Saturday, October 14, 2017

CLF's Objection to WMNF's Draft ROD (Oct. 13, 2017)

Conservation Law Foundation's Objection to WMNF's "Draft Record of Decision" on Northern Pass

Synopsis with Excerpts

Contact 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 ( & 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 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 
(603) 573-9139