Is the outcome of Question 1 “binding”?
It’s something many Mainers have been wondering as they contemplate what their vote will mean to the $1 billion New England Clean Energy Connect transmission line project. They want to know if there’s finality in the outcome of Question 1, after they’ve weathered a monthslong blizzard of confusing and sometimes deceptive messages online, over the airwaves and in their mailboxes, fueled by record campaign spending.
The short answer is: Not necessarily.
In fact, there’s a distinct possibility that this war over competing visions for Maine’s energy future could drag on well into 2022 or beyond, even after much of the project is built.
That’s because Avangrid, the parent company of Central Maine Power and NECEC LLC, will seek to overturn the law if it passes and is enacted. Meanwhile, other legal challenges in court and at regulatory agencies will continue because they are distinct from the ballot question.
It’s a situation that appears to be unprecedented for a Maine energy project.
Avangrid reported last week that as of Sept. 30, it has spent more than $400 million on the project. It has cleared much of the corridor and is erecting steel poles. Materials for completing the project, such as transmission line and insulators, have been received. Many of these components can be seen staged in storage areas along U.S. Route 201 between Bingham and Jackman.
Results of a poll released Thursday by Digital Research Inc. of Portland found that 49 percent of Mainers planned to vote “yes” to stop construction while 36 percent planned to vote “no,” which would allow construction to proceed. Fifteen percent of those polled said they were unsure or were unwilling to state a preference.
Mainers have had months to try to sort out competing claims about the ballot measure and its likely impact. But as they head to the voting booth Tuesday, there’s no way for voters to answer some key questions, regardless of the outcome.
Will the entire 145-mile project be completed? If so, will electricity ever run through it?
And if the project’s not completed, could it be decommissioned, with all the equipment removed and the forest restored? That would be a stunning and unprecedented outcome, but one that NECEC has acknowledged is possible if the project ultimately is canceled.
IF QUESTION 1 PASSES
Q: When would the law take effect?
A: The secretary of state would have 20 days to certify the election. Then Gov. Janet Mills would have 10 days to proclaim the results. The law would take effect 30 days after the governor issued that proclamation. In total, it would be around Jan. 3 before the law would take effect.
Q: Does NECEC need to stop construction before then?
A: No, although opponents could seek an injunction in court and ask a judge to suspend its permits. But the company is sure to resist and is racing to stay on schedule.
NECEC began work last January after receiving its final permit. During an earnings call last week with investors, Avangrid executives reported that 75 percent of the corridor had been cleared, 100 poles had been installed and 650 workers were on the job. That status report highlights the pace of activity. Three weeks earlier, the company told the state Department of Environmental Protection that 58 poles had been erected.
Despite facing possible suspension of its DEP permit tied to a public land lease controversy, the company told the agency it plans to ramp up work in the coming weeks and months, and finish most corridor clearing by year’s end. With hundreds of workers engaged, millions of dollars of material in hand or on order and contract deadlines pending in Massachusetts, NECEC is under pressure to stay on schedule while legal challenges play out.
Q: What might those legal challenges look like?
A: NECEC and its parent company, Avangrid, won’t discuss business strategies. But legal experts have speculated on some possibilities.
One option would be for Avangrid/NECEC to go to Superior Court and ask for a stay, a temporary order to keep the law from being applied to the project. The company could then challenge the law.
One avenue would be a “facial challenge,” a claim that the law as written is unconstitutional on the face of it. NECEC already has had some success in the Maine Supreme Judicial Court with this argument.
In August 2020, the supreme court ruled that the wording of a prior referendum question ordering the Maine Public Utilities Commission to reverse its permit for NECEC was unconstitutional. But the court stressed it was a narrow ruling and not meant to decide the legality of the issue itself. The referendum question was then reworded to its current language to avoid the prior concerns.
NECEC/Avangrid also could pursue an “as-applied challenge.” It could argue that by targeting high-impact transmission lines in the Upper Kennebec region, the law as applied unconstitutionally singles out this one power line project.
NECEC/Avangrid also could argue that it has vested rights. It could say that it acquired all its permits before starting work in January, has already spent hundreds of millions of dollars in clearing, equipment and labor, and therefore has a legal right to continue. It could say it shouldn’t be subject to a law that requires the Legislature to approve “high-impact” transmission projects retroactive to 2020.
Project opponents, however, might counter that the ballot petition was submitted in September, before NECEC had all its permits. They could point out that Maine’s secretary of state announced last February that enough valid signatures were in hand to put the question on the November ballot.
They could say that NECEC also knew other legal challenges were underway. So, by continuing with construction, they could argue that NECEC was moving ahead with full knowledge that it was at risk of having the project halted.
Opponents also are sure to note that retroactive laws aren’t a new thing in Maine. They were used notably in the late 1980s in a vested rights case that involved zoning and residential construction on Portland’s working waterfront.
IF QUESTION 1 FAILS
Q: If the initiative is defeated, what other weapons would opponents have to continue fighting the project?
A: Beyond the ballot question, opponents are engaged in a handful of legal and regulatory challenges. Certain rulings on any one of them could delay or even kill the project.
• In August, a Superior Court judge ruled that Maine’s Bureau of Public Lands failed to properly assess whether a one-mile lease across two publicly owned lots would cause a “substantial change” in use, as required by law. That compelled the DEP to consider whether it should suspend or revoke NECEC’s permit to build the transmission line. The agency held a hearing on Oct. 19, and the DEP commissioner is reviewing the case.
There’s no deadline for a decision. Both the bureau and NECEC have appealed the Superior Court ruling to the supreme court, but a decision may not come until June.
• Project opponents have been engaged for over a year in protracted regulatory fights over the DEP’s May 2020 approval of NECEC’s permit and a December 2020 project ownership transfer.
In a June 2020 appeal, the Natural Resources Council of Maine contended that only the citizen Board of Environmental Protection – not the DEP – has authority to make the final decision. A year later, the group appealed a minor revision in NECEC’s application involving wetlands, a move disputed by NECEC. These are technical, legal disputes that don’t get much public attention but still have some potential to trip up the project.
• The Army Corps of Engineers, a federal agency that gets involved in large wetland projects, is another potential avenue for opponents of the project. Roughly a year ago, the Appalachian Mountain Club, Natural Resources Council of Maine and Sierra Club Maine filed a lawsuit saying the Army Corps failed to rigorously assess the transmission corridor project’s environmental impact.
The groups said the Army Corps should have studied and prepared an “environmental impact statement,” which is more rigorous and covers a broader range of issues than the “environmental assessment” that was performed on the Maine project.
Notably, these challenges could be “curable,” in legal parlance. NECEC might be able to clear up the lease dispute, for instance, if the Bureau of Public Lands belatedly can conduct a proper review or if the line can be drilled under the public lots, as NECEC has suggested as a possibility. Or the Army Corps could conduct a fuller environmental review. But options such as these would take time, be subject to additional public input and face inevitable legal challenges.
Q: Could project opponents in the Legislature take some action?
A: Yes. Bills that either died in session or failed to move ahead after the ballot question took center stage could be revived. One example is a resolve aimed at studying whether the NECEC project would actually reduce greenhouse gas emissions. Another bill, which served as a basis for the ballot question, would require legislative approval of certain transmission lines on public lands and in the Upper Kennebec region.
Q: Could legal action in Canada affect the project’s outcome?
A: It’s not likely. To connect with the U.S. grid, NECEC energy supplier Hydro-Quebec needs to build the 62-mile Appalaches-Maine Interconnection, roughly from Thetford Mines, Quebec, to the Maine border. The project was approved in May by the Commission of the Canada Energy Regulator.
The project is opposed by indigenous people in Canada. In July, five First Nations tribes threatened to sue the Quebec government and provincially owned Hydro-Quebec if the project wasn’t suspended, but that action is pending.
Last October, the Innu Nation of Labrador filed a $4 billion claim against Hydro-Quebec. That suit attracted a lot of attention, but it isn’t over the NECEC line or even the dams in Quebec. It seeks compensation for taking and flooding tribal land in 1969 to build the massive Churchill Falls dam in Labrador, which also supplies power to Hydro-Quebec.
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