Maine’s Supreme Judicial Court removed a major obstacle to the New England Clean Energy Connect (NECEC) transmission line Thursday, ruling that a proposed voter initiative on the project is unconstitutional.

Ruling on a challenge by Central Maine Power and parent Avangrid Networks, the court said the ballot question improperly intruded on executive branch authority in seeking to reverse the Maine Public Utilities Commission’s 2019 order granting the project a certificate of public convenience and necessity. Maine’s constitution, the court said, only allows citizens’ direct initiatives to propose “legislation.”

The decision reversed a lower court decision that said it was not necessary to determine the constitutionality of the referendum before the vote.

“The ruling by the Maine Supreme Court is a victory for Maine and our future, both environmentally and economically. The Clean Energy Corridor makes Maine a leader in the efforts to address the climate crisis, removing millions of metric tons of carbon from our air,” project officials tweeted. “We now look forward to completing the permitting process and getting to work to deliver the benefits of this project to all Mainers.”

Opponents of the project vowed to continue their fight, however. Former state Sen. Tom Saviello, who leads a group opposed to the corridor, told the Bangor Daily News the opponents could seek legislation blocking the project or launch another referendum drive. “We’re not giving up,” he said. “This is just the beginning.”

The $1 billion NECEC project would span 145 miles, with capacity to carry 1,200 MW of Canadian hydropower from the Maine-Québec border to Lewiston, Maine, where it will connect to the New England Control Area. The HVDC project includes upgrading 50 miles of existing AC transmission, a new converter station, a new substation and other upgrades.

NECEC says Massachusetts electric customers will pay for the entire project. The state entered negotiations with NECEC in 2018 after the New Hampshire Site Evaluation Committee rejected the competing Northern Pass project. (See Massachusetts Bids Adieu to Northern Pass.)

Referendum

The referendum would have asked voters to direct the PUC to issue an amended order finding that NECEC is not in the public interest.

NextEra Energy Resources, which owns fossil fuel generators in Maine and Massachusetts and the Seabrook nuclear plant in New Hampshire, intervened in support of the referendum, along with several voters and a generator-funded group called Mainers for Local Power.

Supporters argued that the substance of the referendum was consistent with the state constitution “because the legislature merely delegated legislative power to the commission, and the legislature remains free to interpose itself in proceedings where the commission has acted,” the court said in summarizing their position.

The court disagreed, saying legislative activity does not involve matters to which the legislature has delegated decision-making power.

“Directing an agency to reach findings diametrically opposite to those it reached based on extensive adjudicatory hearings and a voluminous evidentiary record, affirmed on appeal, is not ‘mak[ing] and establish[ing]’ a law,” the court ruled.

“Separate from its role in legislating through rulemaking to regulate public utilities, the commission functions in an executive capacity as an administrative agency, including by holding a public hearing — sometimes, as in the proceeding at issue here, a hearing substantial both in duration and in the volume of information submitted to and considered by the commission — and rendering a decision in a particular case when a utility has applied for a certificate of public convenience and necessity,” the court said. “The commission’s adjudicatory decisions therefore are subject to judicial — not legislative — review.”

The court said any motions for reconsideration of its ruling must be filed within five days after the order is published because ballots for the November 2020 election must be printed starting at the end of August.

Big Spenders

The battle over the referendum has generated millions in spending in the small state.

Clean Energy Matters, a political committee funded by CMP and Hydro-Québec, has reportedly spent at least $16.7 million to oppose the referendum. Calpine and Vistra Energy, which own natural gas generators in Maine, planned to spend $6 million supporting the initiative through Mainers for Local Power, Maine Public Radio reported last month.

The project also has split environmental groups in the region. The Conservation Law Foundation has been supportive, saying it will deliver low-carbon power to New England and allow retirement of fossil fuel plants. The Natural Resources Council of Maine opposes the line, saying it will have a negligible impact on carbon emissions while damaging the state’s woodlands.

About two-thirds of the line would be built along CMP’s existing rights of way, with the remainder routed through commercial timberland.

The 53 miles of new ROW will result in a 150-foot width clearing with an additional 150 feet undeveloped, NECEC says.

The routes where the HVDC line will be co-located with existing CMP transmission lines are 300 to 500 feet wide, with 150 feet or more cleared for existing lines. NECEC said it will clear an additional 75 feet for the new line in those locations.

CMP hopes to begin construction in 2020 and have the project in service by 2022. The Maine Department of Environmental Protection issued CMP a permit in May for construction of the project, which still needs approval from the U.S. Army Corps of Engineers and a presidential permit to cross the Canadian border.

Avangrid shares closed at $50.02/share Thursday, up 38 cents (0.77%).