The first pole of the New England Clean Energy Connect project was raised in The Forks on Tuesday, Feb. 9, 2021. The 100-foot pole was erected in an existing corridor near Moxie Pond that has been widened. Credit: Linda Coan O'Kresik / BDN

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We’ll put it in plain English: The Maine Supreme Judicial Court’s decision on the validity of the referendum that rejected the Central Maine Power Co. transmission line corridor in western Maine is a muddle. Faced with one of the most closely watched decisions of its recent tenure, the court essentially punted.

A portion of the referendum is unconstitutional, five justices wrote in a decision released Tuesday, if CMP had vested rights in the project before the November referendum vote. But, the court didn’t decide if the company has “vested rights” in the project, by way of investments in and construction already done on the transmission line. The justices sent that question back to a lower business court, which will likely initiate a new round of court filings and hearings. That court’s decision, presumably, could be appealed.

After the business court proceeding, the Maine supreme court would again consider the situation and make a final determination on the constitutionality of the referendum, in which 59 percent of voters voted to block the project and others like it in the future in the same region.

Another Maine supreme court decision involving the corridor – this one concerning the validity of a lease of state land for a tiny section of the 145-mile corridor – remains pending.

It all adds up to a lot of uncertainty with Mainers and CMP and its partners in the New England Clean Energy Connect left wondering about the status of the project. Could it be resurrected? Did the referendum really stop it?

We still don’t know because the court did not fully answer the question, and there’s likely lots of litigation still to come. Some of these questions could likely be answered outside the courtroom by officials in Massachusetts, which initiated the project to bring hydropower from Quebec to the Bay State to meet clean energy requirements. The state gave CMP until the end of 2023 to complete the project, something that currently looks unlikely.

We’re not lawyers, but here’s our understanding of the core issue. If CMP has “vested rights” in the project, it would be unconstitutional for those rights to be extinguished through retroactive law changes, which is, in part, what the referendum did. Whether the company has vested rights to complete the project will be determined by how much money was already invested in the NECEC, how much work the company did before the referendum question and on whether it sped up construction — to try to gain vested rights — knowing that the referendum vote was imminent. The court noted numerous times that the NECEC had received numerous state and federal permits to proceed with the project.

Here’s how the justices put it: “The issue before us involves the intersection of NECEC’s private interest to proceed and the interest of the electorate to determine public legislative policy. The applicability of the vested rights doctrine here turns on whether NECEC acquired a cognizable property right that the Maine Constitution protects from being impaired by retroactive legislation.”

Beyond the incomplete decision, the court’s analysis comes too late. The constitutionality of ballot questions should be determined — or at least significantly clarified — before they are put to voters. Such a process — even if it were advisory — could save Maine people, companies, regulators and others a lot of headaches, and money.

We realize that technically, courts can’t rule on matters that haven’t been formally put before them. But they can issue advisory opinions, which they did with regard to ranked-choice voting, although that one was unhelpfully after a referendum vote. Voters approved the new voting method in 2016 and the court found parts of it unconstitutional a year later. It would have been helpful to have the court’s advice about the constitutional problems before the statewide vote.

In the case of a previous NECEC transmission line referendum, CMP’s parent company filed a lawsuit against the secretary of state challenging its constitutionality. The supreme court found that the question, which sought to stop the corridor, was unconstitutional based on the state’s separation of powers. It was the first time that the Maine Supreme Judicial Court prejudged the constitutionality of a question. So, clearly, this type of review is possible ahead of time.

Opponents of the CMP project wrote a new question and gathered the required number of signatures to get it on the ballot a year later, even though there were questions about the measure’s retroactive aspects before the November vote.

Requiring a review for constitutionality before questions are put on the ballot could save a lot of trouble.

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The BDN Editorial Board

The Bangor Daily News editorial board members are Publisher Richard J. Warren, Opinion Editor Susan Young, Deputy Opinion Editor Matt Junker and BDN President Todd Benoit. Young has worked for the BDN...