Necec Transmission LLC v. Bureau of Parks & Lands

281 A.3d 618

2022 ME 48

NECEC TRANSMISSION LLC et al.

v.BUREAU OF PARKS AND LANDS et al.

Docket: BCD-21-416

Supreme Judicial Court of Maine.

Argued: May 10, 2022

Decided: August 30, 2022

Revised: September 8, 2022

Timothy C. Woodcock, Esq. (orally), P. Andrew Hamilton, Esq., Jonathan A. Pottle, Esq., and Casey M. Olesen, Esq., Eaton Peabody, Bangor, for appellant H.Q. Energy Services (U.S.) Inc.

John J. Aromando, Esq. (orally), Jared S. des Rosiers, Esq., Joshua D. Dunlap, Esq., and Sara A. Murphy, Esq., Pierce Atwood LLP, Portland, for appellants NECEC Transmission LLC and Avangrid Networks, Inc.

Gerald F. Petruccelli, Esq., and Scott D. Dolan, Esq., Petruccelli, Martin & Haddow, LLP, Portland, for appellant Maine State Chamber of Commerce

Sigmund D. Schutz, Esq., Anthony W. Buxton, Esq., Robert B. Borowski, Esq., and Jonathan Mermin, Esq., Preti Flaherty Beliveau & Pachios LLP, Portland, for appellant Industrial Energy Consumer Group

Philip M. Coffin III, Esq., Jeffrey D. Russell, Esq., and Cyrus E. Cheslak, Esq., Lambert Coffin, Portland, for appellant Cianbro Corporation

Benjamin K. Grant, Esq., McTeague Higbee, Topsham, and Robert M. Cheverie, Esq., Robert M. Cheverie & Associates, P.C., Hartford, Connecticut, for appellant International Brotherhood of Electrical Workers Local 104

Aaron M. Frey, Attorney General, and Jonathan R. Bolton, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellees Bureau of Parks and Lands, Maine Public Utilities Commission, Maine House of Representatives, and Maine Senate

Christopher T. Roach, Esq. (orally), Roach Ruprecht Sanchez & Bischoff, P.C., Portland, for appellee NextEra Energy Resources, LLC

James T. Kilbreth, Esq. (orally), David M. Kallin, Esq., Jeana M. McCormick, Esq., Sara P. Cressey, Esq., and Oliver Mac Walton, Esq., Drummond Woodsum, Portland, for appellees Thomas B. Saviello, Christine M. Geisser, Wendy A. Huisch, Jonathan T. Hull, Theresa E. York, Robert C. Yorks, and the Natural Resources Council of Maine

Orlando E. Delogu, amicus curiae pro se

Dmitry Bam, amicus curiae pro se

James L. Costello, Esq., and Jason J. Theobald, Esq., Curtis Thaxter LLC, Portland, for amici curiae former commissioners of the Maine Public Utilities Commission

Timothy Norton, Esq., and Shea H. Watson, Esq., Kelly, Remmel & Zimmerman, Portland, and David S. Rosenzweig, Esq., Keegan Werlin LLP, Boston, Massachusetts, for amici curiae NStar Electric Company, Massachusetts Electric Company and Nantucket Electric Company, and Fitchburg Gas and Electric Light Company

Elizabeth A. Boepple, Esq., and Sean R. Turley, Esq., Murray Plumb & Murray, Portland, and Paul W. Hughes, Esq., and Andrew A. Lyons-Berg, Esq., McDermott Will & Emery LLP, Washington, D.C., for amici curiae Calpine Corporation, Vistra Corporation, Holly Bragdon, and Brian Ahern.

Stacy O. Stitham, Esq., and Eamonn R.C. Hart, Esq., Brann & Isaacson, Lewiston, for amicus curiae City of Lewiston

Timothy A. Pease, Esq., and Jonathan P. Hunter, Esq., Rudman Winchell, Bangor, for amici curiae Susan Austin, Susan Bernard, Jon Connor, Steve Foster, Peter Lyford, Beth O'Connor, Nathan Wadsworth, Dustin White, Harold Stewart III, and Andre Cushing

Brett D. Baber, Esq., Lanham Blackwell & Baber, PA, Bangor, for amicus curiae Robert J. Weiner

Richard Anderson, Walter Anderson, Richard Barringer, Lloyd Irland, Ellen Pope, Tom Rumpf, and Sam Zaitlin, amici curiae pro se

Panel: STANFILL, C.J., JABAR and HORTON, JJ., CLIFFORD, A.R.J., and HUMPHREY, A.R.J.^*

STANFILL, C.J.

[¶1] The New England Clean Energy Connect project (the Project) is designed to transmit power generated in Québec through Maine and into Massachusetts. The Project includes a new 145.3-mile, high-voltage direct current (HVDC) transmission line, proposed to run from the Maine-Québec border in Beattie Township to a new converter station in Lewiston and from there to an existing substation by a new 1.2-mile, high-voltage alternating current transmission line. Of the Project's five segments, segment 1—a 53.1 mile-long HVDC transmission line running along a corridor from Beattie Township to the Forks Plantation—is the most controversial because it must be cut through commercial timberland and will cross hundreds of wetlands, waterways, and other wildlife habitats, as well as public land.

[¶2] On November 2, 2021, fifty-nine percent of Maine voters approved the following ballot question through a public referendum:

Do you want to ban the construction of high-impact electric transmission lines in the Upper Kennebec Region and to require the Legislature to approve all other such projects anywhere in Maine, both retroactively to 2020, and to require the Legislature, retroactively to 2014, to approve by a two-thirds vote such projects using public land?^{[1 ]}

Though the question did not mention the Project, the legislation enacted by the voters (the Initiative) effectively precludes the Project.²

[¶3] On November 3, 2021, NECEC Transmission LLC and Avangrid Networks, Inc. (collectively, NECEC),³ filed a complaint for declaratory judgment in the Superior Court alleging, among other things, that retroactive application of the Initiative to the Project, as required by section 6, is unconstitutional on a variety of grounds. The complaint named the Bureau of Parks and Lands, the Public Utilities Commission (PUC), the Maine Senate, and the Maine House of Representatives as defendants (collectively, the State parties). Thirteen organizations and individuals were granted intervenor status in the trial court.⁴

[¶4] NECEC moved to preliminarily enjoin the Initiative from becoming law. After transfer to the Business and Consumer Docket, and following the denial of NECEC's request for a preliminary injunction, the trial court (Duddy, J. ) reported the case to us pursuant to M.R. App. P. 24(c). We accept the report and frame the question of law raised by the court's reported interlocutory ruling as follows:

Would retroactively applying sections 4 and 5 of the Initiative to the certificate of public convenience and necessity (CPCN) issued for the Project, as required by section 6, violate due process under the Maine Constitution, Me. Const. art. I, § 6-A, if NECEC undertook substantial construction consistent with and in good-faith reliance on the CPCN before the Initiative was enacted?

Answering that question, we hold that section 6 of the Initiative is unconstitutional to the extent it requires sections 4 and 5 to be applied retroactively to the CPCN if the appellants have acquired vested rights to proceed with Project construction. We therefore remand to the Business and Consumer Docket for further proceedings consistent with this opinion.

I. BACKGROUND

[¶5] The interlocutory ruling underlying this case is before us pursuant to M.R. App. P. 24(c), on report from the Business and Consumer Docket. Given that procedural posture, the following facts are taken from the reported ruling and our opinion affirming the PUC's order granting the CPCN for the Project, NextEra Energy Res., LLC v. Me. PUC, 2020 ME 34, 227 A.3d 1117, and are limited to those facts relevant to the question of law that we now answer. See Littlebrook Airpark Condo. Ass'n v. Sweet Peas, LLC , 2013 ME 89, ¶ 9, 81 A.3d 348 (outlining the limited scope of review for reported interlocutory rulings).

A. Project Permitting and Other Governmental Approvals

[¶6] On September 27, 2017, CMP filed a petition with the PUC to obtain a CPCN for the Project. NextEra Energy Res., LLC , 2020 ME 34, ¶ 3, 227 A.3d 1117. The PUC held many days of public and evidentiary hearings and conferences and received well over one thousand public comments regarding CMP's petition. Id. ¶ 6. On May 3, 2019, the PUC concluded that the Project meets the statutory public-need standard and unanimously voted to grant CMP a CPCN to construct and operate the Project, all at no cost to Maine electricity customers. Id. ¶¶ 6 -10.

[¶7] Appellee-Intervenor NextEra intervened in the PUC proceeding and appealed to us from the order granting the CPCN. Id. ¶¶ 5, 11. We affirmed the PUC's decision on March 17, 2020, concluding that the PUC's determination, findings of fact, and application of the law were supported by the voluminous record. Id. ¶ 43.

[¶8] In addition to the CPCN, NECEC and CMP obtained multiple authorizations from various government entities before beginning construction on the Project. NECEC applied for permits from the Department of Environmental Protection (DEP) as required under the Natural Resources Protection Act, 38 M.R.S. §§ 480-A to 480-JJ (2017), and the Site Location of Development Act, 38 M.R.S. §§ 483-A, 484, 487-A (2017), as well as for a Site Law Certification from the Land Use Planning Commission (LUPC), see 12 M.R.S. § 685-B (2017). On May 11, 2020, the DEP approved NECEC's permit application in an order that also incorporated the LUPC's certification. Appellees-Intervenors NextEra, NRCM, and the West Forks residents appealed the DEP's order to the Superior Court and the Board of Environmental Protection (BEP) and moved to stay the order. The Superior Court denied their motion to stay the DEP's order. NextEra Energy Res., LLC v. Dep't of Env't Prot. , 2021 WL 9349108, 2021 Me. Super. LEXIS 14 (Jan. 8, 2021). On November 23, 2021, the DEP suspended the permit it had issued pending the outcome of this case. The appeal to the BEP remained pending when this case was filed in the Superior Court.⁵

[¶9] NECEC and CMP also secured a permit from the United States Army Corps of Engineers under the Clean Water Act and the Rivers & Harbors Act (the ACE permit). See 33 U.S.C.S. § 1344 (LEXIS through Pub. L. No. 117-66 ); 33 U.S.C.S. § 403 (LEXIS through Pub. L. No. 117-116 ). The Sierra Club, NRCM, and the Appalachian Mountain Club (AMC) sued the Army Corps of Engineers to enjoin the ACE permit, alleging that the environmental assessment underlying the permit was insufficient and that the Corps should have instead completed a full environmental impact...