Sunday, January 29, 2023 | Back issues
Courthouse News Service Courthouse News Service

Vested rights of transmission line builder questioned at Maine Supreme Court

Proponents of the power line touted as bringing green power to New England say a statewide referendum in November improperly banned the project retroactively.

(CN) — An attorney representing a project designed to bring a jolt of hydroelectric to New England’s power grid argued before the Maine Supreme Judicial Court Tuesday that a citizen initiative approved by Maine voters in November should be declared unconstitutional.

"The credibility of the state of Maine is at stake in this case,” said attorney John Aromando in his opening statement before a packed courtroom and a panel of five justices.  

In November, voters in the state approved a resolution that banned the construction of long-distance transmission lines running in a region in western Maine and required future transmission line projects get the green light from the state legislature.

Aromando, representing NECEC Transmission and Avangrid Networks, said construction had already broken ground and the state already declared the New England Clean Energy Connect transmission line project was lawful and beneficial.

According to the project’s briefing, the transmission line would be a billion-dollar investment in green energy for the region, connecting Canadian hydropower to the power grid in Massachusetts, reducing energy prices and combatting climate change by reducing emissions of greenhouse gas by 3.6 million metric tons a year.

The project is not “subject to retroactive legislative confiscation,” Aromando argued, because the project had vested rights that limited the legislative power.

In briefing, the project said it acquired vested rights when it began work on the project, cutting a 124-mile corridor, and it had a right to finish what it started.

And it was the issue of vested rights that the justices on the bench, particularly Chief Justice Valerie Stanfill, kept coming back to during the nearly hour-long hearing.

The project has garnered a flurry of controversy and litigation. The Maine Supreme Court previously ruled a similar resolution attacking the project was unconstitutional and removed it from the ballot.

And before holding oral arguments over the latest voter initiative, the Supreme Court heard arguments in a case that sought to challenge how the Bureau of Parks and Land granted a lease for the project.

Stanfill also pointed out that a handful of permits issued for the project have been appealed.

But the threat of a lost permit did not matter, Aromando said.

“Just because your rights vested, the developer still has the risk that for example, the DOE permit … will be reversed under the law existing when the permit was granted,” Aromando said. “What they're protected from, what the vesting protects the developer from, is a new law coming in after the fact and changing the rules of the game.”

This position, however, was described as “anachronistic” by the Office of the Attorney General in its briefing.

During his arguments, Assistant Attorney General Jonathan Bolton, representing the state of Maine, including its legislature and Bureau of Parks and Land, told the court, “The modern view is that due process by its very nature requires consideration of both private rights and governmental interests.”

Bolton told the justices the resolution approved by voters in November set public policy regarding transmission lines and land leases.  

As the justices rose to leave the courtroom, Stanfill said the court was not addressing the wisdom of the project but only the legal issues surrounding it.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.

Loading
Loading...