In a devastating blow to opponents of Central Maine Power's controversial powerline proposal, the Maine Supreme Judicial Court ruled Thursday that a ballot initiative designed to scuttle the $1 billion project is unconstitutional. The ruling all but ensures that the referendum will not appear on the November ballot, leaving the project's many detractors to continue the fight on the permitting and legislative front.
The law court's 30-page ruling stunned supporters of a ballot initiative that many hoped would deal a lethal blow to a 145-mile transmission line cutting through western Maine as part of a deal with Massachusetts. The project, known as the New England Clean Energy Connect, is opposed by several environmental groups and former Republican state Sen. Tom Saviello, who led the signature-gathering effort to put the proposal on the November ballot.
"They basically said, 'We don't care what you have to say,'” said Saviello about the law court's decision. "’We're going to make a decision that this is unconstitutional before it even passes.’ That, to me, is unprecedented. I don't understand that."
The constitutionality of the ballot initiative has long been in doubt. That is because it was designed to overturn a decision by the Public Utilities Commission last year to green-light the corridor project despite concerns about its environmental impacts and questions about its purported benefits to reduce regional greenhouse gas emissions.
CMP and its allies said the law court ruled correctly.
"They determined that the initiative failed to meet the constitutional requirement," said Thorn Dickinson, president of the NECEC, a subsidiary created by Central Maine Power to carry out the project.
During oral arguments, attorneys for CMP and its parent company Avangrid asserted that not only was the ballot question unconstitutional, but it was also proper for the law court to intervene and say so even before it went to the voters.
Previously the law court has declined to rule on constitutionality challenges to ballot initiatives before they are decided at the ballot box because the Maine Constitution makes it clear that legislation initiated by citizens has to go to voters. But in its ruling, the law court said the corridor referendum is not really legislation at all — and that's partly because the Legislature 107 years ago delegated most decisions about utility regulations to the PUC. And for that reason, Dickinson said, the court's ruling is the right one.
"It was clear to me, anyway, that this would be the likely outcome," Dickinson said.
That’s not how opponents of the project see it. In a statement, The Natural Resources Council of Maine said Maine voters deserved a chance to vote on the referendum. And Sandi Howard, with the group No CMP Corridor, said in a statement, “the fact that CMP’s parent company sued the state of Maine to silence their customers, and it worked, is astounding."
Making Thursday's decision tougher to swallow is that the project continues to clear regulatory and legal hurdles despite its deep unpopularity.
Hoping to move public opinion, CMP last year created a political action committee called Clean Energy Matters that kicked off an $8.4 million advertising campaign. An ad from the PAC stated, "Building a new transmission line to bring clean hydroelectric power from Quebec to Maine is a big project. So take your time, get the facts.”
CMP's campaign was bolstered by Hydro-Quebec, a Canadian energy company whose sole shareholder is the government of Quebec. Hydro-Quebec has spent at least $6 million opposing the referendum, taking advantage of a loophole in Maine election law that currently allows companies owned by foreign governments to influence ballot campaigns. Maine lawmakers attempted to close the loophole, but were thwarted when the coronavirus pandemic ended the legislative session a month early. Their subsequent calls on Hydro-Quebec to end its advertising blitz were unheeded.
Now, the ballot initiative is in serious trouble because the law court has sent the case back down to the Superior Court, and directed it to rule that the initiative is unconstitutional, barring any legal challenge for Secretary of State Matt Dunlap to keep it off the ballot.
"I think it would not be prudent to challenge the Supreme Court," Dunlap said.
During oral arguments, Dunlap and his agency's assistant district attorney general asked the law court to rule on the constitutionality of the ballot question. That position may have earned Dunlap the ire of corridor opponents, but he said that it is better to have the issue cleared up now than after a long and expensive campaign.
"I think people would be much angrier at that point. That was part of what our motivation was, to tell the court they should probably have this discussion now. Better that people know now before they vote on it."
Corridor opponents like former state Sen. Tom Saviello have said they are assessing all their options, including continuing the fight at the state and federal permitting level.
"We have other alternatives. We still have the Legislature to go to, we still could put another petition together. You never know,” Saviello said. “It's a terrible project for Maine and I suspect that the people of the state of Maine will be extremely upset when this gets out there.".
The lower court now has five days to comply with the Supreme Court's order.
Updated 4:51 p.m. August 13, 2020