Driving home along Moxie Pond on the Troutdale Road in The Forks, Denise Rancourt can see the loaders, excavators and harvesters in the adjacent forest, cutting and limbing trees.
Crews had cleared three or so miles on the side of the existing Central Maine Power transmission line as of last week, she estimated.
“They are working right across from me, so I see it daily,” said Rancourt, the clerk and tax collector for The Forks.
What Rancourt is seeing is a high-stakes race to build as much of the $1 billion New England Clean Energy Connect power line project as possible this year. But to do it, the company must sidestep a growing number of legal barriers that opponents are throwing up, including pending court decisions that the plaintiffs hope can hobble Maine’s most controversial energy project and bring progress to an abrupt stop.
That’s what nearly happened three weeks ago.
After three years of dispute and debate, the project has all of its regulatory permits in hand. And after months of preparation, crews were ready to start clearing trees in a 53-mile segment of undeveloped woodland that runs from The Forks to the Quebec border. That segment is the most contentious part of the 145-mile project. Even though the land is owned by forest products companies, it’s also highly prized for its ecological and recreational value.
But just as CMP affiliate NECEC Transmission LLC won its final permit and was ready to go, a federal appeals judge considering a challenge by environmental groups called a timeout, effectively banning work in that segment until at least late February.
Environmental opponents saw it as a victory, stopping construction in a crucial place at a critical time.
But NECEC Transmission isn’t inclined to stop and wait. Its contract with Northern Clearing, a Wisconsin-based logging contractor hired to create the new corridor, requires payment of $690,000 a week to cover equipment expenses for any delays.
And the power purchase agreement with Massachusetts utilities, which are anxious to get hydroelectricity from Canada flowing to their customers, inflicts financial damages if the project isn’t brought on line on time. The original in-service date already has been renegotiated, from December 2022 to May 2023.
So NECEC Transmission performed a quick pivot, shifting the crews to work on the existing portion of the corridor, which starts near Rancourt’s house by Moxie Pond. That’s allowed, because the ruling by the appeals court judge only involves the 53-mile, undeveloped segment. The existing section also is in unorganized territory, and work is permitted by the state’s Land Use Planning Commission.
“Consistent with our construction plan, as soon as we had all the permits, we were going to start construction,” Thorn Dickinson, NECEC’s president and CEO, said last week. “That’s what we’re doing now.”
Excavating equipment is parked on Central Maine Power’s existing transmission line corridor in The Forks, where crews are clearing trees and widening the right-of-way to make room for a second line. Photo courtesy of Susannah Warner
CMP SEEKS ‘VESTED RIGHTS’
Roughly 280 workers are on the job, Dickinson said, 200 of them Maine residents. Hundreds more hires are expected in the coming weeks. Existing jobs include planning, engineering, surveying and clearing.
The existing corridor must be widened before workers can set poles and string new transmission lines. Contractors Cianbro Corp. and Irby Construction are scheduled to start that task in May, NECEC has said in court documents. Meanwhile, Cianbro is set to do site development work this winter for a custom-built, $250 million converter station in Lewiston that will convert direct current into alternating current to feed into the electric grid.
All that activity could play another important role in advancing the project, according to David Littell, a Portland environmental attorney.
The more steel that goes into the ground, he said, the better the chances of NECEC maintaining that the project has achieved the legal status known as vested rights.
“The idea is that if you start construction in good faith after receiving validly issued permits, the permitting authorities can’t revoke the permits,” said Littell, a former Maine Public Utilities Commission member and head of the state Department of Environmental Protection.
Littell said that strategy presents legal risks for shareholders who own stock in Avangrid, the parent company of CMP and NECEC Transmission. But in his view, court decisions to date suggest the perceived risk is lower than it was last year.
“My bet is that they are telling shareholders in briefings that they are using this strategy to mitigate risk,” he said.
That’s not the view held by environmental groups challenging the DEP permit. In the most extreme scenario, NECEC could be ordered to remove what it has built and restore the disturbed areas, said Beth Boepple, an attorney who is representing the Say NO to NECEC citizen and town intervenors.
“When you enter into a permit you make strategic decisions,” Boepple said. “And if you begin work and contract with others before conclusion of legal processes, that’s on you.”
Environmental activists in Maine are hoping for a repeat of Northern Pass. Four years ago in New Hampshire, electric utility Eversource had to write off more than $300 million after state regulators ultimately rejected a similar Canadian hydropower line that had been hotly disputed.
“It’s clearly part of the playbook to act in a way that suggests that the outcome is inevitable,” said Jack Savage, president of the Society for Protection of New Hampshire Forest.
Northern Pass never got to the stage of clearing a right-of-way. But it had purchased land and made other investments that ultimately became bad debt.
In recent days, the Natural Resources Council has sought to throw up a new roadblock. CMP has sent the DEP a lengthy “minor revision” application. It includes updated natural resource maps that show the presence of rare and endangered wildlife and plants. The council argues that the revisions aren’t minor at all and should trigger a full technical review of the project and its impacts on protected natural areas delineated by the maps.
Meanwhile, the council, the Sierra Club and the Appalachian Mountain Club are pressing a case in federal District Court that the U.S. Army Corps of Engineers didn’t conduct a thorough review prior to issuing its permit. That’s the case that has construction tied up now by an injunction at the 1st U.S. Circuit Court of Appeals, where legal briefs can be filed until Feb. 24.
Logging crews are widening the existing Central Maine Power corridor near The Forks to make way for a second high-voltage transmission line, to carry hydroelectricity from Canada to Massachusetts. Photo courtesy of Susannah Warner
COSTLY DELAYS POSSIBLE
The time being eaten up by the appeals process could prove costly to NECEC and the project’s schedule.
In a legal statement filed late last fall, Dickinson said clearing needed to commence in the 53-mile segment by early January. Clearing is restricted after the spring thaw and is prohibited in June and July to mitigate impact on a threatened bat species, so time is of the essence.
In an interview last week, Dickinson sought to clarify that his statement about starting by early January was meant to convey the impact if no work could commence anywhere along the 145-mile project corridor. He said he was hopeful clearing crews would be able to get back on the undeveloped route in March. That would keep the project on track to be in service by May 2023, he said.
“That’s our current estimate,” Dickinson said. “The project will continue to face challenges. We’re confident of that timeline.”
Opponents aren’t willing to concede that the project is destined to be completed.
“We are at this incredible inflection point in the case,” said Sue Ely, a staff attorney at the Natural Resources Council. “Both sides have an incredible degree of urgency. We’re in a race to save the North Woods.”
Ely said causing delays isn’t part of her group’s specific legal strategy; the goal is to argue that the Army Corps erred in issuing its permit. The timing around the winter construction season is a coincidence, she said.
“But it may turn out they can’t do it this year,” she said of clearing the 53-mile segment.
Also threatening the project and its timeline are proposed bills in the Legislature.
One is tied to a just-finished referendum drive that would require legislative approval for any power line longer than 50 miles and prohibit such a project in the Upper Kennebec region. The ban would be retroactive to September 2014.
Opponents delivered 100,000 signatures to the Maine Secretary of State’s Office, which has until later this month to determine whether corridor opponents have gathered the roughly 63,000 valid signatures required to put the measure on the ballot in June or November.
This is the second attempt at a voter referendum to block the project. The first try was rejected by Maine’s Supreme Judicial Court.
If the new referendum moves forward, look for a protracted media and public relations campaign by both sides in the coming months, according to Sandi Howard, who led the effort for the No CMP Corridor PAC.
At the same time, opponents will continue to press their case in the courts, Howard said.
“They are trying to meet the terms of their contracts,” she said. “They’ve been delayed and are trying to make up time. We’re using every legal channel available to us to make the concerns of the people of Maine heard.”
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