Hours after Maine’s high court struck down a referendum aiming to kill Central Maine Power’s proposed corridor project earlier this month, a legislative critic issued a statement saying they “may not be able to stop this corridor,” but they could stop similar ones in the future.
The sentiment from Rep. Seth Berry, D-Bowdoinham, illustrated the increasingly limited options opponents have to kill the project. But they are still hoping for the success of a bank-shot effort consisting of two lawsuits and challenges to final permits that could do it in theory.
The utility and partners are confident the $1 billion project that would bring Hydro-Quebec power to the regional grid through western Maine will move forward. Opponents’ efforts may run into similar problems as the referendum did. The Legislature has rebuffed roadblocks to the project. CMP’s increasing investment could also throw a wrench in plans to stall the line.
While the utility struggles with a poor reputation and the corridor polls as unpopular, the project has marched ahead. It has all the required state permits, but needs two more federal ones and some local approval. Democratic Gov. Janet Mills and her Republican predecessor, Paul LePage, agree on almost nothing, yet both support the corridor.
The referendum was removed from the November ballot on Friday after the Maine Supreme Judicial Court said voters — or the Legislature — had no right to reverse a permitting decision. But Berry said last week it is still “absolutely possible” to stop the corridor.
“There are a number of pathways that are not guaranteed to stop the corridor, but still could,” he said.
Opponents could introduce bills prohibiting utility projects of a certain size or present other roadblocks. But Berry said he was skeptical the Legislature would be willing to undermine the corridor. He pointed to bills that would have created higher approval thresholds for the project last year. All three failed to get a veto-proof majority vote.
Jeff Thaler, a University of Maine School of Law professor who fought against the Great Northern Paper Co.’s doomed hydroelectric power plant in the 1980s, said any legislative efforts aimed at killing the corridor could run up against retroactivity and vested rights issues.
The former is essentially the idea of backdating a law to make an agency decision illegitimate. State law prevents that when “substantive review” of a permit has occurred. Thaler said the state permitting decisions could be protected under that reasoning, though a June court challenge to a permit from the Maine Department of Environmental Protection is ongoing. That has been sent to the Board of Environmental Protection, which is handling another challenge from the Natural Resources Council of Maine.
Vested rights concern whether a company has rights to a project after spending money to develop it. Thaler said the granting of a permit does not guarantee vested rights, but if a company has spent money in “good faith” on a project before laws governing those permits were changed after receiving approval, they could come into play.
The New England Clean Energy Connect LLC — the company founded to run the CMP project — has awarded contracts worth millions of dollars. Thorn Dickinson, president of NECEC, said the company will begin soliciting in the next few weeks for contract jobs and doling out pieces of the $250 million benefits package the company negotiated with Mills and other officials.
He was buoyed by recent events, characterizing efforts to block the project as “scattershot” charges that could delay the project at worst.
“We’re pretty excited to begin construction on this project,” Dickinson said.
That leaves two court battles, which Natural Resources Council of Maine attorney Sue Ely characterized as the “clearest path” to challenging the project. There is the environmental permit and a second lawsuit charging that the Bureau of Public Lands violated state law by not requiring a Somerset County land lease to go to a two-thirds vote in the Legislature.
If that had to happen, the lease would almost certainly be doomed. While opponents have not been able to muster two-thirds majorities to pass bills challenging the corridor, they have demonstrated that a majority of lawmakers back many of their stances.
“We know opposition to this project within the state is high,” Ely said. “I think it will be hard for CMP to get to a two-thirds vote.”
But if the permits hold, the courts will be unlikely to overturn those agencies’ determinations given the supreme court ruling, said Tony Buxton, a Preti Flaherty lawyer who lobbies the Industrial Energy Consumer Group, a group of large energy users who back the corridor.
While opponents have the right to challenge those decisions, “they’ve exhausted their remedies” short of more and more appeals, he said.
“That is the hurdle I don’t believe opponents can get over now,” he said.