A company that lost a bid to build a hydropower project accused the New Hampshire state committee charged with making the decision of failing to do its job.
Last year, the state's Site Evaluation Committee denied the Northern Pass, which would bring hydropower from Canada to markets in southern New England, over concerns from communities and environmentalists that it would harm the region's tourism industry and hurt property values.
The utility behind the project, Eversource, argued before the New Hampshire Supreme Court on Wednesday that the committee never considered all the evidence supporting the project, as required by law, nor the possible ways the company could mitigate opponents' concerns.
Eversource also alleges the committee violated its own rules by considering only one of four criteria required to approve a project. It voted after deciding the project would unduly interfere with the region's orderly development.
The ruling prompted Massachusetts to abandon its plans to get clean energy from the $1.6 billion project, which calls for constructing a 192-mile (308-kilometer) transmission line.
Wilbur Glahn III, representing Eversource, said the committee failed to "considered the significant benefits and impacts of the project" and, instead, "truncated its deliberations and rested its decision for the first time in the history of the SEC on an alleged failure to meet their burden of proof."
Lawyers representing opponents, including 13 municipalities and the Society for the Protection of New Hampshire Forests, argued Eversource had failed to produce sufficient and credible evidence to make their case around such things as the impacts on property values, tourism and land use.
They argued the court should uphold the committee's ruling.
"In the end, the applicant tries to blame the Site Evaluation Committee and tries to blame the municipalities for not getting the approval of their project," Danielle Pacik, representing the municipalities, told the court. "But the fault is its own."
The five-judge panel seemed unconvinced by the argument that the committee's decision-making process was flawed, noting that it was just following the guidelines set by the legislature.
Chief Justice Robert Lynn compared the process to requesting a variance from a zoning board, which often doesn't consider all the criteria before approving or rejecting a project. He also wondered whether Eversource saw the committee's job as simply approving its project — not assessing the project on its merits.
"There is sort of some presumption that if there is a way to get to this, you should allow it," Lynn said. "That seems to me to be in some ways at least inconsistent with the burden of proof. Why can't they say: 'Look you're the applicant. You proposed this. We don't think you met your burden of proof. Case closed so to speak.'"
Eversource wants the court to remand the case back to the committee for reconsideration. It said Wednesday it still wants to build the Northern Pass, arguing it will bring nearly $4 billion in economic benefits to the state, including development in the north and a reduction in the energy prices.
"We remain committed to Northern Pass," Eversource New Hampshire President Bill Quinlan said. "If we are going to achieve our clean energy goals as a region, we have to figure out some way to bring hydropower down from Canada. It's the single best, most affordable, most reliable source of baseload clean energy."
Opponents like Jack Savage of the Society for the Protection of New Hampshire Forests argue other projects in Maine and Vermont already are being considered to bring hydropower in Canada, proving that "there are ways to do it without cutting through 192 miles of New Hampshire."