PORTLAND, Maine — Nearly a month after construction was halted on the project, a judge said he may decide this week if construction can resume on the controversial CMP corridor.
Avangrid, the parent company of CMP, has gone to court to overturn the law passed by voters last month. In the Business and Commercial Court in Portland, in a virtual hearing, lawyers for the company, the state, and their respective supporters argued the case. Avangrid said even a few more months delay in construction could mean the project will never be completed.
The company argued the law passed by voters violates Maine’s constitution in several ways, primarily through the retroactive provisions that have new requirements for legislative approval of aspects of the corridor already permitted by state agencies.
Avangrid attorney John Armorando argued the chief issue is the company’s vested rights in the project, a result of years of work and expense, and the fact nearly all of the corridor has now been cleared of trees.
“By Nov. 2, which was the election, [and with] construction suspended two weeks after that, [the] expenditure… was [over] $449 million, which represents 43 percent of the project,” Armorando told the court.
He said the Maine Constitution is clear that vested rights are protected.
But Assistant Attorney General Jonathan Bolton, representing the defendants in the case—the state Bureau of Public Lands, the Public Utilities Commission, and the Legislature, said the vested rights argument doesn’t work in this case.
“Rights cannot vest while permits remain under review in an agency or court proceeding,” he told the judge.
Bolton said several of the permits from state and federal agencies were already being appealed in court or within the agencies when the NECEC started construction last winter and added for that reason the company should have known there was a clear risk the project permits could be revoked.
And, citing some of the same case precedents as the plaintiffs, Bolton said the company’s primary argument should fail.
“Even if the court believes the NECEC has established likelihood they have vested rights, that is insufficient to show they have a due process constitutional claim,” he said.
There are other issues in the challenge to the law as well, and the attorney for Avangrid said their arguments should prove a likelihood of winning the underlying constitutional case so that the court should grant a preliminary injunction.
Their goal is to stop the law from taking effect as scheduled on Dec. 19, while the larger case is decided.
Referendum supporters told the court the case has no merit, and the injunction should be denied.
Justice Michael Duddy said that because the effective date of the law is imminent, he will decide by the end of the week whether to grant the injunction.
Both sides have said previously that whichever one loses the injunction decision will likely appeal to the Maine Supreme Judicial Court.
It isn’t clear at this point whether construction could immediately resume if Avangrid/NECEC is granted the injunction.
The Maine Department of Environmental Protection suspended the project permit, pending the outcome of the court case, but the DEP is still waiting to decide on another request to suspend the permit over the issue of crossing public lands without a required permit.
That court case is already under appeal to the Supreme Court, with a decision not expected until June.