ARTICLE
27 October 2022

New England Clean Energy Connect Will Remain On Ice Until Next Year As The Achievement Of The Bay State's GHG Reduction Goals Hangs In The Balance

M
Mintz

Contributor

Mintz is a general practice, full-service Am Law 100 law firm with more than 600 attorneys. We are headquartered in Boston and have additional US offices in Los Angeles, Miami, New York City, San Diego, San Francisco, and Washington, DC, as well as an office in Toronto, Canada.
Yesterday, a Maine Trial Court Judge denied New England Clean Energy Connect permission to complete its project to transmit Canadian hydropower to the United States saying that NECEC...
United States Energy and Natural Resources

Yesterday, a Maine Trial Court Judge denied New England Clean Energy Connect permission to complete its project to transmit Canadian hydropower to the United States saying that NECEC hadn't demonstrated that it would suffer "irreparable injury" if its $450 million investment continues to languish until the Judge makes a determination requested by the State's Highest Court some time next year.

Last summer, the Maine Supreme Judicial Court held that one's "vested rights are violated when they undertake substantial good faith expenditures on activity [in this case the construction of a transmission line through the State of Maine] within the scope of the affected permit [in this case a certificate of public need and necessity from the Maine Pubic Utilities Commission] prior to the enactment of the retroactive legislation [in this case a 2021 referendum], meaning the expenditure was made (1) in reliance on the affected permit or grant of authority, (2) before the law changed, and (3) according to a schedule that was not created or expedited for the purpose of generating a vested rights claim."

Next April the Judge will preside over a trial on the question of whether the approximately $450 million spent on the project before the referendum, including to clear 124 miles of right of way, erect transmission structures, and prepare a converter station site, constitutes such a "good faith" expenditure.

As I wrote last summer, the answer to that question has to be "yes" but apparently the Judge needs to hear more.

Hopefully NECEC is using this tragic down time to get the other permits the project still needs.

In the meantime,we should all be continuing to think hard about what we need to do to streamline our transition to renewable energy, including by addressing seemingly endless litigation over necessary permits when they finally are in hand.

{ While NECEC developers pointed to the high court's ruling in renewing their motion to restart construction, Judge Duddy said the justices were mum on whether vested rights exist. The court "did not determine it is likely that Plaintiffs will succeed on the merits; and it did not otherwise telegraph that Plaintiffs will prevail," he said. "Plaintiffs argue that the Law Court has essentially decided the case, and thus this Court should vacate its prior Order," Judge Duddy said. Because the vested rights are yet to be determined, Judge Duddy found no reason to reconsider the construction stoppage, according to the order. The developers will not "suffer any irreparable injury" while the case plays out, he added.

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