The Central Maine Power Co. corridor won a key court case on Tuesday. It does not mean the $1 billion hydropower rejected by voters last year is back on.
The Maine Supreme Judicial Court ruled that the anti-corridor referendum was unconstitutional as long as CMP and affiliates could prove that they built enough of the project before the 2021 election to claim “vested rights” — a legal concept that means builders were developing the project in good faith and should be allowed to finish work.
High court says Maine voters alone couldn’t stop CMP corridor
The ruling was a victory for the project, but it provides no guarantee that it will be built.
While justices hinted that CMP has a good case, finalizing it could take months. That would imperil a construction deadline for the regional project. Another high-court decision and even more regulatory actions are pending, adding still more corridor uncertainty.
Here’s what you need to know about the project’s hard path.
The clock is running down on a key construction deadline.
Before the recent legal hurdles, the corridor was expected to be completed in spring 2023. But it has a construction deadline at the end of next year and must be in service by August 2024 under a contract with Massachusetts.
The proceedings around the vested rights question could be arduous. Adam Cote, a lawyer representing the anti-corridor side, said he expected it would take several months with a comprehensive discovery process.
That side argues that CMP and affiliates sped up the construction process because they knew the project was unpopular. But Chief Justice Valerie Stanfill checked that in her ruling for the court, pointing to 124 miles of corridor cut and $450 million spent by Election Day 2021, also rejecting opponents’ arguments that the project could not have begun in good faith.
Observers can “read the tea leaves” for what that means for the project if the vested-rights case comes back to the high court, said Jeff Thaler, an energy attorney with Preti Flaherty, a firm that represented corridor supporters in the case.
But time is not on their side. While staying formally to the corridor, Massachusetts policymakers have already begun to examine alternatives. A wind transmission line planned for Aroostook County has emerged as a favorite in that race.
Another court ruling could erect a roadblock.
This is only one of the corridor cases sitting before the high court. On the same day in March, justices heard arguments in the referendum case and another concerning public lands leases for the project. A decision in the latter case could create other problems for CMP.
That case wrestles with whether Maine had the authority to lease 33 acres in Somerset County to the project without asking the Legislature first. A Superior Court judge ruled in August it did not. If the courts rule in favor of the plaintiffs, it would require CMP to either seek two-thirds approval of the lease in both chambers or find another route. Either would be hard.
The current iteration of the Legislative is hostile to the project. More than two-thirds of the Maine Senate and a majority of the Maine House supported a resolution saying the project is a “substantial alteration” of the public lands, although the 2022 election now looms.
Finding an alternative route would be tricky as well. CMP explored five different routes than the one ultimately chosen, according to the Department of Environmental Protection’s final order on its permit. All were found to be too cumbersome to follow.
Appeals and other proceedings still loom.
Those two cases are not the only challenges before the project. Corridor opponents, whose 2021 campaign against CMP was funded by energy companies that rival the Maine utility for shares of the regional power grid, are running a sophisticated effort to stall it.
After the Maine Board of Environmental Protection ruled in July that CMP would keep access to the corridor route if it won in court, opponents filed appeals in state court. From there, those cases could go all the way up to the law court.
“I don’t think there’s a person who could, straight-faced, say this project has a bright future or has a substantial likelihood of happening,” said Cote, the anti-corridor lawyer.