis Fails to Support a Decision that Complies with the
Clean Water Act’s “Least Environmentally Damaging Practicable Alternative”
Requirement
IV. The FEIS is Deficient as a Matter of Law because its Impact Analysis Entirely Fails
to Address Certain Impacts and Inadequately Addresses Others
A. The FEIS is Deficient Because it Fails to Assess the Impacts of Generation
and Transmission in Canada
B. The FEIS is Deficient for Its Failure to Assess Environmental Justice
Issues Pertaining to Indigenous Populations
As referenced above, on August 30, 2017 the Conseil des Innus de Pessamit submitted
comments to DOE describing numerous long-standing and continuing adverse impacts on the
Pessamit Innu First Nation caused by the development and operation of Hydro Quebec’s
hydroelectric infrastructure, and raising concerns about further impacts associated with the
continued development of such infrastructure. The FEIS fails to assess the reasonably
foreseeable impacts on the Pessamit Innu First Nation, including but not limited to
environmental justice issues.44 The FEIS presumably omitted this environmental justice
assessment on grounds that the Pessamit Innu First Nation is located in Canada. For the reasons discussed in Part IV.A., however, the extraterritorial location of the Pessamit Innu First Nation
does not excuse DOE from analyzing and discussing the impacts on this community. The failure
to assess environmental justice issues related to the Pessamit Innu First Nation renders the FEIS
– and any decision that relies on it – deficient as a matter of law.
C. The FEIS is Deficient Because it Fails to Consider Negative Impacts on
the Development of Renewable Energy and Energy Efficiency in New
England
D. The FEIS is Deficient because it Fails to Accurately Assess Either the
Value of New Hampshire’s Viewsheds or the Impacts of the Project on
those Viewsheds
Consistent with the DEIS, the FEIS accurately concludes that New Hampshire’s North
Country has a high intrinsic visual quality. FEIS at 3-67. The FEIS also concludes that the area
is characterized by “a very low level of development” and a low population density. Id.
Consistent with this low population density and low level of human development, the FEIS
enumerates a large number of parks available for public use in the areas of scenic concern in the
North Country: White Mountain National Forest, Weeks and Dixville Notch State Parks,
Coleman, Cape Horn, Percy and Nash Stream State Forests, Connecticut River National Byway,
Moose Path Trail, Presidential Range Tour, White Mountain Trail Northern Loop, Pontook
Reservoir, Lancaster Town Forest, and Kauffman Forest. Id.
45
However, the technical report to the FEIS erroneously relies on population data as the
basis for conclusions as to the overall visual impact of the proposed project, including its impacts
on the North Country. Section 2.4.2.5 of the Visual Impact Assessment explains that, in the
absence of available data on the usage of the scenic or recreational resources in New Hampshire, DOE’s consultant, T.J. Boyle Associates, assessed viewer exposure based on population
numbers, stating:
Data regarding potential viewers are generally not available for scenic or
recreation resources in New Hampshire, therefore scenic concern cannot be
weighted by the number of recreation viewers . . . potential visual exposure is
approximated as a function of population density based on 2010 U.S. Census
block-level data.
Visual Impact Assessment at 48.
Applying this approach to the North Country, the Visual Impact Assessment falsely
concludes that viewer impacts will be low because there are few residents (at 93):
Just over half of the Northern Section has no residents and another 40 percent
has very low population density. In most of the area, it is unlikely there will be
many viewers affected by a visual change.
As CLF indicated in its comments on the DEIS/SDEIS (pages 31-32), assessing viewer
exposure based on U.S. Census data is an arbitrary and unsupportable approach due to the fact
that scenic recreational areas are by definition areas that do not entail habitation. This approach
leads to particularly dramatic errors when applied to less developed areas such as the North
Country, which serves as a region-wide resource for outdoor activities and appreciation of the
natural environment.46 The North Country’s intrinsic visual quality stems from the fact that it
has a low population density and level of development, but a high number of parks and natural
viewscapes accessible to the general, non-resident public. The FEIS nevertheless disregards
visitor data altogether, relying solely upon resident population to draw conclusions as to viewer
exposure. To ignore the fact that New Hampshire sees upward of 34 million travelers and
tourists annually – more than twenty five times the state’s population – is illogical and arbitrary.47
DOE’s explanation that the value of scenic sensitivity used is the “greater of scenic
concern or viewer exposure, not the average,” and that “low viewer exposure in the Northern
Section and the WMNF, for example, does not lower the scenic sensitivity of these areas” is
inadequate.48 Using this methodology does ensure that undervaluing viewer exposure will not
lower scenic sensitivity below the rankings for scenic concern. However, without conducting an
appropriate analysis it is impossible to know whether accurate viewer exposure data might
increase the study’s ratings for scenic sensitivity, a very real possibility given the number of
visitors to the state each year. The use of U.S. Census information as a substitute for usage data
inevitably leads to a substantial undervaluation of visual impacts, and the FEIS is therefore
defective and must be corrected.
DOE’s viewshed impacts analysis remains infected with other unsupported conclusions.
DOE’s explanation that “experiences, not places, are rated” in Table 9 of the Visual Impact
Assessment (at 47-48) fails to address these deficiencies.49 Table 9 rates the importance of
scenery to the experience of various activities known to take place in New Hampshire. The
Visual Impact Assessment contains arbitrary and unsupported conclusions including:
that although campgrounds, picnic areas, and recreation resorts are often selected
based on their scenic locations, they do not rate “very high” for importance of
scenery;
that parks are not valued highly for their scenic value;
that areas used for activities such as skiing, swimming, boating, fishing, and
golfing are not highly valued for their scenic quality because of the attention they
require to an activity;
that the setting is “non-contributing” to the experience of rockhounding; and
that special events (presumably including weddings and other celebrations) are
held indoors, and therefore the scenic quality of the environment is very low value
to those activities.
Among other things, it is widely known that celebrations such as weddings are often held
outside,50 and the scenic environment can be a critical element of the experience. That the visual
impacts analysis upon which DOE relies continues to fail to engage either common sense or objective data to draw conclusions as to the importance of visual quality is in clear error,
rendering the FEIS and decisions that rely on the FEIS grossly deficient.
E. The Socioeconomic Technical Report Contains False and Unsupported
Assumptions that Infect Core Conclusions of the FEIS
F. The FEIS Fails to Identify and Consider Impacts on Landscape-Level
Historical and Cultural Resources
G. The FEIS Fails to Comprehensively Assess Cumulative Impacts
V. The FEIS and the Forest Service’s Draft Record of Decision are Contrary to the
Public Interest
VI. Conclusion
CLF objects to the Forest Service’s Draft Record of Decision on the grounds that, as set
forth above an in previously submitted written comments, it is premised on a legally deficient
Environmental Impact Statement and, further, because the Draft Record of Decision is contrary
to the public interest. CLF urges the Forest Service not to finalize its Draft Record of Decision
unless and until all of the above legal deficiencies have been corrected, with the ability for
further public comment, and to deny the requested special use permit as contrary to the public
interest.
Respectfully submitted,
Tom Irwin
Vice President & CLF New Hampshire Director
Conservation Law Foundation
27 North Main Street
Concord, NH 03301
tirwin@clf.org
(603) 573-9139
