Opponents and supporters of the controversial New England Clean Energy Connect took turns Monday debating detailed legal ramifications at a hearing that will help determine whether a pending law approved by voters on Nov. 2 compels Maine’s Department of Environmental Protection to suspend or revoke the project’s license.
Project opponents argued that the vote aimed at banning “high-impact” transmission lines in Maine’s upper Kennebec region and the pending law to put it into effect should be assumed to be constitutional unless a court says otherwise.
The project developer, however, noted that the law won’t take effect until Dec. 19. And because NECEC has temporarily stopped construction, there’s no reason for the DEP to take any action until a court rules on the company’s request for a preliminary injunction, a motion aimed at keeping the law from taking effect.
A virtual evening session for members of the public ran late into the night with opponents and supporters of the project logging in to testify. The department has not said when it will make a decision.
Monday’s daytime testimony provided new information on a few key issues.
During cross-examination, Thorn Dickinson, NECEC president and chief executive, said the company would hold off on any new construction until a ruling on its Superior Court appeal, which is now being handled by Maine’s Business and Consumer Court. A decision is expected before the end of the year.
Jamie Kilbreth, a lawyer representing a key opponent, the Natural Resources Council of Maine, asked what would happen if the injunction request is denied.
“That would be a decision we would need to consider at that time,” Dickinson responded.
Asked by DEP staff to provide a status update on the project on the ground, Dickinson said all work has stopped and contractors are focusing on making sure the corridor site is environmentally safe and sound for the duration.
Asked about the impact of a construction delay beyond December, Dickinson said it would add to costs and threaten the project’s ability to meet contract obligations in Massachusetts to be in service by August 2024. NECEC can extend that deadline one year by paying a $10 million penalty, Dickinson said. After that, he said, the contract agreement would expire.
The hearing is taking place amid confusing and rapidly changing circumstances. Most notably, NECEC agreed on Friday to temporarily halt construction on the $1 billion transmission corridor – but for reasons not specifically related to the DEP review.
The DEP has been under mounting pressure for months from project opponents to shut down construction while legal and regulatory challenges play out. That pressure intensified on Nov. 2, after roughly 60 percent of Maine voters approved a ballot question designed to block the corridor.
On Nov. 3, NECEC Transmission and Central Maine Power’s parent company, Avangrid, filed suit in Cumberland County Superior Court. The action seeks a preliminary injunction to keep the law from taking effect, which now is expected to happen Dec. 19.
On Nov. 5, DEP Commissioner Melanie Loyzim informed NECEC Transmission and CMP that the referendum results represented a change in circumstances for the project’s license.
Loyzim wrote: “(Maine law states) the commissioner may revoke or suspend a license upon making certain findings, including a finding that: ‘There has been a change in condition or circumstance that requires revocation or suspension of a license. I have determined that the referendum result, if certified such that it will become law, represents an additional change in circumstance that may require suspension of the NECEC order.”
Loyzim is already reviewing the NECEC license. On Oct. 19, she conducted a hearing following a Superior Court ruling that the state’s Bureau of Public Lands failed to follow proper procedures for determining whether a lease across one mile of public lands would “substantially alter” those lands. NECEC and the state have appealed that decision to the Maine Supreme Judicial Court, a process that may not conclude until late spring.
A month after the first hearing, Loyzim hasn’t announced a decision. In essence, Monday’s hearing expands the scope of the public lands inquiry.
But the technical details of the hearing have been overshadowed by the unexpected events on Friday. After formally certifying the election results as required by law, Gov. Janet Mills wrote to NECEC, asking it to voluntarily stop construction in deference to Maine voters.
Mills strongly endorsed the project and sees it as a needed component in Maine’s fight against climate change. But she’s also running for re-election in 2022 and has been walking a political tightrope, trying to balance her support in the face of growing public resentment over NECEC’s refusal to stand down.
Hours after Mills’ letter was made public, Dickinson agreed to halt construction pending the outcome of Avangrid’s court action. He reiterated the company’s position, however, that the pending law is unconstitutional and noted the move would put 400 Maine contractors out of work right before the holidays.
It’s unknown exactly when that court action might come, but a hearing on the injunction request is set for Dec. 15. With the law scheduled to go into effect Dec. 19 – 30 days after Mills certified the election results – opponents expect the judge to decide quickly after the hearing, or at least by year’s end.
At Monday’s hearing, supporters and opponents also testified about the viability of NECEC’s tentative plans to sidestep legal obstacles by creating alternative routes.
Kilbreth argued that the new law has the effect of blocking NECEC’s alternatives, and that even if it didn’t, a new permitting process would take months or even years.
Lawyers even debated the meaning of the “Upper Kennebec region,” where lines are prohibited. Is it acreage defined by the Bureau of Public Lands in its Upper Kennebec Region Management Plan, a 43,000-acre area defined in legislation behind the ballot question, or something else?
The legal wrangling was frustrating to Robert Weingarten, who testified as an intervenor with the Friends of the Boundary Mountains. The DEP’s decision, he said, should be based on the “strength of democracy” and the power of what citizens voted for, not “obtuse legalisms.” Miles of trees are being cut while the DEP ignores public sentiment, he said.
“The people of our state have spoken,” Weingarten said.
But Tony Buxton, a lawyer representing the Industrial Energy Consumer Group, which represents factories and large electricity users in Maine, had another perspective. He argued that the Maine Constitution, adopted over many years, also represents the will of the people. And he noted that the project won multiple permits based on regulators concluding that there was a public need for it as a tool to fight climate change.
“And that has not gone away,” Buxton said.
Opponents have been calling for months for a stop to construction and have intensified pressure since the election, holding a rally last week outside DEP headquarters in Augusta.
Many of those opponents, who spoke at Monday night’s public hearing, pleaded with the Maine DEP to honor the will of Maine voters by suspending or revoking the NECEC’s permit. Supporters of the project asked the DEP to wait until the courts rule on the legal issues.
Former Republican State Senator Tom Saviello of Wilton said the Nov. 2 statewide referendum in which nearly 60 percent of Maine voters rejected the project demonstrated that voters “saw through the rhetoric” promoted by NECEC.
“Somehow, CMP continues to live in a fantasy land,” Saviello said. “They’ve decided to ignore the voices of Maine people. If it wasn’t for Governor Mills, they would be cutting (forest) today.”
John Cote of Farmingdale said the DEP needs to restore public trust, something that he claims the state agency lost during the permitting process.
“There are no winners here. It’s a mess,” Cote said, referring to the forests that have been cut to make way for the transmission lines. Cote said the Maine DEP has an opportunity to restore public trust, something CMP lost during the NECEC permitting process.
“Sixty percent of voters approved the referendum question,” said Maeghan Maloney, the district attorney for Kennebec and Somerset counties. “So, please listen to the Maine people.”
Christopher Ayres, who lives in Pownal, defended the transmission corridor project, and said the Maine DEP has no grounds to intervene at this stage of development.
“The matter should be left to the courts to rule on,” Ayres said. “The DEP should not be adding to the confusion.”
Paul Frederic, a former professor and director of Maine’s Land Use Planning Commission, opposes suspension of the NECEC permit because the permits the company obtained from the state were received after extensive review and the project will help in the fight against climate change.
“The potential for damage from global warming is far greater than what they have done in western Maine,” Frederic said.
NECEC is designed to bring power from Canadian hydroelectric producer Hydro-Quebec to the New England electric grid through a converter station in Lewiston. The project is being built to help Massachusetts meet clean energy goals and is being paid for by that state’s electric customers.
LEASE ALSO IN QUESTION
The 145-mile route is on land owned or controlled by CMP, except for a one-mile patch through Maine public lands near The Forks. The DEP commissioner is also considering whether to suspend the project permit based on an improper lease issued to cross that one-mile stretch.
Two-thirds of the route follows existing CMP power line corridors, some of which are being widened up to 75 feet to accommodate another set of poles. But the corridor passes through a 53-mile stretch of working forest that has been at the center of the controversy. Workers have been clearing trees on that land this year, to the dismay of opponents.
Earlier this month, voters approved the referendum that bans construction of high-voltage power lines in the Upper Kennebec region and requires the Maine Legislature to approve any similar projects statewide retroactively to 2020. It also requires the Legislature, retroactive to 2014, to approve any such projects that use public land by a two-thirds majority.
The day after the election, Avangrid filed its lawsuit to challenge the constitutionality of Question 1. The company also vowed to keep building the power line.
In its complaint, Avangrid said almost $450 million already had been spent on the corridor, more than 80 percent of its right-of-way had been cleared and more than 120 structures had been erected.
Avangrid, CMP and NECEC Transmission are all U.S. subsidiaries of Spanish energy company Iberdrola.