Supreme court rules CMP corridor referendum unconstitutional

Portland Press Herald

The state’s top court has blocked a referendum to stop a planned hydroelectric power corridor through western Maine.

In a ruling issued Thursday, the Maine Supreme Judicial Court decided the state’s Constitution does not give voters the power to reverse a decision by the Maine Public Utilities Commission, as the referendum is designed to do, so the question cannot be included on the November ballot as planned.

The referendum “exceeds the scope of the people’s legislative powers conferred by … the Maine Constitution,” the ruling says.

The decision is a significant blow to environmentalists and others who oppose the $1 billion project being developed by Central Maine Power parent company Avangrid, which is owned by Iberdrola, a multinational electric utility conglomerate based in Spain. The 145-mile transmission line would carry hydroelectric power from Quebec to Lewiston to supply regional power.

“It’s a very sad day when Maine’s highest court sides with foreign corporations over the people of Maine,” said Sandi Howard, executive director of No CMP Corridor, the political action committee that backed the referendum. “The fact that CMP’s parent company sued the state of Maine to silence their customers, and it worked, is astounding. Mainers feel very strongly that this project will do irreparable damage to our natural resources, hurt rural Maine’s economy and threaten our way of life.”

Howard said the group is considering its “legal, political and legislative” options to decide its next steps. The justices allowed five days for a motion for reconsideration.

Avangrid characterized the ruling as a win for the entire state. The project, known as the New England Clean Energy Connect, is still awaiting federal permits, but construction could begin this year.

“The ruling by the Maine Supreme Court is a victory for the state of Maine and our future, both environmentally and economically,” Thorn Dickinson, president and CEO of Avangrid-owned NECEC LLC, said in a statement. “The Clean Energy (Connect) makes Maine a leader in the efforts to address the climate crisis, removing millions of metric tons of carbon from our air annually.”

The decision was unprecedented in Maine but narrow in its scope. The Supreme Judicial Court has never ruled on the legality of a citizens’ initiative before it went to voters. Typically, the legal and legislative battles over referendums have been fought after voters approved them. However, the justices answered only the question of whether Mainers have the authority to make a decision on this issue, not whether the issue itself was constitutional.

“This case cannot – and therefore does not – prospectively address the constitutionality or legality of the initiative itself as an independent issue,” the ruling says. “Any such determination necessarily could be made only if the issue became ripe, which would be after an initiative is enacted.”

The PUC decided last year that the corridor project is in the interests of the state. Earlier this year, opponents submitted more than 75,000 signatures to the Maine Secretary of State’s Office to get a referendum on the ballot. Their goal was to get voters to reverse the PUC’s decision, but legal experts questioned whether the referendum could overturn decades of precedent set by independent regulatory bodies designed to make decisions outside the political arena.

Maine Secretary of State Matt Dunlap disqualified some signatures but announced in March that the campaign still had enough to get the question on the ballot. A former CMP employee challenged that decision in Kennebec County Superior Court, arguing that Dunlap should have invalidated more signatures. The court sided with Dunlap in May, allowing the question to move forward at that time.

Avangrid then sued the state to stop the referendum. A Superior Court judge dismissed the complaint in June, saying the courts did not need to decide the constitutionality of the referendum before the election. The company and other groups appealed, bringing the referendum’s legality again before the Maine Supreme Judicial Court. Five justices heard oral arguments in the case this month.

The court ultimately decided that what the referendum sought to do was a violation of the separation of powers established by the Maine Constitution. The ruling said the state Legislature – and voters – can put limits on the PUC, but cannot require it to overturn a prior administrative decision.

“The initiative at issue here is not legislative in nature because its purpose and effect is to dictate the Commission’s exercise of its quasi-judicial executive-agency function in a particular proceeding,” the ruling says. “The resolve would interfere with and vitiate the Commission’s fact-finding and adjudicatory function – an executive power conferred on the Commission by the Legislature.”

Few regulatory hurdles remain for the project, which also has been approved by the state’s Land Use Planning Commission and Department of Environmental Protection. It now only needs approval from the U.S. Army Corps of Engineers and a presidential permit to cross the Canadian border. That permit would come from the U.S. Department of Energy.

“The project will also provide Mainers with hundreds of jobs, increased property tax revenues and lower energy prices,” said Dickinson, the NECEC chief executive. “We now look forward to completing the permitting process and getting to work to deliver the benefits of this project to all Mainers.”

Most of the project would involve expanding an existing corridor, but about one-third would require cutting a 54-foot-wide swath through undeveloped forest in western Franklin and Somerset counties. The Natural Resource Council of Maine is another major opponent of the project.

“The CMP corridor would cause irreversible harm to the woods and wildlife of western Maine, providing no benefit to the climate,” said Pete Didisheim, the council’s advocacy director. “With federal permits still under consideration and appeals of previous permits underway, this destructive transmission line proposal is far from a done deal. (The council) will continue to pursue every avenue available to defeat this project because it’s a bad deal for Maine.”

State Rep. Seth Berry, D-Bowdoinham, has pushed to dismantle privately owned utilities such as CMP and replace them with consumer-owned utilities. He released a statement about the court ruling Thursday through Maine Power for Maine People, a coalition that supports those efforts.

“We may not be able to stop this corridor, but we can stop future projects that are not in the best interests of consumers,” Berry said. “We invite anyone concerned about future transmission lines to join the effort to transition to a consumer-owned utility.”

Dunlap said his office will wait to take its next steps until the window for a motion for reconsideration expires. But time is limited, because the deadline to order ballots for the November election is Aug. 28.

“Voters hadn’t had a chance to weigh in on it, but I think it’s better that we know ahead of time, rather than figure it out after,” Dunlap said.

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