After years of planning, false starts, and a bitterly fought campaign to kill it, the fate of one of Massachusetts’ most important clean energy projects is set to be decided in a Portland, Maine, courtroom where a trial begins Monday.
At stake is the New England Clean Energy Connect, a $1 billion, 145-mile-long transmission line that would bring hydro-electric power from Canada through the rugged Maine wilderness and into Massachusetts, providing enough electricity to power more than 1 million homes in the state.
The developer of the transmission line, Central Maine Power, is challenging an order from the state to halt construction after voters in November 2021 approved a ballot referendum that saddled the company with additional requirements and conditions.
The jury trial will be held in Maine’s Business and Consumer Court. A verdict in Central Maine Power’s favor would allow construction to resume, with the power line ready to ship electricity as soon as August 2025. A verdict against it would deal the project a devastating blow and cast doubt on Massachusetts’ ability to meet critical climate deadlines.
“There’s no question that transmission has to be built and that we’re losing precious time with each individual battle having to be this hard and take this long,” said Amy Boyd, vice president of climate and clean energy policy at the clean energy advocacy organization Acadia Center.
And though controversy around the project has spanned issues including Indigenous rights, damage to ecosystems, and sacrifices that Maine residents would make for the sake of Massachusetts, the court battle will not touch on any of those. Instead, nine Cumberland County jurors will be asked to consider a much narrower question based on whether Central Maine Power had the right to do so much work on the project by the time voters rejected it.
Central Maine Power, a subsidiary of Avangrid, argues it had already received all the necessary approvals and begun construction about 10 months before the vote, spending nearly $450 million and clearing 124 miles of the pathway.
After Maine voters rejected the project, the state ordered work to halt. Central Maine Power quickly appealed to Maine courts, arguing in a lawsuit that it had completed so much work already that the project was protected under a constitutional doctrine called “vested rights.”
In August, the Maine Supreme Judicial Court found the state’s constitution protects property owners in these circumstances from retroactive legislation such as the vote to kill the power line, provided the work they completed was done “in good-faith reliance on the authority granted” by the permits it had received.
That question will fall to the jurors, who will be asked to decide whether the work Central Maine completed was done “according to a schedule that was not created or expedited for the purpose of generating a vested rights claim,” according to the Supreme Judicial Court.
A spokesman for Avangrid said he could not comment on the case and the state attorney general’s office did not return a request for comment.
The state will argue that Central Maine Power knew of a petition for the ballot question as early as October 2020 and that it accelerated its work schedule specifically to invoke constitutional protection in the event voters rejected it.
Lawyers for Central Maine Power, meanwhile, will argue it had been following a construction schedule in accordance with its permits as it clear-cut a path through the Maine forest.
Patrick Parenteau, a longtime environmental attorney and emeritus professor at Vermont Law School, said the developer appears to have a strong claim. “They spent 400 and some million dollars. They’ve cleared 124 miles. So I’m saying: What else do you need to know? They’re out hundreds of millions of dollars based on what I would say is a justifiable reliance on the [Public Utilities Commission] certificate telling them, ‘Go ahead,’” he said.
But lawyers and experts watching the case note an additional hurdle Central Maine Power faces: This case will play out before a jury of nine Maine residents, in a state where the utility does not exactly enjoy warm support. The state’s largest electric utility, the company is deeply disliked in Maine and ranked last in customer satisfaction among all large utilities in the United States in 2022, according to consumer research firm J.D. Power.
That combination — a major project in beloved wilderness and a utility with a poor reputation — could end up as a factor in the outcome, they said.
It also may have made the project a hard sell from the start. Clean energy advocates said the power line initially had broad support with communities along the route mostly approving of the plan. “But that changed over time,” said Phelps Turner, a senior attorney at the Conservation Law Foundation in Maine. “Communities, when they started to learn more about the project, started to change their mind about whether they were going to support it or not.”
A powerful voice for environmental concerns in the state, the nonprofit Natural Resources Council of Maine, helped galvanize a broad — and uncommon — coalition of opposition that included environmental groups such as the Sierra Club as well as companies including NextEra Energy, Calpine Corp., and Vistra, all of which have substantial natural gas interests and donated heavily to the campaign to defeat the project.
The opposition pointed to complaints from Indigenous groups in Canada and New England about Hydro-Quebec’s practices and questioned whether the project would even cut greenhouse gas emissions as it claimed, or simply divert hydroelectric energy from Canadian customers, forcing them to revert to fossil fuels.
Maine’s Public Utility Commission determined that the power line would benefit Maine economically and would result in greenhouse gas reductions.
In the wake of such a fierce uprising, climate and clean energy advocates said they are carefully watching the case, in part because of its implications for other new clean energy projects, including solar fields and wind, all of which could face similar kinds of opposition. One lesson, some said, is that winning strong community support early is critical.
“Virtually any projects of the scale that will be necessary to address climate change will have some negative effects or opposition, at least from the perspective of some viewers,” said Dean Murphy, an engineer and economist with the Brattle Group, a consulting firm. “Which means that addressing the climate problem will require trade-offs — potentially accepting some negative local effects in order to address the larger global climate problem.”
The opposition in Maine underscores a threat to clean energy projects across the country, said Ari Peskoe, who directs the Electricity Law Initiative at Harvard Law School. “What this project emphasizes is how incumbent players in the energy industry can oppose new projects, and here seem to have done so for years. They opposed this project and might actually end up killing it.”