New England Clean Energy Connect can restart construction on its stalled $1 billion electricity transmission line, a jury ruled Thursday, handing the Central Maine Power affiliate a major victory. One of the state’s most controversial energy projects in decades, the project was opposed by voters in a ballot referendum.

The nine-member jury began deliberating Wednesday afternoon. After seven days of conflicting testimony and hundreds of email and document exhibits, the verdict came down to a yes or no answer from at least six of the jurors to this question from Judge Michael Duddy:

“Have Avangrid Networks Inc. and NECEC Transmission LLC proved to you by a preponderance of evidence that they undertook significant, visible construction on the project in good faith prior to the enactment of the initiative, meaning that said construction was made in reliance of the (Public Utilities Commission permit), before November 2, 2021, and according to a schedule that was not created or expedited for the purpose of a vested rights claim?”

Following roughly three hours of deliberations, the verdict was unanimous.

After the verdict, Scott Mahoney, senior vice president and general counsel for NECEC’s parent company, Avangrid, said in a statement: “The jury’s unanimous verdict affirms the prior rulings of the Maine Supreme Judicial Court that NECEC may lawfully proceed. Even after repeated delays and the costs caused by the change in law, the NECEC project remains the best way to bring low-cost renewable energy to Maine and New England while removing millions of metric tons of carbon from our atmosphere each year.”

Mahoney’s statement, however, left unanswered some key questions. When might construction resume? Where could it take place? What work could be restarted first?

A media spokesperson at Avangrid, Kim Harriman, declined to discuss the company’s plans at this time.

“The decision just came out,” she said. “The teams will go back and evaluate where things stand and make a decision.”

One piece of unfinished business is for the Maine Department of Environmental Protection to lift the stop-work order it issued in 2021, soon after the referendum passed. David Madore, the DEP’s deputy commissioner, said Thursday that the commissioner and staff will review whether the decision affects the status of the suspension order as soon as possible.

Opponents who have been fighting the project for years in regulatory agencies and in court expressed disappointment following the verdict.

Tom Saviello, the lead organizer of the petition drive that led to the 2021 referendum and law change, said the opposition would continue to evaluate its options.

“I am obviously disappointed with today’s result,” Saviello said in a statement. “But I am confident that I – and the 240,000 other Mainers who voted overwhelmingly in favor of the referendum – were correct when we voted to reject the CMP corridor.”

The Natural Resources Council of Maine, which took the lead in fighting the corridor in this court case, said it would focus its efforts on promoting local clean energy sources, including utility-scale solar and offshore wind power. The group called out the King Pine wind project being proposed for Aroostook County, which would deliver power into the New England grid via a new transmission line along a yet-to-be-determined route. The NRCM said that project would be “a better path forward” than the NECEC line.

“We are disappointed in today’s outcome,” the group said in a statement, “and remain sharply focused on achieving a just and equitable clean energy future that works for all Mainers.”

Asked if NRCM might be considering a further legal challenge to the project, a spokesman declined to comment.

Still, the project isn’t out of the woods just yet.

NECEC still faces legal challenges in state and federal court, including appeals of a permit granted by the Maine Department of Environmental Protection and the U.S. Army Corps of Engineers. Parties in the state case include the NRCM, NextEra Energy Resources and residents in the Kennebec Valley called the West Forks Group. Opponents in the federal case, which dates to 2020, include the NRCM, the Sierra Club and the Appalachian Mountain Club.

“Those permits on appeal could certainly trip it up,” said Beth Boepple, a Portland attorney who represents the West Forks Group.

COMPLEX CASE

The decision comes eight months after the Maine Supreme Judicial Court sent the case, called NECEC Transmission LLC et al. v. Bureau of Parks and Lands et al., back to Duddy at the state’s Business and Consumer court in Portland. The lower court had to determine whether the company had gained property rights to build in the corridor, a legal doctrine called vested rights, despite a retroactive law stemming from a 2021 ballot question aimed at killing the project.

Work has been on hold since the Department of Environmental Protection issued a stop-work order soon after the referendum.

Thursday’s decision marked a third key victory for NECEC and its allies.

Last November, the Supreme Judicial Court ruled that Central Maine Power has a valid lease to cross a one-mile stretch of the state’s public lands in order to build the line.

Two months ago, a ruling at the Federal Energy Regulatory Commission settled a multimillion-dollar dispute between Avangrid Inc., the domestic parent company of Central Maine Power Co. and NECEC Transmission LLC, and Florida-based NextEra Energy Resources, which owns the Seabrook, New Hampshire, atomic power station.

The jury had to weigh conflicting evidence as to why NECEC preceded to work on the project when it did, and where it did. Top of mind were always questions, tied to narrow but crucial definitions in case law: Did NECEC begin “significant, visible construction” in good faith after receiving permits on a schedule meant to meet its contract obligations? Or did NECEC speed up the work in an effort to assert a narrow legal doctrine called “vested rights”?

Lawyers had previously estimated that testimony, documents, email and depositions in this matter had exceeded 2 million pages over the past five years. After seven days, it almost seemed as if the jury had been presented with most of them.

Using video screens, lawyers displayed a steady stream of exhibits, many of them emails from company officials and contractors with words or sections highlighted to show their intent and concerns. They heard testimony and watched videotaped depositions from key decision makers and project participants.

They heard from the retired NECEC chief executive, who gave a compelling explanation of what he saw as the project’s benefits; from the project manager driven to get started to retain jobs and a skilled labor force; from the Avangrid executive explaining the rationale for the shifting construction schedule; and from the well-compensated consultants who weighed in on that schedule’s best practices, among others.

Here was a project initially planned in 2018 to begin with tree clearing in January 2020 and have power flowing at the end of 2022. That didn’t happen. Tree clearing did start in January 2021, with steel poles going up in February. Eight months later, an anti-corridor referendum vote was successful and state environmental regulators issued a stop-work order, but not before NECEC spent roughly $500 million. In between, opponents filed lawsuits and challenged virtually every permit issued for the project. The unrelenting fight upended schedules and the sequence of work locations, leading the company to keep juggling its plans as it sought a path forward.

Jurors had to keep in their minds scores of dates between 2017 to 2023 – when and where construction was initially slated to begin and when it finally started; the timelines of two ballot referendum campaigns; challenges in courts and regulatory agencies and an injunction that blocked work on one segment.

Just before the trial started, lawyers and Duddy discussed the merits of letting the jury take notes, to try to keep all this information straight. But the judge concluded that note taking was an art, and that lay people could easily get bogged down in chronicling the specifics. It’s better for them to listen carefully and form a wholistic understanding, he said. As the dates and numbers began flying, it seemed like a good call.

MORE ABOUT NECEC

The project is organized under NECEC Transmission LLC, a subsidiary of Connecticut-based Avangrid Inc., the parent company of Central Maine Power. Both are controlled by Iberdrola, a Spanish multinational energy company.

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 around-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 plaintiffs in this case were 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.

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.

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 was 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 Saviello, the former state senator who led the ballot initiative against the project.

Also opposing the project was NextEra Energy Resources, the 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 was H.Q. Energy Services, the American arm of Hydro-Quebec, the Canadian utility that would supply the power and profit from the sales.

Copy the Story Link

« Previous

U.S. unemployment claims tick up to 245,000, but still low

Next »

Justice John Roberts asked to testify on court ethics amid Thomas reports