News Story Source: CommonWealth Magazine
MASSACHUSETTS OFFICIALS are counting on a Maine court to overturn a law passed in early November by 59 percent of Maine voters so a power line carrying hydroelectricity from Quebec can resume construction.
The legal arguments in favor of overturning the law seem convincing, but victory in this case may come at a high cost. Massachusetts electricity ratepayers, through the proxy contractors they have hired in Maine, now find themselves trying to build a transmission line in a state whose residents don’t want it. Even if the law passed via referendum by voters is overturned and other court challenges are resolved, bad blood between the two states is likely to linger for some time.
The company building the transmission line, called New England Clean Energy Connect, is seeking an injunction to block the voter-approved law from taking effect on December 19. In its legal brief, the company argues that it complied with all existing laws; obtained the necessary federal, state, and local permits and approvals; and spent $450 million on the project to date. The brief says the new law attempts to go back in time and make illegal what was legal then.
“To permit such a retroactive application of the initiative would render any development in the state, no matter how big or how small, or how far progressed, vulnerable to discriminatory efforts to kill the project by after-the-fact changes to the law, and inevitably chill future economic development in Maine,” the legal brief said.
In an interview on “Boston Public Radio” on Monday, Gov. Charlie Baker said the case raises an important legal question about applying laws retroactively. He also suggested that decarbonizing the economy and reducing reliance on fossil fuels requires some tradeoffs and some help from other states.
“It doesn’t come without some degree of change in the way we have thought historically about how much power we have in the grid, how it gets there, and how it operates,” he said.
Rep. Jeffrey Roy of Franklin, the House chair of the Legislature’s Telecommunications, Utilities, and Energy Committee, said he believes the challenge to the voter-approved law on constitutional grounds has a good chance of success. He acknowledges there may be some blowback if the challenge is successful, but said the courts are the place to settle the issue.
“I understand the opposition,” he said of Maine voters who rejected the transmission line via the ballot question. “I’m wondering if that opposition is too late.”
Sen. Michael Barrett of Lexington, the Senate chair of the Telecommunications, Utilities, and Energy Committee, thinks the lawsuit by New England Clean Energy Connect challenging the voter-approved law has merit. But he says the situation illustrates how the federal government should have oversight of transmission projects that run across state lines or, in this case, across international borders.
“It should never have been the province of the state of Maine,” he said.
Barrett is hopeful the Maine project will move forward, but if it doesn’t he said a major reevaluation of the state’s climate change plans needs to take place. Roy thinks the state should focus on expanding its offshore wind and solar power resources, but Barrett isn’t sure either one can be ramped up very quickly.
“All of us, the Legislature included, need to reboot and figure out what Plan B really looks like,” Barrett said.
Eliza Townsend of the Appalachian Mountain Club in Maine said she hopes the voter-approved Maine law prevails. She blames Massachusetts for causing the dispute in the first place by holding a bidding process for a transmission line to Quebec and selecting the bidders with the lowest prices instead of the bidders with the strongest public backing.
The first choice of Massachusetts was a project that would have had the transmission line come through New Hampshire. It was shot down by regulators there because it ran through the White Mountains. The second choice was New England Clean Energy Connect in Maine, which is now facing pushback from voters because of its path through wooded countryside. Townsend said Massachusetts bypassed a Vermont project that had strong public support because it would have kept the transmission line out of sight by running it underneath Lake Champlain and then underground.
“The decision came down to money,” Townsend said. “The Vermont project wasn’t the lowest bid.”