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New push in Northern Pass fight

Last modified: 3/4/2012 12:00:00 AM
Last March, nearly 30 communities used their town meetings to register firm but nonbinding objections to Northern Pass. This year, a handful of towns will consider a stronger stance: adopting a 'home rule' ordinance that says local communities can block a project like Northern Pass even if it has federal and state approval.

This latest effort, though, isn't likely to get the same easy pass from voters. For starters, municipal attorneys have told their selectmen and town administrators that the ordinance is illegal because it elevates local control over state and federal authority.

At least five towns on the proposed Northern Pass route - Northfield, Plymouth, Easton, Sugar Hill and Lancaster - will debate the idea at town meetings this month.

As written, the 'rights based ordinance' would make it illegal for a corporation to buy land for 'unsustainable energy' projects, and 'unsustainable' is broadly defined. It includes any project that is not locally or regionally owned and any project controlled by state and federal energy policies. In addition, the ordinance would invalidate any permits or eminent domain authority granted by outside agencies.

Martin Murray, spokesman for Northern Pass, said project officials had no position or comment on the proposed ordinance.

Supporters argue such an ordinance would merely assert the powers already guaranteed to local communities in the state and federal constitutions, namely that people, not corporations, have the right to govern themselves.

The proposed ordinance does not identify Northern Pass as its target, but supporters acknowledged that stopping Northern Pass is their immediate goal. Northern Pass would bring hydropower from the Canadian border, through New Hampshire and to Deerfield, where it would enter the New England energy grid.

It's a collaboration between Hydro-Quebec, Public Service of New Hampshire and its parent company, Northeast Utilities. Most of the 180-mile proposed route would run along PSNH's existing power line corridors from Groveton to Deerfield. But project officials must clear a new transmission corridor for the upper 40 miles, from Groveton to Pittsburg, and are trying to buy land for that route now.

Northern Pass leaders are also seeking federal approval for the project, and if they are successful, will then seek state approval.

Federal energy regulators are still taking comments on the proposed project, and many across the state have responded. It's those who fear their comments will carry no weight with regulators who are backing the proposed home rule ordinance.

Mary Lee of Northfield, who collected enough signatures to get the ordinance on her town warrant, is one of them.

'I am convinced that the local level is the only level where I have any power,' she said. Her house sits along the 1.5-mile proposed route through Northfield. 'If this is really the Live Free or Die State, we should have local control.'

Northfield's selectmen are not taking an official position on Lee's petition, but Lee said even a selectwoman who opposes Northern Pass told her she can't support the ordinance because she fears the town would be sued over it.

Plymouth town officials are also not taking a position on a similar petition filed there. In Lancaster, the selectmen are opposing the ordinance on the advice of their town's lawyer, according to the town's administrator. They've been told the ordinance would fail in court and expose the town to hefty legal bills.

That advice was enough for Lancaster Selectman Leo Enos, who opposes Northern Pass - and the ordinance. 'It's illegal,' he said. 'We can't enforce it, and we can't defend something that is illegal.'

It's a different story in the other two towns, Sugar Hill and Easton. Selectmen there are among the proposed ordinance's most ardent supporters.

Margo Connors, chairwoman of the Sugar Hill selectmen, said the board discussed the potential legal ramifications at length but decided to put the question on the warrant, in part because voters last year unanimously voted to oppose Northern Pass.

'In the end we felt this was worth doing,' Connors said. 'Ultimately the (federal and state) regulatory process does not work, and we felt that to be respectful of what the citizens want, this was worth the risk.'

Tom Boucher, an Easton selectman, said the board decided to support the warrant article because so many locals do. 'My own personal view is that I believe this might be our only alternative to fighting (Northern Pass),' Boucher said.

Legal encouragement

It's not a coincidence these towns are all considering the same hard-line approach to Northern Pass. The backers in each town are working under the guidance of the Community Environmental Legal Defense Fund based in Pennsylvania. The group describes itself on its website as a nonprofit, public-interest law firm that offers free legal advice to communities 'facing threats to their local environment, local agriculture, the local economy and quality of life.'

Lee of Northfield and Peter Martin, who got the ordinance on the Plymouth warrant, attended a free 'democracy school' held locally by the group's leaders. They and others met with the group's attorney to learn about the 'rights-based ordinance' and were encouraged to hear that more than 110 communities across the country have adopted those ordinances to fight natural gas fracking, coal mining, spreading of sewer sludge and factory farming.

Martin was sold and said he has come to believe that the state and federal constitutions imagined the sort of local control the ordinance would provide.

'The Constitution says, 'We the people,' ' Martin said. 'It does not say, 'We the corporation.' This says you do not have the power to override our needs and our wishes.'

Martin believes one challenge at town meeting will be reassuring local landowners and businesses that the ordinance is not intended to stop them from using their land as they wish.

This is not New Hampshire's first dance with the Community Environmental Legal Defense Fund.

In 2006, Barnstead became the first town in the nation to adopt a rights-based ordinance targeting bottled water companies looking for places to drill. It passed 135-1.

Gail Darrell of Barnstead was behind that effort and said it was prompted by a bottling company trying to drill in the Nottingham and Barrington area. Those towns were fighting the company but losing; USA Springs had won a state environmental permit to draw 307,000 gallons of water a day from the ground and had prevailed in a state Supreme Court appeal.

'It was us looking over the fence and saying, 'We never want to be in Nottingham's situation, so let's take proactive action,' ' Darrell said. She contacted the Community Environmental Legal Defense Fund on a friend's advice and brought the group's lawyer to Barnstead to meet with locals and the selectmen.

'We took an entire year to educate (local) people about what was at stake,' Darrell said. 'The fact is the community is left out of the decision-making process. You try to say no (to a project) and you realize you can't because (the project) is a legal use of the land.'

Atkinson, Nottingham and Barrington followed Barnstead's lead and enacted their own ordinances with Darrell's help.

Darrell now works for the Community Environmental Legal Defense Fund as its New England community organizer and is helping those who are bringing ordinances to their town meetings this month.

'It's not the easiest thing to put through because most people look at the law the way it exists and think the government will take care of them,' said Christopher Mills of Nottingham, who led the ordinance effort there. 'But the fact of the matter is that the law on the books is written by the corporations and their lobbyists, and they protect them far more than they protect the individuals.'

Nottingham voters passed their ordinance in 2009 with 60 percent of the vote, Hill said.

The bottling company never drilled because it landed in bankruptcy court, Hill said. But it continues to seek financing from other companies. Hill sends each of those companies a copy of Nottingham's ordinance, and he believes it has discouraged them from taking a closer look at the town.

Darrell agrees. 'It's much easier to go somewhere else than to fight this,' she said.

But the legal questions remain. No one knows if the ordinance would stand up in New Hampshire courts because it's never been challenged here.

Elsewhere in the country, there have been challenges to the ordinances. According to news accounts of one, a federal judge found in favor of a mining company that fought a rights-based ordinance in Blaine Township, Pa. The judge found that Blaine 'does not have the legal authority to annul constitutional rights conferred upon corporations by the United States Supreme Court,' according to the Pittsburgh Post-Gazette.

The co-founder of the Community Environmental Legal Defense Fund, Thomas Linzey, defended the ordinance, charging only expenses, the paper reported.

Darrell said the town repealed the ordinance and tried to enact a different one giving it 'home rule' authority over federal and state regulations. That effort failed, Darrell said.

A second Pennsylvania community, Packer Township, is facing a challenge to its anti-sludge law. The Community Environmental Legal Defense Fund is again defending the ordinance and has asked a judge to dismiss the case, Darrell said.

She said the judge has requested the sludge company's corporate officers to prove that the spreading of sludge on farmland is a 'normal agricultural practice,' Darrell said.

Alternative approach

Tom Mullen of Campton would seem an obvious backer of the rights-based ordinance.

He is among Northern Pass's most vocal critics. And he is the lead developer of the Owl's Nest Resort and Golf Course in Campton, a property he believes will become unmarketable if Northern Pass goes through because it sits along the proposed route.

But Mullen has chosen to fight the project another way at town meetings. He and other members of the Alliance Against the Northern Pass will ask voters to endorse an ordinance that would require the burying of high-voltage transmission lines like the ones Northern Pass proposes.

'I sympathize with them,' he said of Lee, Martin and others backing the other approach. 'This concept of home rule makes perfect sense to me at a time when our government has abandoned its responsibilities to its citizens. What you're seeing (from the others) is a knee-jerk reaction from people who have, quite frankly, had enough of that and want to make a statement.'

Their approach, though, was too broad for Mullen.

He prefers the alliance's focus on Northern Pass and its high-voltage transmission lines. The alliance's website (nonorthernpass.org/nh/alliance) tells project opponents how to contact their elected representatives, where to buy anti-Northern Pass gear and what's happening with legislation related to the project.

The website also has links to its ordinance calling for the burying of lines.

'Our ordinance is designed to send a very loud and clear message about one topic and one topic only,' Mullen said. 'It's about the potential use of eminent domain to place overhead towers along 180 miles of environmentally pristine and economically viable' land.

It was unclear last week how many town meetings will take up the alliance's ordinance. Campton will, Mullen said, and Holderness and Columbia may as well. Passing an ordinance is the main goal, but it's not the only one for backers of both ordinances. Lee of Northfield was troubled to discover while collecting signatures for her petition that some Northfield residents didn't know the proposed Northern Pass route would come through their town.

'Everyone thinks Northern Pass is in the mountains,' Lee said. 'It's a real awareness issue. Then I think back and realize I was under the impression in March 2011 that Northern Pass was in the mountains. There's a real education piece to presenting this at town meeting.'

(Annmarie Timmins can be reached at 369-3323 or atimmins@cmonitor.com.)


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