Supporters of the NECEC Argue November Referendum is Unconstitutional
Arguments highlight that a fully permitted project cannot be rejected retroactively and that doing so would send a chilling effect to businesses considering moving to Maine
AUGUSTA, Maine — May 10, 2022 — Attorneys on behalf of the New England Clean Energy Connect (NECEC) and Avangrid Networks, a subsidiary of AVANGRID, Inc. (NYSE: AGR), along with Hydro-Quebec made the case today in oral arguments before the Maine Supreme Court that the referendum blocking construction of the NECEC clean energy project is unconstitutional, unfair and short-sighted. The court ruled a previous referendum proposed in 2020 with the exact same purpose of blocking the project was unconstitutional and it was removed from the ballot.
NECEC Transmission LLC, and Avangrid Networks urged the Court to look at the referendum as retroactively applied to the NECEC and find it unconstitutional, citing the constitutional protections for vested rights and the bedrock principle of separation of powers as the key arguments.
“This is a clean energy project that will catapult Maine and New England into a clean and affordable energy future at a time when we are seeing exponential increases in energy costs related to fossil fuels and supply constraints,” said Thorn Dickinson, president & CEO of NECEC Transmission. “The NECEC project received every local, state and federal permit required and substantial construction has been completed. This establishes a so-called ‘vested right’ that cannot be taken away. Retroactively revoking these permits—after substantial construction has been done – violates the Maine Constitution.”
The referendum also violates the Maine Constitution’s strict separation of powers by giving one branch, the legislature, the power to retroactively invalidate final actions by the executive and judicial branches. Accordingly, when the legislature exercises a power committed to another branch of government, the judiciary is not only permitted but compelled to sit in judgment upon such acts, and to pronounce them invalid.
Supporters of the project agree construction of the corridor will be a benefit to Mainers and that the referendum goes too far. Amicus briefs challenging the constitutionality of the referendum were filed in April by nine parties representing a diverse set of stakeholders - from professors of energy and law, environmentalists, local municipalities, public policy leaders, former Maine Public Utilities Commission members, and Maine legislators – demonstrating how this project furthers not only state, regional and national clean energy goals, but also affects the pocketbooks of Mainers.
“This project will provide significant benefits to the local Maine economy including more than 1000 direct jobs and more than $500 million of incremental Gross Domestic Product for Maine during the construction phase,” said Tim Burgess of IBEW Local Union 104.
“NECEC will deliver an abundant supply of low-cost renewable energy to the region that will help us meet our carbon reduction goals,” said Maine’s Public Advocate William Harwood. “We will also get more than $250 million in benefits for Maine citizens and energy customers in the form of economic development and ratepayer relief.”
Tony Buxton, counsel for the Industrial Energy Consumers Group, says the referendum sets a bad precedent. "You can't run a society by referendum. Why don't we change the sign in Kittery from 'Welcome Home' to 'Maine: Where permits mean nothing and referenda are every Tuesday.'”
Opponents of the project were supported by fossil fuel generators and preyed on the emotions of Mainers to make their case. Fossil fuel generator, NextEra Energy and the country’s largest energy climate polluter Vistra, took the lead opposing the project, challenging the project before multiple regulators (and losing before each) providing more than $20 million in dark money to NECEC opponents. According to Climate Action 100+, NextEra is the only Climate Action 100+ U.S.-based utility company with substantial emissions to have not committed to achieving net zero emissions by 2050. The Sierra Club identifies Vistra as the #1 emitter of climate warming pollution in the US power sector.
“The opposition to this project was never about protecting Maine’s woods for NextEra and other fossil fuel companies. It was about protecting their fossil fuel-driven bottom line,” said Dickinson.
“The energy prices they are charging Mainers this year are almost twice as high as the price for the energy that the NECEC will deliver, and prices, and profits of these fossil fuel companies, are expected to be as high or even higher in 2023.”
The Maine Supreme Court is expected to deliver a decision on the injunction against construction later this summer with a ruling on the overall case to follow.
Separate proceedings were also held today regarding the Bureau of Public Lands lease related to the project where NECEC was joined by the State of Maine in arguing that the one mile of land leased from the state where the transmission line would cross does not represent new use since transmission lines already cross that land and therefore does not require legislative approval.
About AVANGRID: AVANGRID, Inc. (NYSE: AGR) is a leading sustainable energy company transitioning America toward a clean and connected future headquartered in Orange, CT, and has a footprint in 24 states with $40 billion in assets. Our primary businesses are Avangrid Networks, which serves 3.3 million electric and natural gas customers in the Northeast, and Avangrid Renewables, the third-largest renewable energy company in the U.S. with a diverse onshore and offshore renewable energy portfolio. With more than 7,000 employees, AVANGRID has built a culture that blends diversity, equity and inclusion guided by the company’s ESG+F framework and the UN Sustainable Development Goals. This has led to recognition by JUST Capital in 2021 and 2022 as one of America’s best corporate citizens and second in utilities for our commitment to the environment and the communities we serve. AVANGRID has been named one of the World’s Most Ethical Companies for three consecutive years by the Ethisphere Institute.