After 5 days of trial over CMP corridor, many questions remain

An expert on transmission line construction told jurors in the New England Clean Energy Connect trial Friday that project developers did not speed up their work to gain a critical legal standing known as vested rights.

Just the opposite, said William Berkowitz, a senior managing director with FTI Consulting. The developers were forced to keep adjusting their schedule outward, he said, to cope with permit delays and constant challenges from project opponents.

But that raised a question posed by a Maine assistant attorney general who cross-examined Berkowitz: Can a developer running behind still expedite a construction schedule?

These important legal distinctions are at the core of an unprecedented jury trial that could decide whether one of Maine’s most contested energy projects is ever finished.

The jury must make a factual decision about whether the NECEC development team, affiliated with Central Maine Power, started work and spent money in good faith. That decision is based on another, underlying question: “Did work proceed according to a schedule that was not created or expedited for the purpose of generating a vested right claim?”

The jury has spent five days of a seven-day civil trial hearing testimony that presents conflicting answers. The court will resume Tuesday after the Patriot’s Day holiday weekend, with the jury set to deliberate the case on Wednesday.

The $1 billion 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 say parts of the 145-mile corridor 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 voters to reject the project in November 2021. The vote came after NECEC already had begun clearing a corridor through timberland in western Maine and erecting towers — work that was halted by state environmental regulators a few weeks later.

That’s why the timing and intent of the NECEC construction schedule is pivotal. The jury must decide the facts around vested rights to 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.”

COMPETING CLAIMS

The Law Court sent the case, called NECEC Transmission LLC et al. v. Bureau of Parks and Lands et al., back to Judge Michael Duddy last August to determine the vested rights issue. It’s being heard in the Business and Consumer Court in Portland.

Berkowitz was called as an expert witness for NECEC and Avangrid Networks, the plaintiffs in the case. Avangrid is the parent company of both NECEC and Central Maine Power.

Berkowitz said he’d looked at schedules for hundreds of transmission projects over 30 years and had spent more than 300 hours reviewing NECEC. The company’s baseline schedule, drawn up in 2017, contained more than 1,000 activities.

For the trial, he focused on work done to support clearing the corridor, erecting poles and preparing the site for a converter station in Lewiston, where the line’s high-voltage direct current would be turned into alternating current for the electric grid.

Questioned by Robert Stier, an attorney representing Avangrid, Berkowitz used charts to walk through how NECEC was aiming to begin commercial operation last December and how the schedule for those work tasks was pushed out in time in response to delays.

But it’s not just the timing of work that’s important in this case, it’s also the nature of it. Another legal standard revolves around “significant visible construction,” such as erecting the steel poles and components for the converter station.

“Do you consider clearing to be construction?” Stier asked.

“Absolutely,” Berkowitz replied because it involves equipment and labor and is part of the production schedule. Language in the permit from the Department of Environmental Protection, shown to the jury, confirms that opinion, he said.

Asked by Stier if there was significant visible construction prior to Nov. 2, 2021, the date of the referendum, Berkowitz said there was, and it could be seen in photos displayed in court.

Was this construction within the scope of the PUC permit? Yes, it was, Berkowitz replied.

Was the work sped up to gain vested rights, Stier asked? No, Berkowitz said. And the chart he displayed showed the schedule being pushed out in time. If it was being sped up, he said, the schedule timing would have been moved earlier in the chart.

“Here you see just the opposite, indicating delay,” Berkowitz said.

But there were instances in which NECEC did accelerate tasks, noted Sarah Coleman, the assistant attorney general. One example is when contractors were asked to move up pole work to February 2021, three months earlier than scheduled.

Sequences can and do change in construction, Berkowitz said, calling the schedule “a living document.” But you can’t focus just on one activity and call it expediting, he asserted, while agreeing that a secondary result could be vesting the property rights.

Berkowitz also pointed out that clearing the corridor was initially scheduled in November 2020 but didn’t start until January 2021. And the overriding goal was to mitigate delays, he said, and get the project operating as soon as possible.

Whatever the jurors made of the exchange, Coleman left them with a closing thought. She displayed several invoices from FTI Consulting to NECEC, which showed that the company was paid nearly $500,000 for its services.