A partially completed tower and a finished tower are seen in a section of the NECEC corridor along Route 201 in Bingham last November. Gregory Rec/Staff Photographer
Jurors in a landmark case that could decide the fate of one of the most controversial Maine energy projects in decades heard vastly different reasons why developers of the New England Clean Energy Connect electric transmission line project started construction.
In opening arguments in the state Business and Consumer Court in Portland on Monday, lawyers for the developers and the opponents set the tone for a seven-day trial that will revolve around a core question: Did NECEC begin “significant, visible construction” in good faith after receiving permits on a schedule meant to meet its contract obligations?
Or did NECEC speed up the work in an effort to assert a narrow legal doctrine called “vested rights”?
The trial has attracted national attention because the case reflects a broader debate over the siting of large transmission lines to carry renewable power in hopes it will reduce the dependence on fossil-fuel generation that contributes to climate change.
The nine jurors and two alternates heard two very different sets of facts for what motivated NECEC to start and move ahead with construction.
It’s clear that the project schedule proceeded with the goal of meeting its planned commercial operational date of December 2022, said John Aromando, the lead attorney representing Avangrid Inc., the plaintiff in the case. And the company could have met that deadline, if not for a concerted effort by project opponents to challenge every permit over a course of years, in court, in state and federal agencies, and at the ballot box.
“This project was supposed to go online at the end of last year,” Aromando said. “Everything has been delayed. Everything has been pushed back.”
Showing the jury a cover sheet from June 2018 contract with baseline schedule for construction, Aromando observed how detailed it was.
“It laid out a path to complete the project,” he said, noting the permits and construction activity required.
But that representation omits some key evidence, said Jonathan Bolton, who represents the Maine attorney general and the Public Utilities Commission. Bolton outlined how defendants in the case will present documents and emails showing that NECEC officials changed the construction schedule specifically to get ahead of the first of two voter referendums that aimed to kill the project and secure the legal doctrine of vested rights.
Their goal, Bolton said, was to get some steel towers in the ground more quickly than planned, “in order to protect the project against the referendum.”
Bolton referred to a document prior to Sept. 9, 2020, in which a top official from Avangrid, says, “start construction, protect our vested rights!”
This strategy cost extra money, Bolton said, with contractors setting towers in random places.
That theme was amplified by Jamie Kilbreth, an attorney representing the Natural Resources Council of Maine and six residents who oppose the project. He displayed correspondences that he said were part of NECEC’s strategy to mitigate the impact of the referendum, with documents showing that officials discussed the need to get poles in the ground, not just to clear the corridor.
The distinction appears to be important, because of the legal requirement to gain “significant visible construction.”
“They wanted to vest this project,” Kilbreth said. “They wanted to beat the referendum.”
LONG BACKGROUND
The project is organized under NECEC Transmission LLC, a subsidiary of Connecticut-based Avangrid Inc., the parent company of Central Maine Power. Both are controlled by Iberdrola, a Spanish multinational energy company.
In a run-up to the trial, parties in the case filed numerous motions with the aim of limiting what evidence and witnesses the jury could see and hear.
The NECEC project would have a capacity of 1,200 megawatts, enough power for 1.2 million homes. Paid for by Massachusetts utility customers, the power line would help lower electricity prices in New England by introducing a new source of round-the-clock hydroelectricity from Quebec, according to the Maine Public Utilities Commission. The agency granted the initial go-ahead permit in 2019.
Opponents say parts of the 145-mile corridor would destroy important forest and wildlife resources and that the electricity wouldn’t be as environmentally “clean” as supporters claim. The foes successfully mounted a ballot initiative that led to voters rejecting the project in November 2021. The vote came after NECEC already had begun clearing a corridor through timberland in western Maine and erecting towers, work that was halted by state environmental regulators a few weeks later.
The plaintiffs in this case are both NECEC and Avangrid. They filed a complaint the day after the ballot initiative passed on Nov. 3, 2021, seeking to prevent the new law from being applied retroactively to their project.
That’s why the timing and intent of NECEC construction schedule is pivotal. The jury must decide the facts around vested rights to determine if NECEC is entitled to build on the corridor. The jury must decipher, in the words of the Maine Supreme Judicial Court, “whether NECEC acquired a cognizable property right that the Maine Constitution protects from being impaired by retroactive legislation.”
The Law Court sent the case, called NECEC Transmission LLC et al. v. Bureau of Parks and Lands et al., back to Justice Michael Duddy last August to determine the vested-rights issue.
NECEC has an estimated price tag of $1 billion. The company spent more than $500 million before the stop-work order. Some of the money went to clearing a new 53-mile corridor through working timberland from the Quebec border to The Forks. Construction began in January 2021, after NECEC received a final permit. The project was already behind schedule by then; the line was supposed to be in service during 2022.
But the facts surrounding the power line and its construction are far from simple, in part because of how much time has gone by and the number of legal and regulatory challenges that have occurred.
By one count, the project has been subject to at least 38 reviews. Testimony, depositions, exhibits, emails and other documents generated in this case now exceed an estimated 2 million pages. The project has required approvals from multiple state and federal agencies and two dozen municipalities. It has spawned lawsuits relating to a public lands lease and permits from the Maine Department of Environmental Protection, U.S. Department of Energy, Army Corps of Engineers and Massachusetts Department of Public Utilities.
The defendant is the PUC, represented by the Maine Office of the Attorney General. Key defendant-intervenors include the Natural Resources Council of Maine, the state’s leading environmental advocacy group, and Tom Saviello, a former state senator who led the ballot initiative against the project. Also fighting the project is NextEra Energy Resources, a Florida-based utility company that now owns the Seabrook nuclear plant and would be hurt by the use of less-expensive Canadian power.
A key intervenor supporting the project is H.Q. Energy Services, the American arm of Hydro-Quebec, the Canadian utility that would supply the power.
Based on recent proposed witness list filings, the jury will hear from experts with deep knowledge of the construction schedule for the project. The defendants and intervenors want to question 23 people, including CMP and Avangrid executives Adam Desrosiers, vice president of electric operations; Gerry Mirabile, director of NECEC permitting; Thorn Dickinson, NECEC’s now-retired chief executive; and Robert Kump, Avangrid’s former president. Also on the list are out-of-state contractors central to preparing the corridor and building the project, Irby Construction and Northern Clearing, as well as executives from Hydro-Quebec.
The plaintiffs want to question Dickinson and Desrosiers, as well as executives from FTI Consulting, a global corporate advisory firm, and Elizabeth Wyman, the PUC’s general counsel and hearing examiner.
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