The battle over a stalled New England power corridor reached another pivotal point Wednesday, when Avangrid Networks urged a Maine judge to block a law passed by voters in November because it was designed with only one purpose – to kill the $1 billion project.

A lawyer for Avangrid and its NECEC Transmission LLC affiliate said the new statute is an illegal, retroactive attempt to deprive the company of “vested rights,” a legal doctrine meaning that it had valid permits to start construction on the New England Clean Energy Connect corridor. The project developers were acting in good faith, John Aromando said, to meet contract deadlines, spending roughly $450 million to date on labor, materials and construction.

A popular vote, Aromando said, shouldn’t be able to override the “bedrock principles” of the Maine Constitution, namely being deprived of property rights without due process.

But a lawyer for the Natural Resources Council of Maine and six individual intervenors countered that Avangrid failed to obtain those vested rights because it ignored several ongoing challenges to the NECEC permits when it chose to start clearing land and erecting towers last winter. Those challenges included legal fights in courts and at state and federal agencies, as well as the November referendum.

“It’s the schedule,” Jamie Kilbreth said, expressing his view of what drove NECEC to begin construction when it did. “It’s the contracts.”

Avangrid is asking Judge Michael Duddy of Maine’s Business and Consumer Court for a preliminary injunction to prevent a law passed by voters in November from taking effect this December 19 as scheduled. The business court is the branch of Maine Superior Court that litigates business disputes.

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A key question for the judge is whether the request to block the law has the legal elements needed to ultimately succeed on its merits.

Noting the law’s imminent effective date, Duddy said he planned to issue a decision Thursday or Friday.

If the judge declines to grant the injunction, NECEC is expected to appeal to the Maine Supreme Judicial Court and ask for an expedited hearing. If NECEC is successful, opponents would similarly ask the Supreme Judicial Court to hear the case as soon as possible.

Maine’s attorney general also asked the judge to deny the injunction motion. The office is representing defendants in the case, including the Maine Bureau of Parks and Lands, the Public Utilities Commission and both houses of the Legislature.

If granted, the attorney general argued, NECEC’s request would allow the project to go forward before the court has a chance to determine  the merits of the constitutional claims.

And those claims lack merit, according to Assistant Attorney General Jonathan Bolton. NECEC never had the right to build because it started construction before final agency and judicial review of its permits and with full knowledge of the risk posed by the November vote. One of those reviews, an appeal to the Board of Environmental Protection, is expected to be heard early next year.

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“They took a calculated risk that the board will affirm that permit,” Bolton said.

The oral arguments heard during Wednesday’s court action came roughly three weeks after the Maine Department of Environmental Protection suspended NECEC’s construction license, citing changes in conditions brought on by the November vote. 

NECEC Transmission and Maine’s largest electric utility, Central Maine Power Co., are subsidiaries of Avangrid, which itself is owned by Spanish energy giant Iberdrola.

On Nov. 2, voters approved by a nearly 60-40 margin a ballot question that bans construction of high-voltage power lines in the Upper Kennebec region and requires the Maine Legislature to approve any similar projects statewide retroactive to 2020. It also requires the Legislature, retroactive to 2014, to approve by a two-thirds majority any such projects that use public land.

The next day, Avangrid filed suit in Superior Court, challenging the constitutionality of the ban. It said it would keep building the corridor in the meantime.

But following a request from Gov. Janet Mills, NECEC announced on Nov. 19 that it had voluntarily stopped construction. It said the pause would stay in place until the injunction was decided.  

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Meanwhile, the DEP was considering whether the newly passed law constituted a “change in situation or circumstance” that would compel the commissioner to suspend or revoke a license. It came to that conclusion on Nov. 23, and called for an immediate suspension.

As part of the DEP suspension order, the company has had 30 days to stabilize the transmission corridor against erosion that could wash sediment into fragile streams and wetlands. Crews have been spreading wood chips and straw on exposed soil, with a focus on the 53 miles of freshly cut forest from The Forks to the Quebec border.

To satisfy contracts with Massachusetts utilities, NECEC is under intense pressure to complete the project by August 2024. The project already is behind schedule and faces millions of dollars in penalties for more delay, as well as the risk of the contract being terminated. Last winter, after receiving what it considered a final permit, the company made a calculated decision to move ahead while legal and regulatory challenges play out.

The NECEC project is designed to bring 1,200 megawatts of power from Canadian hydroelectric producer Hydro-Quebec to the New England electric grid through a converter station in Lewiston. The project is being built to help Massachusetts meet its clean energy goals. It’s being paid for by that state’s electric customers.

The 145-mile route is on land owned or controlled by CMP, except for a one-mile patch through Maine public lands near The Forks. Based on a Superior Court ruling, the DEP commissioner also has been considering whether to suspend the project permit based on an improper lease issued to cross that one-mile stretch.

NECEC and Maine’s Bureau of Parks and Lands have appealed that ruling to the Supreme Court. A decision isn’t expected until late spring. The outcome could invalidate NECEC’s lease, the attorney general argued, one more reason not to grant the injunction because NECEC’s vested rights claim could become moot.

During the hearing, project supporters also made the case that further delay will have the practical effect of killing the project, regardless of the outcome of protracted legal wrangling.

Philip Coffin, a lawyer representing Cianbro Corp., one of the project’s lead contractors, noted that it takes months or years to line up the labor and equipment needed for such a large project.

“Construction projects of this size and magnitude can’t be turned off and on like a light switch,” he said.

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