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Maine high court says referendum blocking CMP corridor could be unconstitutional

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.

Maine's highest court has struck a blow against the campaign to prevent Central Maine Power from building a high-voltage transmission line through western Maine, ruling that a Nov. 2021 referendum was likely unconstitutional.

Last fall, CMP and its partners were forced to halt construction of the New England Clean Energy Connect transmission line in Maine after voters approved the referendum essentially blocking the $1 billion project. But in a decision released late Tuesday morning, Maine's Supreme Judicial Court ruled that a key portion of that ballot question would violate the developers’ “constitutionally protected vested rights” by retroactively imposing new requirements on a key permit that had been issued by the Public Utilities Commission.

But the Law Court made clear that NECEC’s right to proceed with the project “would not be absolute” and sent the issue back down to a lower court for further exploration.

Thorn Dickinson, president and CEO of NECEC, said in an interview that they were pleased by the outcome, calling the decision “a success for clean-energy expansion, transmission development and decarbonization in New England, Maine and across the whole country.”

“This is the second time in three years that the Law Court has upheld the Maine Constitution by rejecting what they determined was an unconstitutional referendum that was put forward by the fossil fuel industry,” Dickinson said. “I think it was a good day today. I think we will continue to evaluate the information from the decision today. There will be more action from the court and at that point, when we fully evaluate things, we’ll be able to talk about next steps.”

Project opponents, meanwhile, were not giving up and were planning to make their arguments in the Business and Consumer Court.

“The law enacted by the voters of Maine is still the law. Maine Supreme Court’s decision sends the case back to the Business Court,” said Sandi Howard, director of Say NO to NECEC, the group behind last fall’s referendum campaign. “And when the Business Court takes up this case, we are confident it will find that CMP raced the clock relying on a PUC license that did not give it the right to cut the corridor.”

CMP and its partners in the NECEC project claim they had “vested rights” to continue with construction, despite the Nov. 2021 vote, because they had spent nearly $450 million by the time Maine voters went to the polls. But project opponents have said that the developers undertook that work at their own financial risk, knowing that the permits were being strongly contested in both Maine’s regulatory agencies and in the courts.

It will be up to NECEC’s developers to prove “by a preponderance of evidence” that the construction was done “in good-faith reliance” based on key permits issued before the Nov. 2021 referendum.

The court noted that, in Maine and other states, the right to proceed with construction "vests" when a developer "undertakes significant, visible construction in good faith and with the intent to carry construction through to completion" after receiving all necessary permits. By the time Maine voters approved the ballot question on November 2, 2021, NECEC had already cut 124 miles along the corridor path and spent nearly $450 million, which was just shy of half of the anticipated budget.

While that PUC permit alone would not be enough for the developers to complete the project, the court says NECEC could "reasonably rely" on that permit as well as the court's subsequent affirmation of it as "valid authorization to begin construction."

CMP and its partners want to build the 145-mile transmission line through Maine that would allow Hydro-Quebec to feed electricity into the New England power grid as part of a renewable energy purchase agreement between the Canadian company and the state of Massachusetts. But opponents contend the project will permanently damage the ecology along the corridor route through western Maine and would also harm outdoor recreation without making a substantial dent in emissions of greenhouse gases.

Nearly 60% of voters approved the referendum in Nov. 2021 that, among other things, prohibits “high impact transmission lines” from being built in the Kennebec River valley. The ballot initiative also retroactively required the Legislature to approve — by a two-thirds majority in both the House and Senate — a lease that NECEC obtained to pass through state-owned land near The Forks.

The court did not rule on a second case challenging NECEC’s lease through that public land.

In a statement, the Natural Resources Council of Maine, which opposes the corridor project, said Tuesday’s decision “is difficult to interpret but what is clear is that there will be further review of these issues by lower courts. It is unclear when that review will take place or how long it will take.”