A jury will hear opening arguments Monday in a trial that could determine whether construction of the stalled $1 billion hydropower corridor can proceed despite being rejected by voters in 2021.
At the heart of the lawsuit is whether the project, known as the New England Clean Energy Connect, was far enough along when construction was suspended and whether that gave the project’s backers, including the parent of Central Maine Power Co., the “vested rights” to complete it.
If the jury finds that it was far enough along, the project could go forward. If not, it would remain in limbo. But there are other issues at play as well.
Appeals are expected no matter how the jury rules, leaving questions about how to expand the regional energy supply, whether investors can rely on granted permits to complete projects and the power of the voters.
The project was suspended in November 2021 following the referendum. But Maine’s high court in August found that the part of the referendum that retroactively prohibited the corridor infringed on CMP’s rights to build it.
It referred the matter to the state’s Business and Consumer Court in Portland to determine whether and the extent to which CMP and its allies had vested rights to the project before it was halted. That is where it will be next week, when court watchers expect the jury to closely consider the timelines of the project and the moves to sidetrack it.
Opponents of the project launched a second referendum bid to stop it on Sept. 16, 2020, getting enough signatures to make the ballot on Feb. 22, 2021. The company got its final major permit on Jan. 15, 2021 and erected the first pole for the project on Feb. 9, 2021. It was behind schedule by then, as it originally was expected to be in service by 2022.
A central question is whether the project was kept at its planned pace or was expedited to get it far enough along to claim vested rights before the referendum vote. NECEC Transmission, the company overseeing the project, must prove it was built in good faith expecting to complete the project and did not rush it along.
Questions of vested rights to date have been used for much smaller municipal projects in Maine, said Elizabeth Boepple, an environmental and land use lawyer at Murray Plumb and Murray in Portland, who is involved in a pending appeal on another case challenging the project. The state has no set legal definition for when developers are considered vested in a project.
“There will be a question of whether they went forward with the knowledge that the project could be halted and they couldn’t bring it to completion,” Boepple said. “Did they rush to construct it to establish a legal right as opposed to doing it to meet contract deadlines?”
CMP and parent Avangrid have been engaged in more than five years of legal challenges and efforts to secure public and regulatory approvals. Avangrid and NECEC Transmission said in their lawsuit challenging the referendum’s validity that they had spent almost $450 million before the project was stopped, or more than 40 percent of its total estimated cost. They also said 124 miles or 80 percent of the right-of-way for the project had been cleared.
The project was originally scheduled to start in 2019 and be completed and in-service by 2022, according to CMP. The date for completion was moved to the second quarter of 2023 following the law court’s ruling last November that a state-issued lease over public lands was valid. It is now expected to be done this December.
There are bigger issues beyond the trial at play, said Tony Buxton, a lobbyist who works for the firm Preti Flaherty and represents large energy consumers who support the corridor. He said it is important to build infrastructure, including transmission lines, to keep the economy running. He also worries of scaring off future investors if the corridor is killed.
“We all get upset when the lights go out,” he said. “We need to build things to keep that from happening.”