Jurors in a civil trial about the stalled New England Clean Energy Connect power line on Wednesday began deliberations, which are set to resume Thursday and could decide the fate of Maine’s most controversial energy project in decades.

Up for decision is whether companies affiliated with Central Maine Power supported construction of the 145-mile line on a sped-up schedule simply to gain legal rights over a referendum that might kill the project.

After seven days of conflicting testimony and hundreds of email and document exhibits, the verdict hinges on how at least six of the nine jurors answer this question from Judge Michael Duddy:

“Have Avangrid Networks Inc. and NECEC Transmission LLC proved to you by a preponderance of evidence that they undertook significant, visible construction on the project in good faith prior to the enactment of the initiative, meaning that said construction was made in reliance of the (Public Utilities Commission permit), before November 2, 2021, and according to a schedule that was not created or expedited for the purpose of a vested rights claim?”

The trial is being held in Portland at the state’s Business and Consumer Court at the Cumberland County District Courthouse.

During closing arguments Wednesday, jurors heard lawyers for and against the project sum up key takeaways.

NECEC and Avangrid lead attorney, John Aromando, told the jury that this case wasn’t about whether the developers could vest rights to continue working on the project. Through their actions, he argued, they did.

NECEC and Avangrid vested their rights by Nov. 2, 2021, the date when Maine voters enacted a retroactive law by referendum aimed at halting the project. The companies established their rights to continue by undertaking in good faith “significant, visible construction,” and they did so, “according to a schedule that was not created or expedited for the purpose of generating a vested rights claim.”

To show the jury that significant visible construction was completed, Aromando displayed slides with examples of the work, including 122 miles of corridor clearing, 71 structures and 91 foundations. The company had spent $385 million by then, he noted.

“This case is about fundamental fairness,” Aromando said.

NECEC proceeded in good faith, Aromando said, guided by a detailed schedule it had first created in June 2018. The schedule was set back because of delays, not sped up.

“NECEC built what it could, where it could, when it could,” he said. “And it did a good job, despite all the challenges.”

But Jamie Kilbreth, the lead attorney representing the Natural Resources Council of Maine and a group of citizen opponents, said this case wasn’t a simple fairness issue. NECEC didn’t have key permits when it began construction, and it accelerated the work schedule to try to get ahead of the pending November 2021 referendum.

“They knew the referendum was a project killer,” he said, “And they knew it was likely to pass.”

So they devised a work-around, he said, which was to set up to gain a vested rights claim. They knew they needed to create significant visible, above-ground infrastructure.

The proof, Kilbreth said, came from the words of Robert Kump, then deputy CEO of Avangrid. He scribbled in a progress report: “Start construction, protect our vested rights!” That was their strategy, Kilbreth said.

Kilbreth said NECEC’s strategy was to have nine utility poles erected in February 2021. The company and its allies knew they needed to get poles up before the signatures for the referendum were certified by the Maine secretary of state.

He said that blaming delay is a clever argument, but that the baseline schedule was just a “wish list.”

Jonathan Bolton, the assistant attorney general defending the state’s law, amplified that theme.

NECEC expedited the work from the initial May 2021 start date to February 2022, Bolton said. To make the point, he showed the jury various company and contractor emails, including one from Dec. 14, 2020, in which Paul Franceschi, a vice president with contracting firm Cianbro, wrote NECEC just wanted to get “poles in the air” by January or February in 2021.

“This is the whole case,” Bolton said.

BACKGROUND

The project is organized under NECEC Transmission LLC, a subsidiary of Connecticut-based Avangrid Inc., the parent company of Central Maine Power. Both are controlled by Iberdrola, a Spanish multinational energy company.

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 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 to voters rejecting 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.

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.

NECEC has an estimated price tag of $1 billion. The company spent more than $500 million before the stop-work order.

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