CMP, transmission line backers plan to appeal termination of crucial land lease

Portland Press Herald

The Maine Attorney General’s Office and the companies seeking to build a 145-mile, high-voltage transmission line through the western mountains plan to appeal a judge’s decision nullifying a crucial lease needed for the controversial project.

The appeal decision came one day after Maine’s top environmental regulator began the administrative process to suspend New England Clean Energy Connect’s permit because the companies lost a lease to pass through state-owned lands. A Superior Court judge ruled that the Maine Bureau of Parks and Lands had failed to follow proper procedures when granting Central Maine Power and NECEC a lease for the 0.9-mile section through two parcels of public reserved lands north of The Forks.

“Today, the Maine Bureau of Parks and Lands filed a notice to appeal a Superior Court decision about BPL leasing practices,” said Thorn Dickinson, president and CEO of New England Clean Energy Connect Transmission LLC, in a written statement. “As one of many current leaseholders impacted by the court’s ruling, CMP and NECEC LLC also filed a notice of appeal.”

Representatives for Attorney General Aaron Frey and the Maine Department of Agriculture, Conservation and Forestry confirmed that notices of appeal were filed but did not offer any other comments.

The NECEC project seeks to build a transmission line from the Maine-Quebec border to Lewiston, where it will connect to the New England electric grid so Massachusetts can buy renewable power from Hydro-Quebec. Backers claim the project will generate 1,600 jobs, boost the Maine economy and help meet regional climate goals by displacing fossil fuel-based electricity generation with hydropower.

Critics contend that the 53 miles of new corridor cut through the woods will ruin wildlife habitat, spoil fragile wetlands and streams, and spoil the scenery of the western Maine mountains, all to benefit Massachusetts energy consumers. They have also questioned the proponents’ assertions that the project will help address climate change.

While work on the corridor is already underway, the roughly $1 billion project has faced fierce and costly opposition at every turn in the regulatory proceedings, in the Maine Legislature and in the courts. Tuesday’s Superior Court ruling has now put the project’s permit in jeopardy.

In a letter sent Thursday, Commissioner Melanie Loyzim of the Maine Department of Environmental Protection notified NECEC officials that she was initiating the administrative process to suspend the company’s permit.

Loyzim noted that, following Tuesday’s Superior Court ruling, the company no longer has a lease for the 0.9-mile stretch of corridor route through public reserved lands in West Forks Plantation and Johnson Mountain Township.

“While this portion of the transmission line is only a small part of the overall project, this portion is necessary to the overall project purpose of delivering electricity from Quebec to the New England grid,” Loyzim wrote Dickinson and Gerry Mirabile, manager of permitting and compliance with NECEC. Loyzim noted that Maine law requires the DEP to revoke or suspend a license when there is a “change in circumstance” involving the permit.

NECEC has 15 days to request a hearing on the potential suspension. If the permit is suspended, Loyzim wrote, it could only be reinstated if the court decision is reversed, if a new lease is negotiated for the section of land in question, or if the company obtains DEP approval for rerouting that portion.

If Maine’s highest court upholds Superior Court Justice Michaela Murphy’s decision, NECEC will likely either have to re-route around state-owned lands or potentially seek legislative approval – an ominous prospect based on the political opposition to the project.

In a strongly worded ruling vacating the lease, Murphy wrote that the Maine Bureau of Parks and Lands first failed to follow proper procedures for determining whether the lease would reduce or “substantially alter” use of those lands. Maine’s Constitution then requires the bureau to seek legislative approval – via a two-thirds vote – for the lease if the project would substantially alter the lands.

“This is not a situation where an agency failed to take an important step in a public administrative process,” Murphy wrote. “In this case, BPL provided no public administrative process at all prior to deciding to enter into the 2020 lease and the Maine Legislature’s designation of these lands as public trust lands make these shortcomings very fundamental … BPL exceeded its authority when it entered into the 2020 lease with CMP, and BPL’s decision to do so is reversed.”

One day after Murphy’s ruling, an attorney for the Natural Resources Council of Maine formally requested that the DEP order a stoppage of all tree-clearing and construction work along the corridor. The group, which opposes the project, asked for action on the request by next Monday and stated it may “seek further judicial recourse” if work is not stopped. The DEP had not responded as of Friday evening.

“Because the NECEC cannot be built along the route permitted by the Department, a stay is justified so that the public is not irreparably harmed by the continued clearing and construction along this route,” the group’s attorney, James Kilbreth, wrote to Loyzim and Maine Board of Environmental Protection Chairman Mark Draper.

Project opponents, who are also hoping to block the corridor at the ballot box this November through a statewide referendum, cheered the latest developments in court and from the DEP.

“It’s pretty obvious that NECEC/CMP cannot meet the criteria laid out by the commissioner within the next two weeks, or even before the statewide vote this fall, so this determination is a huge win for CMP Corridor opponents,” Sandi Howard of the organization No CMP Corridor said in a statement. “CMP didn’t follow the proper process, and now they are paying the price for their mistakes. On November 2, the people of Maine will decide once and for all if they want to be the extension cord for Massachusetts.”

This week’s developments are merely the latest in a years-long fight that is only going to heat up ahead of the November referendum.

As currently permitted, the transmission line would pass through roughly 33 acres of public reserved lands – known as the Johnson Mountain and West Forks Northeast lots – north of The Forks before crossing under the Kennebec River. CMP officials told regulators the route through western Maine was selected to avoid “iconic” scenic and recreational areas such as the Bigelow Preserve, Saddleback Mountain and multiple ecological preserves in the area.

In 1993, Maine voters approved a constitutional amendment requiring a two-thirds vote in the Legislature before the state could enter into agreements that could result in public lands being “reduced” or their “uses substantially altered.”

But the 0.9-mile lease through the public reserved lands – granting CMP a 25-year right to the land for $1,400 a year – was never discussed publicly in any depth before the administration of former Gov. Paul LePage granted it in 2014. When the lease finally came to light, corridor opponents as well as conservation groups claimed the public and the Legislature were illegally excluded from the process.

The issue ended up before lawmakers in 2019 in the form of a bill, L.D. 1893, that would have required the bureau to cancel the lease, renegotiate more “reasonable” market rates and bring it back to the Legislature for approval. A legislative committee unanimously endorsed the bill over the objections of the administration of Gov. Janet Mills. But the bill never made it to the House or Senate floor because the Legislature abruptly adjourned weeks early in March 2020 as the COVID-19 pandemic hit Maine.

Several months later, the bureau negotiated a new lease at $65,000 a year but, again, never sought legislative approval.

Sen. Craig Hickman, a Winthrop Democrat who co-chaired the committee that unanimously endorsed L.D. 1893, said this week that he was in “total agreement” with Murphy’s decision. Hickman believes the bureau “renegotiated that lease behind our backs because they knew we would have opposed it.”

“Public lands are held in the public trust and I felt this administration and the previous administration breached that public trust” by going around the Legislature, Hickman said. “What I am hoping for is we start this all over again, that they submit it to the Legislature and it passes or fails. And if it fails, they need to find another route.”

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  • Sandra Howard
    published this page in News 2021-08-14 06:33:13 -0400