PORTLAND, Maine — The future of the CMP Corridor, properly called the New England Clean Energy Connect, or NECEC, is in the hands of the Maine Supreme Judicial Court.
Fives justices of the law court heard oral arguments Tuesday in two cases that will determine whether construction of the corridor can resume.
Work on the project was halted voluntarily in November 2021 by the NECEC, at the request of Gov. Janet Mills, following passage of the statewide referendum aimed at blocking the controversial project.
A few weeks later, the Business and Commerce Court rejected a request by the NECEC for an injunction to prevent the law created by the referendum from taking effect. That case was then appealed to the Maine Supreme Judicial Court, along with a previous challenge to a lower court ruling that revoked the permit for the corridor to cross about a mile of state-owned public land.
The 54-mile section of the corridor has been cleared of trees since November 2021, except for the short section that would run through the public land.
In Tuesday’s hearing, the justices heard arguments regarding the public lands case, and then the separate case challenging the constitutionality of the referendum-created law. Justices will review the arguments and legal briefs over the coming weeks and render decisions.
The public lands case, Black vs. Bureau of Public Lands, argues the permit issued by the state for the corridor is invalid because the company failed to get the required approval of the Legislature before it was issued. The superior court agreed with that argument in August 2021 and declared the permit invalid.
Corridor opponents claim the state constitution is clear about requiring a vote of the Legislature for a project on public land that makes a substantial change to the use. Lawyers for the NECEC and the bureau, however, told the justices the project did not require such a vote, and that the Bureau of Public Lands acted properly.
In their intense questioning of the lawyers, several of the justices appeared to focus heavily on the idea that the court should remand the matter back to the bureau, with instructions to revisit the issue. Questions were raised about whether the Legislature or the bureau has ever created a process for assessing public opinion on such issues.
The second case, NECEC Transmission LLC vs. Bureau of Public Lands, challenges the constitutionality of the law created by the passage of the referendum. The Bureau of Public Lands is on the opposite side of the NECEC this time because it and the Legislature are responsible for enforcing aspects of the new law.
The NECEC said the longstanding doctrine of protecting a project’s or landowner’s vested interests is at stake in the case and that the new law seeks to improperly take away the rights the company has acquired as a result of obtaining all needed permits and legally starting construction under those permits and investing close to $500 million so far in the project, according to attorney John Aromondo.
“The credibility of testate of Maine is at stake in this case. Is Maine a place a project the state has declared to be lawful … beneficial and essential … be subject to retroactive legislative confiscation, ultimately funded by competing economic interests?” Aromondo asked.
That last portion was a reference to NextEra, a large energy company connected to Florida Power and Light, who funded much of the campaign to pass the referendum to block the corridor.
Justices challenged the attorneys for the NECEC and Hydro Quebec on the vested rights claims and on claims the new law violates the separation of powers requirements of the state constitution, arguing that it would overrule a requirement from the law court in a case about an earlier corridor referendum.
Project opponents countered all that with arguments the vested rights claims don’t apply, that the separation of powers claim is not persuasive and that the new law gives the Legislature the right to regulate transmission lines, and apply those new rules retroactively to the NECEC.
The Maine Supreme Judicial Court justices will work on decisions, but the outcome is far from certain.
A lawyer for the NECEC said the constitutionality case could end up being sent back to the lower court for an actual trial, the outcome of which could potentially wind up back in the Maine Supreme Judicial Court.
There could be a different verdict that would either affirm or overturn the new law, and that could potentially be challenged to a higher court.
As for the public lands case, that could get sent back to the BPL for reconsideration, although one of the justices suggested that might result in the same decision the agency made before. Or the court could possibly rule the lease valid or invalid.
And the law court is not the only decision-maker involved right now.
Next week, the Board of Environmental Protection will hold two days of public hearings on opponents’ appeal of the project’s DEP permit. That permit was issued two years ago this week, and opponents have been trying ever since to get the appeal heard.
NECEC President Thorne Dickinson said Tuesday that if the courts and BEP clear the way, the project could be restarted fairly quickly, although he would not speculate on how long that would actually take.