BDN: If referendums are unconstitutional, they shouldn’t be on the ballot (NECEC)

by The BDN Editorial Board December 2, 2022

A year after voters soundly rejected a power line corridor through western Maine, the Maine Supreme Judicial Court has ruled that the referendum was unconstitutional. The court also ruled that the lease at the heart of the dispute over the transmission line was valid, negating a central argument of opponents of the project.

Whether you support or oppose the New England Clean Energy Connect (NECEC), this is a troubling outcome, mostly because of its timing.

The Bangor Daily News editorial board supported the corridor, believing that it would bring more clean energy into the region’s power grid. We also had concerns about the language of the November 2021 referendum, especially its retroactive portions. However, we are now concerned that overturning the will of the voters may lead to more distrust of the government and courts.

As it is now, opponents of the project may blame the Maine Supreme Court for rejecting a referendum that was supported by nearly 60 percent of voters and for siding with Central Maine Power, an unpopular company.

That is not the fault of the court. State law and policy allows questions to appear on the ballot even though they may not later pass constitutional muster. 

This is a practice that lawmakers should strongly reconsider. Adding a provision to state law that allows the Maine secretary of state, after consultation with the state attorney general, to reject initiative petitions that don’t comply with the U.S. or Maine constitutions simply makes sense. A process is already in place that allows petitioners to sue if they believe the secretary of state wrongly rejected a petition. This would put the court challenges on constitutional grounds up front, rather than after a ballot measure had been voted on.

A bill to add a constitutionality assessment as part of the secretary of state’s referendum review process would be timely.

As we’ve written before, it would be much better if the constitutionality of ballot questions could be determined — or at least significantly clarified — before they are put to voters. Such a process could save Maine people, companies, regulators and others a lot of headaches, and money.

The court ruling issued Tuesday looked at three major issues surrounding a lease that would allow the transmission corridor to cross public land. The first, and most important, is whether a citizen’s initiative can retroactively invalidate such a lease. The court ruled that such a retroactive action violates the Contract Clause of the U.S. Constitution.

This follows a Maine Supreme Court ruling in another corridor-related case in August that found parts of the referendum are likely unconstitutional. It sent parts of that case back to a lower court for further action to determine if construction on the project could be allowed to restart.

At the core of Tuesday’s ruling, the court examined whether the Bureau of Public Lands violated its authority in granting the lease, first in 2014 and again in 2020, and whether it followed proper procedure to do so. Opponents of the corridor had argued that the bureau needed legislative approval for the lease because it “substantially altered” public land. A lower state court agreed.

The Supreme Court disagreed, saying that the lease, which covered only a small amount of public land in rural Somerset County, would not substantially alter the use of that land, which was already subject to commercial uses, including another power line.

This assessment negates a major argument made by opponents of the corridor during the referendum campaign.

The BDN Editorial Board operates independently from the newsroom, and does not set policies or contribute to reporting or editing articles elsewhere in the newspaper or on

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Comment by Dan McKay on December 3, 2022 at 6:59pm

The reveal brought out by the NECEC voter rejection comes down to the actions of a natural gas-fired plant owner and an oil-fired plant owner who have significant plants in Maine. They feared the competition of NECEC would put their plants out of business and poured millions of dollars into propping up a rather disorganized attempt by a few activists. This dark money propelled the movement to defeat NECEC following much disinformation spread throughout the media. 

Now, ratepayers are at the mercy of natural gas prices that drive the cost of electricity through the roof. Not such a happy ending to an election influenced by greedy carbon producers, who ramped up their output and revenue since the referendum.

Voters were hoodwinked. Honest competition was infringed and undermined by greedy conglomerates at the expense of Maine ratepayers.

If NECEC is allowed to proceed, it will replace the output of the NG and Oil plants in Maine by offering lower prices as hydro is far cheaper to produce than either NG or Oil. 

Under this scenario, Maine would become flooded with the electricity flowing into the state from NECEC. The NG and oil plants could well become available for purchase at bargain prices. NECEC would serve Maine and the NG and Oil Plants would serve Southern New England. 

Maine could be in control of its own destiny, relating to zero-carbon and lower electricity prices, if only the legislators open their eyes. 

Comment by arthur qwenk on December 3, 2022 at 6:32pm

"Ranked Choice" should be constitutionally tested in Maine, but too many Maine Republicans are pansies and spineless compared to the woke left wing legislative  majority.

Comment by Stephen Littlefield on December 3, 2022 at 5:32pm

Too bad that wasn't in effect for the ranked choice voting debacle which is in fact unconstitutional and leftist scam.

Comment by Bob Stone on December 3, 2022 at 4:25pm

I think a "constitutionality assessment" makes sense.


Maine as Third World Country:

CMP Transmission Rate Skyrockets 19.6% Due to Wind Power


Click here to read how the Maine ratepayer has been sold down the river by the Angus King cabal.

Maine Center For Public Interest Reporting – Three Part Series: A CRITICAL LOOK AT MAINE’S WIND ACT


(excerpts) From Part 1 – On Maine’s Wind Law “Once the committee passed the wind energy bill on to the full House and Senate, lawmakers there didn’t even debate it. They passed it unanimously and with no discussion. House Majority Leader Hannah Pingree, a Democrat from North Haven, says legislators probably didn’t know how many turbines would be constructed in Maine if the law’s goals were met." . – Maine Center for Public Interest Reporting, August 2010 Part 2 – On Wind and Oil Yet using wind energy doesn’t lower dependence on imported foreign oil. That’s because the majority of imported oil in Maine is used for heating and transportation. And switching our dependence from foreign oil to Maine-produced electricity isn’t likely to happen very soon, says Bartlett. “Right now, people can’t switch to electric cars and heating – if they did, we’d be in trouble.” So was one of the fundamental premises of the task force false, or at least misleading?" Part 3 – On Wind-Required New Transmission Lines Finally, the building of enormous, high-voltage transmission lines that the regional electricity system operator says are required to move substantial amounts of wind power to markets south of Maine was never even discussed by the task force – an omission that Mills said will come to haunt the state.“If you try to put 2,500 or 3,000 megawatts in northern or eastern Maine – oh, my god, try to build the transmission!” said Mills. “It’s not just the towers, it’s the lines – that’s when I begin to think that the goal is a little farfetched.”

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Hannah Pingree on the Maine expedited wind law

Hannah Pingree - Director of Maine's Office of Innovation and the Future

"Once the committee passed the wind energy bill on to the full House and Senate, lawmakers there didn’t even debate it. They passed it unanimously and with no discussion. House Majority Leader Hannah Pingree, a Democrat from North Haven, says legislators probably didn’t know how many turbines would be constructed in Maine."

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