What's Next for Northern Pass?

How the appeal process works

Will Abbott | February 9, 2018

Should Northern Pass choose to appeal the 7-0 decision of the New Hampshire Site Evaluation Committee (SEC) to deny Northern Pass a Certificate of Site and Facility, the first step would be to petition the SEC to reconsider their decision once the written decision is issued. The written decision is scheduled for release by the end of March.  While Northern Pass has suggested that it may request reconsideration before the written decision is issued, the New Hampshire Supreme Court has opined that in Administrative Law the written order is the trigger for a motion for reconsideration.

Northern Pass will have 30 days from the issue date of the written decision to request reconsideration.  The SEC will then have 10 days to respond, but may extend that deadline.  Assuming that a motion for reconsideration is denied, Northern Pass would then have 30 days to appeal to the Supreme Court. The Court can accept or reject the appeal.  If accepted, the appeal is likely to take months given the magnitude of the evidentiary record--even if the Court determines to expedite its review.

Assuming that the SEC issues its written decision on March 31, it would likely be mid-May before Northern Pass would be in a position to formally file an appeal with the Supreme Court. And it could be a year or more before the Court issues an opinion.  And, if the Court were to find in favor of Northern Pass on appeal due to some procedural error, the most likely remedy would be for the Court to remand the decision back to the SEC to correct whatever error it found in the SEC’s original decision.

The transcripts of the SEC’s deliberations on January 31 and February 1 on the issue of the orderly development are fascinating reading. The issue the SEC discusses is whether the Applicant has met its burden of proof. The Applicant must present sufficient evidence that the project would not have an undue adverse effect on the orderly development of the region. It becomes very clear during the SEC’s discussion that all seven members concluded that NP failed to present such evidence.  In fact, the evidence presented in the opinion of the seven decision-makers was woefully inadequate.  While NP may exercise its right to appeal, it is hard to see how the muscle of this 7-0 decision is likely to atrophy under further judicial scrutiny.