Maine’s high court ruled Tuesday that part of a referendum blocking the controversial $1 billion Central Maine Power Co. corridor was unconstitutional, but backers must win in court again to keep it on track.
In a 39-page ruling, five members of Maine’s Supreme Judicial Court said the portion of the November 2021 referendum that retroactively prohibited the corridor project, which had previously secured a number of approvals, infringed on CMP’s rights to build the project. The anti-corridor referendum overwhelmingly passed and halted construction.
The result still leaves the project in limbo. The court’s decision sends the project to a lower court for further proceedings. Massachusetts, which is paying for the corridor, has given CMP and allies until the end of 2023 to fulfill the project that will help that state meet clean energy goals and supply power to the regional grid. Any delay helps corridor opponents who hope Massachusetts will seek other options.
“I keep telling people this is a marathon,” said Tom Saviello, a Wilton selectperson and a lead opponent of the project. “We might be in the final miles, but it always gets harder as you get closer to the finish line.”
The high court’s decision forces the business court to determine the extent to which CMP and allies had “vested rights” to the project prior to last November, a question that has hovered over the referendum since the company began construction.
If it can prove it started work under a “good-faith reliance” that the project would be legal before the vote, then the referendum would be unconstitutional. At that point, CMP and partners could move forward under a state permit “as granted under then-existing law,” justices ruled.
The ruling was cheered by Avangrid, CMP’s parent company, as a victory for clean energy projects moving forward and a “desperate” attempt by energy companies that opposed it to hold onto their share of the regional power market.
“It is time to move away from the status quo fossil fuel companies who will undoubtedly continue their fight to maintain a stranglehold on the New England energy market,” the company said in a statement.
It is another procedural twist in one of the largest and costliest fights over a project in Maine’s history. The project, known as the New England Clean Energy Connect, aims to bring 1,200 megawatts of hydropower energy to New England. The region has seen the prices for electricity and the fossil fuel energy that powers it skyrocket over the past year, and Maine regulators expect prices to continue rising.
The complaint alleged that the referendum violated legal principles including vested property rights, separation of powers and the contracts clauses in both the Maine and U.S. constitutions. Vested rights mean that CMP and allies have already made large investments in the project in good faith that it would go forward. Work on the project was halted the day after the referendum passed last November per Gov. Janet Mills’ request.
Project proponents asked the court to determine it has vested rights to an entire completed project. But justices went narrower, only focusing on referendum’s requirement that the Legislature would need to retroactively determine if the project and those like it are in the public interest, instead of relying on the Public Utilities Commission’s permit. It did not consider any other state or federal permits.
Saviello said opponents would likely focus on whether CMP had successfully completed the permit process prior to the referendum, rather than the dollar amounts CMP invested into it. Doing so would make the question about the process, rather than resources invested.
It would be “a huge mistake” to consider vested rights otherwise, Saviello said.
“It would be sending the wrong message,” he said. “[Vested rights] should be about what was done right and what was done wrong.”
The referendum was the most expensive ballot initiative in state history with the campaigns spending more than $90 million. Avangrid and its supporters largely funded their side of the campaign while corridor opposition saw generous funding from fossil-fuel interests competing for market share as well as environmental and grassroots groups.
In 2020, the high court killed an earlier anti-corridor referendum attempt on the grounds it was deemed unconstitutional. The court is also expected to rule soon in another case over the constitutionality of state land leases for the project. That ruling could complicate matters more and send key parts of the corridor’s route to the Legislature for blockbuster votes.
The court’s rulings come after a July finding by Maine’s Board of Environmental Protection that allowed the project’s developers access to their corridor route with two caveats: One was that if the high court found the referendum unconstitutional, construction would have to start within two years for the permit to remain valid and the other was increasing the amount of conservation land from 42,000 acres to 50,000 acres.
CMP said last October that it had spent $350 million on the project so far and that it would lose $67 million if work on the corridor was delayed for a year over the disputed lease.