Appeal of Donna M. Heald & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0277, Appeal of Donna M. Heald & a., the
court on May 22, 2020, issued the following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
intervenors, Donna M. Heald, Regis Miller, Matthew and Amanda Fitch, Larry
Gans, Ann Darragh, Tom and Yael DeCapo (collectively, the Durham
Residents), and the Durham Historic Association (Historic Association), appeal
a decision of the New Hampshire Site Evaluation Committee (SEC) granting the
application filed by the petitioner, Public Service Company of New Hampshire
d/b/a Eversource Energy (Eversource), for a “Certificate of Site and Facility”
(Certificate) for the siting, construction, and operation of a new high voltage
electric transmission line between existing substations in Madbury and
Portsmouth (the Project). We affirm.

I. Facts

The following facts were either found by the SEC or are drawn from the
contents of documents submitted as part of the appellate record. In April
2016, Eversource applied to the SEC for a Certificate to install and operate a
12.9-mile transmission line, comprising aboveground, underground, and
underwater segments, traversing portions of Madbury, Durham, Newington,
and Portsmouth. The Project was selected by the Independent System Operator
of New England (ISO-NE) to address identified transmission capacity needs for
the continued reliability of the electric transmission system in the seacoast
region. ISO-NE chose the Project, in 2012, as the preferred solution for
increasing transmission system thermal capacity, increasing transformer
thermal capacity, and improving system voltage performance, because “it is
much less costly than the other alternative and addresses the needs in the
area.” (Quotation omitted.)

The overhead portion of the Project will be located entirely within existing
distribution and transmission rights-of-way. The underground portion will be
located in locally-maintained roads, on property in Durham now owned by
Eversource, and on other property in Durham and Newington where
Eversource has contracted to acquire new easements.

Pursuant to RSA 162-H:9 (2014), the attorney general appointed a
Counsel for the Public, and, in late April 2016, a Subcommittee was appointed
to consider the application (Subcommittee). See RSA 162-H:4-a (Supp. 2019).
After the Subcommittee accepted the application, finding that it contained
sufficient information for the purposes of RSA chapter 162-H, public
information sessions and, later, public hearings, were held in Durham and
Newington. The Subcommittee granted motions to intervene filed by the
intervenors and others.

Beginning in late August 2018, the Subcommittee held adjudicative
hearings, receiving testimony and exhibits from many witnesses. The
Subcommittee heard evidence through November 15, 2018, and deliberated
over six days in November and December 2018. Its narrative decision, totaling
more than 300 pages, was issued on January 31, 2019.

A. Orderly Development of the Region

Relevant to this appeal, before granting the Certificate, the Subcommittee
deliberated about whether the “site and facility will not unduly interfere with
the orderly development of the region with due consideration having been given
to the views of municipal and regional planning commissions and municipal
governing bodies.” RSA 162-H:16, IV(b) (Supp. 2019). In its deliberations, the
Subcommittee observed that Newington and Durham had each entered into a
Memorandum of Understanding with Eversource “addressing, minimizing, and
mitigating” the Project’s “construction impacts.” The Subcommittee
conditioned the Certificate upon Eversource’s compliance with those
Memoranda of Understanding.

In addition, the Subcommittee observed that, as to the Durham
Residents and other intervenors, “the Applicant conducted a comprehensive
outreach campaign where it contacted almost every intervenor who raised
his/her concerns about the Project’s impact and offered [a] variety of avoidance
and mitigation measures that can be implemented to address their concerns.”

Eversource asserted that the Project will not have “an unreasonable
adverse effect” on real estate values in the region. Eversource’s expert, Dr.
James Chalmers, opined that, as to residential properties, given the “small
number of properties” located within 100 feet of the rights-of-way, “there will be
no discernable effects in local or regional real estate markets” as a result of the
Project. Based upon Chalmers’ testimony and report, the Subcommittee found
that the Project will be partially or clearly visible from at least 29 properties,
and that “[i]t is reasonable to conclude, depending on the extent of increase in
visibility of the Project, that the Project will have some effect on values of some
of these properties.”

However, the Subcommittee identified “shortcomings” in the testimony
and report. Specifically, the Subcommittee faulted Chalmers for “limit[ing] the
area of impact” from the Project to properties located within 100 feet of the

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rights-of-way and for opining that the value of real estate “will be impacted only
if the Project was not previously visible and will become visible from the
property or was partially visible and will become clearly visible.” By so doing,
the Subcommittee determined, Chalmers “failed to account . . . for significant
change in visibility that will not result in clear visibility” and underestimated
the number of properties likely to be impacted by the Project.

In light of those shortcomings, the Subcommittee found “it . . .
reasonable to conclude that the Project will have some effect on values of
additional properties, whether from visibility change or other Project impacts.”
Therefore, the Subcommittee conditioned the Certificate upon the creation of a
voluntary dispute resolution process, described in more detail below, through
which affected property owners could “address and mitigate such impacts.”
Under this process, which will be “available to all property owners who can
verify the impact on the value of their property” and may be initiated up to two
years after the Project’s construction is completed, affected property owners
will be able to mitigate impacts or receive financial reimbursement for them.
Accordingly, considering Chalmers’ “conclusion that only a limited number of
properties [would] be impacted” and that property owners may mitigate those
impacts through the voluntary dispute resolution process, the Subcommittee
found “that the impacts of the Project on the value of real estate will not unduly
interfere with the orderly development of the region.” See id.

B. Public Interest

Also relevant to this appeal, before granting the Certificate, the
Subcommittee deliberated about whether granting the Certificate would serve
the public interest. See RSA 162-H:16, IV(e) (Supp. 2019). In its deliberations
on this subject, the Subcommittee considered the “numerous comments from
the Intervenors and members of the public indicating that the Project will have
an adverse effect on aesthetics, historic sites, water quality, natural
environment, value of real estate, tourism, land use, and public health and
safety.” See N.H. Admin. R., Site 301.16(a)-(j) (identifying the factors that must
be considered “[i]n determining whether a proposed energy facility will serve the
public interest”).

The Subcommittee also considered that Eversource had “agreed to
comply with a comprehensive and unprecedented set of conditions to ensure
that impacts of the Project will be appropriately avoided, minimized, and
mitigated,” had “conducted a comprehensive outreach campaign to identify
concerns raised by various parties,” had “committed to implementing extensive
vegetation measures,” had agreed to place the Project “underground . . . in
some sections . . . to address and mitigate [its] effect on aesthetics,” and had
agreed to “work with all landowners along the Project route that will be affected
by tree trimming, tree clearing, or from the construction of taller structures in

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the right-of-way to develop vegetation planting plans that do not interfere with
the safe operation and maintenance of the new line.”

In addition, the Subcommittee considered the conditions to which
Eversource and Counsel for the Public had stipulated, those set forth in the
Memoranda of Understanding between Eversource and Durham, Newington,
and the University of New Hampshire, and those imposed by the New
Hampshire Department of Environmental Services and other administrative
agencies. The Subcommittee also considered the fact that ISO-NE had selected
the Project over other alternatives “as the appropriate solution for addressing
the reliability needs in the region.”

The Subcommittee found that “[c]onsidering the testimony, evidence, and
public comments, . . . the Project will have some negative impacts on
aesthetics, historic sites, natural environment, water quality, private
properties, and public health and safety,” but that those impacts “will be
minimized and mitigated through implementation of the conditions of the
Certificate, various Memorand[a] of Understanding, the Dispute Resolution
Procedure, and administrative agency permit conditions.”

The Subcommittee found that the Project serves the public interest, in
part, because it “will resolve reliability issues of the [electric] grid” and “ensure
that extreme emergency situations will not cause the Seacoast region to face
blackouts.” The Subcommittee found that increasing the reliability of the
electric system will, in turn, “improve the welfare of the population and
stimulate growth and the economy” of the seacoast region.

After considering the Project’s benefits and “all other relevant information
pertaining to the factors [set forth] in [New Hampshire Administrative Rules,
Site 301.16(a)-(j),]” the Subcommittee found that the Project will serve the
public interest.

C. Dispute Resolution Process

The voluntary dispute resolution procedure upon which the Certificate is
conditioned includes the following steps. First, Eversource must “publicize, on
its website and through its Project outreach communications, a summary of
the [dispute resolution process] and contact information for business and
property owners concerned about the potential or actual impacts of
construction or operation of the Project on their business or property.” Within
ten days of being contacted, Eversource must “initiate direct discussions” with
the business or property owner “to identify and implement appropriate
strategies to avoid, mitigate, or compensate for potential or actual Project
impacts on a case by case basis.” If the business or property owner is
unsatisfied with the proposed or implemented avoidance, mitigation, or
compensation measures, then the business or property owner may request

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“Executive Review” (review conducted independently of the Project team). If the
business or property owner remains unsatisfied, the business or property
owner may elect to participate in non-binding mediation. If the business or
property owner remains unsatisfied and it “suffers damage to property, loss of
business, or loss of income, and/or diminution in value of real property, as a
result of the construction or operation of the Project,” then the business or
property owner may elect to participate in a “Dispute Resolution Process.” If
the business or property owner elects to participate in that process, the
business or property owner waives the right to file a lawsuit in court, and the
Dispute Resolution Process becomes the exclusive forum for deciding all
disputed issues.

The Dispute Resolution Process will be administered by an attorney or a
retired judge appointed by the SEC (the “Dispute Resolution Administrator”),
who will handle “all disputes relating to damage to property, loss of business,
or loss of income, and/or diminution in value of real property, caused by the
construction or operation of the Project” that have not been resolved by
Eversource’s mitigation efforts, the Executive Review, or non-binding
mediation. Counsel for the Public and Eversource must jointly or separately
propose procedures for filing and deciding those disputes, “including criteria
for eligibility, a procedure for filing claims, required proof of the damage, loss,
or diminution, the presentation and consideration of claims, the basis for
recovery and the manner of deciding claims.” In addition, Eversource must
establish a fund for the payment of claims, which will be administered by the
Dispute Resolution Administrator. The Dispute Resolution Administrator shall
issue a confidential, written decision on written requests for dispute resolution
filed before the two-year anniversary date of the date when the transmission
line is placed in service. The written decision and any reconsideration thereof
are “final, non-appealable and non-precedential.” “Notice of Final Decision
shall be filed with the SEC Administrator.”

D. Motion to Reconsider

The Durham Residents filed a motion for rehearing, arguing, in part,
that, by creating the Dispute Resolution Process, the Subcommittee had
“improperly delegated its authority.” The Durham Residents contended that “it
was improper to authorize a dispute resolution administrator to review records
and determine the nature and extent of impact on individual private properties”
because, in their view, it is the Subcommittee’s “obligation . . . to analyze the
impact of the Project on private properties and to determine whether the
Project will be in the public interest.”

In addition, the Durham Residents asserted that the Dispute Resolution
Process violates the Right-to-Know Law, see RSA ch. 91-A (2013 & Supp.
2019), because final decisions by the Dispute Resolution Administrator will be

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“confidential.” The Durham Residents also argued that, by establishing the
Dispute Resolution Process, the Subcommittee “shifted the burden of
demonstrating the impact of the Project on private properties to the private
property owners,” and that it “unconstitutionally interferes with [their] right to
file suit.”

In rejecting the above arguments, the Subcommittee asserted that the
Durham Residents had “mischaracterize[d] the record.” The Subcommittee
stated that it “did not delegate the authority to a third-party to ascertain the
impact of the Project on private property,” but rather “set forth a mitigation
mechanism that will be available to the property owners on a voluntary basis.”
The Subcommittee explained that, although it considered the availability of the
voluntary dispute resolution procedure, its determination that the Project’s
impact on real estate values would not interfere with the orderly development
of the region and would serve the public interest was based “on the record and
evidence presented.” The Subcommittee explained that the voluntary dispute
resolution process is a measure imposed to “mitigate and minimize the impact”
of the Project “on private properties.” Implementation of such a measure, the
Subcommittee stated, “does not shift the burden of proof, or delegate non-
delegable authority.”

The Subcommittee also ruled that the Dispute Resolution Process does
not violate the Right-to-Know Law, but rather “will be administrated by an
independent third party who will be compensated by funds that will be
provided by [Eversource].” The Subcommittee observed that the procedure is
“a purely voluntary option that the parties may choose[;] [t]he parties are free
to decide not to use the procedure and seek a resolution of disputes in another
forum.” Accordingly, the Subcommittee concluded, the Dispute Resolution
Process “will not violate the parties’ due process or constitutional rights.”

The Durham Residents also contended that the Subcommittee’s finding
that the Project will serve the public interest was unreasonable and unlawful
because the Subcommittee had failed to consider the impact of the Project on
private property. See N.H. Admin. R., Site 301.16(b). The Durham Residents
argued that, to consider the Project’s impact on private property, the
Subcommittee was required, and failed, “to determine the specific properties
that will be impacted and the extent to which [those] specific properties will be
impacted.” The Durham Residents asserted that “without establishing the
effect and the degree of effect on private properties, the Subcommittee could
not [properly] balance the impacts and benefits of the Project” when
determining whether it will serve the public interest.

The Subcommittee disagreed, deciding that it was required only to
analyze and determine the Project’s “impact on the economy of the entire
region,” rather than “the impact on the value of each individual parcel of
private property.” The Subcommittee found that, based upon the evidence

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submitted, “the impact of the Project on real estate values will not rise to a level
that will impact the economy of the entire region,” and, therefore, will not
“cause undue interference with the orderly development of the region.” The
Subcommittee further explained that it, in fact, considered the Project’s impact
on private property and, after balancing those impacts against the Project’s
benefits, it determined that the Project will serve the public interest. This
appeal followed.

II. Analysis

A. Standard of Review

Decisions by the Subcommittee are reviewed pursuant to RSA chapter
541. Appeal of N. Pass Transmission, LLC, 172 N.H. 385, 401 (2019); see RSA
162-H:11 (2014). We will not set aside the Subcommittee’s order except for
errors of law, unless we are persuaded, by a clear preponderance of the
evidence, that the order is unjust or unreasonable. Appeal of N. Pass, 172 N.H.
at 401; see RSA 541:13 (2007). The Subcommittee’s findings of fact are
presumed prima facie lawful and reasonable. Appeal of N. Pass, 172 N.H. at
401. In reviewing those findings, our task is not to determine whether we
would have found differently or to reweigh the evidence, but, rather, to
determine whether the findings are supported by evidence in the record. Id.
We review the Subcommittee’s rulings on issues of law de novo. Id.

We defer to the Subcommittee’s judgment on such issues as resolving
conflicts in the testimony, measuring the credibility of witnesses, and
determining the weight to be given evidence. Id. As the trier of fact, the
Subcommittee resolves conflicts in the evidence and could accept or reject such
portions of the evidence presented as it found proper. Id. As the appealing
parties, the intervenors have the burden of demonstrating that the
Subcommittee’s order is clearly unreasonable or unlawful. See id.; see also
RSA 541:13.

B. Appellate Arguments1

1. Right-to-Know Law

The intervenors first argue that the Subcommittee erred to the extent
that it ruled that the Dispute Resolution Process is not subject to the Right-to-
Know Law. They contend that the Right-to-Know Law applies to the Dispute
Resolution Process because it was “form[ed] by a government entity,”
“addresses matters that are integrally tied to matters the SEC is required to

1 To the extent that the intervenors incorporate by reference their arguments in pleadings filed

with the Subcommittee or in pleadings previously filed in this court, we do not address those
arguments, but rather confine our review to those specifically articulated in their appellate briefs.

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find under RSA 162-H:16, IV(b),” “assists the SEC in conducting the public’s
business of overseeing mitigation of the Project,” and was a factor upon which
the Subcommittee relied in issuing the Certificate.

We agree with Eversource that the intervenors’ arguments are not yet
ripe for our review. “Ripeness relates to the degree to which the defined issues
in a case are based on actual facts and are capable of being adjudicated on an
adequately developed record.” Univ. Sys. Of N.H. Bd. of Trs. v. Dorfsman, 168
N.H. 450, 455 (2015) (quotation and brackets omitted). “[W]e have found
persuasive the two-pronged analysis used by other jurisdictions that evaluates
the fitness of the issue for judicial determination and the hardship to the
parties if the court declines to consider the issue.” Id. (quotation omitted).

Eversource contends that the intervenors’ Right-to-Know Law arguments
fail the second prong of the ripeness test. “The second prong of the ripeness
test requires that the contested action impose an impact on the parties
sufficiently direct and immediate as to render the issue appropriate for judicial
review at this stage.” Id. (quotation omitted).

Eversource asserts that the intervenors have not suffered an immediate
or direct impact from the SEC’s decision specifically related to the Right-to-
Know Law. The intervenors do not identify any direct or immediate harm that
they have suffered as a result of the SEC’s decision related to the Right-to-
Know Law. At oral argument, the intervenors conceded that no Right-to-Know
request related to the Dispute Resolution Process had yet been made.
Additionally, at oral argument, Eversource contended, and the intervenors did
not dispute, that the parties have not yet participated in the Dispute
Resolution Process and that the Dispute Resolution Administrator has not yet
issued any final decisions related to that process.

The intervenors assert, generally, that they “have suffered direct,
immediate, and uncompensated damages” from the Project itself
(notwithstanding the fact that the Project has not yet been constructed). They
contend that the Durham Residents “have applied for and received tax
abatements from the Town of Durham for diminution of value to their property
for 2018 caused by the Project,” and that diminution in value “is an approved
subject for the [Dispute Resolution Process].”

The intervenors also assert that one intervenor “filed a motion for
enforcement of the conditions of the Order and Certificate where there are
substantial uncompensated damages as well as the issue of Eversource’s
destruction of the very evidence [she] needed for the [Dispute Resolution
Process]” and that, in response, the SEC determined that it lacked “jurisdiction
to adjudicate property rights between private parties” and that “enforcement of
the certificate conditions needed to be done before a court or in a declaratory
ruling before the SEC.”

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 As neither instance concerns harm suffered as a direct and immediate
result of the Subcommittee’s decision as to the Right-to-Know Law, we agree
with Eversource that the intervenors’ claims related to that law are not yet ripe
for our review.

2. Private Property

The intervenors next argue that the Subcommittee failed to consider and
make specific findings about “Private Property” when it determined that the
Project will serve the public interest. See N.H. Admin. R., Site 301.16(b). They
also assert that there was insufficient evidence related to “the Private Property
Criterion,” and that, without such evidence, the Subcommittee’s finding that
the Project will serve the public interest is necessarily unjust and
unreasonable. (Bolding and italics omitted.) The intervenors contend that the
Subcommittee’s finding, “based on the limited evidence on Orderly
Development, that there is an adverse impact” to private property, and the
Subcommittee’s failure to award compensation to individual property owners in
the context of this proceeding, constitutes an unconstitutional taking of private
property without compensation.

Relatedly, the intervenors argue that “[t]he failure to make a
determination on Private Property kicks the proverbial can down the road to
the [Dispute Resolution Process].” In this way, the intervenors argue, the
Subcommittee impermissibly delegated its obligation to make a determination
regarding the Project’s impact on “Private Property” to the Dispute Resolution
Administrator and shifts the burden of proof to the private property owners.
The intervenors assert that the shift in the burden of proof violates their due
process rights.

We disagree with the premise of all of the above arguments  that the
private property interests that the Subcommittee considered are somehow
different from those the Subcommittee was required to consider when
determining whether the Project will serve the public interest. See RSA 162-
H:16 (Supp. 2019).

RSA 162-H:16 provides that, after giving “due consideration” to “all
relevant information regarding the potential siting or routes of a proposed
energy facility, including potential significant impacts and benefits,” the SEC
“shall determine if issuance of a certificate will serve the objectives” of RSA
chapter 162-H. RSA 162-H:16, IV. The stated objectives of RSA chapter 162-H
are to: (1) “maintain a balance among . . . potential significant impacts and
benefits” to “the welfare of the population, private property, the location and
growth of industry, the overall economic growth of the state, the environment of
the state, historic sites, aesthetics, air and water quality, the use of natural
resources, and public health and safety” in decisions “about the siting,

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construction, and operation of energy facilities in New Hampshire”; (2) avoid
“undue delay” in constructing new energy facilities; (3) timely and fully
consider the environmental consequences of energy facilities; (4) provide full
and complete disclosure to the public about plans to construct such facilities;
and (5) ensure that construction and operation of energy facilities “is treated as
a significant aspect of land-use planning in which all environmental, economic,
and technical issues are resolved in an integrated fashion.” RSA 162-H:1
(Supp. 2019); see Appeal of N. Pass, 172 N.H. at 390-91.

Before the SEC may issue a Certificate, it must find that: (1) the
applicant has adequate financial, technical, and managerial capability to
assure construction and operation of the facility in compliance with the
certificate; (2) the site and facility will not unduly interfere with the orderly
development of the region with due consideration of the views of municipal and
regional planning commissions and governing bodies; (3) the site will not have
an unreasonable adverse effect on aesthetics, historic sites, air and water
quality, the natural environment, and public health and safety; and (4) issuing
the certificate will serve the public interest. RSA 162-H:16, IV; see Appeal of N.
Pass, 172 N.H. at 391.

Site 301.16 sets forth the criteria relevant to a finding that a proposed
energy facility will serve the public interest. Under Site 301.16, the SEC must
consider: (1) the welfare of the population; (2) private property; (3) the location
and growth of industry; (4) the overall economic growth of the state; (5) the
environment of the state; (6) historic sites; (7) aesthetics; (8) air and water
quality; (9) the use of natural resources; and (10) public health and safety.
N.H. Admin. R., Site 301.16; see RSA 162-H:1.

In determining that the Project will serve the public interest, the
Subcommittee specifically considered the comments from intervenors and
members of the public regarding the Project’s potentially adverse effects on
aesthetics, historic sites, water quality, the environment, private property real
estate values, tourism, land use, and public health and safety. The
Subcommittee expressly found that the Project will have “some negative
impacts” on those items, but determined that those negative impacts will be
mitigated pursuant to the conditions imposed by the Subcommittee on the
Certificate as well as those imposed on Eversource by other administrative
agencies, the requirements set forth in the Memoranda of Understanding, and
the dispute resolution procedure. The Subcommittee also considered the effect
of the Project on the welfare of the population and economic growth, finding
that increasing the reliability of the electric system will improve the public
welfare and stimulate the economy of the region. Based upon this record, we
cannot agree with the intervenors that the Subcommittee failed to consider the
private property factor identified in Site 301.16 and RSA 162-H:1.

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 To the extent that the intervenors argue that the Subcommittee was
required, and failed, to make an affirmative finding of fact as to each public
interest criterion in Site 301.16, we disagree. Neither the statutory nor
regulatory scheme so requires. See Appeal of N. Pass, 172 N.H. at 391-92.
Contrary to the intervenors’ assertions, the Subcommittee’s factual findings
were sufficiently specific for appellate review.

We also disagree with the intervenors that the Subcommittee was
required, in the context of this proceeding, to determine the extent of the
Project’s impact on each individual property and to compensate individual
property owners for that impact. To the extent that the intervenors argue that
their property has suffered a diminution in value and that this diminution in
value constitutes an unconstitutional regulatory taking without just
compensation, they are free to pursue that claim in a court of competent
jurisdiction. See Burrows v. City of Keene, 121 N.H. 590, 598 (1982).

To the extent that the intervenors assert that the Subcommittee’s finding
that the Project will serve the public interest is not supported by the record, we
also disagree. Based upon our review of the record, we find ample support for
the Subcommittee’s finding. We have reviewed the intervenors’ remaining
appellate arguments and conclude that they do not warrant extended
consideration. See Vogel v. Vogel, 137 N.H. 321, 322 (1993).

Affirmed.

HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.

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