Retroactivity has been a part of Maine law at least since the 1870s, serves a useful public purpose and is undeserving of the scare-mongering TV and newspaper ads, the omnipresent “Chicken Little” cry proponents of the Central Maine Power corridor are raining down on us. The latest addition to this deluge of hysteria is the ubiquitous yard signs planted by a CMP funded political action committee urging we “Say No To Retroactive Laws.”

Retroactivity helped save Portland’s working waterfront.

In the 1980s, Portland’s waterfront had become one of the hottest real estate markets in New England, with residential and commercial development threatening to crowd out marine-based businesses. High priced condominiums were selling within days of going on the market, and lobstermen, fishermen ,boatbuilders and others who depended on access to the sea worried they would be pushed off Portland’s wharfs.

Had we then said “No to Retroactive Laws” The Maine Lobsterman’s Association, which joined with the Portland West Neighborhood Organization, the Casco Bay Island Development Association, and others, to form the Working Waterfront Coalition, would have lost forever an entire wharf for the use of its members, and the residents of Portland would be looking at quite a different waterfront today.

The Maine Lobsterman’s Association, as Coalition members, the City of Portland, the Maine Attorney General’s Office and Prof. Orlando Delogu vigorously defended the retroactivity provision in an ordinance adopted 2 to 1 by referendum which prevented non-marine related enterprises on the waterfront.

In a critical victory protecting our waterfront work force, a force which connects Portland’s harbor with its history, and with Casco Bay and the Gulf of Maine, the Maine Supreme Judicial Court in City of Portland,et al. v. Fisherman’s Wharf Associates II, (1988) 541 A. 2d 160 unanimously decided for the Working Waterfront Coalition, et al, noting the long history of legislative retroactive application for the public good, reaffirmed “the Legislature’s authority to make statutes operate retroactively” and recognized that even municipalities had authority to apply ordinances retroactively by their Home Rule powers conferred by 30 M.R. S. A.sec.1917 (1978).

To avoid unfairness or confiscation in relation to retroactive application, as noted by project supporter Orlando Delogu, in his Press Herald column on Sept. 21, there are U. S. Constitutional restraints to protect one’s “vested rights.” It remains to be seen, however, whether CMP/New England Clean Energy Connect can attain such rights or whether their conduct in the pursuit of the corridor projects has put such rights, and the future of the project itself, in jeopardy.

Delogu responded to a project supporter who alleged that Nemitz “misunderstood the retroactivity provision of the upcoming referendum and “demonstrates that reporters get it wrong when they fail to fully examine complex issues.” A careful reading of the Nemitz piece, however, demonstrates that Delogu, was the one who got it wrong.

Nemitz used the word “retroactivity” several times but never in a context with even a hint of misunderstanding or “getting it wrong.” And while Delogu was critical of Nemitz for “ignor(ing) that CMP has all needed state-federal project approvals” he ignored Nemitz’s reference to Justice Michaela Murphy’s vacating an essential lease of a mile long parcel of public land without which the approvals, and the project itself, are in jeopardy.

Maine has one of the most intact forested landscapes east of the Mississippi. The 53 mile clear-cut that would be created by this project approximates the distance you drive from Portland to Augusta, or Portsmouth, N.H. That’s the image I’ll have in mind when I vote on November 2 not some “retroactivity” bogeyman, some “political hokum,” spun by CMP’s pollsters and campaign consultants thinking we will never discover the trick.


Only subscribers are eligible to post comments. Please subscribe or to participate in the conversation. Here’s why.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.