Previously undisclosed documents are calling attention to an essential question about Central Maine Power’s preferred route for its 141-mile power line through Maine’s western woods: Does the lease of state lands along the route require approval by two-thirds of the Legislature?
In the course of considering a possible alternate route for the CMP project last year, then-director of the Bureau of Parks and Lands Tom Desjardin sought guidance from the attorney general’s office. He wanted to know whether his route would trigger a requirement voters added to the Maine Constitution 25 years ago that a two-thirds vote of the Legislature is needed to significantly change the use of state lands designated for conservation or recreation.
“My request of the AG’s office was, ‘Are we allowed legally to lease this piece of land for this purpose?’ meaning the corridor,” Desjardin says.
According to documents obtained by Maine Public, Assistant Attorney General Lauren Parker concluded that in the case of Desjardin’s hypothetical lease, it would be legal to avoid legislative approval as long as the agency determined that the project would be managed appropriately, and would not “significantly alter” the reserved lands.
Desjardinfloated the alternate route to the Mills administration, according to other documents, but it drew little interest.
Andy Cutko, the new director of the Bureau of Parks and Lands, now says that same memo on the hypothetical lease — for what’s called the Cold Stream parcel — is now being used to justify an earlier bureau decision in 2014 to lease a separate parcel on the CMP route without seeking legislative approval.
“It’s our understanding that the lease across Cold Stream was similar enough to that granted in 2014 that the same situation applies, that is that the director of BPL at the time had the discretion to grant that lease, that it was solely within the bureau director’s discretion and it did not have to go through a two-thirds vote in the Legislature,” he says.
Meanwhile, the newly unearthed information has caught the attention of opponents of the CMP transmission project.
“The Parker memo talks about what constitutes a substantial change in use that requires this vote by the legislature,” says Cathy Johnson, a lawyer with the Natural Resources Council of Maine, which has filed briefs on the two-thirds vote question in state permit proceedings now underway. “One of the things the memo says is beyond question that clear-cutting an area and erecting poles and a transmission line is a physical alteration of the land that … constitutes part of what is a substantial change in use.”
The Parker memo addresses a specific, hypothetical question about state lands that were purchased through Lands for Maine Future funds, while the lease CMP actually secured for its preferred route is for property the state got through a land grant from Massachusetts dating back to 1860. Johnson says the same constitutional standard requiring legislative approval applies in both cases.
But CMP vice president Thorn Dickinson says the standard should not apply to the lands leased in 2014, and he notes that the lease itself includes language requiring the lands be managed under standards set by state regulators.
“It was clear to us anyway from the negotiations we had with the state that they were very mindful of the statutory requirements and acted in accordance with that and the signature of the lease,” he says.
During the permitting process earlier this year, a state hearing officer ruled that the question of a two-thirds legislative vote would ultimately have to be decided in court, and after initial filings he closed the record to further arguments on the issue.
But some are calling for a separate airing. Seth Berry, a Bowdoinham Democrat and frequent critic of CMP, co-chairs the Legislature’s Energy and Utilities Committee. He says the Legislature was never provided notice of the lease, and that at minimum should consider the question in its next session.
“I do think that the 2014 lease should be considered null and void until we’ve had a chance to really vet it and make sure that it is above board and that it is legal and that it is constitutional,” he says.
Berry and others also argue that CMP isn’t paying enough for its lease of state lands, at just under $3,700 a year. That compares with an initial payment of $1 million CMP promised for a parcel owned by the Passamaquoddy tribe, and more recently an easement across lands owned by Yale University that will raise project costs by $950,000.
Former Wilton state Sen. Tom Saviello, a leader in a group of project opponents, says that alone merits review by lawmakers and the Mills administration.
“The bureau should suspend the lease anyway and renegotiate it. We don’t need to be taken to the cleaners on this one and that’s really what’s happening,” he says.
Dickinson says CMP’s annual rent for the state parcel, which breaks down to about $100 an acre, is based on an independent appraiser’s assessment.
“We have a signed lease that we think is valid and we’ll keep moving forward … we believe this project is important not only for Maine’s future but for all of New England as we battle climate change, and to the degree that people want to stand in the way of that we’ll do our best to educate them on the benefits of the project and where necessary we’ll fight the fight in order to get this project over the finish line,” he says.
Opponents say that even if the question of a two-thirds legislative vote is eventually a matter for the courts, regulators should consider the Desjardin alternatives as a further sign that CMP has not adequately considered all alternatives to its preferred route.
Johnson says the NRCM isn’t ready to weigh in on whether Desjardin’s proposed routes have merit.
“Although it’s very clear that the fact that these alternatives are out here is yet another example of CMP’s failure to explore all reasonably available alternatives,” Johnson says. “This is just like the alternative that CMP recently came up with for Beattie Pond. If there are reasonable alternatives, CMP had an obligation to evaluate them, in which case we could render our opinion about whether or not they make sense.”
The question of proper consideration of alternatives is also an issue in federal Army Corps of Engineers permit proceedings, where the federal Environmental Protection Agency has sought more robust consideration of alternatives.
Dickinson says that one of Desjardin’s proposals could immediately be ruled out because of existing covenants on the use of the parcel. And the other, he says, would on its face have impacts that would be worse for the environment than CMP’s chosen route.
Members of the Mills administration declined requests for an interview. In an email, a spokesman says the administration was not involved in negotiations over the power line’s route, and that state regulators are making independent evaluations.
The Land use Planning Commission recently deadlocked over whether to approve CMP’s initial plan to route the line near a wilderness pond. CMP has now proposed a way around that. A decision is possible next month.
Originally published 4:48 p.m. Oct. 10, 2019