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New England Clean Energy Connect Will Remain on Ice until At Least Next Year as Achievement of Bay State's GHG Reduction Goals Hangs in The Balance

A Maine Trial Court Judge has denied New England Clean Energy Connect permission to complete its project to transmit Canadian hydropower to the United States saying that NECEC hadn't demonstrated that it will suffer "irreparable injury" while its $450 million investment in the project continues to languish until the Judge makes the determination requested by the State's Highest Court last summer some time next year.

In August the Maine Supreme Judicial Court held that one's "vested rights are violated when they undertake substantial good faith expenditures on activity [in this case the construction of a transmission line through the State of Maine] within the scope of the affected permit [in this case a certificate of public need and necessity from the Maine Pubic Utilities Commission] prior to the enactment of the retroactive legislation [in this case a 2021 referendum], meaning 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."

Next April the Trial Court Judge will apply Maine's Highest Court's holding to the approximately $450 million spent to clear 124 miles of right of way, erect transmission structures, and prepare a converter station site, all before less than a quarter of Maine's registered voters voted to prohibit the New England Clean Energy Connect project.

As I wrote last summer, the answer to the High Court's question has to be "yes" but apparently the Judge needs to hear more.

Hopefully NECEC is using this tragic down time to get the other permits the project still needs.   Sadly, more litigation isn't out of the question.

In the meantime we should all be thinking hard about what we need to do to streamline our transition to renewable energy before it is too late, including by cutting short the litigation that always seems to come after permits are finally in hand.

While NECEC developers pointed to the high court's ruling in renewing their motion to restart construction, Judge Duddy said the justices were mum on whether vested rights exist. The court "did not determine it is likely that Plaintiffs will succeed on the merits; and it did not otherwise telegraph that Plaintiffs will prevail," he said. "Plaintiffs argue that the Law Court has essentially decided the case, and thus this Court should vacate its prior Order," Judge Duddy said.  Because the vested rights are yet to be determined, Judge Duddy found no reason to reconsider the construction stoppage, according to the order. The developers will not "suffer any irreparable injury" while the case plays out, he added.

 https://www.law360.com/environmental/articles/1542845/judge-tosses-bid-t...

©1994-2023 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XII, Number 299
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About this Author

Jeffrey R. Porter, Environmental Attorney, Mintz Levin, Risk Analysis Lawyer
Member

Jeff leads the firm’s Environmental Law Practice. He is also a member of the firm’s Policy Committee. For 23 years, he has advised clients regarding complex environmental regulatory compliance and permitting issues, including issues relating to air and water discharges and hazardous waste storage and disposal. In 2011 and 2012, the firm received the Acquisition International Legal Award for “US Environmental Law Firm of the Year.” The awards celebrate excellence and reward firms, teams and individuals for their contribution to client service, innovation and commitment to quality.

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