Heavy machinery is used to cut trees to widen an existing Central Maine Power power line corridor to make way for new utility poles, April 26, 2021, near Bingham, Maine. The developer of a $1 billion electric transmission line is suspending construction at the request of Maine’s governor after she certified election results Friday, Nov. 19, 2021, in which residents firmly opposed the project. Credit: Robert F. Bukaty

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Tom Saviello of Wilton is a former state senator.

When I was elected to the 125th Legislature as the senator from Franklin County, I was given the honor to serve on a special select committee to deal with LD 1, “An Act To Ensure Regulatory Fairness and Reform.”  The committee’s goal was to figure out how we could improve the regulatory environment within the state. 

One area we decided needed streamlining was Maine’s Board of Environmental Protection (BEP). LD 1 originally had considered eliminating the Board of Environmental Protection and replacing it with a special court. Many businesses and environmental groups felt the BEP was getting bogged down in managing the Department of Environmental Protection and conducting hearings on too many projects instead of focusing on projects having a significant environmental impact on the state.

The committee’s solution was to reduce the number of board members to seven from 10, requiring that at least three members have technical expertise, and to limit the board’s jurisdiction to projects of significant statewide impact. We even defined what we meant by statewide significance. This includes projects that: involve an activity not previously permitted or licensed in the state; projects that are likely to come under significant public scrutiny; and projects located in more than one municipality, territory or county or projects that will have an environmental or economic impact in more than one municipality, territory or county.

Under the revised law, the Board of Environmental Protection — not the Department of Environmental Protection — “shall decide each application for approval of permits and licenses that in its judgment represents a project of statewide significance.” More important, “the commissioner shall decide as expeditiously as possible if an application meets 3 of the 4 criteria set forth in section 341-D, subsection 2 and shall request that the board assume jurisdiction of that application. …. If at any subsequent time during the review of an application the commissioner decides that the application falls under section 341-D, subsection 2, the commissioner shall request that the board assume jurisdiction of the application.”

The law is clear that the board shall assume jurisdiction over applications referred to it when it finds that at least 3 of the 4 criteria of this subsection have been met.

Recently, the first real project that met these criteria came along – Central Maine Power’s New England Clean Energy Connect (the CMP Corridor). But, the BEP did not take jurisdiction. Why not, you might ask? Because the then-commissioner failed to refer it to the board as required by statute and the board never considered the issue until a permit for the corridor was appealed.

Unfortunately, I believe the mishandling of the permit jurisdiction and subsequent appeal has been nothing but a continuing disaster.

In May 2020, the NECEC Corridor DEP permit was issued. In June 2020, the permit was appealed. I think all would agree a lot has happened since the original appeal was filed. Yet the BEP did not schedule an appeal hearing until May 17-18, 2022, two years after the appeal was filed. The statute requires the BEP to make “timely” decisions on permit appeals, yet they failed to do so in the case of this major project.

The May hearing has now been rescheduled for July 20-21. In a letter to the appellants, the chair of the BEP stated the hearing would only address the original appeal. The chair has decided the people’s vote to stop the corridor cannot be included in the hearing. He also decided any references to the court cases or the DEP commissioner’s suspension of the corridor permit cannot be discussed. This makes no sense.

The DEP staff has drafted proposed changes to the permit based on the original appeal. They have told the appellants’ attorneys they can only address these; nothing more, nothing less. In fact, they have made it very clear the public cannot participate in the hearing.

So, I go back to LD 1, “An Act To Ensure Regulatory Fairness and Reform.” The work we did in the 125th Legislature was established to prevent a fiasco like this on projects of statewide significance. I think you should be outraged at the BEP’s actions, or lack thereof, whether you are in favor or against the corridor. The laws need to be fixed to remove the power from a select few. In the meantime, the BEP members need to step up to demand a public hearing on the whole record and not an outdated appeal.