On Jan. 15, the federal 1st Circuit Court of Appeals granted opponents of the Central Maine Power transmission line a preliminary injunction halting construction on section 1 of the project. The Army Corps of Engineers (as part of federal review) concluded that the project would have “no significant environmental impact”; they issued the required permit. Opponents want the Corps to prepare an environmental impact statement (a costly and time-consuming requirement) before determining whether approval of the project is warranted.

Maine’s federal District Court had declined to issue a preliminary injunction. It had applied traditional standards for issuing an injunction, i.e., the likelihood of the appellant’s success on the merits, whether they’ll suffer irreparable harm, whether the balance of interests tips in their favor and whether the injunction serves a public interest. The District Court held that the key factor (likeliness of success) had not been demonstrated. The 1st Circuit appellate court, without comment, will re-examine the lower court’s denial on an accelerated timeframe.

The history of these proceedings is long. On Sept. 27, 2017, CMP petitioned the Maine Public Utilities Commission to construct a 145-mile transmission line (New England Clean Energy Connect). At the same time, the utility petitioned the Maine Department of Environmental Protection and the regional Land Use Planning Commission for project approval. All three regulatory bodies conducted extensive public hearings; multiple parties in support and opposition to the project participated. The Public Utilities Commission proceedings took 20 months to conclude; DEP proceedings took 30 months; the technical staff of both agencies conducted independent studies verifying the applicant’s submitted materials. The aggregate record is thousands of pages long.

All three agencies approved the project with conditions accepted by CMP. The conditions protected the environment and assured promised benefits. The PUC order contained a 38-page stipulation that required “the project to provide myriad benefits to ratepayers and the state.” The DEP noted that: “Collectively, the …  permit require(s) an unprecedented level of environmental protection and compensatory land conservation.”

Notwithstanding this stringent regulatory care in approving the project, opponents appealed the PUC’s order. Maine’s highest court affirmed the order. It noted: “We discern no error in the Commission’s determination that the NECEC project meets the applicable statutory standards for a Certificate of Public Convenience and Necessity or in its decision to approve the stipulation.”

Opponents appealed the DEP’s order, raising several preliminary issues in seeking a stay of the order. These were rejected by the Superior Court. The appeal’s merits are still pending. Opponents also undertook an initiative to block the NECEC project. The initiative was held to be unconstitutional by Maine’s highest court. Organizers of a second initiative – the constitutionality of which is questionable – have presented enough signatures to the Secretary of State that (if validated) will further delay the project.

Beyond the three state regulatory approvals, because NECEC transfers 1,200 megawatts of Canadian hydropower to and through Maine to markets in Massachusetts, CMP had to obtain both a Corps of Engineers approval-permit and a presidential permit. The latter requires review and approval by the U.S. Department of Energy.

Filings to obtain these permits were commenced in 2017 but delayed (to allow state regulatory proceedings to conclude) until August 2019. The Corps, after considering the state’s regulatory measures, the Endangered Species Act, the National Historic Preservation Act and the Clean Water Act, made its “no significant environmental impact” finding and issued its approving permit (now being appealed) last November.

The federal Energy Department, after reviewing this vast body of project data, and after receiving concurring letters from the Defense and State departments, issued the presidential permit for CMP’s project Jan. 14.

CMP’s project has weathered 40 months of state and federal regulatory proceedings; millions of dollars have been expended; every required permit and approval is in hand.  It has prevailed in all court cases that have concluded. Now it faces a 1st Circuit delay of indeterminate length – a few weeks or months, more costs. The question to be asked is: How much process is due? When is enough, enough? When do “due process” safeguards, strung out by opponent delays, become unfair, a denial of CMP’s “due process” rights – a barrier to providing essential infrastructure?