The Maine Supreme Judicial Court on Tuesday ruled against a ballot initiative that shut down construction of the New England Clean Energy Connect (NECEC) project, also known as the Central Maine Power (CMP) corridor.
In NECEC Transmission LLC et al. v. Bureau of Parks and Land et al., a five-judge panel of the state’s high court ruled that a portion of the 2021 citizens’ referendum that retroactively applied to the construction of NECEC’s transmission line would be unconstitutional if a lower court determines the project was too far along at the time the statewide vote occurred. The court remanded the case to the Business and Consumer Docket for further proceedings consistent with its opinion.
Section 4 of the referendum required high-impact transmission line construction projects to receive legislative approval. Section 5 of the referendum banned construction of high-impact electric transmission lines in the Upper Kennebec region. Section 6 of the referendum retroactively applied the previous two sections to September 16, 2020.
It was Section 6 of the referendum that the court found unconstitutional. Though the referendum did not specifically name the CMP corridor, the court found Sections 4 and 5 of the referendum retroactively applied to NECEC’s construction project and to the certificate of public convenience and necessity (CPCN) already issued for the project in accordance with Maine law.
“[W]e hold that section 6 of the Initiative is unconstitutional to the extent it requires sections 4 and 5 to be applied retroactively to the CPCN if the appellants have acquired vested rights to proceed with Project construction. We therefore remand to the Business and Consumer Docket for further proceedings consistent with this opinion,” the court wrote in its opinion.
In the ruling, the court also addressed a claim made by NECEC that the referendum violates the separation of powers in Maine’s constitution.
“We have recognized the power of a legislative body to enact retroactive legislation that affects the validity of a permit issued by an executive authority,” the court wrote. “Neither the CPCN nor any other permit that has been upheld in court as validly issued is necessarily categorically exempt from retroactive legislation.”
The court maintained it, rather than the legislature, had the authority to adjudicate this point and distinguished NECEC’s case from a case brought by Avangrid.
Following a citizens initiative that proposed a resolve to overturn a Public Utilities Commission granting CMP a CPCN for the corridor, the court ruled in favor of Avangrid, which owns CMP, in Avangrid Networks, Inc. v. Secretary of State, finding the initiative exceeded the scope of the legislature’s power.
“[I]n Avangrid, we declared the citizens’ initiative at issue there to be invalid because it purported to adjudicate the validity of the CPCN directly, and thereby exercise judicial power rather than legislative power,” the court wrote. “The Initiative now before us is distinguishable because it is an exercise of legislative power that may affect the validity of the CPCN but leaves judicial review–and the separation of powers–intact.”
