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Protecting property: Northern Pass and the law

January 16. 2012 6:40PM

The New Hampshire Constitution prohibits the taking of private property by eminent domain 'if the taking is for the purpose of private development or other private use of the property.' Foes of the Northern Pass project say that protection is not enough. They say we need a law further restricting takings by public utilities.

Wednesday, the Senate is to vote on a bill originally intended to do that. State law already holds that 'No public utility may petition for permission to take private land or property rights for the construction or operation of an electric generating plant.' The original version of House Bill 648, which the House passed last year, would add to the end of that sentence: 'or a transmission facility so long as the transmission facility is not needed for system reliability.'

What does that mean? It is an 'incredibly complicated assessment to make and is not really defined,' the Public Utilities Commission's Michael Harrington said at a public hearing last May. Roughly speaking, it means that eminent domain could be used only for energy transmission projects that made the existing electrical grid more reliable. The Northern Pass project is not designed for that purpose, and therefore the state could not use eminent domain to acquire land for it.

The Senate Judiciary Committee thought that restriction too broad. It could prevent, for example, the use of eminent domain to extend transmission lines, change existing rights of way or connect to a new power source. The committee removed that language and offered new protections for property owners instead. In the amended version, utilities cannot even mention eminent domain powers when negotiating deals with landowners and cannot petition the PUC for a taking unless an owner has refused an offer worth at least 200 percent of the property's appraised value. There are other protections as well, including a requirement that utilities pay moving costs for people whose homes are taken.

The original version of HB 648 was not a heroic stand for property rights so much as it was an attempt to kill the Northern Pass project by statute. The Senate Judiciary Committee's idea seems less problematic, especially considering that the constitutional protection remains regardless.

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