Why New Hampshire Needs HB 648 (Bragdon/Forrester amendment) Now! (Part 2)

Why New Hampshire Needs HB 648 (Bragdon/Forrester amendment) Now!

Q’s & A’s

                                                           Part 2

                                                    Part 1  | Part 3
                                                                                            

Q7:  Northern Pass keeps touting it claims about “economic benefits” from the transmission lines. You know, things like jobs, taxes, and electricity prices.  They also talk about environmental benefits.  Does any project get to use eminent domain in New Hampshire just because it has economic benefits or environmental benefits?

A:  No!  Under the NH state constitution, economic or social benefits don’t entitle any project to eminent domain.  We have to say first off that we do not agree that the supposed benefits claimed by Northern Pass are real (click here to see a detailed analysis of why). But even if these claimed economic or social benefits were real, they simply could not justify the use of eminent domain in New Hampshire.  This is another area where Northern Pass tries to muddy the waters.  Let’s go over the reason why any such benefits are irrelevant.

The first thing to understand is that there is a set of federal constitutional rules on eminent domain as well as a wholly separate set of state constitutional principles.  For Northern Pass, all that matters are the New Hampshire takings principles because they are stricter.  But to understand the New Hampshire rules, you also have to understand the federal approach, because our state rules were adopted to tighten up the federal principles and make eminent domain much harder to achieve in New Hampshire.

The infamous Kelo v. New London case shows the federal rules.  In that case, a split US Supreme Court said the city of New London was allowed to take Suzette Kelo’s house and other properties because the city had an economic development plan that called for redevelopment of the area with new offices and other improvements.  The city’s plan would supposedly create new jobs, higher taxes, and other economic benefits.  The US Supreme Court majority said this was enough to justify eminent domain.  Jobs, taxes and other economic benefits claimed by the city showed that the city had a “public purpose” for the takings, and the court refused to dig any deeper.

The Supreme Court appeared almost sheepish in making this broad ruling, however, and they took special care to say that states should feel free to adopt stricter limits.  As the court’s majority said, “We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.”

There was nationwide public outrage about the Kelo decision.  People strongly objected to the idea that a big business could take their home for a new office building just because tax collections would supposedly increase or new jobs would come to town. (In fact, Pfizer never built in New London.) Responding to the public outcry, most of the states considered or adopted strict new state requirements that limited takings to a much greater extent than federal law.

New Hampshire took the lead and adopted some of the most stringent limits on eminent domain.  This was done by a constitutional amendment.  The new amendment, Article 12-a, was adopted by an overwhelming 85% popular vote.  Before the popular vote, the New Hampshire state senate, in a bipartisan vote, unanimously approved and recommended the new eminent domain amendment.  (Isn’t it ironic that just five years later, the senate is having such a difficult time upholding the very same property rights?  Remind your senator about 12-a!)

Article 12-a says, “No part of a person's property shall be taken by eminent domain and transferred, directly or indirectly, to another person if the taking is for the purpose of private development or other private use of the property.”  When you call your senator, please ask him or her to take the time to read Article 12-a.


The key limit in Article 12-a is that takings are not allowed for the purpose of private development.  Article 12-a was meant to reverse the Kelo concept that because economic or social benefits may flow from a private development, that’s enough of a public purpose to justify eminent domain.  Article 12-a turns the equation around.  Under Article 12-a, if the purpose of a proposed taking is private development, then the taking is illegal, and the economic or social benefits from the private development, no matter how big they supposedly may be, are just plain irrelevant.


Got it?  The test for eminent domain in New Hampshire under Article 12-a is the purpose of the taking.  If it’s for a private development project, the proposed taking is illegal.  Jobs, taxes, electricity prices, environmental benefits or any other claimed economic or social benefits do NOT come into the mix.

As we explained in yesterday’s blog (Part 1), Northern Pass is the poster child for a private development project.  It was dreamed up by a foreign government corporation and three investor-owned utilities for their own profit.  The proposed transmission lines are not needed to keep the lights on; to the contrary, they are all about more profit for the corporate sponsors of the project.  The lines weren’t asked for by any federal, regional or state regulator, they are essentially unregulated, and contrary to any normal public utility assets, they are for the exclusive use of just one company, Hydro-Quebec.


Let’s put this all together and summarize Article 12-a and Northern Pass with a graphic:

Private development project > no eminent domain

Northern Pass = private development project

Northern Pass > no eminent domain

Q8. Wow, New Hampshire’s 12-a really does make us the “live free or die” state, doesn't it? It’s perfectly clear that 12-a rules out eminent domain for private utility developers. So why are we even bothering with 648? Wait, wait, don’t tell me . . . I remember from yesterday. It’s that 371:1 problem. You said that in the old days when PSNH was owned by the state and fully regulated and it built transmission lines to electrify our towns, providing electricity was a public purpose.  But we’re in a new century, and electricity has been deregulated.  Private businesses now “do” electricity.


You and I can start a new business and build a hydro plant to make some money.  That’s a private business, and it doesn’t get eminent domain under Article 12-a or RSA 371:1.  You and I can start a new business and build a transmission line to make some money.  Just like Northern Pass, that’s a private business, and it doesn’t get eminent domain under Article 12-a.


All HB 648 does is update RSA 371:1 to treat private transmission lines the same as private generation plants.  Neither gets eminent domain under the state constitution, no matter how many jobs, taxes or other economic or social benefits they may supposedly provide. Right?


A. Yes, you’ve got it right, Q.  Purported economic and social benefits are entirely irrelevant to the property rights discussion, and RSA 371:1 needs to be updated to conform to 12-a. Northern Pass’s claimed benefits will probably come up anyway; let’s hope the Senate President rules any discussion of them out of bounds!  Anything else, Q?


Q. Yes. I've heard a rumor that there may be an announcement of a power purchase agreement (PPA) between PSNH and Hydro-Quebec, and that Northern Pass will say this means Northern Pass is good for New Hampshire and should have eminent domain.  What is the story with a possible PPA? Does it change the eminent domain analysis?  If a PPA is announced, does this mean HB 648 should not pass?"

A. Good question. We’ll answer it tomorrow in Part 3.

Why New Hampshire Needs HB 648 (Bragdon/Forrester amendment) Now: Some Q’s & A’s (Part 1)

Why New Hampshire Needs HB 648 (Bragdon/Forrester amendment) Now!

Some Q’s & A’s

Part 1

Part 2 | Part 3

HB 648 B/F does not target Northern Pass or any other specific project. It doesn't even mention Northern Pass or hydro power. It is general property rights legislation. But those who oppose 648 B/F typically want to talk about it in terms of how it is aimed at Northern Pass alone, so let’s start there with a few questions and answers. As you’ll see, however, 648 B/F is broad legislation that would protect all land and home owners, tenants, business owners, and others by preventing any private utility project, whether it be hydro, wind, biomass, solar, from abusing eminent domain. 

Q1.     What is Northern Pass?

A. Northern Pass is a private, for-profit transmission line. It was not asked for by any federal, regional or state regulator.  It is not necessary to provide electricity to New Hampshire or New England or to “keep the lights on.”  In fact, Northern Pass has been structured to avoid any determination by regional regulators (ISO-New England) as to whether the lines are somehow needed (because they are not!).  Northern Pass avoids the detailed regulatory review that would be needed for a traditional transmission line whose costs are allocated to customers across New England.  Northern Pass is a purely optional project, essentially exempt from regulatory review.  It’s the very definition of a private, for profit project -- thought up by Hydro-Quebec, Northeast Utilities and PSNH solely to make more money.  And in contrast to every other transmission line we’ve ever heard of, except possibly those in dictatorships, banana republics and the former Soviet Union, Northern Pass is NOT available to anyone who wants to use it.  It’s there just for Hydro-Quebec – for HQ’s exclusive use. We believe it is 100% clear that Northern Pass is a private development project within the meaning of New Hampshire’s constitution and as such is absolutely NOT entitled to eminent domain.

Q2.  If Northern Pass is private, why does it say in its federal filings and media statements that it can use eminent domain? I thought eminent domain could be used only by public utilities.

A. The current eminent domain statutes for energy projects are more than 100 years old; they were enacted in 1911.  They were drafted at a time when public utilities were arms of the state government, not the private, investor-owned businesses you see today.  And they were drafted when the job of public utilities was to bring power to the people to keep the lights on.  These were the days of “electrification.”  Now we are in the days of private profit, and the statutes don’t fit anymore.

For example, under the current RSA 371:1 any “public utility” is allowed to ask the PUC for eminent domain to take a family’s land for an electric line.  These old, overly broad statutes define “public utility” as “every…company…and person…owning, operating or managing…any…equipment…for the generation, transmission or sale of electricity ultimately sold to the public” (RSA 362:2; emphasis added).  If you merely “own” any generation or transmission equipment, you’re automatically a “public utility”!

Let's say my niece puts up a windmill on a hill on her land.  She wants to sell power to a friend’s farm two doors away.  She plans this for her own profit.  Nobody else will get to use the line.  A neighbor’s land is in between, and the neighbor doesn’t want a line in his backyard.  No worries for my niece!  Under the current outdated NH statute (RSA 362:2), she is a “public utility” She has the right (RSA 371:1) to petition the PUC to take the neighbor’s land by eminent domain to build the line! That's how outdated our NH statutes are; they're still stuck in the early twentieth-century horse & buggy era of electrification not the new deregulated age of private utility developers like my niece.

With due respect to prior legislatures, this potential of almost limitless eminent domain authority for private transactions cannot be intended to apply in today’s world.  And it is certainly flatly inconsistent with the strict limits of Article 12-a on eminent domain for private development projects.

Bottom line: the current outdated eminent domain statutes for energy projects are flatly unconstitutional as against Article 12-a.  It is the duty of the legislature to fix this glaring problem.

Q3. OK, I get it that "public utility" can now be stretched to include a private company, but do we have to pass 648 (Bragdon/Forrester) this year? Couldn’t we just have a moratorium or something and think about it for a few years? Won’t 12-a protect landowners in the meanwhile?

A. No. The problem for landowners is that Article 12-a doesn’t provide any remedy immediately.  A private developer can go to a landowner and wrongfully threaten her with eminent domain, but there’s no readily available way for a landowner to protect her interests now.  If the landowner goes to court, the judge will almost certainly say “I can’t hear any case until after the eminent domain process runs its course.”  In other words, the landowner has to listen to the threats, decide whether to sell out, and if she decides to hold on and fight, wait for the 2-3 years, or longer, for the developer to formally make a petition to the Public Utilities Commission (“PUC”) to seek eminent domain and for the PUC to issue a final decision.  Only at the end of that lengthy process will the landowner be able to get her case heard in court and be able to argue in front of a judge that Article 12-a does not allow eminent domain in her case.

In a word, Article 12-a can help a landowner only at the end of a long, expensive process.  It provides no help for landowners who are under threat now.

Q4. That sounds awful, but surely the PUC wouldn’t let a private utility abuse eminent domain against a landowner?

A. We want to be even-handed here so let’s just say that nowhere in the PUC’s mission does it say anything about protecting landowners.  Landowners are simply not part of the equation. Laws that may seemingly protect landowners may be found by an activist PUC not to have any real protections; and laws that are ambiguous (like the current eminent domain statutes) may be found by the PUC to mean anything the PUC wants.

And  the courts show a very high level of deference to the PUC’s determinations.  This makes it hard for parties to overturn PUC decisions.  If the PUC makes a factual determination that is the heart of a legal question under a statute (for example, whether there is a “need” for a power line), the courts will overturn the PUC only if the PUC’s decision can be shown to be an abuse of discretion.

In short, it should not be left up to three unelected commissioners who are politically appointed, whoever they are and however honorable they may be, to decide when the extraordinary state police-power of eminent domain seizure can be used against landowners.  The ground rules must be decided by the most representative state body, the legislature.

Q5. You said earlier that 648 Bragdon/Forrester isn’t just about Northern Pass. What do you mean?

A. It is about what could be called a systemic threat to New Hampshire property rights.  The systemic threat is the approaching tidal wave of private transmission lines that threaten to abuse eminent domain so they can slice through all parts of New Hampshire.

To set the stage, the whole country is in the midst of a renewable energy “gold rush.”  The current administration wants to do whatever it can to encourage new renewable energy sources.  This is not because they are necessary to keep the lights on, but because the current administration favors the idea of renewables. Some people agree; others don’t. That’s not the issue here. How this energy gets from generation to delivery point is the issue.

Renewable energy generation – wind, solar, hydro, biomass, etc. – is almost always located in open, rural areas like Northern New England.  But the only place the power can be used is in urban and suburban population centers such as Southern New England.  To get the power from the generation points to the demand points requires transmission lines.  New Hampshire is sitting right in the way – between the generation points in the north and the demand points in the south.

Click here to see some of the lines that private transmission developers would like to build through New Hampshire.

These lines are part of the planning process at federal, regional or state agencies.  They are part of the renewables “gold rush” that we discussed in three earlier posts – ways to bring renewables power through New Hampshire to demand points in the south.  Many of these lines are likely to be proposed as private, for-profit transmission lines – just like Northern Pass. And just like Northern Pass, they would use the unconstitutional threat of eminent domain to try to win the race to build first.

The outcome would be horrible for our state.  It’s just as if every provider of electronic services to families had its own set of poles out on the streets in front of our homes – a set for electric, another set for telephone, another set for cable TV, another set for Internet, and each of these multiplied to reflect the number of separate companies competing for each service.  This doesn’t happen in New Hampshire because the legislature had the foresight to pass a law saying that all service providers have to share a single set of poles.  But there’s no such rule for private transmission lines.  They can build and build, for their own profit, and as of now with their paths greased by the unconstitutional threat of eminent domain, until they destroy the beauty of our state.

This isn’t a future hypothetical problem. It is hurting real people in New Hampshire right now!

Q6. Just one last question for Part 1: I’ve heard that 648 Bragdon/Forrester would make it impossible to expand wind, power, solar and hydro and it would even become illegal to do things like erect new windmills in New Hampshire. Is that true?

A. No. That is utterly absurd, fear-mongering claptrap meant to smear 648 B/F! Hang up the phone on any nuisance call that claims that. 648 Bragdon/Forrester would no more outlaw the development of renewables than it would outlaw Wal-Mart, Staples, and Shaw’s. It would ensure, however, that none of these private developers could wrongfully take your land to build their projects. They would have to negotiate with you as an equal in an honest and straightforward manner. You can clearly see that Wal-Mart, Staples, and Shaw's have not found it impossible to build under such terms. No private utility developer who obeys the law would either.

Q. Thanks, A., for some straight talk. See you tomorrow for Part 2. There's more stuff I'd like you to explain.

Pass HB 648 on January 18!

CALL TO ACTION

Pass HB 648 on January 18!

Protect New Hampshire Property Rights!

Please join the outreach campaign to pass HB 648 (Bragdon/Forrester amendment) in the NH Senate on January 18, 2012. This bill is vital to ensure the full protection of New Hampshire property rights, close loopholes, and prevent the abuse of eminent domain. It is a statewide issue of the highest importance to all – home and land owners, tenants, business owners, in short, everyone.


WHAT'S IN STORE FOR NEW HAMPSHIRE

Private transmission developers are eyeing New Hampshire for numerous new optional lines that have not been requested by our regional planners and are not needed to "keep the lights on." Under current outdated NH statutes, these for-profit projects could petition the state for the police power of eminent domain to seize land and homes. The "gold rush" is on!

Click here to see a map of some of these projects.

HOW YOU CAN HELP PASS 648

·     Call or email your state senator before January 18 and tell him or her to support HB 648 (Bragdon/Forrester amendment).

· Ask your friends and family throughout New Hampshire to tell their senators to pass 648 (Bragdon/Forrester amendment)!

Attend the NH Senate vote on 648 in Concord on January 18.
(Property rights advocates will be there wearing red, white & blue!)

HOW TO CONTACT YOUR SENATOR

Information on HB 648 and property rights in New Hampshire with a link to contact information for your senator by town is here:

http://responsibleenergyaction.com/pages/612

Please send this link to friends & family throughout New Hampshire!

Those who would block HB 648 have been lobbying NH senators intensively. But those who would fully protect New Hampshire property rights will succeed if we ask others throughout New Hampshire to join our efforts between now and January 18. We have numbers and a just cause on our side. Passing 648 is the right thing to do, now!

Op-Ed

Let's not skirt N.H. Constitution on the eminent domain issue

by Senators Jeanie Forrester and Tom DeBlois

One of the most important votes the 24 of us in the State Senate will cast this session will occur on the Senate floor this January 18. This will be the Senate’s opportunity to defend the private property rights guaranteed in Article 12-a of the New Hampshire Constitution to every New Hampshire landowner.
Although we are on opposite sides as to whether the Northern Pass project as proposed, is good for New Hampshire, we are on the same side of the question concerning property rights. We plan to vote on January 18 to defend the constitutional rights of all New Hampshire property owners as provided for in Article 12-a.

Article 12-a was adopted as an amendment to the New Hampshire Constitution largely in reaction to the 2005 U.S. Supreme Court decision in the Kelo v. New London, Connecticut case. The effect of the Kelo decision was to allow the City of New London to take the private home of Suzette Kelo by eminent domain for a private development that would be located on land owned by Kelo and on land owned by many of her neighbors. New Hampshire voters passed the constitutional amendment by the overwhelming margin of 85-15-percent in November 2006.

New Hampshire was one of more than 40 states to adopt similar amendments in reaction to the Kelo decision. The New Hampshire House voted overwhelmingly in 2006 to bring this amendment to the voters in the November election; the New Hampshire Senate voted 24-0 to place this amendment on the ballot. The New Hampshire amendment as adopted by voters is one sentence, and it says:
No part of a person's property shall be taken by eminent domain and transferred, directly or indirectly, to another person if the taking is for the purpose of private development or other private use of the property.

Last March the House voted 317-51 to pass House Bill 648, written to make clear that private developers of electric transmission lines were prevented from access to eminent domain as provided for in Article 12-a of the Constitution. When the bill came to the Senate last June, a majority (14-10) decided to study the bill further. The two of us were on opposite sides of this vote.

The Senate Judiciary Committee decided last month to recommend to the full Senate that it replace the language of the House passed version of HB 648 with new language, language offered by our colleagues Jeb Bradley and Sharon Carson. In our view, this substitute language is an artful dodge of the core issue at stake. It creates the impression that the Senate is providing some relief to property owners, but it really enables utility companies to use eminent domain in direct defiance of Article 12-a. If the Bradley-Carson amendment is allowed to stand, the Senate will abrogate the very oath each Senator took to defend the Constitution.

If the price of liberty is eternal vigilance, it is imperative that the New Hampshire Senate stand by the House on HB 648 and defend the liberties our Constitution was written to provide. No landowner in New Hampshire should be subjected to the explicit or implicit threat of eminent domain by a private developer or a private development project.

(Senator Tom DeBlois of Manchester is the Republican State Senator for District 18 and Senator Jeanie Forrester of Meredith is the Republican State Senator for District 2.)