If questions 1 and 3 pass, it's '100% likely' Pine Tree Power ends up in court
A potential legal battle is looming between two of the measures on next month’s ballot over whether to replace the state’s two largest electric companies with a consumer-owned utility.
In the fall of 2021, the two sides fighting over who should run Maine’s electric grid were engaged in a little-noticed side skirmish over words. The campaign to create a new consumer-owned electric utility was gaining momentum. So opponents aligned with the state’s largest electricity provider, Central Maine Power, devised a plan to force a second vote on potential borrowing by the proposed Pine Tree Power Co. The No Blank Checks campaign hoped future voters would get "sticker shock" and reject the billions of dollars in bonds needed to create a consumer-owned utility, even though the law stipulates that its ratepayers would be on the hook to pay off that debt.
“To hold them accountable and to make sure that Maine voters knew what they were getting, we proposed a referendum that said that if any government entity, like Pine Tree Power, was going to borrow more than $1 billion, voters should not only get a say but should also see what the total bill, what the total debt, would be,” said Willy Ritch, who heads the political committees No Blank Checks and the Maine Affordable Energy, which have received more than $20 million in funding from CMP's parent company, Avangrid.
The Pine Tree Power campaign responded to this perceived threat by rewriting what is now Question 3 to make it clear that their borrowing would not require voter approval. More wordsmithing followed as each side tried to one-up the other. And as a result, the two ballot initiatives — questions 1 and 3 — have conflicting language about that borrowing requirement. And if voters approve both measures next month, the issue is expected to move from the ballot box to the courtroom.
“I think 100% likely. I don’t see it not ending up in court,” said Anthony Moffa, a professor at the University of Maine School of Law who is not affiliated with either campaign. “I have had a chance to look at the language. I don’t have a strong inkling or belief as to which one would win out in court. I think there are some decent arguments on both sides here.”
Those arguments are likely to be pretty weedy, revolving around legislative concepts such as effective dates and when a bill becomes law or is enacted. Under Maine’s Constitution, ballot initiatives take effect 30 days after the governor certifies the election results unless the referendum specifies a later date. And that’s exactly what the authors of Question 1 did. They pushed the effective date back to 90 days — so 60 days after the effective date of Question 3 — with the clear intent of overriding the Pine Tree Power campaign’s language exempting a consumer-owned utility from a debt vote.
Further muddying the waters, there could be disputes over the over language like “effective dates” and “enactment.” Moffa said the issue presents a novel question, legally speaking, for the courts.
“I don’t think anyone has tried this tactic before and so it’s hard to say how the Law Court would decide that,” Moffa said. “I imagine that there will be extensive amounts of argument from both sides on that particular issue.”
The Pine Tree Power campaign said it is not concerned about Question 1’s potential impacts. And even if Question 1 does pass, campaign manager Al Cleveland said they are confident that voters agree that it is “time to kick CMP and Versant out of our state to create a utility that's owned by us.” But Cleveland otherwise declined to wade into legal arguments over the conflicting language, saying the campaign is laser-focused on passing Question 3.
“CMP and Versant’s political front groups have attempted to distract us from the fact that we’ve got the worst utilities in the country,” Cleveland said. “They’ve used numerous strategies by paying to get questions on the ballot, hiring political consultants and lobbyists to do their work for them, spending millions of dollars to tell people to vote against Question 3.”
But Ritch with Maine Affordable Energy and No Blank Checks said the reason his side pushed back the effective date was to ensure that voters have a voice on Pine Tree Power's borrowing. And Ritch said that if this dueling language becomes a legal case, he believes the courts will rule in favor of his side.
“We’re very confident that Question 1 would prevail and that the Pine Tree Power utility would be required to go to voters to get approval for any debt of over $1 billion,” Ritch said.
Questions 1 and 3 are among eight measures on the ballot this November. But the more than $35 million spent on Question 3 has dwarfed all other campaigns, with almost all of that money coming from the parent companies of CMP and Versant.