NECEC Transmission LLC v. Bureau of Parks & Lands, Maine Department of Agriculture, Conservation and Forestry

A jury issued a unanimous verdict finding that the developers of the New England Clean Energy Connect (NECEC) project—which would deliver hydropower from Canada to New England—had proved that they “undertook significant, visible construction” on the project prior to the November 2, 2021 vote approving a ballot initiative that blocked the project. The jury also found that the construction was undertaken in reliance on the Certificate of Public Convenience and Necessity issued by the Maine Public Utilities Commission and “according to a schedule that was not created or expedited for the purpose of generating a vested rights claim.”

After the Maine Law Court determined that a successful ballot initiative that blocked completion and operation of the New England Clean Energy Connection transmission line corridor might have violated the developers’ due process rights, the Maine Business and Consumer Court declined to reconsider its denial of a motion for a preliminary injunction barring the effectiveness of the ballot initiative. The court rejected the plaintiffs’ argument that the Law Court had determined that they had vested rights to complete construction. Instead, the court said, the Law Court had returned the case to the Business and Consumer Court for factfinding. The Business and Consumer Court said the plaintiffs had not argued that a “tipping point” after which completion of the project would no longer be feasible would occur while the case was being litigated in trial court, where a trial was scheduled to begin in April 2023.

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The Maine Business and Consumer Court denied a motion for preliminary injunction barring the ballot initiative that banned completion and operation of the New England Clean Energy Connection transmission line corridor from taking effect. The court found that allowing the initiative to take effect would not violate the developers’ constitutional rights or constitutional principles, and that they had not demonstrated a substantial possibility of success on the merits of their challenge. Although the court acknowledged that the applicable law was uncertain, the court found that other factors would nonetheless be determinative, including because the developers would not suffer irreparable injury if the initiative took effect during the litigation and because the “paramount” public interest in participatory democracy would be adversely affected by an injunction. The court found that the economic harm to the developers, while “substantial,” would not outweigh this harm. Regarding arguments that failure to grant an injunction would have a negative climate impact, the court stated: “The question now is not whether climate change or direct construction poses a greater environmental threat; nor is the question what impact the Initiative will have on future economic investment in Maine. The question is whether, during the likely short lived litigation period, the harm from entering or refusing to enter a preliminary injunction will be worse.” The court concluded the balance of harm favored the defendants. The case is <a href="https://www.mainepublic.org/business-and-economy/2022-01-04/battle-over-cmp-transmission-corridor-goes-to-maine-supreme-court">now before</a> the Maine Supreme Judicial Court, sitting as the Law Court, in which it decides appeals on questions of law that arise in cases in the lower courts. Initial briefs from the initiative’s opponents are due February 28, 2022.

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The owner of the New England Clean Energy Connection transmission line corridor (NECEC) and its parent company filed a lawsuit in state court in Maine challenging a state law passed via direct initiative in early November 2021 that would retroactively ban completion and operation of the NECEC. The plaintiffs asserted that the law deprives the owner of its vested rights under federal and state permits, violates the Maine Constitution’s provision regarding separation of powers, and violates the prohibitions in the Maine and U.S. Constitutions on impairment of contracts. The plaintiffs alleged that the project, which would bring 1,200 megawatts of hydropower from Québec into Maine and the New England electric grid, would reduce greenhouse gas emissions “by the equivalent of removing 700,000 cars from the road each year the Project is in service.”