For nearly seven years now, advocates and opponents have struggled in legal and political venues over a corridor of land across which high-capacity power lines would transmit hydroelectric power from Quebec to Massachusetts through Maine. Officially known as the New England Clean Energy Connect (NECEC) project, it is more often referred to as the Central Maine Power (CMP) Corridor.
Though I have found myself ambivalent about whether “The Corridor” is ever built, it is clear to me that there are a few key reasons why it is likely—and legally—to become a reality. Among the key issues involved are whether a lease granted by the state allowing the corridor to pass over less than one mile of public lands in northern Somerset County required a vote of approval from two-thirds of the legislature. This is referred to in a clause in Maine’s state constitution governing changes to public lands parcels. In 2014, the Maine Bureau of Parks and Lands (MBPL) signed a lease agreement for this purpose.
Utility leases are commonplace on public lands and contribute to the greater public good by allowing utilities used by the public, such as electricity, natural gas, etc., to move freely. Years after the lease was in place, opponents of NECEC made attempts to negate or revoke this lease in order to block the path of the corridor, requiring a new route and perhaps delaying the project beyond the deadlines set by its sponsors.
The key arguing point regarding the lease is Article IX, Section 23 of the Maine Constitution that reads that public land “may not be reduced or its uses substantially altered except on the vote of 2/3 of all the members elected to each House.” Notably, this clause does not define “uses” or categorize it with words like “recreational” or “for conservation purposes.” It just says “uses” whatever they may be.
Following the passage of the constitutional amendment by the voters in 1993, the Legislature passed a law that read, in part:
“Substantially altered,” in the use of designated lands, means changed so as to significantly alter physical characteristics in a way that frustrates the essential purposes for which that land is held by the State (12 M.R.S. § 598(5)).
Given their longstanding existence across the state’s public lands without major objections, utility leases are included in the concept of “essential purposes.” The proposed NECEC corridor makes no significant physical change to the parcel in question because, for more than a half century, it has had a much larger electricity transmission corridor running across it.
In 1958, CMP signed a lease with the state over this very same property allowing it to construct a 3.7 mile long, east-west utility corridor over which it would transmit electricity. That corridor and its power lines, now known as the Jackman Tie Line, were constructed in 1963 and have been a fixture of that landscape ever since. The Bureau of Parks and Lands keeps no record of public use on its lands parcels as it is nearly impossible to count the number of people who visit there for hunting, fishing, and the like. Since 1963, however, CMP has no doubt kept records on employee visits to the corridor for maintenance of their power lines. Thus, if use is measured by the quantifiable number of human visits in a given year, the primary use of this parcel since 1963 is the CMP corridor and its transmission of electricity. Thus, an additional transmission corridor less than one-quarter the size of the existing one does not introduce a new use.
In 2021, a statewide referendum was on the November ballot asking voters to ban the corridor. It was approved with roughly 60% voting in favor of the following language:
“Do you want to ban the construction of high-impact electric transmission lines in the Upper Kennebec Region and to require the Legislature to approve all other such projects anywhere in Maine, both retroactively to 2020, and to require the Legislature, retroactively to 2014, to approve by a two-thirds vote such projects using public land?”
In late August of this past year, however, Maine’s Supreme Judicial Court ruled that the referendum was “likely unconstitutional” because it would violate CMP’s “constitutionally protected vested rights.” In laymen’s terms, the court ruled that reaching back in time to cancel a legally obtained lease agreement and permitted project violated the principle of ex post facto in the Contract Clause of the U.S. Constitution.
Essentially, CMP met every requirement required by the state and federal government to obtain several permits allowing it to build the corridor. The Maine Public Utilities Commission, Department of Environmental Protection, the U.S. Army Corps of Engineers, and other agencies, all studied the proposed corridor and determined that it met all of the legal thresholds required by state and federal laws. Having established its right to build the corridor, not even a unanimous vote of every Maine citizen could have subverted the rights of the NECEC to move forward.
The U.S. Constitution vehemently protects the rights of the minority against the actions of the majority. Revoking legitimate permits after the fact simply because the public generally dislikes the company that obtained these permits is a classic example of “mob rule” that the Founders intended to protect against. Over two and a half centuries, the old-fashioned tactics of pitchforks and torches have been replaced by lobbying and lawsuits, but the principle remains the same. Punishing someone or something simply because it is unpopular is not allowed by the Constitution.
In this case, CMP is a minority of one, and no amount of dislike or negative sentiment against this one company can take away its right to carry out a legally permitted project. Passing laws that specifically target this one company and seek to revoke its legally acquired permits violates two stated principles in the U.S. Constitution.
Specifically, these principles are spelled out in what is known as the “Contract Clause,” Article I, Section 9, Clause 3. This reads, among other text: “No Bill of Attainder or ex post facto Law shall be passed.”
A Bill of Attainder, in layman’s terms, is a law passed specifically to punish just one person or, in this case, corporation. Having endured the petty whims of the King and his councils who used laws and decrees to punish those they disagreed with, the framers of the U.S. Constitution were very keen on prohibiting such things in the new nation’s governing documents.
The second part of this clause, the principle of ex post facto—Latin for “after the fact”— is very much a factor in the legal efforts to stop the corridor’s construction. Put simply, laws may not be enacted that punish a person or group of people for something done in the past, before the law was in effect. By adding the word, “retroactively” to the referendum question, its supporters sought to revoke legally obtained permits already in place that allowed the corridor to be built.
Had the court ruled that the referendum and other legislative efforts to stop the corridor did not violate the principle of ex post facto, it would have established a very dangerous precedent for Maine’s economy. The Pine Tree State would become untenable as a place in which to make large capital investments. There is little chance that a major employer would choose to commit hundreds of millions of dollars to locate some significant portion of their infrastructure such as a distribution center, factory, or paper mill, knowing that at any time afterward the legislature could revoke the permits, and ban their facility, thus revoking guarantees that made their investment possible.
On this principle, Maine’s Supreme Judicial Court nullified the referendum’s majority vote when it held, “that retroactive application of section 1 of the Initiative violates the Contract Clause of the United States Constitution.” In short, the referendum violated the principle of ex post facto. If the referendum were allowed to stand, the court concluded, the resulting change to state law will have “reached back in time to destroy at least one lease and to put the validity of hundreds more into question, all without any showing of necessity for such drastic action.”
In November 2022, the Supreme Court ruled on a lawsuit against the Maine Bureau of Parks and Lands (BPL) by opponents of the project that also argued the new lease was unconstitutional based on a perceived change in use. Maine Superior Court Justice Michaela Murphy, perhaps the most overturned judge in Maine, vacated the lease based on the “uses substantially altered” clause. NECEC appealed and Maine’s Supreme Judicial Court soundly overturned Justice Murphy’s decision, ruling that the corridor did not violate the state constitution. In its opinion, it explained:
“Given the uses, physical characteristics, and essential purposes of the Johnson Mountain and West Forks Plantation tracts we see no reasonable basis for deciding that a second utility transmission line occupying 2.6% of the combined tracts could significantly alter the physical characteristics of so much of the remaining 97.4% that the multiple-use purposes for which the tracts are held would be frustrated.”
Last week, a Maine jury deliberated for just three hours before unanimously deciding in favor of the NECEC on a smaller, very technical legal issue. Their decision bodes poorly for opponents of the corridor as it demonstrates that when presented with even a complicated piece of the overall issue, and in a climate where competitors of CMP have spent millions to persuade the general public against the corridor, a group of average citizens, empaneled as a jury, set aside whatever personal animus they may have against CMP and ruled on the law, quickly and unanimously.
The state’s legal system, particularly the Supreme Judicial Court, has repeatedly ruled to protect the right of CMP to carry out its legally permitted project. Given this, it is deeply disappointing that there are still those who do not respect the constitutional rights of the minority and argue that the referendum vote should take precedent over the constitutional rights of CMP and NECEC.
The arguments for and against the corridor have now been fully vetted by state and federal agencies and repeatedly by the highest level of the Maine judicial system. It is time to accept the fact that CMP and NECEC have met all of the bars set by state law and now have the right to move forward, no matter how unpopular the project is or how persistent its opponents are.