As Appeared in the Hudson-Litchfield News
June 24, 2016
Contact: Naomi Miller
By Senator Soucy,
When it comes to protecting landowner rights from the threat of eminent domain, particularly for our residential homeowners, New Hampshire has some of the strongest protections in the country. Less than 10 years ago, we strengthened our already tough eminent domain laws by amending our state Constitution to ensure that no person’s property could be taken by eminent domain for the purpose of private development.
There’s no one in New Hampshire who doesn’t agree that we need to protect our landowners’ rights, but there has been some disagreement over the best course of action when it comes to enacting greater protections under state law when an interstate pipeline is proposed.
This year, the legislature considered and debated HB 1660, which had two components. First, it enacted much more strict protections for eminent domain takings for interstate pipelines and second, it enacted energy efficiency reforms that would have reduced energy costs for businesses and homeowners.
And while I supported both concepts, the final version of HB 1660 was unacceptable and I joined a bipartisan majority in the Senate by voting against the bill for a few reasons.
My first concern with the final version of the legislation was problems with the eminent domain section of the bill. In the final version, the legislation would have allowed homeowners to require utilities to take their entire property even if the utility was only temporarily using the property. For instance, if a utility company needed to temporarily build an access road through someone’s property to construct a pipeline, the landowner could have required the utility to take the entire property through eminent domain and compensate the landowner for the full value of their property. While we can all agree that the landowner should be compensated for this temporary use of their property, a permanent taking of this property for a temporary use would drive up construction costs and potentially push the increase cost onto all energy customers.
Secondly, was the concern that House Republican leadership refused to compromise on the energy efficiency portion of the bill and stripped it out. The energy efficiency part of this bill had bipartisan support in both the House and Senate, was fiscally prudent, and would have led to a better energy future for everyone. It would have reduced energy costs for businesses immediately and homeowners in the long run, it would have helped hundreds of low-income households make it through the winter, it would have supported good jobs, and it would have likely lowered property taxes by increasing efficiency at municipal and school buildings.
Because the House Republican leaders refused to compromise on the energy efficiency portion of the bill, a bipartisan majority in the Senate refused to go along with HB 1660 without these provisions.
Lastly, and most importantly for landowners, the final version of HB 1660 would have given false hope to landowners trying to protect their property. Why do I say this could have given landowners false hope? Because in the case of federally regulated interstate pipelines, the US Constitution preempts state statutes.
If this new law violated the federal Constitution (and in my opinion, it very likely did), it would have resulted in time-consuming and expensive litigation for landowners, only to see no different result if we made no change in state law. Because of the potential cost to landowners in the courts due to this unintended consequence, I could not support the final version of HB 1660.
Even though the attempts to strengthen eminent domain protection for landowners were unsuccessful this year, there is still time to enact greater protections against any new proposed pipelines. Kinder Morgan has withdrawn their application for their pipeline through southern New Hampshire and there is no similar pipeline proposal on the horizon.
There were many pieces of HB 1660 that had broad agreement, including requiring utilities to pay for an independent appraisal of land to be taken through eminent domain, requiring compensation for temporary housing and legal fees to be paid for by the utility, and requiring the state to intervene in any pipeline proposal at the Federal Energy Regulatory Commission.
We have the time to get it right and not only make sure we enact the strongest protections for landowners that we can, but also making sure that there are no unintended consequences that could negatively impact landowners defending their property rights.