Maine regulator hears arguments over whether to suspend lease for power line

·8 min read

Oct. 19—Maine's top environmental regulator heard testimony Tuesday on whether she should suspend or revoke the New England Clean Energy Connect project's lease to build a transmission line across a 0.9-mile stretch of public lands in western Maine.

Project opponents made their case for why construction along the entire route should be suspended until the lease issue is cleared up. They cited the environmental damage that could be caused by a venture that ultimately may have to be abandoned.

Representatives for the project, however, explained why they were proceeding with work outside the public lands, and they presented alternatives in the event that NECEC is ultimately unable to maintain the public lands lease.

One option was expressed publicly for the first time — running the high-voltage cable under the public lots or beneath two adjacent alternative routes using horizontal directional drilling technology. That approach, now common in utility construction, is how NECEC plans to cross beneath the Kennebec River. It expects to begin drilling and installing underground ducts below the river later this winter.

Following the hearing, the DEP is accepting legal briefs in the case until Nov. 16, but there's no deadline for the agency to make a decision. A decision to suspend the lease would create a temporary denial, pending some additional measures. Revoking it, however, would require NECEC to reapply for and obtain a new lease.

The action by Melanie Loyzim, the DEP's commissioner, comes roughly two months after a Superior Court judge ruled that the Maine Bureau of Parks and Lands failed to follow proper procedures when it granted NECEC Transmission LLC and Central Maine Power a lease to cross two parcels of public land near The Forks.

In a strongly worded ruling, Superior Court Judge Michaela Murphy wrote that the bureau exceeded its authority and failed to follow proper procedures for determining whether the 2020 lease would reduce or "substantially alter" use of those lands, as is required by law. In addition, the Maine State Constitution requires the bureau to seek legislative approval — via a two-thirds majority vote — for the lease if the project would substantially alter public lands.

The court ruling compels the DEP to evaluate whether NECEC's license should be suspended anytime there's a "change in any condition or circumstance" involving a permit.

A day after Murphy announced her decision, both the power line developers and Maine's attorney general appealed the ruling to the Maine Supreme Judicial Court.

As things now stand, NECEC is continuing to clear trees and erect poles on land it owns along the 145-mile route. But it is barred from working on the public lands, essentially creating a one-mile gap in the $1 billion project.

Based on briefing schedules set out by the Law Court, a decision on the appeal isn't expected until June.

Tuesday's hearing was split into two sessions. The daytime session was devoted to hearing evidence from parties that were granted "intervenor" status and the questioning of party witnesses. Members of the public could offer testimony in the evening session, which was scheduled to begin at 5:30 p.m.

LEGAL OPINIONS DIFFER

In its testimony, NECEC said it had cleared 108 miles of right-of-way as of Oct. 4 and installed 58 poles.

It also laid out a pair of options for rerouting the line around the two public lots, although it said each would cause more environmental damage than crossing the public lands as planned. The two public parcels, Johnson Mountain Township and West Forks Plantation, now accommodate sustainable timber harvesting, fishing, hunting and other recreation. Of note, an existing Central Maine Power transmission line runs along one of the lots.

In opening statements, an attorney for NECEC, Matthew Manahan, explained why there's no reason for the DEP to suspend the license. For one thing, the appeal to the Law Court automatically stayed the Superior Court ruling, keeping the 2020 lease in place. Beyond that, he said, NECEC could reapply if the Superior Court decision is affirmed. Or it could pivot to the other route options, he added, or even decommission the project if it ultimately can't move ahead.

But Jamie Kilbreth, representing the Natural Resources Council of Maine, said based on the Superior Court ruling in the lease lawsuit, known as Black v. Cutko, the project can't be completed. He called the two alternative routes identified by NECEC "nonstarters," because of easement restrictions on crossing those lands. Until NECEC can say for sure where the corridor can go, Kilbreth said, the project should be suspended.

NECEC is building a transmission line from the Maine-Quebec border to Lewiston, where it would connect to the New England electric grid. It's being built at Massachusetts ratepayers' expense so utilities in that state can buy renewable power from Hydro-Quebec.

Backers claim the project will generate 1,600 jobs annually during construction, boost the Maine economy and help meet regional climate goals by displacing fossil fuel-based electricity generation with hydroelectric power.

Critics contend that a new, 53-mile corridor cut through working forest will ruin wildlife habitat, spoil fragile wetlands and streams, and spoil the scenery of the western Maine mountains. They question whether the project will actually carry hydro power or sometimes substitute energy from fossil fuel plants.

OTHER ROUTES EXAMINED

A key contention by NECEC during the hearing was that it still has a valid lease across the public lots. The Superior Court ruled that the Bureau of Public Lands failed to meet certain procedural requirements in granting the lease, the company stressed, but made no determination of whether the lease would substantially alter use of the land.

But if the public lot crossing is denied, NECEC has other options, according to Thorn Dickinson, its chief executive. Using maps, he and Gerry Mirabile, NECEC's permitting director, summarized crossing routes west of Route 201 as well as east of the public lots. Either route also could be drilled underground, they indicated.

But both these alternative routes are in dispute.

Conservation groups that hold easements on adjacent land, the Forest Society of Maine and the Pierce Pond Watershed Trust, have issued statements saying the line wouldn't be allowed to cross as depicted on NECEC maps.

In a letter to the DEP, Anne Stallman Dougherty, president of the Watershed Trust, took issue with the idea that the line could cross land in Bowtown Township.

"As you are aware, a land trust has the perpetual legal obligation to enforce the terms of its conservation easements," she wrote. "The purpose of the Kennebec/Dead River easement is 'to restrict development and subdivision of the Protected Property in order that the Protected Property's scenic qualities are preserved.' The terms of the easement prohibit structures and commercial development. It is clear that a transmission line on or above these easement lands would be inconsistent with the purpose and terms of the conservation easement."

A letter from Karin Tilberg, president of the Forest Society of Maine, to Dickinson, also was referenced at the hearing. In it, she noted the group's Moosehead Region Conservation Easement and rejected NECEC's assertion that the corridor could cross that land.

This theme emerged again in the afternoon during cross-examination of one of the Natural Resources Council's witnesses, Jeff Reardon, Maine brook trout project director for Trout Unlimited, relating to another potential crossing of public lands in the Cold Stream Forest.

But Manahan, the NECEC attorney, indicated that the restrictions applied to structures above ground, and that drilling below conservation land would be "a logical alternative."

Another facet of Tuesday's discussion centered on how much time it would take to pursue permits for any of these alternatives. Why didn't NECEC press for an expedited ruling of the Supreme Court appeal, opponents wanted to know, if no decision is expected until June 2022, and studies and permits could take years?

The answer, however, was ruled to be a legal strategy that was outside the subject matter of the hearing. But Dickinson did state that it wasn't a priority to pursue alternatives until the court ruling is in hand.

Maine voters in 1993 approved a constitutional amendment requiring a two-thirds vote in the Legislature before the state could enter into agreements that could result in public lands being "reduced" or their "uses substantially altered."

But the 0.9-mile lease through the public reserved lands — granting CMP a 25-year right to the land for $1,400 a year — was never discussed publicly in any depth before the administration of former Gov. Paul LePage granted it in 2014. When the lease finally came to light, corridor opponents as well as conservation groups claimed the public and the Legislature were illegally excluded from the process.

The issue ended up before lawmakers in 2019 in the form of a bill that would have required the bureau to cancel the lease, renegotiate more "reasonable" market rates and bring it back to the Legislature for approval. A legislative committee unanimously endorsed the bill over the objections of the administration of Gov. Janet Mills. But the bill never made it to the House or Senate floor because the Legislature abruptly adjourned weeks early in March 2020 as the coronavirus pandemic hit Maine.

Several months later, the bureau negotiated a new lease at $65,000 a year but, again, never sought legislative approval.

The hearing took place just two weeks before Maine voters are set to vote on Question 1, a statewide referendum that could cause an even greater setback for the NECEC project by prohibiting high-impact power line construction in the upper Kennebec Valley region, among other changes.

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