Duddy Sees “Regional and National Implications”
A Maine judge will not prevent the new law approved by Maine voters to basically prevent completion of the controversial New England Clean Energy Connect hydroelectric corridor from taking effect this weekend, yet another blow to the energy infrastructure project that was to play a critical part in Massachusetts’ climate and energy portfolio.
The NECEC project is under contract with Massachusetts utilities to deliver hydropower from Quebec into the regional grid to fulfill part of a 2016 Massachusetts law, but voters in Maine last month approved a law that retroactively will “ban the construction of high-impact electric transmission lines in the Upper Kennebec Region” among other provisions that could doom the partially-constructed project. Corridor developers were seeking a preliminary injunction so they could resume construction while their lawsuit challenging the voter law’s constitutionality moves ahead.
District Court Judge Michael Duddy ruled Thursday that “at this stage of the proceeding, there is no basis to block the Initiative from going into effect as scheduled” on Sunday.
“The public interest in participatory democracy is paramount and would be adversely affected by blocking the Initiative. And while the economic harm to Plaintiffs brought about by delaying construction of the corridor during the litigation will be substantial, that harm does not outweigh the harm to voter confidence and participatory democracy that would result from preventing the Initiative from becoming law while this legal challenge is pending,” Duddy wrote in his ruling. “Hence, the Court declines to prevent the Initiative from going into effect.”
Duddy heard about two and a half hours of oral arguments on the motion for a preliminary injunction Wednesday and turned around his 52-page ruling less than 24 hours after the Maine Business and Consumer Court hearing ended. The judge wrote that the plaintiffs did not meet any of the four criteria that must be satisfied for an injunction to be granted.
He said he was not swayed by the arguments put forward by NECEC that it had “vested rights” — essentially that the developers have the right to see the project through to completion because they already spent about $450 million to construct the corridor in accordance with the permits they legally obtained.
“The vested rights doctrine does not apply, and to the extent it does, Plaintiffs’ rights to continue building the corridor did not vest,” Duddy wrote, dismissing what was a central argument of corridor proponents.
Duddy’s ruling was cheered Thursday by the Natural Resources Council of Maine, which called the judge’s decision “a big win for Maine people who voted overwhelmingly to terminate the CMP corridor.”
“The CMP corridor was a bad deal for Maine that was flawed from the very beginning. Now is the time for Maine and the region to move forward, embracing well-developed clean-energy projects, using the lessons learned from what has gone so wrong for CMP,” NRCM Advocacy Director Pete Didisheim said.
Maine’s Department of Environmental Protection suspended the permit it issued for the NECEC project unless or until a court rules in the developers’ favor, so it will remain on suspension and work will remain halted until the final disposition of NECEC’s legal challenge to the voter initiative.
“The men and women working on this project cannot be expected to sit around and wait months for the legal issues to be resolved in this case. Thus, any substantial delay will cause significant and far-reaching ripple effects that could result in the project failing or never being completed,” Philip Coffin, an attorney who represents one of the main contractors on the project, Cianbro, said during Wednesday’s hearing.
NECEC estimated that an 18-month delay would incur $113 million in additional costs and a 24-month delay would raise the figure to $137 million, approximately 11 percent to 13 percent of the total project budget, Duddy wrote in his decision.
The NECEC project is a key part of Baker’s energy and climate policy. His administration has said the project could supply about 17 percent of the state’s electricity demand and reduce Massachusetts electric bill rates between 2 and 4 percent each year under contracts already approved by the Massachusetts Department of Public Utilities. NECEC was also seen as key to meeting the state’s carbon emission reduction requirements for 2030.
Before Thursday’s ruling, Gov. Charlie Baker had said he does not think the transmission project is dead. Still, he said his administration has had “some conversations” with Central Maine Power Company and Hydro-Quebec to identify possible alternatives.
The ruling from Duddy foreshadowed a long legal road ahead. The judge acknowledged that the “applicable law, however, is uncertain on many disputed points” and that “Plaintiffs have legitimate counter arguments on all disputed points of law.” He suggested that decisions on those legal issues should be decided by Maine’s Supreme Judicial Court.
While it did not take him long to come to a decision and write a ruling, Duddy said that denying the motion for a preliminary injunction was not a call he made lightly.
“The Court understands and respects the substantial interests and stakes on each side of the dispute,” he wrote. “Resolution of the dispute carries regional and national implications.”
