NECEC TRANSMISSION LLC et al. v. BUREAU OF PARKS AND LANDS et al.
BCD-21-416
MAINE SUPREME JUDICIAL COURT
August 30, 2022
2022 ME 48
Argued: May 10, 2022
Panel: STANFILL, C.J., JABAR and HORTON, JJ., CLIFFORD, A.R.J., and HUMPHREY, A.R.J.*
[¶1] The New England Clean Energy Connect project (the Project) is designed to transmit power generated in Quebec 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-Quebec 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
[¶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
[¶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
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
I. BACKGROUND
[¶5] The interlocutory ruling underlying this case is before us pursuant to
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,
[¶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
[¶10] Separately, CMP received a presidential permit from the United States Department of Energy (DOE) on January 14, 2021. NECEC Transmission LLC, DOE Docket No. PP-438, Presidential Permit (DOE Jan. 14, 2021); see
[¶11] Finally, NECEC obtained municipal permits and approvals requiring compliance with local rules in most municipalities through which the Project will pass. At the time this case was filed, NECEC had not yet secured permits and approvals from four municipalities.
[¶12] In addition to the aforementioned permits and approvals, NECEC (through CMP) needed a lease from the Bureau of Parks and Lands for the 0.9-mile stretch of the Project that crosses public reserved lands in Johnson Mountain Township and West Forks Plantation. In 2014, CMP had obtained a lease from the Bureau to construct electric transmission facilities, and in 2020 CMP entered into an amended lease (the BPL lease) superseding the 2014 lease for the public reserved lands through which the Project would pass.6
[¶13] In June 2020, Senator Russell Black filed a complaint in the Superior Court against the Bureau, alleging the BPL lease violated
[¶14] In summary, at the time this case was filed, (1) the DEP permit (incorporating the LUPC Site Law certificate) was still pending on appeal before the BEP, (2) the ACE permit and the presidential permit from the DOE were the subjects of a lawsuit in federal court, (3) the BPL lease was the subject of a direct appeal to us in another case, and (4) not all necessary municipal approvals had been obtained. The only Project-wide permit or approval that was final when this case was filed was the CPCN from the PUC—an order that
B. Project Construction
[¶15] The Project is divided into five segments. Segment 1 includes 53.1 miles of HVDC line along a new corridor running from Beattie Township at the Canadian border to the Forks Plantation. Segments 2 and 3 cover approximately 92 miles of transmission line along an existing corridor that will be widened. Segments 4 and 5 focus on network upgrades, including a 26.5-mile transmission line from Lewiston to Wiscasset.
[¶16] NECEC received the final Project-wide permit—the presidential permit from the DOE—on January 14, 2021. On January 18, 2021, NECEC started clearing and construction activities in segments 2 through 5 of the Project. On May 15, 2021, NECEC commenced construction on segment 1 of the Project, the 53.1 miles from the Canadian border to the Forks Plantation.
[¶17] According to the preliminary injunction record, NECEC had spent nearly $450 million on the Project, approximately forty-three percent of the projected total cost, as of November 3, 2021, when this case was filed in the Business and Consumer Docket. Between January 18, 2021, and the time the Project was halted following the referendum in November 2021, NECEC cut approximately 124 miles of right-of-way for direct current lines, cleared the entire corridor for the alternating current line, erected transmission structures along the corridor, and prepared the converter station site.
C. The 2021 Citizens’ Initiative
[¶18] As we recently reiterated in connection with a related citizens’ initiative:
The broad purpose of the direct initiative is the encouragement of participatory democracy. By [article IV, part third,] section 18 [of the Maine Constitution,] the people, as sovereign, have retaken unto themselves legislative power, and that constitutional provision must be liberally construed to facilitate, rather than to handicap, the people‘s exercise of their sovereign power to legislate. . . . [S]ection 18 cannot be said merely to permit the direct initiative of legislation upon certain conditions. Rather, it reserves to the people the right to legislate by direct initiative if the constitutional conditions are satisfied.
Avangrid Networks, Inc., 2020 ME 109, ¶ 15, 237 A.3d 882 (quoting McGee v. Sec‘y of State, 2006 ME 50, ¶ 25, 896 A.2d 933).
[¶19] In accordance with the Maine Constitution‘s provision for direct initiative of legislation,
[¶20] On November 2, 2021, fifty-nine percent of Maine voters approved the initiated bill, which took effect on December 19, 2021, and effectively halted the Project. The legislation enacted through the Initiative consists of six sections, four of which effect statutory changes with implications
[¶21] Section 1 of the Initiative amends
[¶22] Sections 4, 5, and 6 of the Initiative amend
[¶23] Section 4 of the Initiative enacts
D. Procedural History
[¶24] On November 3, 2021, the day after the public referendum on the initiated bill, NECEC (i.e., NECEC Transmission LLC and Avangrid) filed a three-count verified complaint against the State parties seeking declaratory and injunctive relief to permanently block retroactive application of the Initiative to the Project. That same day, NECEC moved for a preliminary injunction to stay the initiated legislation during the pendency of the litigation. Several organizations and individuals moved to intervene; five supported NECEC, and eight supported the State parties. After expedited briefing and argument, the Business and Consumer Docket denied NECEC‘s motion for a preliminary injunction on December 16, 2021. In a comprehensive and thoughtful opinion, the court rejected the various constitutional challenges to the initiated legislation and found “no basis to block the Initiative from going into effect as scheduled.” However, the court also suggested that NECEC and the supporting intervenors move to have the questions of law reported to us pursuant to
[¶25] On December 22, 2021, NECEC moved for the court to report the interlocutory ruling denying its request for a preliminary injunction.
II. DISCUSSION
A. Scope of Appellate Review under Rule 24(c)
[¶26]
If the trial court is of the opinion that a question of law involved in an interlocutory order or ruling made by it ought to be determined by the Law Court before any further proceedings are taken, it may on motion of the aggrieved party report the case to the Law Court for that purpose and stay all further proceedings except such as are necessary to preserve the rights of the parties without making any decision therein.
61 A.3d 1242). We weigh three factors to make that determination: “(1) whether ‘the question reported is of sufficient importance and doubt to outweigh the policy against piecemeal litigation‘; (2) whether ‘the question might not have to be decided because of other possible dispositions‘; and (3) whether ‘a decision on the issue would, in at least one alternative, dispose of the action.‘” Id. (quoting Cloutier, 2013 ME 17, ¶ 8, 61 A.3d 1242).
[¶27] Here, the court reported its order denying NECEC‘s motion to preliminarily enjoin the Initiative “in its entirety” and did not submit specific questions. The court‘s open-ended report does not prevent us from acting on it. See, e.g., Luhr v. Bickford, 661 A.2d 1141, 1141-42 (Me. 1995) (considering whether to accept a report that presented “unspecified questions of law” involved in the trial court‘s interlocutory order, identifying the operative question of law at issue, and discharging the report after concluding that the question was not doubtful (quotation marks omitted)); Churchill v. S.A.D. No. 49 Tchrs. Ass‘n, 380 A.2d 186, 189 (Me. 1977) (“So long as the record clearly identifies the issue raised and contains the necessary information to permit a determination of the question, no further particularization is required.“); but see Swanson v. Roman Cath. Bishop, 1997 ME 63, 16 & n.11, 692 A.2d 441 (Lipez, J., dissenting) (urging caution when deciding whether to accept a reported case involving constitutional questions and noting that Luhr did not involve constitutional claims). It does, however, require us to define the scope of our review before we reach the merits.
[¶28] NECEC urges us to accept three questions on report:12
- Whether the Initiative unlawfully deprives NECEC of a vested right to complete Project construction;
- Whether the Initiative violates the separation of powers under the Maine Constitution; and
- Whether the Initiative unlawfully impairs NECEC‘s rights under the contracts clauses of the United States and Maine constitutions.
[¶30] The separation of powers claim requires only a brief explanation. We have recognized the power of a legislative body to enact retroactive legislation that affects the validity of a permit issued by an executive authority. See, e.g., City of Portland v. Fisherman‘s Wharf Assocs. II, 541 A.2d 160, 162-64 (Me. 1988). Neither the CPCN nor any other permit that has been upheld in court as validly issued is necessarily categorically exempt from retroactive legislation. However, the effect of retroactive legislation upon existing proceedings and rights is ultimately for the courts, not the Legislature, to decide. For example, in Avangrid, we declared the citizens’ initiative at issue there to be invalid because it purported to adjudicate the validity of the CPCN directly, and thereby exercise judicial power rather than legislative power. 2020 ME 109, ¶ 35, 237 A.3d 882. The Initiative now before us is distinguishable because it is an exercise of legislative power that may affect the validity of the CPCN but leaves judicial review—and the separation of powers—intact.
[¶31] With respect to the contracts clause claim, we decline to address that question because it is governed by established principles of law. See Kittery Retail Ventures, LLC v. Town of Kittery, 2004 ME 65, ¶ 38, 856 A.2d 1183 (reciting the well-settled test for resolving contracts clause claims). In other words, the question that the contracts clause claim raises is not sufficiently doubtful “to outweigh the policy against piecemeal litigation.” Littlebrook Airpark Condo., Ass‘n, 2013 ME 89, ¶ 9, 81 A.3d 348 (quotation marks omitted).
[¶32] Thus, we accept and answer only the question whether retroactively applying sections 4 and 5 of the Initiative to the CPCN issued for the Project, as required by section 6, violates the due process clause of the Maine Constitution.
B. The vested rights doctrine arises from the Maine Constitution and limits the Legislature‘s authority to apply laws retroactively.
[¶33] Whether retroactive application of the Initiative to the CPCN that the PUC issued for the Project unconstitutionally impairs NECEC‘s vested rights depends on whether Maine‘s vested rights doctrine is a constitutional limitation on legislative authority, including citizen initiatives. We hold that it is.
[¶34] By its terms, the Initiative applies retroactively to the PUC‘s authority over projects involving high-impact electric transmission lines on which construction had not started by September 16, 2020,
[¶35] The same constitutional limitations on legislative authority apply to citizen-initiated legislation as apply to the enactments of the Legislature. Opinion of the Justices, 2017 ME 100, ¶ 59, 162 A.3d 188. We are mindful that citizen-initiated legislation enjoys a “heavy presumption of constitutionality” and should be construed liberally. Id. (quotation marks omitted). At the same time, “[s]ince by the initiative process the people of Maine are exercising their legislative power, the constitutional validity of a citizen initiative is evaluated under the ordinary rules of statutory construction.” League of Women Voters v. Sec‘y of State, 683 A.2d 769, 771 (Me. 1996).
[¶36] “If the Legislature intends a retroactive application, the statute must be so applied unless the Legislature is prohibited from regulating conduct in the intended manner, and such a limitation upon the Legislature‘s power can only arise from the United States Constitution or the Maine Constitution.” Norton v. C.P. Blouin, Inc., 511 A.2d 1056, 1060 n.5 (1985) (emphasis added); see State v. L.V.I. Group, 1997 ME 25, ¶ 9, 690 A.2d 960 (characterizing the cited excerpt from Norton as “clarif[ying] the proper analysis concerning the retroactive application of statutes“); cf. Opinion of the Justices, 103 Me. 506, 508, 69 A. 627 (1907) (“[L]aws and regulations are to be held valid unless there can be pointed out some provision in the State or United States Constitution which clearly prohibits them.“).
[¶37] The principal parties accept Norton‘s directive but disagree about the provenance of Maine‘s vested rights doctrine. NECEC argues that the doctrine is grounded in the due process clause of the Maine Constitution,
1. The vested rights doctrine and the due process clause of the Maine Constitution.
[¶38] Contrary to the State appellees’ arguments, the protection of vested rights has been rooted in the Maine Constitution since Maine became a state. See David M. Gold, The Tradition of Substantive Judicial Review: A Case Study of Continuity in Constitutional Jurisprudence, 52 Me. L. Rev. 355, 364-70 (2000) (chronicling the history of Maine‘s vested rights jurisprudence). We first considered the legal significance of vested rights just three years after the Maine Constitution took effect, in Proprietors of Kennebec Purchase v. Laboree, 2 Me. 275, 288-93 (1823). There, we considered the constitutionality of retroactively applying a statute changing the doctrine of disseisin that would have resulted in a deeded owner losing his land. Id. at 286-93. In describing the effect of the statute, we discussed article 1, section 1 of the Maine Constitution:
By the spirit and true intent and meaning of this section, every citizen has the right of “possessing and protecting property” according to the standing laws of the state in force at the time of his “acquiring[“] it, and during the time of his continuing to possess it. Unless this be the true construction, the section seems to secure no other right to the citizen than that of being governed and protected in his person and property by the laws of the land, for the time being.... The design of the framers of our constitution, it would seem, was... to guard against the retroactive effect of
legislation upon the property of the citizens.
Id. at 290 (quoting
[¶39] Since Laboree, we have continued to frame vested rights in constitutional terms, albeit broadly and often without reference to any specific provision of the Maine Constitution. In Coffin v. Rich, 45 Me. 507, 514-16 (1858), we relied on Laboree to hold that a statute making individual stockholders personally liable for corporate debts was unconstitutional as applied retroactively because it created a new liability where none had previously existed. We explained:
There can be no doubt that Legislatures have the power to pass retrospective statutes, if they affect remedies only. Such is the well settled law of this State. But they have no constitutional power to enact retrospective laws which impair vested rights, or create personal liabilities.
Id. at 514-15; see Thut v. Grant, 281 A.2d 1, 6 (Me. 1971) (“[T]he Legislature has full power and authority to regulate and change the form of remedies in actions if no vested rights are impaired or personal liabilities created. There is no constitutional inhibition against the enactment of retroactive legislation which affects remedies only.” (emphasis and quotation marks omitted)). We relied on Coffin in Sabasteanski v. Pagurko, 232 A.2d 524, 525-26 (Me. 1967), where we held that a statute validating deeds with certain administrative defects was unconstitutional as applied retroactively because it effectively ousted subsequent innocent purchasers of their right to property.
[¶40] In Adams v. Palmer, 51 Me. 480 (1863), we identified a provision of the Maine Constitution as protecting vested rights different from the one we identified in Laboree. In Adams, a widow had, while she was still a minor, released her right of dower to a parcel of land by joining in a deed with her husband. Id. at 487. Because she was a minor when she signed the deed, the deed was voidable by her. Id. at 489. After she became an adult, the Legislature enacted a statute providing that a minor‘s release of a right of dower was valid. Id. at 490. We held the statute was unconstitutional as applied retroactively. Id. We reasoned that the adult widow‘s right to recover a freehold estate upon her husband‘s death was a vested property right. Id. We implied that the widow‘s vested right was protected by the guarantee in article I, section 6 of the Maine Constitution “that no one shall be deprived of his life, liberty, property, or privileges, but by the judgment of his peers or the laws of the land.” Id. (quoting
[¶42] Thus, sections 1 and 6 of the Maine Constitution‘s Declaration of Rights were proxies for due process protections of vested rights until section 6-A was adopted in 1963. Cf. L.D. 33 (101st Legis. 1963) (“A due process clause... should be added to the Maine Constitution.... It may well be said that in various places within the Declaration of Rights, as the same is now written, much of the protection given by the proposed new due-process clause appears. However, the rights with which we are here concerned are so fundamental and so important that if there is a second or repeat guarantee, such underwriting of protection is, we believe, all to the good.“). Constitutional protection of vested rights properly resides in Maine‘s due process clause. Cf. Tinkle, The Maine State Constitution 45 (2d ed. 2013)
2. NECEC‘s vested rights claim to develop the Project under the terms of the CPCN
[¶43] Sections 4 through 6 of the Initiative relate to
[¶44] The issue before us involves the intersection of NECEC‘s private interest to proceed and the interest of the electorate to determine public legislative policy. The applicability of the vested rights doctrine here turns on whether NECEC acquired a cognizable property right that the Maine Constitution protects from being impaired by retroactive legislation. See J. Spencer Hall, State v. Vested Rights Statutes: Developing Certainty and Equity and Protecting the Public Interest, 40 Urb. Law. 451, 455-56 (2008) (“Vested rights are rights vested in specific individuals in accordance with the law in what the law recognizes as property. Critical to the application of the doctrine of vested rights, then, is a definition of what constitutes property.... James Madison viewed property as embracing ‘everything to which a man may attach a value and have a right.‘” (quoting Edward S. Corwin, The Basic Doctrine of American Constitutional Law, 12 Mich. L. Rev. 247, 271 (1914) (footnotes omitted))).
[¶45] NECEC urges us to look at the Project as a whole, arguing that it has a vested right to complete construction of the entire Project. But the question presented in this case and which we proceed to answer is narrower. We limit our vested rights analysis to the specific approval that the retroactivity provision in section 6 of the Initiative affected. The Initiative retroactively imposes a requirement of legislative approval for a CPCN previously granted by the PUC. It does nothing to affect the other permits or approvals that NECEC needs before it may complete the Project, many of which are still the subject of pending proceedings.15 In other words, the focus of a vested rights analysis must be upon the specific entitlement that is affected by the retroactively applied legislation. Thus, the fact that NECEC had not obtained all required municipal permits at the time this case was filed does not bear on whether NECEC has acquired a constitutionally
[¶46] In Maine and other states, the right to proceed with construction in the municipal-law context vests once a developer undertakes significant, visible construction in good faith and with the intent to carry construction through to completion as authorized by a validly issued building permit. Sahl v. Town of York, 2000 ME 180, ¶ 12, 760 A.2d 266; see J. Spencer Hall, State Vested Rights Statutes: Developing Certainty and Equity and Protecting the Public Interest, 40 Urb. Law. 451, 459-94 (2008) (surveying state statutes codifying the vested rights doctrine). That permit must be final and not subject to direct or further appeal. Powell v. Calvert County, 795 A.2d 96, 101 (Md. 2002) (“[A] special exception approval, whose validity is being litigated, is not finally valid until all litigation concerning the special exception is final. Persons proceeding under it prior to finality are not ‘vesting’ rights; they are commencing at ‘their own risk’ so that they will be required to undo what they have done if they ultimately fail in the litigation process.“) We have applied the test announced in Sahl only to resolve a vested rights challenge to retroactive changes in local zoning ordinances affecting a project of limited scale; we have never applied it to changes in state law affecting large-scale infrastructure projects overseen by a matrix of local, state, and federal authorities. Still, Sahl‘s underlying rationale for protecting a developer‘s good-faith expenditures in reliance on government approval of proposed investments against retroactive changes is not limited to zoning law and informs our analysis of whether NECEC has a vested right to proceed with Project construction under the terms of CPCN.
[¶47] Thus, in the context of large-scale infrastructure development, we conclude that a claim of unconstitutional impairment of vested rights arises under the following conditions. First, the claimant holds a validly issued and final permit, license, or other grant of authority from a governmental entity that is not subject to any further judicial review. Second, the law under which the permit, license, or other grant of authority was issued changed thereafter and would, if applied retroactively, eliminate or substantially limit the right to proceed with the activity authorized by the permit. Third, the claimant undertook substantial good-faith expenditures on the activity within the scope of the affected permit prior to the enactment of the retroactive legislation, meaning that 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.16
[¶48] Here, the PUC determined that there was a public need for the Project and issued the CPCN on May 3, 2019.
[¶49] The facts before us were generated in connection with NECEC‘s request for preliminary injunctive relief; they have not been finally adjudicated. Nonetheless, the record indicates at least preliminarily that NECEC began construction on January 18, 2021, after having secured the CPCN and all other necessary, Project-wide approvals from various state and federal authorities. The CPCN was the only approval that was affirmed after appellate review and not subject to any further appeals. There is substantial evidence that NECEC proceeded with construction thereafter in good-faith reliance on those approvals and intended to develop the Project to completion. NECEC‘s construction efforts were consistent with the baseline schedule that was first set in the transmission service agreements governing Project construction and that was later amended to reflect permitting delays. As of November 2, 2021, the day Maine voters approved the initiated bill, NECEC had cut around 124 miles of the Project corridor and erected multiple transmission structures, spending nearly $450 million or forty-three percent of the total project cost estimate at that time. NECEC spent that significant sum with the PUC‘s assurance in issuing the CPCN that the Project served the public need.
[¶50] Our decision affirming the PUC‘s public-need determination enshrined it in a final judgment—in effect providing NECEC added assurance not only that the CPCN complied with then-existing law but also that NECEC could proceed with Project construction according to its terms. To be sure, those terms anticipated additional oversight by other government entities; in its order granting the CPCN, the PUC stated that it “expects that the scenic and recreational impacts of the [Project] will be reviewed and, to the extent appropriate and feasible, mitigated through the processes at the Maine Department of Environmental Protection (DEP) and the Land Use Planning Commission (LUPC).” Central Maine Power Co., Request for Approval of CPCN for the New England Clean Energy Connect, No. 2017-00232, Order (Me. P.U.C. May 3, 2019); see
[¶51] To be clear, we do not decide whether NECEC performed substantial construction in good faith17 according
III. CONCLUSION
[¶52] We conclude that section 6 of the Initiative, as applied retroactively to the CPCN, would infringe on NECEC‘s constitutionally-protected vested rights if NECEC can demonstrate by a preponderance of the evidence that it engaged in substantial construction of the Project in good-faith reliance on the authority granted by the CPCN before Maine voters approved the initiated bill by public referendum. Even then, NECEC‘s vested right to proceed with the Project would not be absolute; what would be protected would be NECEC‘s right to move forward under the terms of the validly issued CPCN as granted under then-existing law.
[¶53] We emphasize that our analysis and conclusions are not based on the wisdom of either the Project or the Initiative. See Avangrid Networks, Inc., 2020 ME 109, ¶ 10, 237 A.3d 882. On this report of an interlocutory ruling pursuant to M.R. App. P. 24(c), the limited question that we answer is this:
Would retroactively applying sections 4 and 5 of the Initiative, to the CPCN issued for the Project, as required by section 6 of the Initiative, violate the due process clause of the Maine Constitution, if NECEC undertook substantial construction consistent with and in good-faith reliance on the CPCN before the Initiative was enacted?
Our answer is yes.
The entry is:
Report accepted as to one question, which is answered in the affirmative as indicated in the opinion. Remanded for further proceedings consistent with this opinion.
Notes
Sec. 4. 35-A MRSA §3132, sub-§6-C is enacted to read:
6-C. High-impact electric transmission line; legislative approval. In addition to obtaining a certificate of public convenience and necessity, a high-impact electric transmission line may not be constructed anywhere in the State without first obtaining the approval of the Legislature, except that any high-impact electric transmission line crossing or utilizing public lands designated by the Legislature pursuant to Title 12, section 598-A is deemed to substantially alter the land and must be approved by the vote of 2/3 of all the members elected to each House of the Legislature.
Sec. 5. 35-A MRSA §3132, sub-§6-D is enacted to read:
6-D. High-impact electric transmission line; geographic prohibition. Notwithstanding subsection 6-C, a high-impact electric transmission line may not be constructed in the Upper Kennebec Region. For the purpose of this subsection, “Upper Kennebec Region” means the approximately 43,300 acres of land located between the Town of Bingham and Wyman Lake, north along the Old Canada Road, Route 201, to the Canadian border, and eastward from the Town of Jackman to encompass Long Pond and westward to the Canadian border, in Somerset County and Franklin County.
Sec. 6. 35-A MRSA §3132, sub-§6-E is enacted to read:
6-E. Retroactivity. Notwithstanding Title 1, section 302 or any other provision of law to the contrary, subsections 6-C and 6-D apply retroactively to September 16, 2020 and apply to any high-impact electric transmission line the construction of which had not commenced as of that date.