For over five years, developers of a proposed $1 billion electricity transmission line through western Maine have battled opponents in front of regulatory officials and judges. Now lawyers for both sides are preparing to argue before an audience experts say could be unprecedented for a major U.S. energy project – a jury.

A trial begins April 10 that could help decide the fate of New England Clean Energy Connect, the planned 145-mile line backed by Central Maine Power Co. A jury of nine Cumberland County residents is scheduled to hear testimony about land claims related to the transmission line corridor. The trial takes place at the state’s Business and Consumer Court in Portland and closing arguments are set for April 19.

“With three decades of tracking energy policy, we’ve never witnessed a jury deciding the outcome of an energy asset,” said Timothy Fox, vice president and research analyst at ClearView Energy Partners, an industry research firm in Washington, D.C.

Fox, who has been following the project for investors, noted that the jury would be picked from a population that voted in 2021 to kill the transmission line.

“It’s not surprising the opponents wanted a jury to decide,” he said. “It likely gives them an advantage.”

The project is organized under NECEC Transmission LLC, a subsidiary of Avangrid Inc., the Connecticut-based parent company of Central Maine Power. The NECEC project would have a capacity of 1,200 megawatts, enough power for 1.2 million homes. Paid for by Massachusetts utility customers, the power line would help lower electricity prices in New England by introducing a new source of round-the-clock hydroelectricity from Quebec, according to the Maine Public Utilities Commission. The agency granted the initial go-ahead permit in 2019.

Opponents, however, say NECEC would destroy important forest and wildlife resources and that the electricity wouldn’t be as environmentally “clean” as supporters claim. The foes successfully mounted a ballot initiative that led to voters rejecting the project in November 2021. The vote came after NECEC had already begun clearing a corridor in the woods and erecting towers, work that was halted by state environmental regulators a few weeks later.

The jury won’t rehash the merits of those actions. Instead, it will decide the facts around a narrow legal doctrine, known as vested rights, that will determine if NECEC is entitled to build on the corridor. The jury must decipher, in the words of the Maine Supreme Judicial Court, “whether NECEC acquired a cognizable property right that the Maine Constitution protects from being impaired by retroactive legislation.”

The decision-making will focus on the construction schedule – specifically, who did what, when did they do it and why?

The case, called NECEC Transmission LLC et al. v. Bureau of Parks and Lands et al., was sent back to Judge Michael Duddy by the Law Court last August, to determine the vested-rights issue.

NECEC spent more than $500 million before the stop-work order. Some of the money went to clearing a new 53-mile corridor through working timberland from the Quebec border to The Forks. Construction began in January 2021, after NECEC received a final permit. The project was already behind schedule by then; the line was supposed to be in service during 2022.

The jury must make factual determinations about whether NECEC started work and spent money in good faith. The critical question: Did work proceed “according to a schedule that was not created or expedited for the purpose of generating a vested rights claim”?

That’s a key issue, according to Duddy, commenting on his approval of the opponents’ request for a jury trial.

“If Plaintiffs (NECEC) acquired vested rights based in this factual inquiry,” he wrote, “then the legal analysis is simple. Applying the (ballot initiative) to the project would violate the due process clause of the Maine Constitution.”

LEGAL MAZE

But the facts surrounding the power line and its construction are far from simple, in part because of how much time has gone by and the number of legal and regulatory challenges that have occurred.

By one count, the project has been subject to at least 38 reviews. Testimony, depositions, exhibits, emails and other documents generated in this case now exceed an estimated 2 million pages. The project has required approvals from multiple state and federal agencies and two dozen municipalities. It has spawned lawsuits relating to a public lands lease and permits from the Maine Department of Environmental Protection, U.S. Department of Energy, Army Corps of Engineers and Massachusetts Department of Public Utilities.

“I’m not aware of an energy project that has had 38 different judicial or quasi-judicial examinations,” said Tony Buxton, who chairs the energy and utilities practice group at the Preti Flaherty law firm in Portland.

Buxton’s firm represents one of the intervenors in the case that supports the project, the Industrial Energy Consumer Group. After more than 30 years representing clients on energy issues, Buxton said the only case he can think of that comes close to NECEC in terms of cost and time is the 1970s fight over the Seabrook nuclear power plant in New Hampshire. The plant took 26 years to come online and led to a utility bankruptcy and scrapping of a second planned reactor.

The plaintiffs in this case are both NECEC and Avangrid. They filed a complaint the day after the ballot initiative passed on Nov. 3, 2021, seeking to prevent the new law from being applied retroactively to their project.

The defendant is the PUC, represented by the Maine Attorney General’s Office. Key defendant-intervenors include the Natural Resources Council of Maine, the state’s leading environmental advocacy group, and Tom Saviello, a former state senator who led the ballot initiative against the project. Also fighting the project is NextEra Energy Resources, a Florida-based utility company that now owns the Seabrook nuclear plant and would be hurt by the use of less-expensive Canadian power.

A key intervenor supporting the project is H.Q. Energy Services, the American arm of Hydro-Quebec, the Canadian utility that would supply the power.

Lawyers in firms contacted by the Portland Press Herald/Maine Sunday Telegram declined to discuss the case on the record. The Natural Resources Council and Saviello declined to be interviewed. NextEra didn’t respond to an interview request.

But documents filed in the case provide a window into the scope, volume of material and legal time expended so far. One example involves a request for documents during the discovery process, the pretrial procedure in which the parties gather evidence. The request is contained in a Jan. 11 letter from Joshua Dunlap of the Pierce Atwood law firm, which is representing NECEC and Avangrid. The letter was sent to Jeana McCormick of the Drummond Woodsum defense team and seeks to limit the number of documents provided.

Dunlap wrote, “We have provided you with over 64,000 documents from Plaintiffs’ NECEC-specific document repository, as well as 86,000 documents from identified custodians and more than 1,500 documents from Plaintiffs’ SAP (software) system.”

HISTORIC LAW

The request for a jury trial was made last October by NRCM, Saviello and a handful of residents who oppose the project. Avangrid and NECEC objected, arguing that the defendants didn’t have a constitutional right to a jury trial. They noted that the companies were seeking “equitable relief,” which is a judicial remedy that compels a party to perform a certain act or refrain from doing so.

In his ruling, Duddy reached back into case law that predated Maine becoming a state in 1820, when it was part of Massachusetts. He determined that jury trials were available before and after 1820, to protect property interests and resolve disputes over vested rights.

Based on recent proposed witness list filings, the jury will hear from experts with deep knowledge of the construction schedule for the project. The defendants and intervenors want to question 23 people, including CMP and Avangrid executives Adam Desrosiers, vice president of electric operations; Gerry Mirabile, director of NECEC permitting; Thorn Dickinson, NECEC’s now-retired chief executive; and Robert Kump, Avangrid’s former president. Also on the list are out-of-state contractors central to preparing the corridor and building the project, Irby Construction and Northern Clearing, as well as executives from Hydro-Quebec.

The plaintiffs want to question Dickinson and Desrosiers, as well as executives from FTI Consulting, a global corporate advisory firm, and Elizabeth Wyman, the PUC’s general counsel and hearing examiner.

The proposed exhibit list in the case hints at the level of detail being sought. For instance: “All agendas, minutes and presentations” from board meetings of Avangrid, NECEC and the joint Hydro-Quebec/CMP development board. All “invoices, change orders, change order summaries and communications relating to change orders for the project.” Spending that was budgeted or forecasted from June 2018 through November 2021, compared with the actual reports.

Potential jurors also will be screened with proposed questions such as: “Did you, a family member, or someone close to you ever sign a petition related to the NECEC project?” Also: “Do you consider yourself an environmentalist?”

Jurors will have to consider what kind of construction schedule was established, when it was made up and what changes were made, according to Peter Murray, a longtime Portland lawyer with expertise in public utilities investigations. But these questions are complicated by the size of the project and circumstances taking place at the time. For instance: Scheduling over the past few years had to consider the effects of the COVID-19 pandemic on standing up a workforce, global supply chain shortages and a contract deadline from the Massachusetts utilities that want to buy the power.

“To pin it to a simple schedule may be unrealistic,” Murray said. “You may be looking at a more holistic inquiry. Did the way they proceeded overall make it unfair to apply the referendum?”

« Previous

The CMP corridor battle: Where does the money come from?

Next »

Twitter says parts of its source code has leaked online