Electric Corridor developer defends embattled project in Maine’s highest court
About seven months after Maine voters approved legislation to stop the billion-dollar New England Clean Energy Connect transmission line from moving forward, Maine’s Supreme Court heard arguments Tuesday clashes of supporters and opponents of the project that could lead to a final decision on the fate of the five-year-old company.
Two separate cases were heard consecutively by Chief Justice Valerie Stanfill, as well as Associate Justices Joseph Jabar, Thomas Humphrey and Andrew Horton. They were accompanied by Robert Clifford, an active retired Supreme Court justice.
Three of the seven judges recused themselves from the proceedings – Andrew Mead, Catherine Connors and Rick Lawrence, who was sworn in this month. No reason was given, but judges can recuse themselves if they have a conflict of interest in a case or in a situation that may give the appearance of a conflict.
The two cases, although separate, are related. In summary, one focuses on whether the project has a valid lease to cross Crown land; the other focuses on how the new voter-approved law affects project rights along the chosen route.
The first issue concerns a lower court’s overturning of a state agency’s decision to lease a one-mile section of public land near The Forks to Central Maine Power for the NECEC transmission line to pass through. This case is called Russell Black v. Office of Parks and Lands.
Opponents of NECEC say the lease was not properly negotiated. Last August, a Superior Court judge accepted and reversed a decision by the Office of Parks and Lands to lease the land to CMP. The company appealed the judge’s decision.
To follow its preferred route, CMP signed a lease in 2014 with the office to cross two public lands off U.S. Route 201 near The Forks in the upper Kennebec Valley. The question now is whether the agency correctly assessed whether the lease would result in a “substantial modification” of the public domain. A 1993 amendment to the Maine State Constitution requires a two-thirds vote of the legislature to approve any substantial change.
During Tuesday’s arguments, Stanfill noted that it is not for the Court of Justice to decide whether the crossing creates a substantial change. Shouldn’t that be decided by the state agency, she asked an attorney representing the CMP and NECEC. Nolan Reichl responded that the office had granted hundreds of leases and there had never been an objection from the legislature.
But that has changed, said James Kilbreth, a lawyer representing opponents. The recently passed law answers the Chief Justice’s question about who should decide.
It’s already known how the office views the public lot, Jabar said. It is used for harvesting wood. It is already crossed by a power line. And it’s not a blank slate, Stanfill added. It is a working forest.
“Why are we going through this unnecessary process if we know what they (the office) are going to say?” Jabar asked.
Kilbreth replied, “Anyway, he’s still subject to the new law.”
The court therefore seemed left free to decide whether it had the power to make a substantive decision on the case or to send the matter back to the Superior Court and the Bureau of Public Lands, which could then start the process over again.
The second issue involves attempts by Avangrid Networks, the parent company of CMP and NECEC Transmission LLC, to undo the effect of last November’s ballot initiative that banned the construction of “high-impact transmission lines.” in part of western Maine. This case is called Avangrid Networks v. Office of Parks and Lands.
Avangrid argues the new law is unconstitutional and strips the company of its “grandfathering” to complete the project after receiving permits and spending $450 million on construction. Opponents say Avangrid took a risk and was well aware of the legal challenges it faced.
Avangrid’s lead attorney, John Aromando, put the issue in stark terms, saying “the credibility of the State of Maine is at stake in this case,” whether a company’s grandfathered rights can be retroactively taken away. after permit approval.
NECEC obtained its first permit from the State Public Utilities Commission in 2019, which concluded that the project was in the public interest. But Stanfill pointed out that some of the other permits were being appealed by opponents, including those issued by state environmental regulators and the Federal Army Corps of Engineers. This blurred the meaning of some of the case law references for other projects, which had only involved one permit and not the multiple approvals at stake for the NECEC.
A TWISTED JOURNEY
Tuesday’s action is the latest panel marking a twisted journey that began in 2017, when CMP and its national parent company, Avangrid, first proposed the NECEC project. It emerged as a quick pivot by Massachusetts officials and electric utilities, after a similar venture in New Hampshire was blocked by state opposition.
Since then, the project has become Maine’s most controversial environmental flashpoint in decades. Years of government scrutiny, citizen engagement, campaigning and negotiation have only hardened public opinion. There is little agreement on the impact the transmission corridor, which is already partially constructed, would have on the region’s renewable energy and climate change goals, electricity rates, Maine’s prized forests and future energy companies.
The Court of Justice has already received numerous written submissions from the parties to the cases, and some observers have suggested that decisions could be made by early summer. As the construction season gathers pace in Maine, NECEC will work to restart work if the state’s highest court rules in its favor. Corridor construction halted in late November, after the Maine Department of Environmental Protection suspended NECEC’s work permit. The contractors and their equipment left the site shortly thereafter.
While decisions in these cases depend on the specific details of case law and regulatory policy, some parties who have filed briefs say the findings could have significant ramifications for the future development of energy projects, not just in Maine but somewhere else. New transmission lines will be crucial for Northeastern states that have aggressive climate change goals as they depend on phasing out oil and gas-fired power plants and electrifying their economies with renewable sources. For that reason, Tuesday’s lawsuit has garnered national attention.
The NECEC project is designed to bring 1,200 megawatts of power from Hydro-Quebec in Canada to the New England power grid over a 145-mile route and via a converter station in Lewiston. The project is being built to help Massachusetts meet its clean energy and climate goals and is paid for by that state’s electricity customers. It would have the capacity to power approximately one million homes.
The NECEC was first offered in 2017, after the New Hampshire project was shut down. To satisfy contracts with Massachusetts utilities, NECEC is under intense pressure to complete the project by August 2024.
But that timeline was put in jeopardy after almost 60% of voters rejected the NECEC project through a ballot initiative last November.
Immediately after the hearing, opponents and the NECEC held press conferences on the sidewalk outside the downtown Portland courthouse.
Say No to NECEC Director Sandi Howard said lawyers representing opponents of the project made a powerful presentation.
“CMP ignored several ways, including an overwhelming Mainers vote in November, that their project could be shut down,” Howard said. “It’s sad that they filed a lawsuit against citizens of Maine, many of whom are CMP ratepayers.”
Tom Saviello, the lead petitioner for the successful November Question 1 ballot measure, said the new law prohibits transmission projects in the Upper Kennebec area without legislative approval.
“I hope the courts respect the overwhelming desire of voters to uphold our new law,” he said.
The NECEC and Avangrid, however, urged the court to treat the initiative as applied retroactively to the NECEC and to declare the law unconstitutional. They cited constitutional protections for vested rights and the principle of separation of powers as key arguments.
“This is a clean energy project that will propel Maine and New England into a clean and affordable energy future at a time when we are seeing exponential increases in energy costs and supply constraints,” said said Thorn Dickinson, president and CEO of NECEC. “The NECEC project has received all required local, state, and federal permits, and substantial construction has been completed. This establishes a so-called “grandfathering” that cannot be removed. Revoking these permits retroactively — after major construction work has been done — violates the Maine Constitution. »
Whatever happens to Tuesday’s lawsuit, the company faces an additional hurdle next week.
On May 17-18, the Maine Environmental Protection Bureau will meet to consider calls from opponents for conditional project approval from state environmental regulators in 2020. The meeting will be held at the University of Maine at Farmington and is open to the public in person and via video link, which will be posted on the council website when available. The timing of any decision is unclear.
Carvana cuts 2,500 jobs, executives waive severance pay