Appeals Court Won’t Block Power Lines in Maine Woods

The decision advances a divisive plan to run 100-foot-tall hydroelectric cables through unspoiled moose habitat.

(Chris Marshall photo/Courthouse News)

BOSTON (CN) — A controversial proposal to build more than 50 miles of hydroelectric power lines through western Maine’s pristine wilderness won First Circuit approval Thursday.

The Boston-based federal appeals court rejected a challenge by the Sierra Club that accused the U.S. Army Corps of Engineers of failing to give a thorough review and instead rubber-stamping the proposal.

Massachusetts has for years wanted to import electric power from some of the large hydropower dams in northern Canada. It announced the route through western Maine after an earlier plan that would have routed power lines through New Hampshire fell apart in 2018 — the Granite State denied a permit.

The new plan requires building 53 miles of transmission lines from the Canadian border to meet up with existing lines.

In the waning days of the Trump administration, the project received quick approval. The Corps rushed it through without preparing an environmental impact statement, instead issuing a more cursory finding that the project wouldn’t have any significant impact.

This prompted a court challenge from the Sierra Club, the Appalachian Mountain Club and the Natural Resources Council of Maine. Noting that the project calls for more than 1,400 steel poles, standing 10-stories tall with wires strung between them that will be visible for miles around, they say the project will cause irreparable harm.

Filings from the three groups also note that the power lines would cross 481 freshwater wetlands and 300 rivers, streams or brooks (223 of which contain cold water fisheries habitats) as well as 110 vernal pools.

The western Maine mountains are “a unique and incredibly important ecological region,” the clubs told the First Circuit in one brief. “It is home to more than 139 rare plants and animals, including 21 globally rare species.”

The region “provides core habitat for marten, lynx, loon, moose and a host of other iconic Maine animals,” they added. “Its cold headwater streams and lakes comprise the last stronghold for wild brook trout in the eastern United States.”

Late last year, a federal judge denied a preliminary injunction despite acknowledging that the project “is unpopular and deeply disturbing to many people.” The judge said that the public interest “is not monolithic” and noted a finding by the Maine Public Utilities Commission that the project would also help the environment by reducing greenhouse gas emissions.

Affirming that outcome Thursday, a three-judge panel of the First Circuit was unanimous that the challengers had failed to show a likelihood of succeed at trial.

Even though the Corps has jurisdiction over wetlands, U.S. Circuit Judge Sandra Lynch wrote the court, wetlands constitute less than 2% of the project — in other words, not enough to “federalize” the proposal and trigger the need for a full environmental impact statement.

“The Corps could reasonably rely on the negligible percentage of the entire project that is within Corps jurisdiction to conclude that the Corps did not have sufficient control and responsibility to warrant federal review of the entire project,” the Clinton-appointed Lynch wrote.

For the Sierra Club, however, the real number was closer to 17%. It also cited the fact that the wetlands were distributed throughout the 53 miles, rather than concentrated in one place, as justification for the Corps to become more involved. But the court said that even the higher 17% figure wouldn’t be enough.

Lynch also was not swayed by the club’s claim that the project was federal in scope because it required approval from the Energy Department and the Federal Energy Regulatory Commission.

“The Corps could rationally conclude that the involvement of other agencies here did not rise to the level of cumulative involvement sufficient to trigger” federal control, she said.

Today’s ruling doesn’t end the lawsuit, but it does mean that the project can go ahead while the suit proceeds. And the fact that both the trial judge and the First Circuit found that the Sierra Club hasn’t shown that it’s likely to win suggests that Maine moose may ultimately have to learn to live with power lines in their backyard.

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