Defense rests on day 6 of trial over fate of CMP corridor

The landmark trial that could decide the fate of the $1 billion New England Clean Energy Connect power line moved closer to a climax on Tuesday after the defense rested its case. Closing arguments are scheduled for Wednesday, followed by an anticipated verdict from the nine-member jury.

The jury on Tuesday heard from the trial’s final three witnesses. Hammering away at a common theme, defense attorneys asked questions aimed to establish a link between the project’s accelerated construction schedule and efforts by NECEC executives to gain vested rights for the project, which is backed by Central Maine Power. Those rights would allow NECEC to legally proceed with the project despite a 2021 law aimed at killing it.

The project is organized under NECEC Transmission LLC, a subsidiary of Connecticut-based Avangrid Inc., the parent company of CMP. Both are controlled by Iberdrola, a Spanish multinational energy company.

On Tuesday, testimony and exhibits surrounding the final witness, Paul Franceschi, a vice president and general manager with Pittsfield construction firm Cianbro Corp., helped illustrate the conflicting evidence that jurors must consider.

Cianbro was partnering with Mississippi-based Irby Construction to erect the steel poles needed for the project. Work was initially slated to begin after mud season, in May 2021, but NECEC asked the contractors to start in February. Franceschi wasn’t happy about the change order, and Jamie Kilbreth, the lead defense attorney for project opponents, showed the jury emails and updates that reflected that displeasure.

“This is all about getting started on the project to help with another potential referendum,” Franceschi wrote. “None of it will be very productive, more of a show.”

Writing to his counterpart at Irby, Franceschi went on to criticize the idea of starting early and working out of sequence – a change NECEC made after a court injunction banned it from starting on an undeveloped part of the 145-mile corridor called Segment 1. The new schedule was inefficient, more costly and wouldn’t guarantee a quicker completion, he said.

After an online meeting with a NECEC project manager in December 2020, Franceschi wrote: “Would like for us to start ASAP after Northern Clearing (the tree cutting firm) is released. They need poles in air by late February to help with any potential referendum issues that could happens Jan/Feb 2021.”

The last reference was to a date at which the Maine Secretary of State’s Office was due to certify signatures gathered to bring the ballot initiative to voters in November 2021.

But during cross examination, one of Avangrid’s attorneys, Jeffrey Russell, sought to put these correspondences in a different context.

He produced documents from late 2020 to show Cianbro was aware that NECEC might be asking for an earlier start date. The statements about not being productive reflected Franceschi’s frustration with having to change plans and work out of sequence.

And when Franceschi wrote, “more of a show,” that was meant to convey the public relations value of getting some poles erected. This was prior to the referendum vote, Franceschi noted. Showing Mainers that the project was underway, he said, putting residents to work and providing other benefits, might have value in influencing some voters to reject the ballot question.

“Did you know about the concept of vested rights when you wrote these emails?” Russell asked.

“No,” Franceschi replied.

OTHER TESTIMONY

Jurors also heard from Robert Kump, who retired last year as president and deputy chief executive of Avangrid. Unlike Franceschi, Kump was familiar with vested rights. In a handwritten note on a September 2020 progress report, he scribbled: “Start construction, protect our vested rights!”

But during questioning from Christopher Roach, an attorney representing one of the intervenors, NextEra Energy Resources, Kump acknowledged that gaining vested rights was something the company understood and desired, but it didn’t drive decisions to speed up construction. The shifting schedule, Kump said, was based on delays and the goal of getting the project into commercial operation as soon as possible. He also said the scheduling decisions ultimately rested with the NECEC board, not him.

Also testifying was Pierre Despars, a Hydro-Quebec executive who was recently named acting president and CEO of the provincial utility. He was questioned about a cost sharing arrangement with NECEC to reflect the increasing risk of the project not being completed.

The presence of NextEra and Hydro-Quebec opened a window to a side issue that has had little visibility during the six-day trial, but is significant. Both companies have much at stake in the outcome, but for different reasons.

NextEra is a Florida-based utility company that now owns the Seabrook nuclear plant and would be hurt by the use of less-expensive Canadian power from NECEC. H.Q. Energy Services, the American arm of Hydro-Quebec, is eager to supply the power and earn a hefty profit. NextEra spent roughly $20 million to help project opponents prevail in the campaign to pass Question 1, the 2021 referendum. Hydro-Quebec spent roughly $10 million in the failed attempt to defeat the ballot initiative.

The NECEC project would have a capacity of 1,200 megawatts, enough power for 1.2 million homes. Paid for by Massachusetts utility customers, the power line would help lower electricity prices in New England by introducing a new source of round-the-clock hydroelectricity from Quebec, according to the Maine Public Utilities Commission. The agency granted the initial go-ahead permit in 2019.