Maine attorney general defends voters’ termination of controversial corridor project


Maine’s attorney general filed court papers on Wednesday defending the state’s recent referendum that banned construction of a controversial electricity transmission corridor through the Western Maine woods sought by the state’s largest utility, Central Maine Power.

In their 36-page brief filed in Maine Business and Consumer Court, Attorney General Aaron Frey and Assistant Attorney General Jonathon Bolton represent the parties sued by CMP subsidiary, New England Clean Energy Connect (NECEC), which manages the 145-mile project, and its domestic parent company, Avangrid.

The defendants are the Bureau of Public Lands, the Maine Public Utilities Commission, and the Maine Legislature.

The brief is in opposition to NECEC’s motion for a preliminary injunction to block the November 2 referendum, when 59% of Maine voters approved a ban on the project, which would transmit electricity generated by hydropower in Quebec to a station in Lewiston connected to the New England power grid.

The attorney general argues the injunction NECEC seeks – staying the referendum’s ban so it can resume construction – would allow the company to complete construction concurrent to the two years it would likely take the lawsuit to be litigated.

Frey and Bolton argued the company 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.”

Their brief continued, “NECEC indicates that, on its current schedule, the corridor is slated to be completed by December 2023. Taking NECEC’s own estimate of 18–24 months to complete litigation, that means NECEC could conceivably build the entire corridor during the pendency of litigation.”

The attorney general also challenged NECEC’s argument that it has “vested rights” – chiefly the expenditure of $450 million on the project to date.

Frey and Bolton said that principle does not apply, because the state has a greater right to protect the environment, and because the company knew its permits were being challenged – including the very petition drive to put the project-killing referendum on the November ballot — and gambled when it commenced construction.

“NECEC made a high-risk business decision and is now asking the court to protect it from the foreseeable consequences of that decision,” the attorney general’s brief said.

“NECEC’s commencement of construction on January 18, 2021, was a calculated risk, and thus not in good faith reliance on the permits,” the brief continued. “In any event, the court should reject the notion that a developer that commences construction of a controversial project in the teeth of a petition drive for a citizen’s initiative that would stop the project can somehow acquire vested rights against the will of the people expressed through the initiative process.”

The attorney general also rejected NECEC’s separation of powers argument – that the legislative branch is essentially vetoing decisions by executive agencies like the MPUC.

The brief said the Maine legislature holds ultimate power to make laws and oversee public utilities, though it may have delegated regulatory power to state agencies.

Fifty-three miles of the 145-mile corridor, from Beattie Township to West Forks, are a new path formed by clear cutting trees.

The attorney general notes that NECEC has asserted that 97% percent of the new path has already been cleared, but only 8% of the 832 poles planned along the entire corridor have been planted in the ground.

The court filing followed by one day the suspension of CMP and NECEC’s May 2020 license to build the corridor issued by the Maine Department of Environmental Protection.

NECEC had stopped construction a few days earlier at the request of Governor Janet Mills and is in the process of laying off 400 workers.

“Even with the department’s order suspended, some ongoing activity is likely to occur in the project area over the coming weeks to store construction materials, stabilize disturbed areas, and complete any work necessary to protect public safety,” DEP Deputy Commissioner David Madore said over email on Wednesday. “The department will continue monitoring activities throughout the project area to ensure compliance with erosion control, wetland and wildlife habitat protection requirements.”

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  • Ed Damm
    commented 2021-11-25 08:48:44 -0500
    Time for eminent domain
  • Sandra Howard
    published this page in News 2021-11-25 05:20:00 -0500