The appeals court judges seemed receptive to the project but shocked at how the government defended it.
BOSTON (CN) — A controversial proposal to build more than 50 miles of hydroelectric power lines through western Maine’s pristine wilderness got a mostly positive reception from the First Circuit at oral arguments Tuesday, although the federal agency supporting it appeared to shoot itself in the foot.
Even though the Department of Energy OK’d the project after performing an environmental analysis, challengers with the Sierra Club told the court that the U.S. Army Corps of Engineers shouldn’t have greenlighted it without conducting its own study. The three-judge panel presiding over the Sierra Club’s appeal Tuesday seemed perplexed and annoyed that, rather than just saying that it relied on the Energy Department’s analysis, the Corps kept arguing that it didn’t have to do one.
“Can’t you just say you’re incorporating,” asked U.S. Circuit Judge David Barron. “Then this whole thing goes away.”
“The Corps doesn’t need to,” insisted its lawyer, Jeffrey Hall of the U.S. Justice Department. “The regulations don’t require that the Corps take on that additional burden.”
“I just don’t understand what the point of this is,” exclaimed a frustrated U.S. Circuit Judge O. Rogeriee Thompson. “How is it possible that there’s no agency communication or coordination? This sounds crazy.”
“It’s the same government after all,” said Barron, who like Thompson was appointed by President Obama.
Massachusetts has wanted for years to import electric power from some of the large hydropower dams in northern Canada. An earlier plan to route power lines through New Hampshire fell apart in 2018 when the Granite State denied a permit. So an alternative plan was developed to route the power through western Maine.
The new plan requires building 53 miles of transmission lines from the Canadian border to meet up with existing lines.
The project received quick approval in the waning days of the Trump administration. The Corps rushed it through without preparing an environmental impact statement, instead issuing a finding that the project would have no significant impact without giving the public a chance to comment.
The Sierra Club filed a lawsuit against it along with the Appalachian Mountain Club and the Natural Resources Council of Maine. The Sierra Club maintains that the project will cause irreparable harm because it will require more than 1,400 steel poles, standing 10-stories tall with wires strung between them that will be visible for miles around.
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 club says.
The western Maine mountains are “a unique and incredibly important ecological region,” the club told the court in its 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,” according to the club. “Its cold headwater streams and lakes comprise the last stronghold for wild brook trout in the eastern United States.”
A federal judge acknowledged that the project “is unpopular and deeply disturbing to many people” but nevertheless denied a preliminary injunction against it on December 16. 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.
On appeal, the First Circuit judges kept trying to figure out why the Corps didn’t just rely on the existing analysis. “The DOE has different expertise from the Corps,” suggested U.S. Circuit Judge Sandra Lynch, a Clinton appointee. “The Corps was concerned about wetlands. Did the DOE look at the same issues?”
But Hall didn’t accept the help. “It appears the DOE did a thorough analysis involving water,” he said.
“So why not just say the government has done one?” asked Barron.
“I don’t understand either,” said Thompson. “Are you looking for precedential value in saying you don’t have to do one?”
But Hall again dodged the suggestion. “I can’t represent the DOE,” he answered.
One reason the judges appeared so bewildered is that it didn’t seem obvious that the Corps was correct that it didn’t have to do anything. The Corps relied on regulations involving corridors that crossed a single body of water but this case involves hundreds of discrete wetlands areas, according to the Sierra Club’s attorney, Kevin Cassidy of the Earthrise Law Center at Lewis & Clark Law School in Portland, Oregon.
“When you have wetlands that are numerous and dispersed, how are we supposed to look at that?” asked Barron.
Hall replied that, “just because it’s divided into a lot of smaller areas, that doesn’t change the result.”
“But if you had one area every mile, it seems a little odd to say it’s the same as one big river,” Barron said. “Maybe we should be taking a look at the whole area, since it’s pervasive.”
Barron added that the regulation “just doesn’t address this case. It’s odd to read it as though it addresses this when it doesn’t. … Why isn’t there a permit for each wetland, so you’d have 50 or 80 permits? I don’t understand how that decision gets made.”
“They’re all small, and all within one project, so it makes sense to do it this way,” Hall answered.
“Isn’t that an end-run?” Barron asked skeptically.
Joshua Dunlap of Pierce Atwood in Portland, Maine, representing the Central Maine Power Company, suggested that, even if the Corps should have said it was relying on the DOE, the fact that it didn’t was “harmless error” and the court should allow the project to go forward anyway.
But “how can it be harmless error if the Corps is willing to proceed without considering the DOE?” asked Barron. Thompson was also doubtful on this point.
“OK, here’s my final stab at this,” said Barron. “It’s the same government after all, so it seems to me the case might be mooted.”
Lynch suggested that, “instead of making the Corps review a sister agency’s determination,” the court could just say that “there’s no point in asking one branch of the federal government to express a disagreement with another branch of the federal government.”
On rebuttal, however, Cassidy said the DOE’s analysis was inadequate and that the real reason the Corps was acting this way was more sinister.
“There’s no rational reason why two federal agencies would do this other than to avoid looking at all the effects” of the project, he said.