On July 26, 2024, Governor Sununu signed into law House Bill 609 to streamline energy project siting under RSA 162-H:1 and provide greater continuity in decision-making. The product of over three years of serious study, HB 609 reduces the number of sitting members of the Site Evaluation Committee (SEC) from nine to five and eliminates the use of subcommittees. The SEC will now consist of the three Public Utilities Commission (PUC) commissioners, the Commissioner of the Department of the Environment (DES) (or his designee, who for a particular proceeding may be selected from among DES, the Departments of Transportation, Natural and Cultural Resources, Business and Economic Affairs, Fish and Game, or the Division of Historical Resources), and one public member (and alternate) appointed by the governor.
Substantively, the underlying application requirements for a certificate of site and facility have not changed, and the SEC is still tasked with evaluating in one integrated package all environmental, economic, technical, and public health and safety issues related to the siting of an energy project. Procedurally, however, in order to make proceedings more timely and efficient, the chairperson of the SEC, who is the chairperson of the PUC, has been given the authority to make preliminary administrative and procedural decisions, which in the past would have required a meeting of the full Committee.
The SEC was established in 1991 as an integrated committee of various agency heads who would meet from time-to-time to address applications for particular energy facilities. During the new millennium, however, filings became more complex, contentious, and formal. Major energy facility siting required—and still requires—voluminous filings, numerous motions, written expert testimony, discovery, cross-examination, briefs, and public deliberations, not to mention potential motions for rehearing and appeals to the New Hampshire Supreme Court. In an attempt to reduce the burden on the agency heads, the legislature permitted more freedom to delegate substitutes. But this resulted in an alarming lack of continuity and a loss of institutional memory for this critical decision-making body, as evidenced by the service of over forty different commissioners at the SEC for sixteen projects over a five-year period. Designees themselves often lacked baseline expertise, further dragging down the SEC review process as a whole.
Even relatively uncontested and straightforward proceedings became time-consuming. In the Milford Spartan Solar case, the SEC took nearly a year just to decide that it would not be reviewing a 16-MW solar facility, which facility would have needed to be twice the size to trigger review under the SEC regulations. In another case, where the two parties involved (the Town of Fitzwilliam and Counsel for the Public) both agreed on construction of the Chinook Solar facility, it still took the SEC over a year to approve the project.
Prior to the work of the legislative study committees that led to HB 609, other measures had been pursued to achieve administrative efficiency. These measures included permitting the use of subcommittees, and reducing the size of the SEC from fifteen members down to nine, which members included the PUC commissioners, and commissioners or their designees for DES, the Dept. of Business and Economic Affairs commissioner, the Dept. of Transportation, the Dept. of Natural and Cultural Resources (or director of Historic Resources), and two members of the public. In 2021, the Legislature established a committee to address more comprehensively what changes could be made to minimize delays in siting energy infrastructure and provide more continuity and expertise in decision making.
In 2022, as an outgrowth of the findings of the 2021 committee, the Legislature created a committee to investigate the specific proposal of replacing the existing nine-member SEC. It was after these deliberations that Representative Michael Vose introduced HB 609. On March 19, 2024, representatives from the Business and Industry Association (BIA), Eversource, the Consumer Energy Alliance, the Greater Manchester Chamber, the Department of Energy, the International Brotherhood of Electrical Workers, and even the Site Evaluation Committee itself came out to support the House version of the bill. Ms. Koch of the BIA emphasized the role of HB 609 in reducing energy costs, and Mr. Brown of the Consumer Energy Alliance emphasized the role of the bill in increasing grid reliability by way of speeding interconnection time. Mr. Biemer of the SEC emphasized the positive impact of granting the SEC easier access to PUC resources.
The passage of HB 609 also introduces a few other clarifications and changes to New Hampshire energy law. Most notably, the bill increased the size of battery systems which can be built without being considered a “Facility” and therefore requiring Site Evaluation Committee approval. Specifically, the law increased the triggering threshold from 30 MWh to 30 MW. The new law also reaffirms the existing requirement at Site 301.07 and 301.14 that projects not have unreasonable effects on fish and wildlife, and adds clarification that offshore land uses be protected. Mr. Diers of DES described the addition of the specifications for protection of on- and off-shore “uses” as crucial to maintaining consistency with federal law.
The bill is effective immediately, so all new applications to the SEC will be evaluated by the new five-person committee. Proceedings for which applications have already been filed, however, will continue to be heard by the former nine-member committee.