MOST PEOPLE assume the Attorney General will defend the laws of the state against legal challenge. That’s usually the case, although there are exceptions.
In 2015, Attorney General Joe Foster, appointed by Democratic Gov. Maggie Hassan, refused to defend the state’s educational funding law against a court challenge by Dover.
Dover’s school population was growing but the city wasn’t receiving a commensurate increase in state aid because of a cap passed by the legislature in 2010. The city challenged the legality of that cap in court and won, reaping $1.5 million for itself and $11 million for 40 other similarly situated school districts across the state.
Leadership in the Republican-led Senate and House cried foul over Foster’s decision, arguing the attorney general has a constitutional obligation to defend laws that were legally approved, no matter his legal opinion or the policy positions of the governor. The Senate president and House speaker had to hire lawyers to defend the actions of the legislature.
Now the question has arisen as to whether incumbent Attorney General Gordon MacDonald will defend a law Gov. Chris Sununu vetoed and would just as soon see die.
At issue is Senate Bill 365, which became law over Sununu’s veto in September. The new law requires utilities to buy power from the state’s six wood-burning power plants and a trash-to-energy plant in Concord at above market prices.
A group calling itself the New England Ratepayers Association last week filed a petition with the Federal Energy Regulatory Commission asking FERC to nullify the new law on the grounds that it’s an overreach by the state, which has no authority to set wholesale rates for energy.
The state’s independent consumer advocate on utility issues has already filed to intervene on behalf of consumers, although is unsure what position he will take on their behalf.
We reached out to MacDonald to see if the Department of Justice expects to defend the law and got a fairly non-committal reply: “We’ve received the petition and it is under review.”
The ratepayers’ association has hired one of the top Washington, D.C., law firms that specializes in utility issues, so the state may have to hire some outside talent of its own. It’ll be interesting to see how this one plays out.
One of MacDonald’s peers in Sununu’s cabinet, Commissioner of Administrative Services Charlie Arlinghaus, railed against Foster in a 2015 column he wrote as head of the Josiah Bartlett Center for Public Policy.
“The Attorney General’s refusal to defend state law, if allowed to stand, would rewrite state law and create an untenable secondary veto power in an appointed office,” he wrote. “Just as criminals are entitled to a defense even if guilty, the duly passed laws of the state are entitled to a defense even if the lawyer so charged is not enamored of the law.”
Net metering redux
State Sen. Jeb Bradley, R-Wolfeboro, is among those hoping the state mounts a vigorous defense of the biomass subsidy law, while promising to resurrect another renewable energy bill that Sununu vetoed, SB 446.
That bill would have expanded the state’s net metering law to embrace large-scale solar fields that several cities were hoping to build on large tracts of municipally owned land. The bill would have allowed the cities to sell their excess power back into the grid at higher than wholesale prices, which is a form of subsidy to encourage solar development.
The Senate succeeded in overriding Sununu’s veto of SB 446, but it was upheld in the House.
While Bradley was the chief proponent for the biomass bill, Nashua Republican Sen. Kevin Avard was the champion for the solar expansion. Avard lost his re-election by a few hundred votes to former state Rep. Melanie Levesque.
“With Kevin gone, I’m prepared to bring back SB 446 in one form or another,” said Bradley, who formed a two-man team with Avard to promote the bills at rallies and legislative venues. “I’m prepared to continue to advocate for the energy policies we think best serve the state.”
With Democratic majorities in House and Senate, Sununu may not be able to kill the initiative this time around.
As expected, Senate Republicans have elected incumbent Senate President Sen. Chuck Morse, R-Salem, to lead the GOP minority in the upcoming session.
Democrats chose their incumbent minority leader, Sen. Donna Soucy, D-Manchester, as their choice for Senate President, and Sen. Dan Feltes, D-Concord, as majority leader (the position now held by Bradley).
Just shy of 40, Feltes becomes the youngest lawmaker to serve as majority leader in the New Hampshire Senate.