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Maine Supreme Court hears arguments in two cases that could determine CMP transmission line's fate

Brian Bechard
Maine Public

Maine's Supreme Judicial Court took up two cases Tuesday whose outcome could determine the fate of the billion-dollar energy corridor through Maine's western woods, first proposed more than three years ago by Central Maine Power.

The first case concerns a lease for public lands that CMP needed for its preferred route for the 145-mile project. A lower court last year voided the lease, saying the State Bureau of Parks and Lands did not make a required determination about whether the project would substantially alter the parcels — and thus may have bypassed a constitutional requirement that leases that do include such alterations must be approved by two-thirds of both chambers of the Legislature.

Retired Justice Robert Clifford asked Lauren Parker, a state lawyer defending the Bureau, whether that was a fatal mistake.

"This is a huge project and you were aware it was going to be a large project?" Clifford asked.

"Correct," Parker responded.

"Didn't you take a big risk in going forward with the project?" Clifford asked. "Aren't you taking a risk that the result has been the expenditure of enormous amounts of money here, which is at risk of being for naught?"

Parker said that an amended version of the lease signed in 2020 did receive the attention required by the law.

"It was a huge risk but they acted consistently with how they always acted," Parker said.

And CMP lawyer Nolan Reichl took up the theme in a dialogue with Chief Justice Valerie Stanfill.

"BPL has leased hundreds if not thousands of leases over the course of the last," Reichl said.

"I understand. Maybe they've done it hundreds of thousands of times wrong," Stanfill responded.

"And the Legislature never objected once, your Honor," Reichl said. "All of these leases have been consistently reported to the Legislature. Never once was there an objection."

Later, an attorney for project opponents such as the Natural Resources Council of Maine, James Kilbreth, said that many of the were irrelevant. He said that's because last November state voters approved a measure, now law, that directs the state to find that large-scale transmission projects in public lands do constitute a substantial alteration of use, and that puts the upper Kennebec River Valley off-limits to transmission corridors.

He referred to a federal precedent set in 1801, concerning whether ships could be seized under the authority of laws passed retroactively.

"Ever since the Schooner Peggy over 200 years ago, the rules has been that when the law changes, during the pendency of an appeal, the appellate court applies the new law," Kibreth said.

Some of the justices seemed skeptical of that argument. And in the second case, which they took up just a few minutes later, the justices heard a direct challenge to the November referendum that aimed to kill the power line project.

Lawyer John Aramondo, representing the spinoff company that now owns the powerline project, argued that the law enacted by the referendum violates constitutional protections for vested rights and the balance of power among the branches of government. And, he said, it puts Maine's credibility on the line.

"Is Maine place where a project the state has already declared to be lawful, beneficial and indeed essential economic development to combat the existential threat of climate change is subject to retroactive confiscation," Aramondio said.

Again representing project opponents, Kilbreth later answered that in this case, private interests have to be balanced against public interests.

"The Legislature has broad authority over the public lands. Nobody can have a vested right in a lease of public lands that trumps the legislative power. Over a hundred years ago Oliver Wendell Holmes said that you can't contract away the state's rights," Kilbreth said.

After more than two hours of argument Chief Justice Stanfill adjourned the proceeding, noting that she had never seen the court room so crowded. She said the court would seek a timely decision. Stanfill also cautioned the public to be aware that the case would be decided on the law, and not, she said, "the propriety or wisdom of the project."

Corrected: May 11, 2022 at 12:20 PM EDT
An earlier version misstated the number of leases involved in one of the cases the Maine Supreme Judicial Court is taking up.
A Columbia University graduate, Fred began his journalism career as a print reporter in Vermont, then came to Maine Public in 2001 as its political reporter, as well as serving as a host for a variety of Maine Public Radio and Maine Public Television programs. Fred later went on to become news director for New England Public Radio in Western Massachusetts and worked as a freelancer for National Public Radio and a number of regional public radio stations, including WBUR in Boston and NHPR in New Hampshire.