Dates and details of work along the stalled western Maine power line corridor dominated testimony in the third day of a jury trial that could help decide the project’s fate.
Attorneys on Wednesday dwelled at times on whether tree clearing along the New England Clean Energy Connect route qualifies as “significant, visible construction,” a legal definition central to the case. That’s because permission to resume construction on the 145-mile corridor could hinge on whether developers, affiliated with Central Maine Power, made enough progress for the project to achieve “vested rights.”
The state halted work in November 2021 after voters approved a referendum aimed at killing the project. By then, NECEC contractors had already erected some of the line’s steel towers – clearly visible construction. However, lawyers defending the legislation presented new evidence purporting to show that developers sped up that tower work chiefly to gain vested rights before the election.
The jury must decide the facts around those rights to determine if NECEC is entitled to build on the corridor. In the words of the Maine Supreme Judicial Court, jurors will need to determine “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 Judge Michael Duddy last August to determine the vested-rights issue. The case is being heard in the Business and Consumer Court in Portland.
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.
CROSS EXAMINATION
Much of the trial is steeped in dates and timelines, focusing on what actions were taken when and why. But the questioning veered in an unexpected direction Wednesday during the continued cross examination of Thorn Dickinson, the now-retired president and CEO of NECEC Transmission. Dickinson was being questioned by Jamie Kilbreth, the lawyer for one of the defendants, the Natural Resources Council of Maine.
Kilbreth asked Dickinson several questions about the project’s potential impact on climate change and how the transmission line, bringing electricity generated by Canadian hydropower, would benefit Maine, Massachusetts and New England as a whole. This gave the NECEC legal team a chance to set aside, for a moment, the tedious barrage of technical charts and present the jury with the personal opinions of the project’s top executive.
Dickinson’s demeanor was open, affable and respectful, even when discussing the project’s foes, some of whom he said he got to know over the years. He voiced enthusiasm about what he saw as the project’s benefits and defended the schedule drawn up by the company to achieve them.
The amiable atmosphere evaporated, however, after Kilbreth probed NECEC’s motivations to skirt a 1-mile stretch of public land in western Maine, a separate legal case in which NECEC prevailed. There was a testy exchange, an objection from the NECEC lead attorney, and a sidebar conference with the judge.
Questioning then focused on whether an email from a top Avangrid executive urging the start of construction to protect vested rights represented the company’s strategy. Dickinson said it was not.
TREE CLEARING
Later in the day, Bernardo Escudero took the witness stand. Escudero is a former executive with NECEC Transmission and Avangrid who helped put together the initial construction schedule in 2018. He had previous experience working on CMP’s Maine Power Reliability Program, a $1.4 billion transmission upgrade completed in 2014.
John Aromando, the lead attorney for NECEC and Avangrid, reviewed weekly construction updates to shore up contentions that the company shifted deadlines and work assignments based on the delays it faced from lawsuits and regulatory challenges, not to gain vested rights. The jury was able to see photographs of tree clearing and pole setting in the corridor, and at the planned $300 million station site in Lewiston, where the project’s direct-current power would be converted into alternating current for the electric grid.
Yes, Escudero said, he was familiar with vested rights and wanted the project to vest as soon as possible. But the schedule wasn’t accelerated for that reason, he said, but rather to mitigate risk such as the pending referendum vote.
That position was challenged in cross examination by Jonathan Bolton, an assistant attorney general representing Maine in defense of the law passed by voters. He produced an email to which Escudero was copied that discussed the need to get visible, significant above-ground infrastructure in place as soon as possible, in order to vest the project.
“Clearing trees wouldn’t be infrastructure, would it?” Bolton said.
The $1 billion 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.
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