AUGUSTA, Maine — With a pending referendum vote still more than seven months away, the immediate future of the CMP transmission line corridor—properly called the New England Clean Energy Connect— appears to rest on two court cases now in progress.
One of those cases, Black v Cutko, moved ahead on Wednesday as the judge sided with NECEC opponents in an initial ruling.
And on Thursday, the Maine Legislature began looking at the same issue.
The NECEC project would cross about 36 acres of state-owned public land in West Forks Plantation. The company has a lease from the state to do that. The lease was initially granted in 2014 and renegotiated last year.
But opponents of the project say the Maine Constitution requires that lease to be approved by two-thirds of the Legislature because it would make substantial changes to public land.
Opponents took the Bureau of Parks and Lands to court and on Wednesday Justice Michaela Murphy issued a ruling that said the Constitution is clear, and that the Legislature needs to get involved if the lease creates substantial changes to the land.
Attorney Adam Cote, representing the opponents, said it was a significant victory.
“It’s a very big win,” said Cote. “We said all along the plain language of the Maine Constitution says if you are going to reduce or substantially alter public land in Maine you need to have the Legislature involved by a two-thirds vote, and Justice Murphy agreed yesterday that is the case.”
Project supporter Ben Dudley, of the group Mainers for Clean Energy Jobs, said the issue could pose a problem.
“If this lease were somehow nullified it would require a substantial re-routing of the corridor,” Dudley said. He added that such a situation would likely set the project back—which he said is what NECEC opponents want.
“The opposition has made it clear for years now their intent to do everything they can to at least delay building this transmission project,” he said.
The next step in the court case is scheduled for March 24, when the judge and attorneys will meet in conference. Cote says the parties will determine how to move forward with the case, and how the court will determine whether the NECEC use of public land represents a substantial change that would require a Legislative vote.
There is a significant amount of opposition to the project, making the prospects for a two-thirds vote of support questionable.
That opposition was evident in the Legislature’s Committee on Agriculture, Conservation and Forestry on Thursday, as lawmakers began considering a bill to mandate a vote on the project using public land, if it is determined to be a substantial change to the land.
The same committee was debating a similar bill last year when the Legislature shut down because of the pandemic.
Sen. Russell Black (R-Wilton) was critical of the Mills administration and the Bureau of Parks and Lands for how it has handled the issue since.
“Last year, two weeks after we adjourned, the governor directed her staff to renegotiate the lease for more money. This negotiation was carried out in secret behind closed doors,” Black said.
Most of the questions were directed at BPL Director Andrew Cutko, who is also involved in the court case.
Cutko defended the BPL, saying his staff had determined there would be no substantive change to the land because of the transmission line. And he also said the BPL should be the one to make that determination, not lawmakers.
“Fundamentally, familiarity with these nuances, and the technical expertise of our staff, makes our staff best qualified to weigh these issues and make such determinations.”
A number of project supporters and opponents spoke at the public hearing, some criticizing the project, others criticizing the bill because it would be retroactive to 2014 when the original lease was issued. Critics called that a “dangerous precedent.”
The issue, however, may be unresolved as far as the Legislature is concerned. Sen. Black said he wants the bill tabled once the committee is done with it, so they can wait for the court case to be decided and even for the results of the expected November referendum vote.
All those watching the project are also waiting for results in the other court case, in which environmental groups are pushing to have the U.S. Army Corps of Engineers permit revoked in order to conduct a full environmental impact statement.
A federal appeals court in Boston already issued a temporary restraining order in that case, which has blocked any construction work on the new, 53-mile section of the corridor. There’s no specific date yet for that case to be decided.