Posted on November 13, 2017 by Gregory H. Smith
There is growing recognition that New England’s energy costs are much higher than neighboring parts of the country. To a large extent, these high costs are due to the combination of transmission congestion, an ever-increasing reliance on natural gas and a shortage of natural gas supply in the New England market. As a result, new participants are seeking entry into the market, including several seeking to expand the diversity of generation sources.
Antrim Wind Energy, LLC is an example of new participants seeking entry into the market. In 2015, Antrim filed an Application for Certificate of Site and Facility with the New Hampshire Site Evaluation Committee (“SEC”) to develop a wind farm. The Application was Antrim’s second attempt to gain SEC approval. As noted in this space, an earlier Antrim project was denied in 2013 based primarily on its “aesthetic” effect on the region. Several key factors led to a different outcome in the second proceeding.
Since 2013, the New Hampshire SEC has substantially revised its siting rules. Particularly pertinent to the Antrim Wind Project are new, more specific rules for aesthetic assessments. Although review of aesthetic effects are, by their nature, somewhat subjective, the rules provide objective standards for visual impact assessments to provide greater predictability of outcomes. The SEC rules require the Committee to consider seven different, specific criteria in making a determination as to whether a proposed project will have an unreasonable adverse effect on aesthetics.
In reviewing the second Antrim proposal, the SEC placed particular emphasis on criterion six (6), whether the project would be a dominant or prominent feature in the landscape.
In its second proposal, Antrim made several significant modifications to its earlier application case, that, coupled with the changes in the governing law, produced the favorable outcome. Most important, the number of wind turbines, and their size and scale were reduced. This modification doubtless affected the Committee’s analysis of whether the project “would be a dominant and prominent feature” in the landscape.
The SEC also adopted a public interest test as part of the new rules, which made a significant difference in review of the 2015 application. No clear definition is provided in the rules as to how an applicant can demonstrate that a project is in the public interest. A focus on project benefits seems to be a key factor. In the Antrim case, beyond the obvious benefits of diversifying energy generation to include clean, renewable wind energy with the corresponding beneficial effect on climate change, there were recognized benefits to the community similar to those in the land use approval process. These included stabilizing tax payments through a municipal agreement, investments in community infrastructure, and permanent preservation of 908 acres of land as a form of mitigation.
The Antrim Wind project now stands alone in New Hampshire as the only sizable energy project to first have been rejected by the SEC, and subsequently reheard and approved. The protracted Antrim case demonstrates that the somewhat complicated siting rules are capable of reasoned and predictable application. It is also clear that this case provides useful instruction for what will likely be required for approval in the subsequent applications.