Developers of the stalled 145-mile electricity transmission line through western Maine made a good-faith effort to build on schedule, a top executive for the project told jurors on the second day of a trial that could help decide whether the line is ever finished.

When the New England Clean Energy Connect project faced delays, the developers had to revise their initial plans in order to move ahead and meet contract deadlines, said Thorn Dickinson, retired president and CEO of NECEC Transmission LLC, a subsidiary of Connecticut-based Avangrid Inc.

But defense attorneys asserted that the main reason for revising deadlines or speeding up construction was to try to make sure the project had acquired “vested rights,” a claim that would give NECEC authority to keep building in the face of a retroactive law meant to kill the project.

Lawyers for project opponents pressed Dickinson on the company’s motivations, based on multiple documents and correspondences between executives, contractors and business partners.

As the day ended, jurors were left to consider whether vested rights were what motivated NECEC to accelerate clearing and construction, or if it was just one of the many factors the company juggled in trying to bring a complex, $1 billion venture to fruition.

Avangrid, also the parent company of Central Maine Power, conceived the project years ago to deliver inexpensive, clean hydropower to the electricity grid in Lewiston, and the first step was to consider potential routes, Dickinson said. The plan was to use existing transmission corridor, then clear a new corridor through working timberland from West Forks to the Quebec border, known as Segment 1.

When environmental opposition kept NECEC from clearing in Segment 1, he said, the company looked to employ its contractors on other segments of the corridor and keep the project on track.

Dickinson was questioned by John Aromando, lead attorney for Avangrid in a lawsuit over claims the company rushed to break ground on the corridor to establish vested rights on the land. The trial has attracted national attention because the case reflects a broader debate over the siting of large transmission lines to carry renewable power in hopes it will reduce dependence on fossil fuels.

Dickinson’s testimony aimed to establish the diligence with which NECEC pursued a timeline meant to bring the project online as soon as possible, and how that schedule was repeatedly delayed by opposition to the project. Using documents and charts, Aromando walked the jury through various timelines that illustrated how the company’s initial schedule was forced to change.

COMPLEX TIMELINE

The initial trigger for the project, when Massachusetts utilities issued request for proposals in 2017 for clean energy to meet Massachusetts clean energy law. Central Maine Power submitted a bid in a partnership with Canadian utility Hydro-Quebec. It was one of 45 bids, including a joint CMP-NextEra Energy Resources proposal. After an appeal by NextEra in Massachusetts, the project was delayed until 2019.

Construction was to start in January 2020, starting with clearing the corridor, building a converter station and erecting high-voltage towers. The plan was to bring the project into commercial operation by the end of 2022. The deadline was crucial, because the project’s financial value to both the Massachusetts utilities and Avangrid was based on that timing. Any delay would hurt the overall financial performance in terms of rate of return on the nearly $1 billion investment, Dickinson said.

The delays include getting a key permit from the Public Utilities Commission, which was expected in 2018. It was approved in May 2019.

There were 31 parties that intervened at the PUC, including opponents NextEra, the Natural Resources Council of Maine and Thomas Saviello, which are all intervenors in this case. NextEra appealed the permit, creating further delay, although the appeal was rejected by the Maine Supreme Judicial Court in March 2020.

The next delay was caused by a citizen referendum attempt to overturn the PUC’s approval, Dickinson said. Avangrid filed a complaint in early 2020, and the court ultimately ruled the referendum unconstitutional in August.

Dickinson recalled how NECEC moved ahead with planning while waiting for other permits. But there were continued delays and the developers finally realized they had to move the commercial operation date, or COD, from December 2020 to May 2023.

“Any delay on our COD was critical,” Dickinson said.

To help mitigate the delay, planners looked for ways to move up other parts of the project. When NECEC was preparing for construction in the fall of 2020, the company learned opponents were seeking to create a second citizen referendum. Construction didn’t start until Jan. 18, 2021 – and not on Segment 1 because of an injunction from another lawsuit.

In his testimony at the state Business and Consumer Court in Portland, Dickinson described a lay-down area off Route 201 in northern Maine, where hundreds of workers and heavy equipment assembled to begin work.

“Incredible excitement, and then massive disappointment,” Dickinson said.

NO SPEEDING

Later in the day, Dickinson said the NECEC board never dictated how construction should proceed. The construction team made recommendations based on what was happening on the ground. Some leeway – referred to as “float” – was built into construction schedules, to allow for uncertainties and contingencies. The original 2018 construction schedule was 41 months, with some float added.

“It’s unlikely that everything goes as smoothly as you want,” Dickinson said.

Aromando asked Dickinson if he was familiar with the term vested rights. Dickinson said he was.

“Did NECEC want to vest the project?” Armando asked.

“Absolutely,” Dickinson replied. “We wanted to protect it from risks – actions that we knew the opposition was going to continue to take.”

“Did NECEC escalate construction schedule to secure vested rights?” Aramondo continued.

“No,” Dickinson said. “It was always about achieving our commercial operation.”

But John Bolton, the assistant attorney general representing the state and the Public Utilities Commission, showed the jury documents, including a transmission service agreement with a baseline schedule from 2018. It was part of a presentation to suggest that the schedule was obsolete from the beginning, even without a timeframe for receiving permits.

Bolton also produced documents showing that the company was concerned about the referendum campaign and sped up the installation of the steel towers.

Dickinson claimed vested rights were not the motivation to install towers starting in February 2021, rather than waiting until May. The company was concerned about various risks, including the referendum and potential for the Legislature to enact new laws that could hurt the project. But the overall motivation for schedule revisions, he said, was to meet the shifting commercial operations date and meet contract obligations.

Bolton showed another document, a change order, requested by Irby Construction and Cianbro Corp., two lead contractors. The change order added a $6 million cost for installing transmission poles out of sequence and from moving up the schedule from May to January.

But Dickinson said even if the work started in May as planned, there could have been a change order. The work was out of sequence, he said, because of an injunction that banned construction in Segment 1, the undeveloped stretch of forest on the border.

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