Maine judge to rule quickly on transmission line injunction

MAINE DISTRICT Court Judge Michael Duddy said on Wednesday that he would rule in the next two days on whether to grant a preliminary injunction putting on hold a law passed overwhelmingly by the state’s voters blocking construction of a Massachusetts-financed transmission line bringing hydroelectricity into the region from Quebec.

The law was approved by voters via an initiative petition by a 59-41 margin on November 2 and is scheduled to take effect Sunday. At stake is a $1 billion project that Massachusetts officials believe is essential if the state is going to reach its near and long-term climate goals.

“I wish I had more time between this oral argument concluding and the end of the week to consider the arguments but I don’t,” Duddy said in a Portland courtroom. “I will do my best with the time I have available.”

The case is complicated and hinges on whether voters can approve a ballot question that retroactively changes state law to block a transmission line that was already well along in construction. Duddy heard a wide variety of legal arguments — most of them in sharp conflict — as well as a warning from the Maine Chamber of Commerce that refusing to grant the injunction would be the equivalent of erecting a red light at the state’s borders telling companies the state is not welcoming to business.

John Aromando, the attorney representing New England Clean Energy Connect, the company building the transmission line, said his client in good faith secured the necessary permits to begin construction and then spent nearly $450 million clearing trees and erecting structures. He said the company’s rights in the project had vested and couldn’t be overturned by a law passed by voters in the midst of a “heated and distorted political campaign.”

“It’s a lonely job for the court as keeper of the constitution, but it’s an important one and it’s at the very heart of the judiciary’s existence as a constitutionally established branch of government,” Aromando said.

But attorneys representing the state of Maine, the Natural Resources Council of Maine, and energy company NextEra insisted New England Clean Energy Connect’s rights had not vested because the company had failed to secure all of its permits, was hit with an adverse court decision covering a one-mile stretch of the line on public land, and was well aware the ballot question was in the works when it decided to move ahead with construction.

Christopher Roach, an attorney representing NextEra, an energy competitor that helped bankroll the ballot question campaign, said the initiative petition effort was launched in September 2020 and the language of the question approved by state officials in October 2020, yet the company moved ahead with construction starting in January 2021.

“This was no surprise,” said Roach. “They commenced at their own risk.”

Roach said New England Clean Energy Connect could have waited to see the outcome of the ballot question roughly 10 months later because its contract with electric utilities in Massachusetts allowed the company to seek an extension of its completion deadline by one year at a cost of $10 million.

“Because they were aware, rushing to spend funds [on construction] cannot be used offensively,” he said.

Aromando dismissed Roach’s arguments, saying the company was compelled to move forward with construction as soon as it could. He also said the ballot question was never a sure thing until it was approved by voters in November.

Duddy asked Aromando whether the transmission line could be finished in three months, as some media reports have suggested. Aromando said the tree-clearing effort could be finished in that time, but the overall project would take longer. “There’s quite a bit of work left to be done,” he said.

Duddy asked Jonathan Bolton, a Maine assistant attorney general, what he thought of the Maine Chamber of Commerce’s claim that failing to grant the injunction would be catastrophic for the state’s business climate.

Bolton said the business climate issue is more of a policy question than a legal question. “The place for that was in the [ballot] campaign,” he said. “The voters heard these arguments in front of them when they went to the polls.”