BDN - Maine argues in court that CMP rushed corridor to circumvent voters

by Lori Valigra

April 10, 2023

PORTLAND, Maine — Jurors heard opening arguments in state court on Monday about whether a $1 billion hydropower corridor project through western Maine should be allowed to proceed despite being rejected by voters in 2021.

Representatives for companies associated with Central Maine Power Co. presented slides showing infrastructure already built, saying they had spent hundreds of millions of dollars and should be allowed to continue. State lawyers argued developers sped up construction in an effort to circumvent the referendum and defended the power of voters to reject major projects.

Jurors now have a tough task ahead of them in a case around complex energy issues and the constitutionality of the new law set by the referendum. Their decision will likely set a precedent for how Maine expands the regional energy supply, whether investors feel they can rely on granted permits to complete projects and the power citizens carry to make laws.

The trial opened on Monday with jury selection and arguments in business court in Portland. Closing arguments are scheduled for April 19. Jurors are expected to focus on when key infrastructure was put up and how that relates to Maine’s referendum process.

Maine’s referendum barring the corridor came almost 10 months after construction began and after hundreds of millions of dollars were spent, John Aromando, the attorney for plaintiffs NECEC Transmission and Avangrid Networks, noted in his opening statement. The project also was based on a schedule created in 2018 to complete the project by December 2022, but all deadlines have been delayed by challenges, appeals or lawsuits.

“This is a case about finding whether Maine is a place where people can rely on the valid and final permit authorizing the project or not,” he said.

Aromando argued the second and final attempt at getting a referendum on the ballot came too late, after the project completed significant construction. An union representative speaking for the project as an intervenor in the case said his workers were earning a total of $1 million a week on wages and benefits before work was halted after the referendum became law.

The plaintiffs had to build in good faith to be able to claim the “vested rights” needed to move forward despite disapproval by voters, said Assistant Attorney General Jonathan Bolton, who is representing the Maine Public Utilities Commission.

But they expedited the schedule, he said, adding there is evidence to show that. He cited documents showing the project started three months earlier than initially planned. The project‘s builders also knew that some provisions of the referendum would be retroactive when they started putting poles into the ground.

“There‘s nothing inherently wrong with retroactive laws,” Bolton said.

Avangrid and its subsidiary, CMP, won the bid from Massachusetts in February 2018 for their $950 million joint project with Hydro-Quebec to bring 1,200 megawatts of transmission capacity through a 145-mile transmission line from the Canadian border to Lewiston. The project, called the New England Clean Energy Connect, is being run by NECEC Transmission, an Avangrid subsidiary. The project has obtained all major permits.......................

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https://www.bangordailynews.com/2023/04/10/business/maine-court-cas...

Press Herald story on same:

Long-awaited trial over future of CMP electricity corridor gets underway

Five years in the making, the trial that could determine the fate of the 145-mile electricity transmission corridor is expected to last 7 days in state Business and Consumer Court.

BY TUX TURKEL, STAFF WRITER

EXCERPTS:

..............The nine jurors and two alternates heard two very different sets of facts for what motivated NECEC to start and move ahead with construction.

It’s clear that the project schedule proceeded with the goal of meeting its planned commercial operational date of December 2022, said John Aromando, the lead attorney representing Avangrid Inc., the plaintiff in the case. And the company could have met that deadline, if not for a concerted effort by project opponents to challenge every permit over a course of years, in court, in state and federal agencies, and at the ballot box.

“This project was supposed to go online at the end of last year,” Aromando said. “Everything has been delayed. Everything has been pushed back.”

Showing the jury a cover sheet from June 2018 contract with baseline schedule for construction, Aromando observed how detailed it was.

“It laid out a path to complete the project,” he said, noting the permits and construction activity required.

But that representation omits some key evidence, said Jonathan Bolton, who represents the Maine attorney general and the Public Utilities Commission. Bolton outlined how defendants in the case will present documents and emails showing that NECEC officials changed the construction schedule specifically to get ahead of the first of two voter referendums that aimed to kill the project and secure the legal doctrine of vested rights.

Their goal, Bolton said, was to get some steel towers in the ground more quickly than planned, “in order to protect the project against the referendum.”....................

..............The NECEC project would have a capacity of 1,200 megawatts, enough power for 1.2 million homes. Paid for by Massachusetts utility customers, the power line would help lower electricity prices in New England by introducing a new source of round-the-clock hydroelectricity from Quebec, according to the Maine Public Utilities Commission. The agency granted the initial go-ahead permit in 2019.

Opponents say parts of the 145-mile corridor would destroy important forest and wildlife resources and that the electricity wouldn’t be as environmentally “clean” as supporters claim. The foes successfully mounted a ballot initiative that led to voters rejecting the project in November 2021. The vote came after NECEC already had begun clearing a corridor through timberland in western Maine and erecting towers, work that was halted by state environmental regulators a few weeks later.

The CMP corridor battle: Where does the money come from?

The plaintiffs in this case are both NECEC and Avangrid. They filed a complaint the day after the ballot initiative passed on Nov. 3, 2021, seeking to prevent the new law from being applied retroactively to their project.

That’s why the timing and intent of NECEC construction schedule is pivotal. The jury must decide the facts around vested rights to determine if NECEC is entitled to build on the corridor. The jury must decipher, in the words of the Maine Supreme Judicial Court, “whether NECEC acquired a cognizable property right that the Maine Constitution protects from being impaired by retroactive legislation.”

The Law Court sent the case, called NECEC Transmission LLC et al. v. Bureau of Parks and Lands et al., back to Justice Michael Duddy last August to determine the vested-rights issue.

NECEC has an estimated price tag of $1 billion. The company spent more than $500 million before the stop-work order. Some of the money went to clearing a new 53-mile corridor through working timberland from the Quebec border to The Forks. Construction began in January 2021, after NECEC received a final permit. The project was already behind schedule by then; the line was supposed to be in service during 2022.

But the facts surrounding the power line and its construction are far from simple, in part because of how much time has gone by and the number of legal and regulatory challenges that have occurred.

By one count, the project has been subject to at least 38 reviews. Testimony, depositions, exhibits, emails and other documents generated in this case now exceed an estimated 2 million pages. The project has required approvals from multiple state and federal agencies and two dozen municipalities. It has spawned lawsuits relating to a public lands lease and permits from the Maine Department of Environmental Protection, U.S. Department of Energy, Army Corps of Engineers and Massachusetts Department of Public Utilities.

The defendant is the PUC, represented by the Maine Office of the Attorney General. Key defendant-intervenors include the Natural Resources Council of Maine, the state’s leading environmental advocacy group, and Tom Saviello, a former state senator who led the ballot initiative against the project. Also fighting the project is NextEra Energy Resources, a Florida-based utility company that now owns the Seabrook nuclear plant and would be hurt by the use of less-expensive Canadian power.

A key intervenor supporting the project is H.Q. Energy Services, the American arm of Hydro-Quebec, the Canadian utility that would supply the power.

Based on recent proposed witness list filings, the jury will hear from experts with deep knowledge of the construction schedule for the project. The defendants and intervenors want to question 23 people, including CMP and Avangrid executives Adam Desrosiers, vice president of electric operations; Gerry Mirabile, director of NECEC permitting; Thorn Dickinson, NECEC’s now-retired chief executive; and Robert Kump, Avangrid’s former president. Also on the list are out-of-state contractors central to preparing the corridor and building the project, Irby Construction and Northern Clearing, as well as executives from Hydro-Quebec.

The plaintiffs want to question Dickinson and Desrosiers, as well as executives from FTI Consulting, a global corporate advisory firm, and Elizabeth Wyman, the PUC’s general counsel and hearing examiner.

https://www.pressherald.com/2023/04/10/long-awaited-trial-over-futu...

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