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Environment and Outdoors

Justice: Mills And LePage Administrations Exceeded Authority By Leasing Public Lands To CMP For Powerline

CMP corridor construction
Brian Bechard
Maine Public
Construction has started on Central Maine Power's corridor that is meant to carry hydroelectric power from Quebec through Maine to Massachusetts, although the project still faces numerous legal and other challenges.

A superior court justice ruled on Tuesday that Governor Janet Mills' administration exceeded its authority when it leased public lands to Central Maine Power for its high-voltage transmission line through Maine's western woods.

“Justice Michaela Murphy says officials in the administrations of both Mills and former Gov. Paul LePage did not meet a constitutional requirement to formally determine whether the lease would result in a “reduction” or "substantial alteration" of public land. Under the constitution, she says, such changes in use must be validated by a two-thirds vote of both chambers of the Legislature:.

The Bureau of Public Lands, she wrote, did not make that determination, one way or another, regarding some 33 acres of public lands in the West Forks area.

“The reduction/substantial alteration determination must be made public and be made as part of a public administrative process before BPL decides to enter the lease and before it conveys any property interest in the public lands,” she wrote. “BPL did not provide notice to the Legislature or the public before signing the lease, and it did not seek or obtain 2/3 legislative approval of the 2020 lease. Nor did it make any contemporaneous written findings as to why it did not seek such approval.”

In the most-recent version of the Lease signed by CMP and BPL director Andy Cutko (a Mills appointee), Murphy says the bureau "exceeded its authority when it entered into the 2020 lease with CMP, and BPL’s decision to do so is reversed."

Lawyers for the challengers say they will seek a stay of work on the entire project while the case is further reviewed — likely by the Supreme Judicial Court — and by the Legislature. The plaintiffs include a bipartisan group of lawmakers, conservation groups and individual activists who oppose the power line.

One is Republican Senator Rick Bennett of Oxford.

"Everything about this process has always weighed to the benefit of CMP. Rather than go through the proper procedures which are well-established norms under the Constitution, two administrations for whatever reason have decide to avoid that scrutiny," he said.

In an email, a BPL spokesman suggested that the decision ratified BPL’s position that it has the authority to make the determination of “substantial alteration”.  

“The Bureau followed the same process that has been routinely used across different administrations to issue leases involving transmission lines, a process to which the Legislature has long been aware,” spokesman Jim Britt said. “In the coming days, we will continue to review the Court's decision in consultation with the Attorney General's Office and consider the options on how best to proceed.”  

A CMP spokesman says the company is reviewing the decision.

Parties on all sides of the case — including Justice Murphy herself — say there are several issues that will need to be addressed by the state's Supreme Judicial Court.

Updated: August 11, 2021 at 10:20 AM EDT
This piece has been updated with additional context and reactions.