Law 360 (February 9, 2021, 5:10 PM EST)
Three of America's largest power producers have slammed a proposed $1 billion clean energy development that would bring Canadian hydropower to the Massachusetts market, saying promised greenhouse gas emissions reductions in the plan are illusory and unverifiable.
U.S. energy companies Calpine Corp., NextEra Energy Resources LLC and Vistra Corp told the First Circuit Monday in an amicus brief that a lower court was wrong to rely on those pollution reduction promises when evaluating whether to approve a preliminary injunction on construction of a segment of the project that would run through Maine.
That's because shipping in Canadian clean energy may reduce on paper the carbon footprint for Massachusetts customers, but there are no plans for future clean energy developments to make up for the loss to the Canadian market, which already relies on the hydropower that the U.S. project would take away, they said. It is likely, then, that carbon intensive alternatives will be used to fill that gap in Canada, thus making it possible that the supposed clean energy project would be dirtier than the status quo, the companies said.
They say that means the district court's reasoning that reductions in greenhouse gas emissions would serve the public interest — potentially a net benefit compared to environmental costs of building for the project — was an error and that the First Circuit should reverse the lower court's denial of a preliminary injunction motion filed by environmental groups challenging the project.
"The purported GHG emission reductions attributed to deliveries facilitated by the project are illusory and result in no real reduction of GHG emissions to the atmosphere," the companies said, supporting the position of the Sierra Club, Natural Resources Council of Maine and the Appalachian Mountain Club in their suit. "The district court's reasoning that such reductions would serve the public interest was therefore in error."
The New England Clean Energy Connect project at the heart of the dispute is a $950 million transmission line that would, if completed, deliver 1,200 megawatts of Canadian renewable hydropower to the New England energy grid in Lewiston, Maine, before then connecting to Massachusetts, which is funding the project through its electricity customers, according to an NCEC fact sheet. It is expected to create thousands of jobs during construction, according to Avangrid, whose subsidiary Central Maine Power is behind the project.
The NCEC project has three segments in Maine, including two where transmission lines would be installed alongside existing power lines and would not require new transmission corridors that cut through forests and waterways. The segment at issue in the First Circuit is a portion of the project that requires new construction of a transmission corridor to connect American corridors to Canadian ones, and would cut through what environmental groups have said is the last remaining untouched portion of land in the northeast U.S.
The project has met fierce resistance in the U.S. and in Canada, where six First Nations asked the country's energy regulator in December not to approve the plan. The First Nations said the agency should not approve the Canadian side of the deal, which includes a 63-mile transmission line to connect to American grids at the U.S. border. The groups said the transmission line proposed by the provincially-owned corporation Hydro-Québec would violate their constitutional right to control and benefit from the development of their ancestral lands.
In October, the environmental groups in what is now the First Circuit litigation told a federal court there that the Army Corps of Engineers broke the law in its approval process when it issued a finding of no significant environmental impacts, despite what they called a secretive approval process that avoided public comment. They alleged the process was so secretive that they only learned about many of the details through a Freedom of Information Act request, and claimed the project approvals failed to examine alternatives.
The Maine environmental groups also noted that, despite the lack of a public comment period, the project received considerable public backlash, including a petition with more than 66,000 certified signatures to put a contested initiative on last year's ballot that would have required the Maine Public Utilities Commission to reverse a May 2019 order that granted the project a certificate of public convenience and necessity to go ahead and build. Maine's highest court killed the ballot initiative in August after finding it would overstep citizens' constitutional authority.
The Maine federal court denied an emergency injunction request in December.
In January, the Trump administration issued a presidential permit through the U.S. Department of Energy for the Maine project, which was the last major permit necessary for it to go forward and allowed the border crossing segment of the project. A day later, however, the First Circuit issued an injunction on construction for the undeveloped segment pending a review.
The Army Corps, environmental groups and Avangrid did not respond to requests for comment.
The environmental groups are represented by Susan Ely of the Natural Resources Council of Maine and Kevin Cassidy and Lia Comerford of Earthrise Law Center.
The amici companies are represented by Kevin Poloncarz of Covington & Burling LLP.
The government is represented by Jacob D. Ecker and Kristofor Swanson of the U.S. Department of Justice's Environment and Natural Resources Division.
The case is Sierra Club et al. v. Army Corps of Engineers et al., case number 20-2195, in the U.S. Court of Appeals for the First Circuit.