With bad publicity, NStar may beat a tactical retreat

Is clear-cutting at the company's convenience a "right" in a broader sense?

Rights and What's Right

Once again, NStar, the gas and electricity provider, has stirred up a hornets' nest in a Massachusetts town -- this time in Duxbury -- with plans to clear-cut trees in easements it holds on private property near its high-voltage transmission lines. The company has the indisputable right to do this.

The question is, Is exercising this right to its extreme, and is doing so to the company's uniform convenience throughout its multi-state service area "right" in a broader sense?

In Duxbury, easements along high-voltage lines have encumbered affected properties since the early 1950s, when places people now call home were turkey farms and sand pits, and sold for $15.00 an acre. Twenty-thousand percent inflation does not alter the legality! The 2002 Land Court case of Commonwealth Electric vs. Leslie H. MacCardell illustrates a narrow legal ground for challenging an easement -- but also what a citizen challenging NStar is up against... .

In 1936, Commonwealth Electric's predecessor, Plymouth County Electric, obtained an easement for ordinary telephone poles and electric lines on Plum Hill Avenue in Duxbury -- today's Plumfield Lane. This encumbrance was not documented when papers were passed on a part of the property Dr. MacCardell purchased in 1977.

When Commonwealth Electric -- then doing business as NStar -- sued to retroactively insert the easement, Dr. MacCardell countered by asserting her right to be informed of easements prior to purchase. That was in 2002. She finally won the case in the Supreme Judicial Court in 2007 after NStar had spent five years appealing a series of rulings against it.

NStar does business in many places and wants uniform, cost-effective, liability-limited methods of operation throughout. A challenge by an individual property owner -- even a legally valid challenge involving a couple of old telephone poles -- is, from the company's point of view, a precedent to be opposed with all its legal resources.

NStar's imperative is to eliminate any margin for error around high-voltage lines such as those in Duxbury. After several well-publicized regional blackouts, at least two of which are believed to have been caused by single trees falling on a 115-volt transmission lines, the company's position on the cuttings it believes are necessary is hard and fast. Where it has easements, trees that in the future could grow to menace a transmission line must be removed when they are small. The best the "arborist" NStar employs can do is to offer to plant some shrubbery after the trees come down.

With bad publicity, NStar may beat a tactical retreat, as it did in identical circumstances in Wayland last year. But it will do its utmost to keep any retreat from becoming a precedent. The company talks about reaching out to property owners, but really wants no such thing. Its policy -- a correct one -- is to avert blackouts. But in doing that it does not want to have to deal with property owners individually, it wants one corporate cutting policy that includes its merged partner, Northeast Utilities of Connecticut, and the combined company's joint venture with Hydro-Quebec of Canada.

The deeper issue is the functioning of democracy in the presence of a merged corporation whose policies, by its own lights, are only rational. Can such a corporation be induced into a strategic retreat in which it treats its neighbors as individuals and each community in which it operates as unique? Some companies do that. But public utilities, with a history of exclusive franchises, not competition, also have a history of using political influence to effect their ends.
Changing that requires statesmanlike political leadership at the state and federal levels.

Unfortunately, we often get demagoguery -- a game in which elected leaders will berate utilities after accidents and natural disasters -- while privately doing their bidding. The effect is a symbiosis in which the regulated regulate the regulators. It's hard to be certain, but in the current political climate we seem to be getting more of that, not less.

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