Trial begins over reviving Maine energy corridor project defeated in 2021 referendum

PORTLAND, Maine (WMTW) - A long-awaited civil trial over possibly reviving the New England Clean Energy Connect (NECEC), a proposed 145-mile electricity transmission corridor through the Maine woods that Maine voters rejected two years ago, is underway.

The plaintiffs, Central Maine Power and its parent companies, Avangrid and Iberdola, who control NECEC, are challenging a law, established by the referendum, banning completion and operation of the project.

The corridor stretches from Maine’s border with Canada to a substation in Lewiston that would transmit electricity generated by hydropower in Quebec to the New England power grid, primarily to serve customers in Massachusetts.

A jury heard opening statements on Monday at the Cumberland County Superior Court in the case of NECEC Transmission v. Maine Bureau of Parks & Lands.

“This is a case about fundamental fairness about whether Maine is a place where people can depend on the protection of the existing law when they propose, design, and build something,” NECEC attorney John Aromando told the jury, “Or whether Maine is a place where the law can be changed after the fact and tear down what has already been built.

In August 2022, the Maine Supreme Judicial Court declined to uphold the statewide referendum that halted the project, finding cancellation of the project could violate Central Maine Power’s “vested rights.”

The Supreme Court concluded the referendum law could be unconstitutional, if CMP had obtained vested rights prior to commencing construction in January 2021, the same month anti-corridor activists submitted petitions to get their referendum on the ballot that November.

Aromando told the jury, “They knew they were too late to stop it, unless they did with a retroactive law, and that’s what this lawsuit is all about.”

NECEC’s central argument is that the referendum law unfairly banned a permitted project already approved after extensive reviews by the Maine Public Utilities Commission, the Maine Department of Environmental Protection, the U.S. Army Corps of Engineers, and the U.S. Department of Energy.

The regulatory agencies had welcomed the company’s projection that the hydropower corridor would reduce Maine’s carbon emissions by 3 million tons, the equivalent of removing 700,000 cars from the road.

NECEC argues it has vested rights due obtaining those four state and federal government permits and spending $450 million of the $1 billion construction budget.

Aromando told the jury the Maine Constitution protects “retroactive confiscation of property rights.”

He said, “You are protected from changes to the law tasking effect after – only after you made those good faith expenditures. You are protected against retroactive laws.”

Corridor opponents, including the state’s attorney general’s office, defending the law, say CMP accelerated construction to show more progress before voters could stop it.

Jamie Kilbreth, an attorney for the Natural Resources Council, which spearheaded corridor opposition in 2021, said, “Citizens have a right to initiate legislation. That’s an important constitutional right. It shouldn’t just be dismissed as, ‘Oh, opponents, they have bad motives.’”

A-third of that corridor path resulted from clear-cutting trees, and CMP did most of that before Mainers voted 59% to 41% to kill the project in November 2021.

“I think the will of the people is very important,” Kilbreth said.

The Supreme Court remanded the case to the Business and Consumer Court. The trial is before Cumberland County Superior Court Judge Michael Duddy and being heard by an 11-member jury of six women and five men.

Duddy scheduled a two-week trial with closing arguments on April 19.

The Maine State Chamber of Commerce, Cianbro, the lead construction contractor, the International Brotherhood of Electrical Workers, joined with the plaintiffs. The IBEW attorney told the jury the project was generating $1 million a week in wages and benefits -- a two-year gig cancelled after 10 months.

A separate Supreme Court ruling after the 2021 referendum, in November 2022, found the law it created cannot retroactively invalidate the lease granted to NECEC by the Maine Bureau of Park and Lands, a crtitical state lease of public land that includes just a one-mile section of the corridor.

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