Maine’s high court is expected to soon rule on challenges to a referendum and a permit for the $1 billion hydropower corridor, but lawyers on both sides said the decisions may not end the long fight over the project.
One complaint alleged that last November’s referendum aimed at halting the corridor, and which was strongly supported by Maine voters, violated Maine’s constitution. The other involved whether or not a lease for about 1 mile of public lands for the project was legal.
The stakes are high, with money, jobs and the will of the people hanging in the balance. The referendum, which was aimed at stopping the New England Clean Energy Connect project, was the most expensive ballot initiative in state history, with campaigns spending more than $90 million.
If the court’s rulings favor corridor backers, the project will move ahead. While opponents could try to launch another referendum, the project could be completed by the time they do. If the court’s rulings favor opponents, the few remaining options to save the project would dwindle further. A mixed ruling on the cases would muddy the waters even more for the corridor.
The stakes are so high that there will likely be some ongoing legal challenges in the current cases, lawyers said.
“The lower court in both cases ruled correctly on existing precedent in the state of Maine,” said Adam Cote, a lawyer representing corridor opponents who helped draft the referendum. “If the law court rules against us, they would be creating an exception that is different from existing cases and they would be going against the will of a large majority of Maine voters that passed the referendum.”
Cote said the high court could send one or both cases back to the lower courts for further findings. Since the referendum had three parts, each could be sent individually to the lower courts, he said. Each of the parts could survive without the others, but not having all three could further complicate the case.
The referendum bans the construction of high-impact electric transmission lines in the Upper Kennebec region and requires the Legislature to approve all other such projects anywhere in Maine. It also requires the Legislature to approve by a two-thirds vote such projects using public land.
Another option if the court rules the referendum constitutional would be for Avangrid Networks, which launched the referendum lawsuit, to try to amend Maine’s constitution, an effort that is rare and which happened last November when voters passed a referendum on the “right to food.”
Constitutional amendments in Maine must be passed by a majority of voters after the Legislature approves a resolution proposing the amendment by a two-thirds vote of both chambers, which would be difficult to pass as things stand in Augusta.
Sending the cases back to the lower court for another decision may not hurt the project but pose “a slight additional delay,” said Tony Buxton, a lawyer who represents the pro-corridor Industrial Energy Consumer Group.
If the court rules in favor of the referendum, Massachusetts could have a problem with the timing of the project’s completion, and Hydro-Quebec could pull out, he said.
Massachusetts is footing the bill for the project, which it wants done by the end of 2023, while Hydro-Quebec is the partner that would supply the electricity. Buxton said he does not know what Avangrid will do if the court rules against its interests, but he is not optimistic.
“I do not believe that if they uphold the referendum the project can or will be built,” Buxton said. “If someone had a way to revive it, the other folks would just do another referendum. That’s the problem.”
If the high court rules the referendum unconstitutional, Avangrid would again have access to use the lease, according to a July finding by Maine’s Board of Environmental Protection. It is not clear what would happen if the court rules for the lease but finds the referendum unconstitutional.
Potentially complicating matters further, Democratic Gov. Janet Mills and her opponent in the November election, former Republican Gov. Paul LePage, both back the corridor.
Right now, both sides of the project are watching for the rulings by the high court, hoping they will clarify the project’s status.
“We’re holding our breath like everyone else,” Cote said.
