BOSTON (State House News Service) – The law approved by Maine voters to basically prevent completion of the controversial hydroelectric corridor seen as critical to Massachusetts’ clean energy and climate goals is set to take effect Sunday and a Maine judge plans to rule before then on whether he will block enforcement of the new law as corridor developers challenge the initiative’s constitutionality.
The 145-mile New England Clean Energy Connect project is under contract with Massachusetts utilities to deliver hydropower from Quebec into the regional grid to fulfill part of a 2016 Massachusetts law, but voters in Maine last month approved a law that retroactively will “ban the construction of high-impact electric transmission lines in the Upper Kennebec Region” among other provisions that could doom the partially-constructed project.
Maine’s Department of Environmental Protection has suspended the permit it issued for the NECEC project unless or until a court rules in the developers’ favor, but Gov. Charlie Baker has said he does not think the transmission project is dead. Still, he said his administration has had “some conversations” with Central Maine Power Company and Hydro-Quebec to identify possible alternatives.
District Court Judge Michael Duddy heard about two and a half hours of oral arguments Wednesday on the motion of NECEC Transmission LLC and CMP parent company Avangrid for a preliminary injunction “prohibiting retroactive enforcement of the citizen initiative” against the NECEC project while a lawsuit they filed the day after about 60 percent of Maine voters OK’ed the new policy wends its way through the court system.
Because the law is set to take effect Sunday, Duddy said he would issue his ruling by the end of this week. An indication of the interest in the ruling and the broader issues around NECEC, Duddy said his ruling will be posted to a page of the Maine judicial branch’s website dedicated to “high-profile” cases.
“I wish I had more time between this oral argument concluding and the end of the week to consider the arguments, but I don’t. I will do the best with the time that I have available, and I will, as I mentioned at the outset, issue my decision before the end of the week,” he said as Wednesday’s hearing in the Maine Business and Consumer Court ended.
The NECEC project is a key part of Baker’s energy and climate policy. His administration has said the project could supply about 17 percent of the state’s electricity demand and reduce Massachusetts electric bills rates between 2 and 4 percent each year under contracts already approved by the Massachusetts Department of Public Utilities. NECEC was also seen as key to meeting the state’s carbon emissions reduction requirements for 2030.
Much of the plaintiffs’ argument revolved around the idea that NECEC had “vested rights” — basically that the developers have the right to see the project through to completion because they have already spent about $450 million to construct the corridor in accordance with the permits they legally obtained and in good faith.
“To now deprive NECEC LLC of its right to complete the Project, lawful at the time of that massive investment, constitutes an impairment of its vested rights forbidden by Maine law,” the plaintiffs wrote in their motion for a preliminary injunction. “To permit such a retroactive application of the Initiative would render any development in the State, no matter how big or how small, or how far progressed, vulnerable to discriminatory efforts to kill the project by after-the-fact changes to the law, and inevitably chill future economic development in Maine.”
The defendants — a group that includes the Maine Bureau of Parks and Lands, Maine Public Utilities Commission, the Maine House and the Maine Senate — argued that the developers are asking the court to “thwart the will of Maine voters” by allowing them to resume construction of the corridor and possibly even finish its construction before the question of the voter law’s constitutionality is decided by a court.
“The estimates provided by NECEC’s own witnesses show that such an injunction would likely allow NECEC to complete or nearly complete construction of the Corridor while this lawsuit remains pending,” Maine Assistant Attorney General Jonathan Bolton wrote in a brief on behalf of the state defendants. “NECEC’s request seeks to make the Corridor a fait accompli before the Court has the opportunity to determine whether NECEC’s various constitutional claims have merit. And their claims lack merit.”
Bolton argued Wednesday that Duddy should not grant the developers’ motion for a preliminary injunction because he said they don’t satisfy the first balancing test for one, which is being able to demonstrate a likelihood of success on the merits of the underlying suit. In part, Bolton said, that’s because they lack standing to sue the state or its agencies.
“Citizen-initiated legislation, like all legislation, is entitled to a heavy presumption of constitutionality. And in this case, NECEC and the other plaintiffs have failed to overcome that presumption in any of their three claims,” he said. Bolton added that, “You cannot bring a suit against the state of Maine or against any state agency, regardless of the type of relief that you are seeking, unless there is either a waiver by the Legislature or there’s abrogation of immunity by Congress. And neither is present here.”
Even before Mainers voted to undermine the NECEC project, Baker expressed his own concerns about the retroactive nature of the initiative and lamented the difficulty of building the infrastructure that will be necessary to shift the economy away from fossil fuels.
“Truly electrifying big pieces of what is currently a fossil fuel-based economy isn’t going to work if people aren’t willing to accept transmission capacity to make that happen. You can’t get from here to there without transmission capacity,” Baker said the day before the vote in Maine.
On Wednesday, an attorney for the Industrial Energy Consumer Group echoed Baker’s points about the role transmission projects will play in the transition to cleaner energy sources while arguing in favor of the injunction.
“In a nutshell, we’re going to need way more transmission capacity to deal with the climate crisis. We need to convert our cars and heaters and many other things to renewable electric energy. Electricity is the only scalable resource that can efficiently and effectively power society with zero-carbon resources like hydro. That means we’ll need massive investment in new electric infrastructure, like transmission lines,” Sig Schutz said. “That investment is not going to happen if project approvals aren’t worth the paper they’re written on.”