Judge rules that permitting process for one mile of transmission line corridor in Maine violated 1993 constitutional amendment

On Aug. 10, Judge Michaela Murphy of the Maine Superior Court vacated a lease for the New England Clean Energy Connect (NECEC) to bisect one mile of public land in northern Maine. NECEC is a 145-mile long, high-voltage transmission line project that would transmit around 1,200 megawatts from hydroelectric plants in Quebec to electric utilities in Massachusetts and Maine. The state Department of Environmental Protection suspended the firm’s lease of the one mile of land through West Forks Plantation and Johnson Mountain Township.

The permitting process for the public lands violated a constitutional amendment passed in 1993, according to Judge Murphy. The constitutional amendment, known as Question 5, required a two-thirds vote of the legislature to reduce or substantially change the uses of state park, conservation, or recreation land. Whether or not public land is reduced or substantially altered is determined by the Bureau of Parks and Lands (BPL). Judge Murphy stated that BPL did not present evidence that a “finding of no ‘reduction’ and/or no ‘substantial alteration’” was made during the permitting process. 

NECEC, Inc. could appeal the superior court’s decision to the Maine Supreme Judicial Court, seek approval to reroute the project, or enter into a new lease for the public lands (which could end up requiring legislative approval depending on the BPL’s assessment). As of Aug. 13, NECEC, Inc. had not announced how the project was expected to move forward.

While the ruling relied on a 1993 constitutional amendment, NECEC is also facing a citizen-initiated measure on this year’s November ballot. Question 1 was designed to stop the NECEC. The ballot initiative would prohibit the construction of high-impact electric transmission lines in the Upper Kennebec Region, retroactive to Sept. 16, 2020, thus prohibiting a segment of NECEC. The ballot initiative would also require a two-thirds vote of each state legislative chamber to approve high-impact electric transmission lines. Question 1 would define high-impact electric transmission lines as those that are (a) 50 miles in length or more, (b) outside of a statutory corridor or petitioned corridor, (c) not a generator interconnection transmission facility, or (d) not constructed to primarily provide electric reliability.

Maine Sen. Russell Black (R-17) was the lead plaintiff before the superior court. He is also a supporter of the ballot initiative. Sen. Black responded to the ruling, “Even though it’s a small parcel of land it’s in the middle of the corridor and will keep the corridor from being connected. It’s (going to) put a gap in the corridor and I believe because of that gap and no legal permit they have to stop the process and get this corrected.”

The companies involved in the NECEC project raised $36.99 million to oppose the ballot initiative through June 30, 2021. Central Maine Power, NECEC Transmission LLC, and the companies’ parent firm Avangrid provided $27.12 million. H.Q. Energy Services (U.S.) Inc., which is a subsidiary of Hydro-Québec, provided $8.58 million. Hydro-Québec owns the hydroelectric plants that would produce the energy carried by the NECEC. 

Supporters of the ballot initiative raised $9.46 million through June 30, with $6.67 million from NextEra Energy Resources, LLC, which owns a natural gas-fired plant in Cumberland, Maine, and six solar fields or projects in southern and central Maine. Vistra Energy Corp., which owns a natural gas-fired plant in Veazie, Maine, provided $1.27 million. Calpine Corp., which owns a natural gas-fired plant in Westbrook, Maine, provided $1.23 million.

Question 1 is one of three measures on the November 2021 ballot in Maine. The others are a constitutional amendment to declare a right to produce, harvest, and consume food and a $100 million bond issue for transportation projects. 

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