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Bar News - September 20, 2013

Environmental, Natural Resources & Utilities Law: Environmental Law in NH: What to Watch


A Roundup of the New Hampshire Supreme’s Recent Environmantal Law Opinions

Recently, the NH Supreme Court has made a number of important decisions in the area of environmental law. Despite widely differing facts, the court has dug into the issues and shown a tendency to strictly interpret the applicable statutes to resolve the disputes.

Here’s a rundown of four topics the court has focused on, spanning six decisions, so you have all in one place the key recent decisions to keep your practice up to date.

Look at the Big Permit Picture

Let’s start with this summer’s Appeal of Thomas Morrissey, No. 2012-405 (N.H. June 5, 2013) which involved the issue of what constitutes total wetlands impacts.

The issue of what wetland impacts the NH Department of Environmental Services (DES) can consider has been a hot topic in NH, both at the Supreme Court and with the Legislature. The court has already decided that indirect wetland impacts may not be considered when considering a permit, despite the apparent ecological sensibility of such consideration, because the enabling statute does not allow it. Greenland Conservation Comm’n v. N.H. Wetlands Council, 154 N.H. 529 (2006).

Following that decision, lawmakers have tried unsuccessfully to amend the enabling statute to allow consideration of indirect impacts. The Appeal of Morrissey provides a bit of clarity, and perhaps an expansion from Greenland.

In Appeal of Morrissey, DES permitted the Town of Lyme to add fill to a recreation area bordering a pond. The town had also adopted a new water-release policy that lowered the pond’s water level. The court concluded that DES, when it considered the town’s permit application, erred by not taking into consideration the town’s changing of the water level.

Although the applicable statute didn’t require the town to obtain a permit before making water-level policy changes, the water-level changes were a component of a larger project to enhance the recreation area. Thus, the Supreme Court ruled that “the town had to describe, and [DES] had to consider, the total wetlands impact of the proposed project.”

This case serves as an important reminder that activities that do not require their own permits may nevertheless be required considerations in applying for and obtaining other permits. Moreover, this case seems to provide an alternate path to have DES consider wetland impacts that are not direct, if those impacts can be legitimately characterized as part of the “total wetlands impact,” rather than an indirect impact.

Wild Goose Migrates Away From Local Land Use Control

On June 28, the NH Supreme Court issued two opinions concerning a boat launch at Lake Sunapee proposed by the NH Fish and Game Department on its so-called “Wild Goose” property in Newbury. The statewide boat access program requires Fish and Game to provide public access to all lakes and ponds in New Hampshire that are 10 acres or larger.

New Hampshire has a very strong culture, codified throughout state statutes, of local control over land use. To date, however, numerous challenges made by the local community have failed almost completely, leaving the state mostly on the winning side of this long-contested battle between state and local powers to determine this particular land use.

In Town of Newbury v. NH Fish & Game, No. 2012-705 (N.H. June 28, 2013), the court reversed the superior court, which had ruled that, because the proposed boat launch would be a class III-a public highway, RSA 162-C:6, IV prohibits the Council on Resources and Development (CORD) from approving the design of the boat launch.

The court ruled that the law applies only when the NH Department of Transportation seeks an interest in land owned by the former Land Conservation Investment Program (LCIP). Such was not the case with the boat launch, so the court ruled that CORD had the authority to approve the boat launch.

In the second Wild Goose case, Appeal of Lake Sunapee Protective Association, No. 2012-255 (NH June 28, 2012), the court refused to require DES to determine a proposed project’s compliance with laws implemented by other state agencies. The court also upheld the granting of a shoreland permit by the Wetlands Council to Fish and Game for the boat launch.

The key provision of the shoreland law at issue states that boat ramps “shall be permitted… [by DES] as necessary and consistent with the purposes of [the shoreland law] and other state law.”

First, the court rejected petitioners’ argument that “as necessary” means that DES must analyze whether the boat launch is necessary. The court instead interpreted “as necessary” to mean that a permit is necessary for the project.” Appeal of Lake Sunapee Protective Association, slip op. at 8 (emphasis in original).

To interpret the phrase as the petitioners argued would lead to the “absurd result” of DES evaluating the necessity of “facilities over which DES lacks authority and expertise.” Id.

The court also considered whether issuance of the permit was consistent with “other state law.” The court decided that Fish and Game, not DES, is statutorily responsible for administering the New Hampshire Statewide Public Boat Access program and that the CORD, not DES, is statutorily responsible for administering the LCIP.

Given ongoing debate about siting wind facilities, this battle over the boat launch, and increasing requirements from EPA for operators of certain wastewater and stormwater facilities, this case seems in line with an apparent trend in favor of increased statewide uniformity at the expense of local control of land use.

Added Penalty: Civil Forfeiture

In March 2013, the NH Supreme Court affirmed the criminal convictions of Kevin Guay on two counts of unlawfully operating a solid waste facility and one count of unlawfully maintaining a subsurface septic system.

Practitioners who defend or prosecute environmental crimes will want to remember this case when it comes to measuring conduct against penalties. Those who counsel clients to avoid environmental misconduct, especially clients who may believe that DES may not catch them or may be soft on them, will want to reference this case as a lesson learned.

At two different locations in Concord, investigators unearthed items including oil tanks, a stove, a hot tub, paint cans, and a snowmobile. Investigators also found “a garden hose attached to a sump pump that channeled untreated brown water from the septic tank, bypassing the leach field and discharging liquid in the direction of the Turkey River.” State v. Guay, 164 NH 696, 698 (2013). The investigators’ tests found fecal contamination in the hose and the soil beyond it. Id.

Looking at both the civil forfeiture and misdemeanor provisions of RSA 485-A, the court disagreed with Guay and explained that a violation of the statute is a misdemeanor, and civil forfeiture is an additional penalty appropriate when a person neglects or refuses to cooperate with DES following the issuance of a written compliance order.

The Court agreed with Guay that errors had occurred at his trial, but disagreed that they amounted to plain error. Guay failed to show that the errors seriously affected the fairness, integrity, or public reputation of the trial, because the evidence against Guay was “overwhelming.” Id. at 705.

So, when a client refuses to comply with written orders, for certain conduct the penalty merely starts at a misdemeanor, then added to that is the further punishment of civil forfeiture. In Guay’s case, the misdemeanor crime and the civil forfeiture were not mutually exclusive options in the law.

Taking a Stand on Standing

Standing is frequently a key issue in environmental law. Two somewhat recent NH Supreme Court decisions have involved an appellant’s standing (or lack thereof), and more are probably on the way. Although these cases involve utility considerations, they contain many nuggets about standing that should be applicable to all administrative law.

Recall that the NH General Court required installation of a “scrubber” at the power plant in Bow owned and operated by Public Service Company of New Hampshire (PSNH). After the projected cost of the scrubber increased from $250 million to $457 million, the Public Utilities Commission (PUC) opened a docket to consider the increase, including looking at RSA 369-B:3-a, which allows PSNH to make certain modifications, only if the PUC finds that doing so is in the public interest.

The PUC decided that it lacked the authority to make such a determination. The commission said its authority was restricted to determining the prudence of the costs of installing the scrubber and the manner of recovery for prudent costs. The court dismissed an appeal of the PUC’s decision, explaining that the appellants lacked standing, because any potential injury they may suffer would arise only in a subsequent rate-setting proceeding. Appeal of Stonyfield Farm, 159 NH 227 (2009).

Next, a different group of appellants sought a declaratory judgment from the Site Evaluation Committee (SEC) that the SEC had jurisdiction over the scrubber, arguing that it amounted to a “sizable addition” pursuant to RSA 125-O:13, I, which would have meant it needed SEC approval. See Appeal of Campaign for Ratepayers’ Rights, 162 NH 245 (2011).

The SEC decided that neither the scrubber nor a turbine amounted to a sizable addition. The court vacated the SEC, deciding in part, again, that appellants lacked standing (although the specific rationale was a bit different than the Stonyfield case).

Now, the PUC is coming up on two years of an open docket concerning PSNH’s recovery of scrubber-related costs from ratepayers, the cost of which ultimately totaled about $420 million. At the same time, the PUC is investigating competitive market conditions affecting PSNH’s default rate of service. If PSNH is allowed to recover costs from ratepayers for the scrubber, these two court decisions may indicate that ratepayers would have standing to challenge the rate hike.

This pair of cases exemplifies a conundrum of standing: By the time a complainant can demonstrate that her rights may be directly affected by the decision – that she has suffered or will suffer an injury – it may be too late to make a meaningful difference in the outcome.

In the case of the scrubber, the cost has already been incurred. Had standing been found before the scrubber had been built, those costs may have been avoided. Now, if PSNH is permitted to recoup its scrubber expenses from ratepayers, and the ratepayers challenge that decision, the question will be who pays for it, not whether the costs should be incurred.

Jason Reimers and Amy Manzelli are attorneys at BCM Environmental & Land Law, PLLC in Concord, practicing environmental, conservation, and land law across NH.

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