In the end, it took a civil jury trial – a procedure so unusual many lawyers and even judges were unfamiliar with it – to resolve what happens with the extraordinarily entangled power line to Canada: It will be built.
Last week’s unanimous conclusion from nine ordinary Maine citizens in effect reversed the 59% majority of voters who decided, in a 2021 referendum, that the project should be shut down. Jurors found that New England Clean Energy Connect’s builder, Avangrid, parent of Central Maine Power, went ahead in good faith earlier and created “vested rights,” making the referendum unconstitutional as “ex post facto” law.
Though almost everyone is mum, what happens next is clear: The Department of Environmental Protection will reinstate permits so construction can resume, even as inevitable appeals proceed.
New England desperately needs the electricity Hydro Quebec will provide, and relief from the exorbitant rates of natural gas suppliers in the absence of 1,200 megawatts of hydropower, which would have started flowing in 2022 without all the objections and delays. In the meantime, generation charges nearly doubled.
Against impressions of controversy and confusion, however, and with the honorable exception of the Business Court jury, many Maine institutions failed us in this drawn-out and largely unnecessary saga.
We must learn these lessons thoroughly to stave off the worst effects of global warming that, for Maine, include inundations from rising seas.
The basic facts should never have been in serious dispute. Massachusetts, like New York, Maine and most other New England states, set ambitious renewable electricity standards to jump-start conversion away from fossil fuels.
Massachusetts sought bids for one such contract, and Hydro Quebec won – angering NextEra, a Florida energy giant, about which more in a moment. To get power from Canada to the Bay State, lines must traverse northern New England. After a botched attempt in New Hampshire, Maine was up next.
The cost to Maine ratepayers was zero and, in compensation for cutting the corridor through the north woods, benefits totaling $500 million were offered; perhaps it should have been more.
But the Natural Resources Council of Maine, with a long-time horror of hydroelectric dams, even those built three decades ago in Canada, went to work to convince Mainers that such a corridor – necessary for any large-scale project, such as the King Pine wind project now moving through the Legislature – amounted to sacrilege.
As for Hydro Quebec, NRCM accused it of “greenwashing” electricity from other sources, betraying ignorance of how electric grids actually work.
Since electricity must be provided 24 hours a day, 365 days a year, no amount of solar and wind – intermittent, by definition – can ever do the job. Constant sources, currently hydro, nuclear – and fossil fuels – are also needed. Which would you prefer?
When the referendum battle was joined, Hydro Quebec, and CMP, did a terrible job defending the project. For a long time, CMP did nothing, allowing NRCM and deep-pocketed fossil fuel allies to frame the argument.
Then, rather that campaign on something like, “Clean, affordable power for all of New England, including Maine,” CMP ran silly ads about “No retroactive laws,” which was its winning legal strategy, but meaningless concerning the project’s appeal to voters.
Nor should we exempt the news media, which presented the battle as “environment vs. big utility,” in this case a utility also in hot water over computer billing failures and poor storm cleanup response.
As widely reported, Hydro Quebec did spend $10 million opposing the referendum, with CMP kicking in a smaller amount. But nowhere was NextEra’s $20 million in favor of the referendum even mentioned.
Admittedly, until full court filings it was harder to trace NextEra’s sour-grapes role. But it previously lost a lawsuit against regulatory approvals, so it wasn’t hard to guess.
Instead of environment vs. utility giant, two utility giants duked it out. Would that have changed the Question 1 vote?
Nor does the Supreme Judicial Court get a pass. Its original ruling on CMP’s challenge essentially validated the vested rights arguments, but it remanded the case, producing seven months of delay and facilitating another whopping electric rate increase.
It’s difficult to escape the conclusion that justices didn’t want to be seen as thwarting the will of the people, nor did the Business Court judge, who granted NRCM’s request for a jury trial.
Going forward, we need to collectively make better decisions about creating a survivable future. That means accepting lawful regulatory decisions, understanding that necessary compromise may require modifying long-held positions – and definitely not filing unconstitutional referendum questions.
We’ve lost precious time. Let’s hope it doesn’t come back to haunt us.
Douglas Rooks, a Maine editor, commentator and reporter since 1984, is the author of three books, and is now researching the life and career of a U.S. Chief Justice. He welcomes comment at drooks@tds.net.
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