The company that owns Central Maine Power (CMP) is suing the state of Maine in Cumberland County Superior Court. Avangrid Networks, Inc., is saying that a referendum question that would ask voters if they want to overturn the approval of the company's billion dollar hydropower transmission line through the western Maine woods is unconstitutional.
The New England Clean Energy Connect project has been approved by the Maine Department of Environmental Protection, Land Use Planning Commission and Public Utilities Commission. But groups opposed to the project have gotten enough signatures to put that question on the statewide ballot in November.
Maine Public news reporter Fred Bever has been covering the CMP project. He spoke with Maine Public’s Nora Flaherty to break down this latest development.
Flaherty: Fred, what exactly is Avangrid contending in this lawsuit?
Bever: Well the suit makes several arguments. One is that it's unfair to single out a loan company for action, when, under the constitution, laws are supposed to apply generally. Another is that the constitution bars so-called 'special legislation' that's made outside of the usual process used to benefit just a narrow constituency.
Is this lawsuit a surprise?
Not really. CMP has made it clear it's ready to spend more money than anyone ever has in Maine lobbying lawyers, campaigning to try to kill a ballot item and to clear the way for the power line. Last week, the company lost a decision by the Supreme Judicial Court that challenged the validity of the petition drive that got it on the ballot in the first place. Tom Saviello was a leader in the opposition to the project. He says, if the courts weigh in, it should be after the vote is held:
“At the end of the day, I believe the court will just tell them thank you very much, but we'll decide that after the people vote in November,” said Saviello.
What does CMP say about that idea, that they should wait and see what the people of Maine say, and then let the court consider whether it's constitutional?
Well, CMP Vice President Thorn Dickinson told me that Maine's business community, for one, needs to know that it can depend on decisions that are made under existing statutes and by existing institutions. That's a position, by the way, that's echoed by the state Chamber of Commerce. Here's Dickinson:
“Our belief is that there's a cost and an uncertainty that's created in the business communities and by allowing this to go to vote, because from our view, it's clearly unconstitutional,” he said.
Another CMP argument is about overreach. That's because the project has been acted on by two branches of government that approved it, the executive via the Public Utilities Commission, and the Judicial, in the form of a Supreme Judicial Court decision that upheld the validity of that Public Utilities Commission permit. So CMP and Avangrid say the ballot item asks voters to usurp those branches of government authority:
“The opposition has lost in the regulatory proceeding. And they've lost in the courts and they're now trying to use the referendum process as an appeal, essentially a political do-over, something that is not permitted under the Maine constitution,” Dickinson said.
But opponents like the Natural Resources Council of Maine (NRCM) say that's just not true, and that referendums, in this situation, are entirely appropriate and not even that uncommon.
“You know, the PUC's whole, main argument about giving Central Maine Power the certificate of public convenience and necessity was, 'it's in the public interest.' And if a majority of Mainers come November say, 'No, we don't think it's in our public interest.' What is the harm?” said Sue Ely, an attorney with the NRCM. “It's a very common provision that's used. And so the idea that somehow this is the wild, new thing that they're asking for is, it's just not true.”
So what's next?
Well, there'll be plenty of filings in the Supreme Judicial courts, we'll see who emerges to become a friend of one side or another in filing before the courts, such as the Chamber of Commerce, or perhaps some of the gas generators on the other side that oppose the project, in addition to the grassroots opposition. And meanwhile, the campaign against and for the ballot item will go on as usual. CMP won't ramp back its spending and its advertising on behalf of the project in an effort to turn back the ballot item, should it actually be voted on.
Originally published 6:05 p.m. May 14, 2020.