Maine NECEC Transmission Project Certificate Initiative (2020)

Maine NECEC Transmission Project Certificate Initiative
Election date November 3, 2020
Topic Energy
Status Not on the ballot
Type State statute	Origin Citizens
List of Maine measuresQuestion 1 (March)Question 1 (July)Question 2 (July)Submit

The Maine NECEC Transmission Project Certificate Initiative was not on the ballot in Maine as an indirect initiated state statute on November 3, 2020.

The ballot measure would have required the Maine Public Utilities Commission (PUC) to reverse an order made on May 3, 2019, that provided the New England Clean Energy Connect (NECEC) transmission project with a certificate of public convenience and necessity. In Maine, a certificate of public convenience and necessity is required before constructing a transmission line capable of operating at 69 kilovolts or more. The NECEC transmission project was designed to cross about 145 miles in Maine, from the state's border with Quebec to Lewiston, and transmit around 1,200 megawatts from hydroelectric plants in Quebec to electric utilities in Massachusetts and Maine. While NECEC was originally planned to deliver hydroelectric power to Massachusetts, Gov. Janet Mills (D) announced that Maine had also secured 500 megawatts from hydroelectric plants at a discounted rate via NECEC on July 10, 2020.

On August 13, 2020, the Maine Supreme Court issued an opinion that the ballot initiative violated the “procedural prerequisites for a direct initiative” found in the Maine Constitution. According to the Supreme Judicial Court, the Maine Constitution “requires that a citizens’ initiative constitute legislative action,” and the ballot initiative “exceeds the scope of the people’s legislative powers…” The Supreme Judicial Court did not issue an injunction but stated, “Based on the Secretary of State’s clarification of his position, we are confident that he 'will comply with the law once it is declared” and prevent the invalid initiative from being placed on the ballot." On Agust 21, Secretary of State Matthew Dunlap (D) confirmed that the ballot initiative would not be added on the ballot.

See also: Avangrid v. Dunlap

On February 3, 2020, the campaign filed about 75,253 signatures with the office of Secretary of State Dunlap. On March 4, 2020, Dunlap announced that 69,714 signatures were valid, surpassing the required minimum of 63,067.

Text of measure

Ballot title

The ballot title was as follows:

“

Do you want to require the Maine Public Utilities Commission to reject a previously-approved proposal to construct the New England Clean Energy Connect electrical power transmission line through western Maine?

”

Full text

The full text of the measure is available here.

Support

No CMP Corridor led the campaign in support of the ballot initiative.

Arguments

• Darryl Wood, treasurer of the campaign, said, "Our iconic brand is our mountains, our rivers, our guides, our snowmobiling. If we lose that, what will it cost us in the future?"

• No CMP Corridor stated the following on the campaign's website: "We cannot stand idly by while a large, untrustworthy corporation degrades our best resources for their exclusive financial gain. We are more than an extension cord for Massachusetts. The bottom line is that CMP has proven to be an untrustworthy foreign corporation that cuts corners and they have failed to reliably deliver power right here in Maine. While two state agencies investigate their shady billing practices, they are asking for our trust. But we know better."

Opposition

Clean Energy Matters led the campaign in opposition to the ballot initiative.

Arguments

• Clean Energy Matters stated the following on the campaign's website: "Maine’s clean energy corridor will connect 1,200 megawatts of clean, reliable hydropower to the New England electrical grid in Lewiston. The project will also help remove 3 million metric tons of carbon emissions from the air (that’s like taking 700,000 cars off the road!), create thousands of Maine jobs, and become New England’s largest source of carbon-free electricity. And Massachusetts is required by law to foot the bill. Importantly, two-thirds of the clean energy corridor follows existing power lines created for the state’s hydroelectric industry almost a century ago. The remaining 55 miles of new corridor will run through commercial working forest where timber is already being harvested. That’s not by luck—the plan was designed to have as small an impact on our environment as possible."

• Former Rep. Robert Daigle (R) wrote, "Regardless of how you feel about the project, everyone should be concerned with the precedent that would be set if this citizen initiative process is successful. In today’s world, all projects, from a transmission line to a new addition on your house require a permit. ... Imagine this is your project – an addition to your house – and you followed all the rules. You needed the extra space for your growing family and the Planning Board concluded your application met the ordinance requirements, so they gave you a permit. But suddenly your neighbors ganged up on the Planning Board and commanded them to rescind the permit because they think it looks bad."

Background

Timeline

In 2016, the Massachusetts State Legislature passed a law, which the governor signed, requiring electric distribution companies (EDCs) to enter into contracts for a combined 9,450,000 megawatts from hydropower or hydropower and a mix of other renewable sources. Hydro-Québec, a state-owned enterprise based in Québec, Canada, filed a proposal for delivering hydropower or a hydro-wind blend to EDCs in Massachusetts. The EDCs selected a joint proposal between Hydro-Québec and Central Maine Power (CMP) for a transmission project through Maine, which is known as the New England Clean Energy Connect (NECEC).

The following is the timeline of events related to NECEC through August 2020:

• August 8, 2016: Massachusetts Gov. Charlie Baker (R) signed House Bill 4568 (HB 4568), which required electric distribution companies, in coordination with the state Department of Energy Resources (DOER), to solicit and contract for a combined 9,450,000 megawatts from hydropower or hydropower and a mix of other renewable sources.

• March 31, 2017: The Massachusetts Department of Energy Resources (DOER) submitted a request for contract proposals from bidders, with a submission deadline of July 27, 2017.

• July 27, 2017: Hydro-Québec filed a contract proposal for delivering hydropower or a hydro-wind blend to electric distribution companies in Massachusetts. Hydro-Québec proposed three possible transmission routes: (1) Northern Pass Transmission, in partnership with Eversource Energy, through New Hampshire; (2) New England Clean Power Link, in partnership with Transmission Developers Inc., through Vermont; and (3) New England Clean Energy Connect, in partnership with Central Maine Power, through Maine.

• January 25, 2018: Gov. Baker announced that Hydro-Québec, with transmission via the Northern Pass Transmission in New Hampshire, was selected for contract negotiations with the state's electric distribution companies.

• February 1, 2018: The New Hampshire Site Evaluation Committee voted 7-0 to reject Eversource Energy's Northern Pass Transmission over concerns about how the project would impact development, local business, tourism, and the environment. The committee rejected a motion to reconsider the application, and the New Hampshire Supreme Court upheld the committee's decision as legal.

• March 28, 2018: The electric distribution companies in Massachusetts terminated their contract with the Northern Pass Transmission. The companies instead entered into negotiations with New England Clean Energy Connect in Maine.

• June 14, 2018: The electric distribution companies announced an agreement with Central Maine Power and Hydro-Québec for the New England Clean Energy Connect.

• October 19, 2018: The Federal Energy Regulatory Commission (FERC) approved the transmission service agreements (TSAs) that Central Maine Power filed in order to provide point-to-point transmission via the New England Clean Energy Connect from Canada to the regional grid, known as ISO New England.

• February 21, 2019: The Maine Public Utilities Commission and Central Maine Power (CMP) entered into a stipulation agreement with the support of Gov. Janet Mills (D). The agreement required CMP to transfer the NECEC to a new firm called NECEC Transmission LLC, which would have the same parent firm, Avangrid, as CMP but different accounting systems and activities. The agreement also included a benefits package worth $258 million, which included funds for low-income electric consumer projects, rural broadband internet, electric vehicle charging stations, electric heat pumps, education grants, workforce development, and business retention.

• May 3, 2019: The Maine Public Utilities Commission granted a certificate of public convenience and necessity for the New England Clean Energy Connect.

• June 26, 2019: The Massachusetts Department of Public Utilities approved power purchase agreements between the electric distribution companies and Hydro-Quebec for the New England Clean Energy Connect.

• January 8, 2020: The Maine Land Use Planning Commission, which is responsible for planning and zoning in Maine's unorganized and deorganized areas, certified that NECEC complied with "with all applicable land use standards." The commission's members voted 7-2.

• April 8, 2020: NECEC Transmission LLC announced that $300 million had been awarded for contracts to build the project’s infrastructure. Contractors that received awards included Cianbro (Maine), Irby Construction (Mississippi), Sargent Electric (Pennsylvania), and Northern Clearing Inc. (Wisconsin).

• April 17, 2020: NECEC Transmission LLC announced that an additional $700 million had been awarded for contracts. Contractors that received awards included Eastern Forest Products (Maine), Maine Mats (Maine), Dimensional Timber (Maine), and Sunset Development Inc. (Maine).

• May 11, 2020: The Maine Department of Environmental Protection (DEP) issued a license for New England Clean Energy Connect. DEP conditioned the license on several requirements and design changes. Central Maine Power (CMP) needed to provide a financial guarantee of $1.875 million for stream culvert replacements and conserve 40,000 acres in western Maine. The width of the cleared NECEC corridor strip below the transmission lines in Segment 1 (from Quebec to The Forks) needed to be 54 feet, rather than the proposed 150 feet, and managed as scrub-shrub habitat. The license required a 100-foot riparian filter along all perennial streams in Segment 1 and coldwater fisheries streams and streams containing threatened or endangered species in the other segments.

Debate on Hydro-Québec's campaign activities

See also: Campaign finance

On July 29, 2020, 25 current and former state legislators sent a letter to Quebec Premier François Legault and Hydro-Québec CEO Sophie Brochu regarding "Hydro-Quebec’s political campaign aimed at influencing the outcome of a citizen-initiated ballot measure this November." The legislators requested that Hydro-Québec cease campaign activities in Maine. The following is an excerpt from the letter:

“

Because Hydro-Quebec is a Crown Corporation, wholly owned by the Province of Quebec, the government and residents of Quebec have a direct financial interest in Hydro-Quebec’s profit-making enterprises. This stands in marked contrast with any private company based in Maine that may have foreign owners. In such cases, the residents of those foreign countries have no financial interest in the outcome of a Maine election. Hydro-Quebec provides billions of dollars annually to its sole shareholder, the Province of Quebec, which means that the residents of Quebec have a direct financial stake in the outcome of the CMP corridor referendum. ... If the shoe were on the other foot and Maine voters were directly connected with a campaign to overturn public opinion on a construction project in Quebec, we would hear protests from the people of Quebec. But the shoe is on our foot, and we are not comfortable with it.

”

Serge Abergel, the director of external relations for Hydro-Québec, responded to the letter, stating that Hydro-Québec should be allowed to provide information to voters after spending years to obtain permits. Abergel said, "So once you want to take that away, at least give us the right to give the facts when it comes to us. We don't view this as a loophole at all. We're compliant to the rules, and we're just trying here to give a straight story, so people can understand and make their own choices."

Path to the ballot

See also: Laws governing the initiative process in Maine

Process in Maine

In Maine, the number of signatures required to qualify an indirect initiated state statute for the ballot is equal to 10 percent of the total votes cast for governor in the most recent gubernatorial election. Petitions can be circulated for up to 18 months, but signatures must be no more than one year old to be valid. Signatures must be filed with the secretary by the 50th day of the first regular legislative session or the 25th day of the second regular session. Maine's initiative process is indirect, which means sufficient initiative petitions first go to the legislature and only go to the ballot if the legislature rejects or does not act on the initiative.

The requirements to get an initiated state statute certified for the 2020 ballot:

• Signatures: 63,067 valid signatures were required.
• Deadline: The deadline to submit signatures was February 3, 2020.

Each petition signature is certified by the local registrar of voters. The signatures are then submitted to the secretary of state. If enough signatures are verified, the initiatives are sent to the legislature. If the legislature approves the initiative, it becomes law. If the legislature does not act on the initiative or rejects it, the initiative goes on the ballot. The legislature may submit "any amended form, substitute, or recommendation" to the people alongside the initiative; this alternative is treated as a competing measure.

Stages of this initiative

Former Sen. Thomas Saviello (R-17) filed the ballot initiative, which was approved for signature gathering on October 18, 2019. On November 5, 2019, which was Election Day, the campaign No CMP Corridor reported collecting more than 25,000 signatures.

On February 3, 2020, the campaign filed 75,253 signatures with the office of Secretary of State Matthew Dunlap (D). On March 4, 2020, Dunlap announced that 69,714 signatures were valid, surpassing the required minimum of 63,067.

On March 13, 2020, Delbert Reed, a former operations manager for Central Maine Power (CMP), sued Dunlap, stating that signatures were accepted that should have been considered invalid. On March 23, Superior Court Judge Michaela Murphy issued an order giving Dunlap until April 1, 2020, to review petitions after two people said their signatures were forged. On April 1, Secretary of State Dunlap said that while additional signatures were disqualified, 66,117 signatures were still valid. On April 13, Judge Murphy said that Dunlap provided a competent record to support the certification of signatures.

Reed appealed the Superior Court's decision to the Maine Supreme Judicial Court. On May 7, 2020, the Supreme Judicial Court affirmed the lower court's decision.

The Maine State Legislature had the option to approve the proposal before the end of this year's legislative session. On March 17, 2020, the petition was delivered to the state Legislature, but the state Legislature adjourned on the same day. The initiated petition was carried over to any special session of the 129th state Legislature.

Avangrid v. Dunlap

  

Lawsuit overview
Issue: Does the ballot initiative exceed the legislative powers granted under the Maine Constitution and/or violate the separation of powers?
Court: Maine Supreme Judicial Court (Originated in the Cumberland County Superior Court)
Ruling: Ruled in favor of the Plaintiff (Avangrid Network, Inc.): The ballot initiative violated the “procedural prerequisites for a direct initiative” found in the Maine Constitution. According to the Supreme Judicial Court, the Maine Constitution “requires that a citizens’ initiative constitute legislative action,” and the ballot initiative “exceeds the scope of the people’s legislative powers…”
Plaintiff(s): Avangrid Network, Inc.	Defendant(s): Secretary of State Matthew Dunlap
Plaintiff argument: The ballot initiative is not legislative in nature and instead was designed to exercise executive and judicial power. Therefore, the citizen-initiated measure is unconstitutional and should not appear on the ballot.	Defendant argument: The ballot initiative should go on the ballot for voters to decide regardless of whether or not it is constitutional, serving as an advisory vote if it is deemed unconstitutional; the measure's presence on the ballot doesn't cause any irreparable harm to the plaintiff.

  Source: Maine Judicial Supreme Court

Avangrid Network, Inc., the parent firm of Central Maine Power (CMP), filed a legal complaint against Secretary of State Matthew Dunlap in the Cumberland County Superior Court on May 12, 2020. Avangrid asked the court to issue an injunction that prevents the ballot initiative from being decided at the election on November 3, 2020.

Avangrid argued that the ballot initiative was in violation of three sections of the Maine Constitution.

• One, Avangrid argued that the ballot initiative exceeds the legislative powers granted under Article IV, Part 3, Section 18 because the ballot initiative would not enact, repeal, or amend a law. The ballot initiative, according to Avangrid, is not legislative in character because the measure would order PUC to reject a single request for a certificate.

• Two, Avangrid argued that the ballot initiative violates the separation of powers under Article III, Section 2 because the measure would have the effect of reversing executive and judicial decisions.

• Third, Avangrid argued that the ballot initiative violates Article IV, Part 3, Section 13, which addresses special legislation. According to Avangrid, the ballot initiative is impermissible special legislation because the measure addresses a single administrative proceeding.

The campaign No CMP Corridor, which supports the ballot initiative, responded to Avangrid's legal complaint, stating, "This is just CMP's latest stunt to try and keep the people of Maine from having a say over their for-profit corridor project. It's ludicrous for a foreign company to go to such lengths and expense to silence 66,000 Mainers who signed petitions to make this referendum a reality. The bottom line is that the people of Maine deserve the right to decide what goes through their back yards, and this November, they will have that opportunity."

Dunlap, the defendant in the case, filed a brief on June 16, 2020, agreeing with plaintiffs that the measure was a "rare circumstance in which an initiative involves a subject matter that is beyond the power of the voters to enact" but arguing that the measure should remain on the ballot regardless of whether or not it is constitutional. He said that should the initiative be deemed invalid, the ballot initiative could still advise the government. He also argued that treating the measure as a non-binding vote would cause no irreparable harm to the plaintiffs and, therefore, no injunction was justified.

Superior Court Justice Thomas Warren heard arguments in the case on June 26, 2020. Justice Warren ruled that constitutional questions could be addressed after the election, stating, "substantive challenges to the validity of the proposed initiative may not be reviewed at this time." The case was appealed to the Maine Supreme Judicial Court.

On August 13, 2020, the Supreme Judicial Court issued an opinion that the ballot initiative violated the “procedural prerequisites for a direct initiative” found in the Maine Constitution. According to the Supreme Judicial Court, the Maine Constitution “requires that a citizens’ initiative constitute legislative action,” and the ballot initiative “exceeds the scope of the people’s legislative powers…” The Supreme Judicial Court did not issue an injunction but stated, “Based on the Secretary of State’s clarification of his position, we are confident that he 'will comply with the law once it is declared' and prevent the invalid initiative from being placed on the ballot." On Agust 21, Secretary of State Matthew Dunlap (D) confirmed that the ballot initiative would not be added on the ballot.

The Maine Supreme Judicial Court stated that the ballot initiative “is not legislative in nature because its purpose and effect is to dictate the [Public Utility] Commission’s exercise of its quasi-judicial executive-agency function in a particular proceeding. The resolve would interfere with and vitiate the Commission’s fact-finding and adjudicatory function—an executive power conferred on the Commission by the Legislature. Although the Legislature may properly constrain the Commission in its legislative functions and may alter the authority conferred on the Commission, the Legislature would exceed its legislative powers if it were to require the Commission to vacate and reverse a particular administrative decision the Commission had made. Thus, the action that would be mandated by the direct initiative would be executive in nature, not legislative.”

Sandi Howard, executive director of the No CMP Corridor, responded to the ruling, saying, "It’s a very sad day when Maine’s highest court sides with foreign corporations over the people of Maine. The fact that CMP’s parent company sued the state of Maine to silence their customers, and it worked, is astounding." She continued, "We are weighing all our options (legal, political and legislative) on how to best proceed, but I promise you, this fight is far from over. No CMP Corridor, and our army of volunteers, will not rest until we stop this for-profit project once and for all."

See also

2020 measures

• 2020 ballot measures
• Energy on the ballot

Maine

• Maine ballot measures
• Maine ballot measure laws

News and analysis

• Ballot measure lawsuits
• Ballot measure readability
• Ballot measure polls