On December 16, a Maine judge denied a preliminary injunction that would have stopped Question 1, the November ballot initiative approved by voters which halted construction of the Central Maine Power (CMP) corridor, from going into effect. The law will go into effect on December 19.
Judge Michael Duddy found plaintiffs New England Clean Energy Connect (NECEC) Transmission LLC “have not demonstrated a substantial possibility of prevailing on the merits.”
The law in question, Duddy found, is uncertain on many of the points NECEC presented.
“Thus, while the Court is unpersuaded by Plaintiffs’ legal arguments, this case presents many difficult questions. Plaintiffs have legitimate counterarguments on all disputed pointed laws,” wrote Duddy in his 55-page opinion.
According to Duddy, those counterarguments are not enough to grant a stay of the initiative. Duddy found that allowing the ballot initiative to become law while the case against it is ongoing will not cause “irreparable injury” to NECEC.
“As to the legal questions at the heart of the dispute, the Court determines that allowing the Initiative to become law will not violate Plaintiffs’ constitutional rights or constitutional principles,” Duddy wrote.
Duddy noted that the case is being litigated quickly and the financial harm done to NCEC by delaying the corridor’s construction does not outweigh the harm to “voter confidence and participatory democracy” that would result from staying the law while the court case is ongoing.
The stay would have allowed construction on the transmission line to continue. Construction must now remain halted while the case to determine its constitutionality makes its way through the courts.
Duddy found NECEC’s argument that enacting the initiative would usurp executive power by allowing the legislature rather than executive agencies to cancel projects already under construction lacked merit because the ballot initiative “does not reverse a particular final agency decision.”
Duddy characterized the ballot initiative, which retroactively requires high-impact electric transmission lines crossing public lands be approved by two-thirds of the legislature, as placing “new, retroactive requirements on a category of decisions,” rather than reversing a specific decision. He called this a “supplementation of existing law” rather than a usurpation of executive power.
He also found NECEC’s argument that the ballot initiative usurps judicial power to be without merit for the same broad reasons he found their argument about executive power to be without merit.
“It is rooted in a policy determination by the people of Maine that the disposition or lease of public lands requires heightened scrutiny by the Legislature. It does not reverse or vacate a specific judicial decision but rather imposes additional requirements for a category of linear projects,” Duddy wrote.
Because Duddy found NECEC’s arguments about usurpation of executive and judicial power to be without merit, he concluded the ballot initiative “does not violate separation of powers principles.”
NECEC’s argument that delaying construction of the transmission line would cause economic harm and potentially jeopardize the project’s completion also failed on the merits, according to Duddy.
Other arguments factoring into consideration of granting a stay of injunctive relief included the effect the decision would have on public interest and the balance of harm faced by both the plaintiffs and the defendants from an adverse decision.
On all four arguments, Duddy found NECEC had not satisfied the criteria necessary to grant a preliminary injunction.
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