United States: SB 245 Changes SEC Composition And Procedures

Amidst the continuing public discourse regarding the siting of energy facilities in New Hampshire, the NH Legislature recently amended the statute that governs that process.

Senate Bill 245, which Governor Maggie Hassan signed July 11, made several significant changes in the siting process: It reduces the membership of New Hampshire's Site Evaluation Committee (SEC), broadens public involvement in the siting process, and establishes an administrator position within the SEC. While the changes to the state's siting process are evident on its face, the ramifications of these changes remain to be seen.

The SEC is charged with reviewing and evaluating applications, including all state permits and approvals required, to construct certain types of energy facilities. Its jurisdiction covers, for example, generation sources over 30 megawatts, such as commercial wind farms and biomass plants, gas pipelines, certain electric transmission lines, and LNG storage facilities. To issue a certificate of site and facility, the SEC must make certain findings, such as that the facility will not unduly interfere with orderly development of the region and will not have unreasonable adverse effects on aesthetics, historic sites, air and water quality, the natural environment, or public health and safety.

One of the major changes under SB 245 involves the committee's membership. The chair of the Public Utilities Commission (PUC) now chairs the SEC; the vice-chair is the commissioner of the NH Department of Environmental Services (DES). The other committee members include the commissioners of the departments of resources and economic development, transportation, and cultural resources, or the director of the Division of Historical Resources as designee, and the other commissioners of the PUC. In addition, the governor will appoint two members of the public to serve on the SEC.

Under the new statute, certain positions were removed from the committee, including representatives from the Division of Water, the Department of Health and Human Services, the Fish and Game Department, the Office of Energy and Planning, the Division of Parks and Recreation, the Division of Forests and Lands, and the Division of Air Resources. 

The revised statute also provides for more public involvement in the SEC process, primarily in the form of public meetings before and after an application is filed. An applicant must hold a public information session in each county where the proposed energy facility will be located at least 30 days prior to filing an application. The session provides the opportunity for public comment and must be transcribed. The transcript must be submitted with the application. After filing, the applicant must hold another public information session. All of these sessions are in addition to the public information hearings the SEC itself must conduct after accepting the application. The revised statute also includes a new provision under which the committee must find that the issuance of a certificate will serve the public interest.

The new law establishes a full-time state employee position as the SEC administrator. The new position is intended to make processing of applications more efficient. The administrator's role will be to ensure that members of the SEC – all of whom are required to serve on the committee in addition to their full-time jobs – have the support they need to review applications.

Not only will the administrator handle day-to-day administrative tasks, but may, with approval from the committee, also monitor the construction or operation of an energy facility, to ensure the terms and conditions of a certificate are met; deal with minor changes in route alignment (to the extent such changes are authorized); and act as the presiding officer under certain circumstances. This last role in particular may significantly improve case-flow and timely processing of an increasing number of applications. 

Under the new law, the Legislature extended the statutory deadlines for these cases. The SEC must decide whether to issue or deny a certificate for an energy facility within one year; under the prior version of the statute, the review period was nine months. It is hoped and expected that this change will help avoid ad hoc extensions of time and increase the predictability of the siting process.

The statute also authorizes the delegation of SEC work to subcommittees. SB 245 provides that if a subcommittee handles an application for a certificate of site and facility, the subcommittee must have at least seven members, which include both public members on the committee. The new law also allows the chairperson to establish subcommittees of three members consisting of two state agency members and one public member in some circumstances. 

Finally, SB 245 requires the committee to develop new rules prior to July 1, 2015. Although the committee currently has rules, the revisions are intended to clarify the procedure and specify certain substantive requirements for applications.

In sum, many observers welcome the changes described herein, in large part because the changing energy markets will likely increase the workload of the committee in the near future.

The Legislature certainly had in mind when it revised the statute that the committee would likely be seeing more applications in the coming years. Although most experienced participants certainly felt that the committee generally functioned very well in the past, any improvements in predictability of the timeline for processing applications and clarification of the content requirements for applications will be welcome.

Barry Needleman is chair and Adam Dumville is a member of the energy practice group at the McLane law firm.

Published in the New Hampshire Bar News

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