281 A.3d 618
Me.2022Background
- NECEC Transmission’s New England Clean Energy Connect (NECEC) project: a multi-segment HVDC transmission line from Québec through Maine to Massachusetts; the PUC granted a CPCN on May 3, 2019, which this Court affirmed in 2020.
- After federal and state permitting steps, NECEC began construction (segments 2–5 on Jan. 18, 2021; segment 1 on May 15, 2021) and had spent roughly $450 million by Nov. 2021.
- Voters approved a citizens’ initiative on Nov. 2, 2021 (effective Dec. 19, 2021) that (a) requires legislative approval for “high‑impact” lines in addition to a CPCN, (b) bans such lines in the Upper Kennebec Region, and (c) applies those provisions retroactively to projects that had not started construction by Sept. 16, 2020.
- NECEC sued, seeking declaratory and injunctive relief; the trial court denied a preliminary injunction and reported the interlocutory legal question under M.R. App. P. 24(c).
- The Law Court accepted the report and answered the narrow legal question: whether retroactive application of sections 4–6 to the CPCN violates the Maine Constitution’s due process (vested‑rights) protection if NECEC undertook substantial, good‑faith construction in reliance on the CPCN.
- Holding: section 6 is unconstitutional as applied to the CPCN if NECEC proves by a preponderance that (1) it held a final, nonappealable CPCN, (2) it made substantial, good‑faith expenditures in reliance on that CPCN before the initiative, and (3) those expenditures were not made pursuant to an accelerated schedule designed to manufacture vesting; case remanded for factual findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether retroactive application of the Initiative (secs. 4–6) to the CPCN violates due process/vested‑rights doctrine | NECEC: CPCN (affirmed on appeal) conferred a vested right to proceed; substantial good‑faith construction before voters’ approval means retroactive law cannot strip that right | State: vested‑rights protections are common law or can be abrogated by clear legislative action; retroactivity is permissible if rationally related to legislative purpose | The Court held the vested‑rights doctrine is constitutionally rooted in Maine’s due‑process provisions; retroactive application violates due process if NECEC proves vesting elements (answer: yes, conditionally) |
| Standard / elements for constitutional vesting in large infrastructure projects | NECEC: Project‑wide vesting (complete project entitlement) | State: challenges sufficiency of NECEC’s reliance and finality of approvals; some argued rational basis suffices to defeat claim | Court adopted a focused test: (1) valid, final, nonappealable permit/license; (2) retroactive law would eliminate or substantially limit the right to proceed; (3) substantial, good‑faith expenditures in reliance before the law changed, not expedited to manufacture vesting |
| Scope of the vested right — entire Project vs. CPCN‑specific entitlement | NECEC: vested right to complete the entire Project | State: point to remaining permits and pending proceedings to argue no vested right in whole Project | Court limited analysis to the specific entitlement affected by retroactivity (the CPCN). Other permits still required; protection covers the right to proceed under the CPCN’s terms only |
| Separation of powers and contracts‑clause/contentions | NECEC raised multiple constitutional claims | State invoked separation of powers and contract/other defenses | Court declined to decide contracts‑clause claim (governed by settled law) and found separation‑of‑powers concerns not dispositive here; report limited to due‑process/vested‑rights question |
Key Cases Cited
- NextEra Energy Res., LLC v. Me. P.U.C., 227 A.3d 1117 (Me. 2020) (Court affirmed PUC’s grant of the CPCN for the NECEC project)
- Proprietors of Kennebec Purchase v. Laboree, 2 Me. 275 (Me. 1823) (early Maine decision recognizing constitutional protection against retroactive laws that impair vested property rights)
- Coffin v. Rich, 45 Me. 507 (Me. 1858) (retroactive statutes that impair vested rights or create new personal liabilities are unconstitutional)
- Adams v. Palmer, 51 Me. 480 (Me. 1863) (protected vested property rights under Maine constitutional principles; relied on due‑process analogues)
- Sahl v. Town of York, 760 A.2d 266 (Me. 2000) (describing vesting in municipal permitting context: substantial, visible construction in good faith vests rights)
- Avangrid Networks, Inc. v. Sec’y of State, 237 A.3d 882 (Me. 2020) (prior citizens’ initiative decision; Court previously invalidated an initiative that attempted to adjudicate a CPCN’s validity)
- Kittery Retail Ventures, LLC v. Town of Kittery, 856 A.2d 1183 (Me. 2004) (contracts‑clause/retroactivity context; referenced for limits on vesting when ordinance enacted before permit finality)
- Muskin v. State Dep’t of Assessments & Tax’n, 30 A.3d 962 (Md. 2011) (holding that if retroactive law abrogates vested rights, the rationality of the law is irrelevant)