The fate of Central Maine Power Co.’s stalled $1 billion hydropower corridor now lies in the hands of Maine’s high court after arguments on Tuesday.
Voters rejected the corridor in a November referendum that overturned a key state permit. CMP’s parent company, Avangrid, moved to challenge the vote as unconstitutional. A judge turned that challenge back in December, allowing the anti-corridor law to take effect.
That added another legal complication alongside an outstanding challenge to a Superior Court ruling determining the state had no right to lease 33 acres of state-owned land to the project without consulting the Legislature. Those challenges, combined with the suspension of the project’s license by the state, make the corridor’s future precarious.
The two cases heard back to back on Tuesday have far-reaching consequences. Depending on the decisions in the two cases, the project could be either revived or killed for good. There are a range of options between those extremes as well, including CMP needing to find a new route.
Here are the three questions that seemed to guide Maine Supreme Judicial Court justices.
Whether the referendum is constitutional
The specter of a 2020 anti-corridor referendum bid deemed unconstitutional by the high court was present throughout arguments about the November question. The court’s ruling in that case was clear, saying it would wrongly overturn an executive branch’s authority to permit a project.
It may not apply quite so neatly to last year’s question.
The CMP side is arguing it does, saying the 2021 vote not only violated the company’s vested rights guaranteed by the Maine Constitution, but challenged the separation of powers between the Legislature and the executive branch by retroactively subverting an agency’s decision.
“The credibility of the state of Maine is at stake in this case,” he argued.
But that argument ignores the interests the public and the government may have in a project, argued Jonathan Bolton, an assistant Maine attorney general. The referendum should be seen as equal to the Legislature putting forward a bill directing public policy.
The idea that the referendum was clearly unconstitutional was quickly challenged by Justice Joseph Jabar, who said a theoretical similar project introduced after the referendum would not face the same legal questions.
“It’s not applicable to [the CMP corridor], but that doesn’t make it unconstitutional,” he said.
How construction affects the project
The constitutional question was closely related to the idea that CMP and its partners have “vested rights,” a legal concept that holds certain projects should be allowed to go forward if they started under a good-faith assumption that current law would apply to it.
Pro-corridor lawyers pointed to the project getting all of its major permits prior to the referendum as proof of vested rights. WIthout those, CMP likely would not have felt comfortable starting work, which has so far included spending tens of millions to clear a path.
But Chief Justice Valerie Stanfill brought up various appeals of federal and state permits during arguments on both cases. Choosing to begin the project without waiting for appeals to be dealt with was a risk the project chose to take, she said. That might undercut a claim to vested rights.
“I’m not saying you couldn’t start construction,” she said. “However, you knew that was happening.”
If the Bureau of Public Lands should have taken the lease to the Legislature in the first place
Central to both cases is whether the Maine Bureau of Public Lands erred in not going to the Legislature for approval of a public land lease in Somerset County. That would have relied on Maine seeing the corridor as a substantial alteration of the land’s use, something Jamie Kilbreth, the attorney for anti-corridor group Say No to NECEC, said should have been obvious.
Stanfill challenged this idea, noting the land is a working forest that is already crossed by roads and trails. Assistant Attorney General Lauren Parker also argued that precedent had determined that parcels with multiple uses can be leased without going to the Legislature.
But Justice Thomas Humphrey questioned if the state had miscalculated by not seeking legislative approval on such a massive project.
“Aren’t you taking a risk that the result has been the expenditure of enormous amounts of money here, which is at risk of being for naught?” he asked.