About the Author: Marina Mozak is a first-year law student at American University Washington College of Law. Marina is a graduate of Drew University and hopes to work in environmental governance after finishing at WCL.

 

There is a political drama unfolding in Maine that, up until now, focused on transmission lines, green energy, and how best to mitigate the adverse effects of climate change. But now, three years and a $100 million campaign later, the issue is back in court sparking a debate on the separation of powers, the roll of ballot measures, and the citizens’ right to decide how their government operates.[1]

Our story begins in June of 2018, with an agreement between a consortium of Massachusetts power companies, Central Maine Power (CMP) and Hydro-Quebec.[2] The goal of this agreement was to help the Massachusetts power companies meet the Commonwealth’s clean energy goals with power from Canadian mega-dams.[3] To bring this hydro-power from Quebec to Massachusetts, CMP intends to cut fifty-three miles of new transmission lines in the Upper Kennebec region of Maine and widen around another 100 miles of existing lines to accommodate the increase.[4] The idea of clear cutting a strip into the dense western forest of Maine, within eyesight of the Appalachian Trail, sparked immediate backlash. A variety of strategies were developed to block or support the project, and it was debated in dozens of municipalities as well as in the state executive, legislative, and judiciary forums.[5]

[6]

Just this month, Mainers voted on a ballot measure to decide if the proposed corridor should go forward.[7] This ballot measure proved to be one of the most expensive in Maine history, with $100 million of disclosed funding.[8] A majority of that money came from the unlikely opposition alliance of grassroots environmental advocates and two major fossil fuel companies, Calpine and Vista, which are poised to lose out on billions of dollars if the project goes through.[9] The ballot measure went to public vote on November 2nd and was approved with 59% of the vote.[10] It reads as follows:

“Do you want to ban the construction of high-impact electric transmission lines in the Upper Kennebec Region and to require the Legislature to approve all other such projects anywhere in Maine, both retroactively to 2020, and to require the Legislature, retroactively to 2014, to approve by a two-thirds vote such projects using public land?”[11]

The measure is designed to block the corridor, and future projects like it, in three ways: (1) Banning transmission lines in the Upper Kennebec region, (2) Granting the Legislature the ability to retroactively approve any large transmission lines back to 2020, and (3) Requiring, retroactively to 2014, super majority legislative approval for all uses of public lands that will substantially alter them.[12]

The two retroactive measures have drawn the most public attention.[13] They shift the regulatory power of approving projects from executive authority to the legislature.[14] With CMP’s poor public image, giving the power to approve their projects to the branch of government most answerable to the Maine people will be to CMP’s direct detriment.[15] In fact, within hours of the election results coming out, CMP’s parent corporation filed a lawsuit for preliminary injunction against the ballot measure.[16] In their claim, they argue that the ballot measure is illegal under the Maine constitution because it violates the separation of powers clause (the part of the constitution which assigns certain tasks of governance to each of the co-equal branches of government).[17]

The courts are currently deciding the issue of whether or not a ballot measure, voted on by the people, can reallocate a constitutionally mandated division of powers.

This question is similar to the recent Maine Supreme Court case that decided the constitutionality of the ranked-choice-voting (RCV) ballot measure that passed in 2016.[18] The RCV ballot measure presented a direct conflict with the constitutional requirement for state legislators to be elected by a plurality.[19] In its opinion, the court holds that, as citizen-initiated legislation is enacted “by the people, as sovereign” they are given a heavy presumption of constitutionality.[20] However, even with that presumption, the RCV ballot measure was deemed unconstitutional in part, and will require a constitutional amendment in order to apply to state legislature elections.[21]

Based on the precedent, the CMP Corridor Ballot Measure will have the benefit of a heavy presumption of constitutionality in this lawsuit.[22] However, that presumption cannot stand up to a direct contradiction with the constitution (which is what CMP is alleging).[23] If the past serves as any indication, the Maine courts are unlikely to allow a ballot measure to override any constitutional provision.[24] As of now, the case has not been added to the Cumberland County Superior Court docket, but Mainers eagerly await to find out if their votes can override constitutional provisions.[25]

[1] See Lori Valigra, Referendum won’t end the high-stakes legal fight over the CMP corridor, Bangor Daily News (Oct. 26, 2021), https://bangordailynews.com/2021/10/25/business/referendum-wont-end-the-high-stakes-legal-fight-over-the-cmp-corridor-joam40zk0w/; Brian Kevin, The CMP Corridor: Maine’s Most Divisive 53 Miles, Down East Magazine (Nov. 2020), https://downeast.com/issues-politics/cmp-corridor/; Phil Hirschkorn, Central Maine Power’s parent company files lawsuit challenging constitutionality of Question 1, WMTW (Nov. 4 2021, 9:21 AM), https://www.wmtw.com/article/maine-question-1-cmp-corridor-ban-approved/38145004.

[2]  Caitlin Andrews, What You Need To Know Before You Cast Your Vote On CMP Corridor Referendum, MPBN (Sept. 27, 2021, 8:50 AM), https://www.mainepublic.org/politics/2021-09-27/what-you-need-to-know-before-you-cast-your-vote-on-cmp-corridor-referendum. See Valigra, supra note 1; See Kevin, supra note 1.

[3] See Kevin, supra note 1; See Andrews, supra note 2.

[4] See Kevin, supra note 1; See Andrews, supra note 2.

[5] See Kevin, supra note 1; See Andrews, supra note 2.

[6] Andrea Swiedom, CMP corridor project facing opposition on both sides of the border, Sun J. (Nov. 13, 2020), https://www.sunjournal.com/2020/11/13/cmp-corridor-project-facing-opposition-on-both-sides-of-the-border/.

[7] See Valigra, supra note 1; See Hirschkorn, supra note 1.

[8] See Valigra, supra note 1; See Hirschkorn, supra note 1.

[9] See Valigra, supra note 1; See Hirschkorn, supra note 1.

[10] See Hirschkorn, supra note 1.

[11] H.R. 467, 130th Leg., (Me. 2021).

[12] Jessica Piper, CMP corridor debate turns to Maine Legislature’s role in power projects at BDN forum, Bangor Daily News (Oct. 14, 2021), https://news.yahoo.com/cmp-corridor-debate-turns-maine-113000405.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAACI8ybn_J09bIS4sVlfRYtj82xqooP4EOYuB5bqPdAvAE64qMF_4dzt27WFKbxkof3VfWLsm7W4CGhDTp6wYu9mOC0aSuDWyXlYn5REjMwKKnMVEageYrwUWg3dsVJbtH5Yu7rWo5PQCCYYLWASYgL4ky6Tk4w3jA5mIyWqBR7Cc.

[13] Id.

[14] Id.

[15] Id.

[16] Verified Complaint at 3, NECEC Transmission LLC. v. Bureau of Parks and Lands, Me. Dept. of Agric., Conservation, & Forestry et al., https://www.courthousenews.com/wp-content/uploads/2021/11/3-2021-11-03-Plaintiffs-Verified-Complaint-for-Declaratory-Judgment.pdfv.

[17] Id.

[18] In re Opinion of the Justices of the Supreme Judicial Court given under the Provisions of Article VI, Section 3 of the Me. Constitution, 2017 ME 100, 162 A.3d 188.

[19] Id. at 207.

[20] Id. at 193.

[21] Id. at 211.

[22] Id.

[23] Id.

[24] Id.

[25] Court Schedules and Closings, Maine.gov, https://www.courts.maine.gov/courts/schedules/index.html (last visited Nov. 14, 2021).