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Top Maine court strikes down portion of ballot question that killed power line

Maine voters passed a public referendum in 2021, halting a project that would cut through Maine’s forests to run transmission lines carrying Canadian-generated electricity into New England.

(CN) — A stymied project to string up a 145-mile electrical transmission line from Canada to Maine faces another shot after a narrow reversal Tuesday from the Maine Supreme Court.

Forces critical of the project had stopped it with a voter initiative that received 59% support in last year's election. The ballot question asked voters if they wanted to ban construction of such lines in the Upper Kennebec Region and require legislative approval for future projects.

The catch, which the state Supreme Court found unconstitutional Tuesday, is that the initiative purported to have retroactive effect, reaching back to 2020 for some projects and to 2014 for others if the project involved public land.  

Groups pushing for the question’s passage say transmission line projects should be banned to preserve the Maine wilderness and the habitat it provides. No specific project appeared by name in the ballot question, but one was on the forefront of many voters' minds: the New England Clean Energy Connect, or NECEC, which had spent $450 million and cut 124 miles through field, forest and stream by the time passage of the ballot question required it to stop work on the transmission line.

Developers of the NECEC describe the effort to carry Canadian-generated hydropower to Maine as a major step in reducing the region’s reliance on fossil fuel. Indeed, oil or natural gas are responsible for heating the vast majority of New England homes in the winter. As of 2020, a mere 14% of the region heats with electricity.

In the lead-up to the 2021 election, proponents of the project spent millions in a failed effort to defeat the question. While the project still needed a couple of permits and approval from some municipalities, the Public Utilities Commission had issued a certificate of public convenience and necessity.

After a trial judge denied the NECEC’s request for a preliminary injunction to block the ballot initiative from going into effect retroactively, the developers sought relief from the Maine Supreme Court.

In Tuesday’s ruling, Chief Justice Valerie Stanfill wrote that the portion of the initiative saying it applied to projects retroactively “would infringe on NECEC’s constitutionally-protected vested rights if NECEC can demonstrate by a preponderance of the evidence that it engaged in substantial construction of the Project in good-faith reliance on the authority granted by the [certificate of public convenience and necessity] before Maine voters approved the initiated bill by public referendum.”

Stanfill noted that the ruling comes short of the NECEC's request to declare it had a right to finish the whole project. Taking a narrower position, she wrote that the voter initiative "does nothing to affect the other permits or approvals that NECEC needs before it may complete the Project, many of which are still the subject of pending proceedings."

The Maine Office of Attorney General declined to speak about the decision.

Avangrid, the company that owns the company intending to build and operate the transmission line, hailed the decision as a victory for a clean energy future.

Saying opposition to the project comes from fossil fuel companies, Avangrid added the project would bring low energy prices at a time when the prices of oil and gas are in flux.

“These companies have fought this clean energy project in every legal manner possible, filing challenge after challenge in a desperate effort to hold onto their share of the market,” the company said.

The Natural Resources Council of Maine, which earlier described the project’s suit as an “effort to subvert the will of Maine voters,” said Tuesday it was unclear when and how long the courts would take to review the issues surrounding the transmission line.

Stanfill remanded the case to the Business and Consumer Docket, where the trial court will make factual findings, such as whether the project forged ahead in good faith or whether it quickly buzzed through Maine’s forests in order to convince the courts it had a vested right to proceed.

Like the comment she made before leaving the courtroom after the panel of five justices heard oral arguments in the case back in May, Stanfill ended her decision by saying the court only decided a limited question of law.

“We emphasize that our analysis and conclusions are not based on the wisdom of either the Project or the Initiative,” she wrote.

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