New England Clean Energy Connect opponents Tom Saviello and Sandi Howard speak during a news conference following two key Maine Supreme Judicial Court hearings at the Cumberland County Courthouse in Portland on Tuesday. Derek Davis/Staff Photographer

Roughly seven months after Maine voters endorsed a law aimed at preventing the $1 billion New England Clean Energy Connect transmission line from moving ahead, the Maine Supreme Judicial Court on Tuesday heard conflicting arguments from the project’s supporters and opponents that could lead to a final decision about the fate of the five-year old venture.

Two separate cases were heard back-to-back by Chief Justice Valerie Stanfill, as well as Associate Justices Joseph Jabar, Thomas Humphrey and Andrew Horton. Joining them was Robert Clifford, an active retired Supreme Court justice.

Three of the seven justices recused themselves from the proceedings – Andrew Mead, Catherine Connors and Rick Lawrence, who was sworn in this month. No reasons were given,  but justices can recuse themselves if they have some conflict of interest in a case, or in a situation that may raise the appearance of a conflict.

The two cases, while separate, are interrelated. Boiled down, one centers on whether the project has a valid lease to cross state land; the other focuses on how the new, voter-approved law affects the project’s rights along its chosen route.

The first issue involves a lower court’s reversal of a state agency’s decision to lease a 1-mile section of public lots near The Forks to Central Maine Power for the NECEC transmission line to cross. That case is called Russell Black v. Bureau of Parks and Lands.

NECEC opponents say the lease was not properly negotiated. Last August, a Superior Court judge agreed and reversed a decision by the Parks and Lands Bureau to lease the land to CMP. The company appealed the judge’s ruling.

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To follow its preferred route, CMP signed a lease in 2014 with the bureau to cross two public lots off U.S. Route 201 near The Forks in the upper Kennebec Valley. At issue now is whether the agency properly conducted an assessment of whether the lease would cause a “substantial change” to the public land. A 1993 amendment to the Maine State Constitution requires a two-thirds vote of the Legislature to approve any substantial change.

During Tuesday’s arguments, Stanfill noted that it’s not up to the Law Court to decide whether the crossing creates a substantial alteration. Shouldn’t that be decided by the state agency, she asked a lawyer representing CMP and NECEC. Nolan Reichl responded that the bureau had granted hundreds of leases and there was never an objection from the Legislature.

But that has changed, said James Kilbreth, a lawyer representing opponents. The recently passed law answers the chief justice’s question about who should decide.

It is already known how the bureau regards the public lot, Jabar said. It’s used for timber harvesting. It already has a power line crossing it. And it’s not a pristine area, Stanfill added. It’s working forest.

“Why are we going through this needless process if we know what they (the bureau) are going to say?” Jabar asked.

Kilbreth replied: “Whatever it is, it’s still subject to the new law.”

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So the court seemed left to decide whether it has the authority to make a substantive decision on the case, or to send the matter back to Superior Court and the Bureau of Public Lands, which could then start the process anew.

The second issue involves attempts by Avangrid Networks, the parent company of CMP and NECEC Transmission LLC, to nullify the effect of last November’s ballot initiative that banned the construction of “high-impact transmission lines” in a portion of western Maine. That case is called Avangrid Networks v. Bureau of Parks and Lands.

Avangrid maintains that the new law is unconstitutional and deprives the company of its “vested rights” to finish the project after receiving permits and spending $450 million on construction. Opponents say Avangrid took a risk and was well aware of the legal challenges it faced.

Avangrid’s lead attorney, John Aromando, put the matter in stark terms, saying that “the credibility of the state of Maine is at stake in this case,” if a company’s vested rights can be taken away retroactively after it has approved permits.

NECEC won its first permit from the state Public Utilities Commission in 2019, which found the project to be in the public interest. But Stanfill pointed out that some of the other permits were being appealed by opponents, including ones issued by state environmental regulators and the federal Army Corps of Engineers. That muddled the significance of some of the case law references about other projects, which had involved only one permit and not the multiple approvals in play for NECEC.

A TWISTED JOURNEY

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Tuesday’s action is the latest signpost marking a twisted journey that began in 2017, when CMP and its domestic parent company, Avangrid, first proposed the NECEC project. It emerged as a quick pivot by Massachusetts officials and electric utilities, after a similar venture in New Hampshire was blocked by state opposition.

Since then, the project has turned into Maine’s most contentious environmental flashpoint in decades. Years of government review, citizen input, campaigns and negotiations have seemed only to harden public opinion. There’s little agreement on what impact the transmission corridor, which already is partially built, would have on the region’s renewable energy and climate change goals, electric rates, Maine’s prized forestlands and future power ventures.

The Law Court already has received extensive written briefs from parties to the cases, and some observers have suggested rulings could come by early summer. With construction season ramping up in Maine, NECEC will be scrambling to restart work if the state’s highest court rules in its favor. Construction on the corridor paused in late November, after the Maine Department of Environmental Protection suspended NECEC’s work license. Contractors and their equipment left the site shortly after that.

While decisions in these cases will hinge on the specific details of case law and regulatory policy, some parties that filed briefs say the outcomes could have important ramifications for future energy project development, not only in Maine but elsewhere. New transmission lines will be crucial for states in the Northeast that have aggressive climate change goals because they hinge on phasing out oil- and gas-fired power plants and electrifying their economies with renewable sources. For that reason, Tuesday’s court action drew national attention.

The NECEC project is designed to bring 1,200 megawatts of power from Hydro-Quebec in Canada to the New England electric grid over a 145-mile route and through a converter station in Lewiston. The project is being built to help Massachusetts meet its clean energy and climate goals and is being paid for by that state’s electricity customers. It would have the capacity to power roughly a million homes.

NECEC was first proposed in 2017, after the New Hampshire project was killed. To satisfy contracts with Massachusetts utilities, NECEC is under intense pressure to complete the project by August 2024.

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But that timetable was put at risk after nearly 60 percent of voters rejected the NECEC project through a ballot initiative last November.

Immediately after the hearing, both opponents and NECEC held news conferences on the sidewalk outside the courthouse in downtown Portland.

Say No to NECEC Director Sandi Howard said that lawyers representing project opponents made a powerful presentation.

“CMP ignored several ways, including an overwhelming vote by Mainers in November, that their project could be halted,” Howard said. “It is sad that they have filed suit against Maine citizens, many of whom are CMP ratepayers.”

Tom Saviello, the lead petitioner for November’s successful Question 1 ballot measure, said the new law prohibits transmission projects in the Upper Kennebec region without legislative approval.

“I am hopeful that the courts will respect the overwhelming will of voters in upholding our new law,” he said.

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NECEC and Avangrid, however, urged the court to look at the initiative as retroactively applied to NECEC and find the law unconstitutional. They cited the constitutional protections for vested rights and the principle of separation of powers as their key arguments.

“This is a clean energy project that will catapult Maine and New England into a clean and affordable energy future at a time when we are seeing exponential increases in energy costs and supply constraints,” said Thorn Dickinson, NECEC’s president and CEO. “The NECEC project received every local, state and federal permit required, and substantial construction has been completed. This establishes a so-called ‘vested right’ that cannot be taken away. Retroactively revoking these permits – after substantial construction has been done – violates the Maine Constitution.”

Whatever comes of Tuesday’s court action, the company faces an additional obstacle next week.

On May 17-18, the Maine Bureau of Environmental Protection will meet to consider appeals by opponents to a conditional project approval given by state environmental regulators in 2020. The meeting will be held at the University of Maine in Farmington and is open to the public in person and via video link, which will be posted on the board’s website when available. The timing for any decision is unclear.

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