The part-time member model for making energy-siting decisions has outlived its usefulness

The NH Site Evaluation Committee, which has the crucial responsibility for determining precisely where large-scale energy facilities may be located in the state, (ideally by balancing environmental and economic impacts and benefits, while also avoiding undue delay) is in the midst of an organizational crisis. When the Legislature established the SEC in the early 1970s, it formed a part-time committee of agency heads that convened from time-to-time as necessary. That approach no longer works.

The SEC has jurisdiction over electric transmission lines, certain natural gas pipelines, electric generating facilities with a capacity of 30 MW or greater, and other associated facilities that form the backbone of the state’s critical energy infrastructure.

To perform its duties, the SEC conducts adjudicative hearings that resemble trials. The process involves voluminous filings, various motions, expert testimony, discovery, cross-examination, briefs, public deliberations and lengthy written decisions, as well as the potential for motions for rehearing and appeals to the NH Supreme Court.

Over the past five decades, filings with the SEC have become more numerous, more complex and more contentious, thus demanding more time from SEC members and a much deeper understanding of procedural and substantive issues.

The proceedings have also become more formal over time, and public participation has expanded greatly. For instance, in addition to conducting 70 days of adjudicative hearings in the Northern Pass docket, the SEC held 12 highly attended information sessions and public comment hearings, as well as seven days of site visits, while 160 parties, including individuals, businesses and organizations, petitioned to intervene.

Even relatively straightforward proceedings with little or no opposition are timeconsuming and resource-intensive, as demonstrated by two recent cases involving proposed solar facilities.

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-megawatt solar facility, which was well below the jurisdictional threshold of 30 MW. In the largely uncontested Chinook Solar case, which involved only the town of Fitzwilliam and counsel for the public as parties, it still took 60 days to accept the application and an additional full year to issue a decision approving the project.

Time-consuming demands

At present, the SEC has nine members — seven commissioners and two public members. The seven commissioners may designate substitutes to sit in their place and the SEC chair (the chair of the Public Utilities Commission) may establish subcommittees to decide various matters. The size of the SEC and its part-time nature creates a built-in inefficiency in scheduling proceedings and assuring that a quorum is present to conduct the SEC’s business, because the commissioners (and their designees) have full-time agency responsibilities, while the various public members have other demands as well.

In the Antrim Wind and Seacoast Reliability cases, as examples, it took roughly two months to hold 13 days of hearings in the former and 15 days of hearings in the latter.

Recognizing the time-consuming nature of the demands facing commissioners, the Legislature amended the law in 2007 and 2014 to allow designations and subcommittees.

The well-intentioned band-aid, however, had the unintended consequence that in one five-year period, the SEC conducted 16 proceedings in which more than 40 different individuals served as an SEC or subcommittee member, resulting in an unsettling lack of continuity and institutional memory for such a critical state decisionmaking body.

The PUC solution

Last year, the Legislature took notice of the problems at the SEC when it established the Committee to Study Necessary Revisions to the Site Evaluation as part of House Bill 2, the so-called “trailer bill.” The Legislature directed the study committee to evaluate a number of questions, 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.

On Oct. 1, 2021, the study committee issued its final report, which found that the SEC’s current membership structure makes the siting process inefficient and ineffective. The committee also noted that it “received testimony that public members lack the necessary expertise and technical background to effectively take part in SEC proceedings and to understand the applications before them.”

As a result, it recommended overhauling the SEC structure. To that end, the members of the study committee sponsored new legislation, Senate Bill 256, to examine the feasibility of replacing the SEC.

SB 256 lays out several potential paths, including studying the role of the newly formed Department of Energy in the siting process and the ability of the PUC to assume the adjudicative functions for energy siting in New Hampshire. In light of the recent reorganization of the PUC and the creation of the DOE, it is especially timely to consider how those changes and that restructuring may provide an answer to the SEC’s structural problems.

When it created the DOE, the Legislature limited the PUC to its judicial duties, making it more like a court, and transferred the PUC’s executive and administrative duties, including enforcement, to the DOE. A similar approach can be applied to energy siting by making the PUC responsible for all the judicial functions, including preliminary matters related to the filing of applications, determining them complete, holding information sessions and public hearings, as well as ruling on motions to intervene and other procedural matters, conducting the adjudicative hearings and issuing decisions. The DOE would handle post-certificate matters relating to enforcement and other administrative matters.

It is clear that the part-time committee approach to making energy-siting decisions has outlived its usefulness. The solution to the problems posed by the part-time committee approach is to put decision-making for energy siting in the hands of the PUC.

As a full-time body accustomed to the adjudicative process, the PUC is not hindered by an inability to convene a quorum in a timely manner, and it is in a position to provide the continuity, subject matter expertise, procedural experience and institutional memory so necessary to making informed decisions.

Tom Getz, an attorney in McLane Middleton’s Administrative Law Department, can be reached at thomas.getz@mclane.com. Barry Needleman, managing director of McLane Middleton and an attorney in the firm’s Administrative Law Department, can be reached at barry.needleman@mclane.com.