Groups Urge 1st Circ. To Keep $1B Energy Line On Hold

Law 360

The U.S. government is ignoring extensive evidence that a Maine segment of a proposed $1 billion clean energy transmission project would cause irreparable damage by not considering environmental harms, green groups told the First Circuit.

In a brief filed Wednesday, the Sierra Club, Natural Resources Council of Maine and the Appalachian Mountain Club said the district court erred in rejecting their motion for preliminary injunction on the project — and that the U.S. Army Corps of Engineers is now recommitting those same errors at the appellate court despite serious concerns about environmental impacts of the project.

The groups said the injunction should have been granted to stall part of the renewables project that would connect Canadian hydroelectric power to the Massachusetts energy grid after passing through Maine, since the Corps' environmental analysis was less than thorough and irreparable harm is likely if the project gets the green light while the case is ongoing.

The groups said the case is a perfect example of why the courts should give more heed to claims of irreparable harm over considerations of the likelihood that a case will succeed on the merits.

"This case is a textbook example of why it is more logical to lessen the showing of likelihood of success on the merits in a case's early stage," they said. "If the project moves forward, irreparable harm is certain absent an injunction. By contrast, the merits are far more difficult for a court to evaluate early in litigation without a record, as the district court noted."

At issue is a $1 billion project spearheaded by Central Maine Power, a subsidiary of Avangrid. The project includes a segment that starts at the border that would be an entirely new transmission corridor, cutting through previously untouched forest land.

If completed, the project would deliver 1,200 megawatts of Canadian renewable hydropower to the New England energy grid after routing through Lewiston, Maine. The project is funded by electricity customers in Maine, according to a fact sheet about the so-called New England Clean Energy Connect project.

Altogether, the project includes three segments, including two where transmission lines would be installed alongside existing power lines and would not require brand new transmission corridors. The segment at issue before the First Circuit is the portion of the project where a new corridor would be required, and that would connect the Canadian border to the existing American corridors.

The environmental groups claim the corridor would fragment forest ecosystems and cause irreparable harm to terrestrial and aquatic environments and wildlife. They claim the Army Corps' approval of the project included several deficiencies that were only made public after the groups filed Freedom of Information Act requests. In approving the project, the Corps violated the National Environmental Policy Act and the Administrative Procedure Act, the groups claim.

The groups allege the environmental assessment and finding the project wouldn't have a significant impact are deficient because they failed to evaluate whether the project would violate local ordinances, didn't fully evaluate whether the project is truly a resource-friendly alternative to avoid greenhouse gas emissions and didn't consider alternatives to the project. Similar projects in New Hampshire and in Vermont, for example, took into account less imposing alternatives and received environmental impact statement treatment, the groups say.

Separately, the Massachusetts contracts for the $1 billion in cross-border power supplies from Canadian utility Hydro-Quebec have received a thumbs-up from that state's highest court.

The groups note the Central Maine Power project received considerable backlash from the public, including a petition with more than 66,000 certified signatures to put a contested initiative on this year's ballot that would require the Maine Public Utilities Commission to reverse a May 2019 order that provided the project with a certificate of public convenience and necessity to go ahead and build. Maine's highest state court killed the ballot initiative in August after finding it would overstep citizens' constitutional authority.

The Corps and CMP, alongside the U.S. Department of Energy, had been in contact about the project since at least 2017, when the utility submitted initial applications and otherwise purchased land or secured easements for the project. The Corps then issued a notice that CMP submitted an application to conduct work in waters of the United States in March 2019.

One month after that application notice was filed, the environmental groups submitted extensive comments to the Corps complaining about multiple deficiencies with the public notice, including things like failing to list potentially impacted endangered species in the areas. The U.S. Environmental Protection Agency in May 2019 sent a letter to the Corps saying the notice was issued prematurely.

The Maine federal court denied an emergency injunction request in December.

In January, the Trump administration issued a presidential permit through the Energy Department for the Maine project, which was the last major permit necessary for it to go forward and allowed for the border-crossing segment of the project. Just a day later, however, the First Circuit issued an injunction on construction for the undeveloped segment pending a review.

The Corps, Avangrid and the environmental groups didn't immediately respond to requests for comment.

The groups are represented by Susan Ely of the Natural Resources Council of Maine, and Kevin Cassidy and Lia Comerford of Earthrise Law Center.

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.

--Additional reporting by Keith Goldberg and Morgan Conley. Editing by Breda Lund.

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  • Sandra Howard
    published this page in News 2021-02-26 17:23:38 -0500