A Bid to Improve New Hampshire’s Energy Infrastructure Siting Process

Barry Needleman Headshot
Barry Needleman
Managing Director and Director, Administrative Law Department
Published: New Hampshire Business Review
February 9, 2023

In 2021, the New Hampshire Legislature established a committee to study necessary revisions to the Site Evaluation Committee (“SEC”), including whether the statutory purpose and original intent for the SEC was being achieved, and what changes would be required to minimize delays in siting energy infrastructure.  In 2022, the Legislature followed up with a committee to study the feasibility of replacing the existing nine-member SEC, which was created in its current form over three decades ago.  Building on those study committees, House Bill 609 has been introduced, which eliminates the inefficiencies of the current part-time committee approach, while positioning New Hampshire to make informed and timely decisions about the siting of critical infrastructure in the coming years.  The bill achieves this balance by dividing the current SEC’s duties between the Public Utilities Commission (“PUC”) and the Department of Energy (“DOE”).

In 1991, the Legislature melded two separate committees into the SEC with statewide jurisdiction over the siting of energy facilities, which included large electric generating plants, electric transmission lines, gas pipelines, and other industrial structures.  As conceived, the SEC comprised the heads of various state agencies, who would meet from time-to-time as required to address an application to site a particular energy facility.  A fundamental positive feature of the SEC, which is retained by House Bill 609, is the integrated resolution of all environmental, economic, and technical issues in a certificate of site and facility, incorporating relevant agency terms and conditions, often referred to as “one-stop shopping.”

While the part-time SEC approach was adequate through the 1990s and into the 2000s, it became clear over the ensuing years that the system was under stress as more filings were made, and they became more complex, more contentious and more formal.  To perform its duties, the SEC, like the PUC, conducts adjudicative hearings that closely resemble trials.  The process involves voluminous filings, numerous motions, written expert testimony, discovery, cross-examination, briefs, public deliberations, and written decisions, as well as the potential for motions for rehearing, and appeals to the New Hampshire Supreme Court.

The Legislature took various steps to address concerns about some of the symptoms resulting from the part-time committee approach, such as allowing agency heads more leeway to delegate substitutes and providing for the use of subcommittees, but the cures led to other ills.  For instance, in one five-year period the SEC conducted sixteen proceedings in which more than forty different individuals served as an SEC or subcommittee member, resulting in an unsettling lack of continuity and institutional memory for such a critical state decision-making body.

Even relatively straightforward proceedings with little or no opposition became time-consuming and resource intensive.  In the Milford Spartan Solar case, it took the SEC nearly a year to conclude that there was no basis for it to review a planned 16-MW solar facility, which was well below the jurisdictional threshold of 30 MW.  In the Chinook Solar case, which involved only the Town of Fitzwilliam and Counsel for the Public as parties, and was largely uncontested, it still took 60 days to accept the application and an additional full year to issue a decision approving the project.

The 2021 study committee recognized that the SEC had become inefficient and ineffective, and it recommended that the structure be overhauled.  Among other things, the study committee recommended addressing funding, resolving some jurisdictional ambiguities, and clarifying the role of the SEC administrator. It further recommended the creation of the 2022 study committee to examine the potential for essentially transferring the SEC’s duties to the PUC and the DOE.

The most prominent drawbacks of the current SEC structure stem from its part-time approach to important issues of land use planning and energy policy.  A great deal of time is lost at the beginning of proceedings, and throughout, simply as a result of trying to accommodate the competing schedules of the nine SEC members, who already have demanding full-time responsibilities.  Moreover, because the SEC members often delegate their responsibilities to others in their organizations, the committees that ultimately hear and decide cases are often lacking in experience and institutional knowledge.

House Bill 609 fixes the bugs in the current system by transferring the initial administrative duties with respect to an application for a certificate of site and facility, as well as the central adjudicative responsibility for issuing a certificate, to the PUC.  Correspondingly, in a manner similar to the restructuring of the PUC in 2021, it places the responsibility for monitoring and enforcement of site certificates and siting rules with the DOE.  At the same time, House Bill 609 achieves the statutory purposes and original intent of the existing siting law by retaining its core provisions. Those provisions include the findings that must be made to issue a certificate, as well as the provisions describing the requirements for filing an application, the roles of state agencies, including the DOE and Attorney General, and the comprehensive obligations for public information sessions and hearings.

The advantage of transferring PUC the duty to adjudicate applications for siting certificates to the PUC is that complex adjudications are the PUC’s bread and butter; that is what the PUC does and it has the systems, processes and experience appropriate to the task.  Furthermore, the three PUC Commissioners are members of the existing SEC and are therefore already familiar with the substantive issues involved.

Transferring duties related to monitoring and enforcement to the DOE brings additional advantages because it puts the DOE in a position to handle the administrative requirements related to monitoring and enforcement, which have taken on a greater role in recent years.   Ultimately, allocating the different duties between the PUC and the DOE recognizes and utilizes the agencies’ different capabilities and areas of expertise in a way that makes the “procedure for the review, approval, monitoring, and enforcement of compliance in the planning, siting, construction, and operation of energy facilities” more effective and efficient.