Sierra Club Asks 1st Circ. To Stop $1B Maine Power Project

Law360

Environmental groups have told the First Circuit that the U.S. Army Corps of Engineers' approval for part of a controversial $1 billion clean energy development in New England cut corners, ignored environmental damages and must be stopped.

The Sierra Club, Natural Resources Council of Maine and the Appalachian Mountain Club urged the First Circuit Tuesday to reverse a district court's decision rejecting their request for an injunction for construction of the project, which is currently partially stopped after the circuit stepped in late last month.

The three groups said the lower court erred in multiple ways when rejecting their attempt to halt the project approval in December. Broadly, they said the lower court failed to act to stop clear dangers posed by the project including irreparable environmental damages, despite a failure by the Corps to conduct a thorough environmental review of the proposal before determining it would have no significant impacts.

The Corps' analysis was too narrow, dodged public comments and ignored broad and permanent damages that would result from the project, which would cut through one of the last remaining pristine areas of the American northeast, the groups said.

The New England Clean Energy Connect project 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 NECEC fact sheet. It will create thousands of jobs during construction, according to Avangrid, whose subsidiary Central Maine Power is behind the project.

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 would connect the Canadian border to the existing American corridors.

The project has been met with fierce resistance both 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 shouldn't approve the Canadian side of the deal, which includes a 63-mile transmission line to connect to the U.S. border. The groups said the transmission line proposed by the state-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 Maine told a federal court there that the Army Corps 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 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 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 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 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.

By Clark Mindock
--Additional reporting by Keith Goldberg and Morgan Conley. Editing by Ellen Johnson.

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  • Sandra Howard
    published this page in News 2021-02-04 11:19:22 -0500