The battle over a blocked electricity corridor in New England reached another crunch on Wednesday, when Avangrid Networks urged a Maine judge to block a law passed by voters in November because it was designed only with one goal – to kill the billion dollar project.
A lawyer for Avangrid and its subsidiary NECEC Transmission LLC said the new statute was an illegal and retroactive attempt to deprive the company of “grandfather rights,” a legal doctrine meaning it had permits valid to begin construction on the New England Clean Energy Connect Corridor. The project developers were acting in good faith, said John Aromando, to meet contract deadlines, spending around $ 450 million to date on labor, materials and construction.
A popular vote, Aromando said, should not be able to override the “fundamental principles” of the Maine Constitution, namely being deprived of property rights without due process.
But an attorney for the Natural Resources Council of Maine and six individual interveners countered that Avangrid had not been granted these vested rights because she ignored several ongoing challenges to NECEC permits when she chose to start clearing land. and to erect towers last winter. These challenges included legal fights in courts and in state and federal agencies, as well as the referendum vote in November.
“That’s the schedule,” Jamie Kilbreth said, expressing his take on what made NECEC start construction when it did. “These are the contracts.”
Avangrid is asking Maine Business and Consumer Court Judge Michael Duddy for a preliminary injunction to prevent a law passed by voters in November from coming into effect as scheduled on Saturday. The Business Court is the branch of the Superior Court of Maine that adjudicates commercial disputes.
A key question for the judge is whether the request to block the law has the necessary legal elements to ultimately succeed on the merits.
Noting that the law’s effective date arrives this weekend, Duddy said he plans to issue a ruling on Thursday or Friday.
If the judge refuses to grant the injunction, the NECEC should appeal to the Maine Supreme Court and request an expedited hearing. If the NECEC is successful, opponents would also ask the Supreme Court of Justice to hear the case as soon as possible.
The Maine attorney general also asked the judge to dismiss the injunction motion. The office represents defendants in this case, including the Maine Bureau of Parks and Lands, the Public Utilities Commission and both houses of the Legislative Assembly.
If granted, the attorney general argued, NECEC’s request would allow the project to move forward before the court has a chance to determine the merits of the constitutional claims.
And those claims lack merit, according to Deputy Attorney General Jonathan Bolton. NECEC never had the right to build because it began construction before the final agency and judicial review of its permits and fully aware of the risk posed by the November vote. One of those reviews, an appeal to the Environmental Protection Board, is expected to be heard early next year.
“They took a calculated risk that the board would confirm this permit,” Bolton said.
The pleadings heard in Wednesday’s lawsuit came about three weeks after The Maine Department of Environmental Protection suspended NECEC’s building permit, citing changes in conditions prompted by the November vote.
NECEC Transmission and Maine’s largest electricity company, Central Maine Power Co., are subsidiaries of Avangrid, which itself is owned by Spanish energy giant Iberdrola.
On November 2, voters approved by a 60-40 margin a ballot question that bans the construction of high-voltage power lines in the Upper Kennebec area and requires the Maine legislature to approve any project similar to the statewide retroactively to 2020. It also requires the legislature, retroactively to 2014, to approve by a two-thirds majority such projects using public lands.
The next day, Avangrid complaint filed in Superior Court, contesting the constitutionality of the ban. He said he would continue to build the hallway in the meantime.
But following a request from Governor Janet Mills, NECEC announced on November 19 that it had voluntarily stopped construction. He said the break will stay in place until the injunction is decided.
Meanwhile, the DEP was examining whether the new law passed constituted a “change in situation or circumstance” that would require the commissioner to suspend or revoke a license. He came to this conclusion on November 23, and requested an immediate suspension.
As part of the DEP suspension order, the company had 30 days to stabilize the transmission corridor against erosion that could result in sediment in streams and fragile wetlands. The teams spread wood chips and straw on exposed soil, with an emphasis on the 53 miles of fresh cut forest from The Forks to the Quebec border.
To meet contracts with Massachusetts utilities, NECEC is under intense pressure to complete the project by August 2024. The project is already behind schedule and faces millions of dollars in penalties for further delay, as well. than the risk of termination of the contract. Last winter, after receiving what it considered to be a definitive license, the company made a calculated decision to move forward as legal and regulatory challenges unfold.
The NECEC project is designed to bring 1,200 megawatts of electricity from Canadian hydroelectric producer Hydro-Quebec to the New England grid through a converter station in Lewiston. The project is built to help Massachusetts meet its clean energy goals. It is paid for by electricity customers in that state.
The 145-mile highway is on land owned or controlled by CMP, with the exception of a one-mile parcel through public lands in Maine near The Forks. Based on a Superior Court ruling, the DEP commissioner also questioned whether the project permit should be suspended. based on an inappropriate lease issued to cross this one mile stretch.
NECEC and the Maine Office of Parks and Lands appealed the ruling to the Supreme Court. A decision is not expected until the end of spring. The result could invalidate NECEC’s lease, argued the attorney general, yet another reason not to grant the injunction, as NECEC’s vested rights claim could become moot.
During the hearing, supporters of the project also argued that further delay would have the practical effect of killing the project, regardless of the outcome of the protracted legal wrangling.
Philip Coffin, a lawyer representing Cianbro Corp., one of the main contractors on the project, noted that it takes months or years to align manpower and equipment for a project of this magnitude. .
“Construction projects of this size and scale cannot be turned on and off like a light switch,” he said.
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