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Seven months after historic vote, power line project to get its day in court

Article Republished By Javier Troconis

Construction work was underway in October 2021 on the New England Clean Energy Connect project to widen the existing corridor near the Wyman Dam in Somerset County. Work on the $1 billion project was halted in November after Maine voters backed a referendum aimed at killing the project. Michael G. Seamans/Morning Sentinel

Spring vegetation is starting to emerge in the upper Kennebec River valley of western Maine. And after a long winter’s wait, Maine’s highest court and the state’s environmental appeals board are poised to hear arguments that could finally decide whether high-voltage transmission lines and towers also will become part of the landscape.

On Tuesday, 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 is scheduled to hear conflicting arguments from the project’s supporters and opponents on two key elements.

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, Russell Black v. Bureau of Parks and Lands, will be heard at 1:30 and the audio livestreamed.

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, Avangrid Networks v. Bureau of Parks and Lands, will be heard at 2:40 p.m., and audio of those oral arguments also can be followed live.

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.

“Everything is pretty much on standby until the court makes a decision, one way or another,” Ted Varipatis, a spokesman for the company, said last week. “Once that happens, there will be more information to share.”

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But whatever happens in court, the company faces an additional obstacle.

On May 17 and 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.

Of the three issues, opponents say the lease of public lots would be the most definitive one. If CMP doesn’t have a valid lease without legislative approval, they think NECEC would hit a dead end.

“If that’s the decision, they don’t have a project,” said Jamie Kilbreth, a former deputy attorney general and lead lawyer representing project opponents.

The ballot initiative case is more complex, Kilbreth said, because the Law Court could decide to send it back to Superior Court.

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, the NECEC cases, especially the court proceedings, are drawing national attention.

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Written arguments filed in the ballot case by the plaintiffs, the defendants and by other interested parties that formally presented “friend of the court” briefs – offered as guidance and perspective for the court – give a glimpse at what could be at stake in this high-profile legal fight.

‘AN UNPRECEDENTED STEP’

An example of those broader concerns was summarized in a friend-of-the-court brief filed by NSTAR Electric Co., one of the Massachusetts distribution utilities that signed a power purchase contract with NECEC. The companies wrote that retroactively killing a project with all needed approvals and contracts “would be an unprecedented step for a state court to take that would reverberate across time and industry.”

They added: “The State of Maine does not act in a vacuum with respect to the issues at stake in this appeal.”

That view was echoed by the lead plaintiff, Avangrid Networks.

“This appeal presents a momentous question: Is there any limit on the electorate’s power to change the law retroactively to ban a specific development project, despite prior executive and judicial approval of the project and the developer’s expenditure of hundreds of millions of dollars to build a substantial portion of the project in good faith reliance on those approvals?” the company stated.

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But that legal logic is refuted by top intervenors, the Natural Resources Council of Maine and residents who have been fighting the project.

“In making these claims, Avangrid and its allies rely largely on the argument that because it has spent a great deal of money on the project, it is entitled to complete it; to hold otherwise, they assert, would mean no infrastructure project will ever be built in Maine again,” they wrote to the court.

The opponents go on to say that the project isn’t being banned retroactively as alleged because the public land lease was invalidated by a lower court ruling. Referencing projects that date back to the 1970s, they added, “And contrary to Avangrid’s arguments, many infrastructure projects, including major transmission lines and pipelines, have been built under the same system Avangrid inveighs against so heavily.”

Maine Attorney General Aaron Frey, who is defending the state Parks and Lands Bureau, Public Utilities Commission and Legislature in the case, said that more than 200 pages of briefs submitted by NECEC and its allies fail to undermine the lower court conclusions that the vested rights appeal is unlikely to succeed. Frey wrote that NECEC took “a calculated risk to start construction while their necessary permits were still undergoing agency and judicial review and with full knowledge of a well-organized effort to stop the corridor at the ballot box.”

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 a similar project was killed in New Hampshire. 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 is at risk, after nearly 60 percent of voters rejected the NECEC project through a ballot initiative last November.

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.

LEASE DISPUTE REMAINS

The second issue involves a contested nine-tenths-of-a-mile lease for the transmission line to cross public lands in western Maine.

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.

To follow its preferred route, CMP signed a lease in 2014 with the bureau to cross two public lots in the upper Kennebec Valley, off U.S. Route 201 near The Forks. 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.

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At a Maine DEP hearing last October, NECEC executives said they might sidestep the lease issue by running the high-voltage cable under the public lots or via one of two alternative routes. But the viability of those options is in dispute and, in any event, would require new environmental studies and permitting that would be contested and take considerable time.

Time is an enemy of the project. NECEC’s chief executive, Thorn Dickinson, told the DEP in testimony last fall that a delay reaching into the summer of 2022 would make it impossible to put the project in service by August 2024, a contractual deadline with utilities in Massachusetts. That date could be extended until August 2025, Dickinson noted, if the company posted up to $10.9 million in additional security. He also estimated that a 12-month delay would add roughly $67 million to construction costs.

While the future of NECEC hangs in the balance, efforts to build two other major renewable energy lines are inching forward.

The first is the Champlain Hudson Express project, which would carry hydroelectric, wind and solar energy from Quebec to New York City. The project has a similar capacity as NECEC – 1,200 megawatts – but lines would be buried under Lake Champlain and the Hudson River. It recently won approval from New York utility regulators, although it still faces opposition.

In Maine, the PUC is receiving bids for proposals to bring wind, solar and biomass power from Aroostook County into southern New England, an outgrowth of a recent law that created the Northern Maine Renewable Energy Development Program. The bid process is confidential, but one of the players, Consolidated Edison, made its proposal known in March to build the Maine Power Link. It would follow existing rights-of-way above ground.

Kilbreth said these developments erode the “slippery slope” argument that killing NECEC will in turn kill other transmission projects in Maine and the Northeast.

“This doesn’t sound like the death of infrastructure to me,” he said.

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