An excavator spreads ground-up tree tops along the NECEC corridor in Johnson Mountain Township in November. Work on the corridor was halted following a successful referendum and the ground-up trees were spread along the corridor to keep the soil from eroding while the project’s fate is decided. Gregory Rec/Staff Photographer

More than two years after the Maine Department of Environmental Protection granted a conditional construction permit for the $1 billion New England Clean Energy Connect transmission line, the agency’s citizen board met Wednesday to consider appeals filed by project opponents.

The meeting of the Board of Environmental Protection opened a two-day session that marked yet another challenge to a divisive plan to bring a major new source of energy from Canada into New England’s electric grid. But the project has been on hold since November, when voters passed a statewide referendum aimed at killing it. Wednesday’s meeting was the latest front in a battle that has raged since the NECEC line was first proposed in 2017.

Toward the end of a long day filled with technical and legal wrangling, board members were left to ponder: Is an additional hearing needed for the board to assert its authority over decisions made two years ago at the DEP, or are the appeals just a delay tactic by critics, aimed at making sure the project is never completed?

The BEP sessions have been a long time coming. But amid a changed legal and political landscape, their potential impact of them is unclear.

That’s because much has happened since the May 11, 2020, action by DEP Commissioner Melanie Loyzim to give the go-ahead.

On November 3, 2021, voters overwhelmingly approved a referendum question aimed at killing the $1 billion project. By that point, project developer Avangrid, the parent company of Central Maine Power and NECEC, had already spent $450 million, cleared most of the right-of-way and had begun erecting poles. Work was halted a few weeks later, per DEP order.

Then last May, the Maine Supreme Judicial Court heard arguments on two legal challenges, one involving how the new voter-approved law affects the project’s rights, the other dealing with whether NECEC had a valid lease to cross state-owned land. Decisions are expected any week now, and they could eclipse the BEP proceedings, depending on the outcome.

Further delay is good for opponents and bad for the project.

NECEC’s chief executive, Thorn Dickinson, told the DEP in testimony last fall that a delay reaching into this summer would make it impossible to put the project in service by August 2024, a contractual deadline with utilities in Massachusetts. That date could be extended until August 2025, Dickinson noted, if the company posted up to $10.9 million in additional security. He also estimated at the time that a 12-month delay would add roughly $67 million to construction costs.

An essential element of the two-day meeting is deciding whether the appeals process should open to public input. The DEP collected six days of public testimony in 2019 on the permit application.

The BEP is scheduled to vote Thursday on the public hearing issue. If the members vote to hold a hearing, it will be scheduled as soon as possible. If they decline, they will move on immediately to decide on the appeals.

Against this backdrop, the seven-person citizen board heard appeals from three separate parties, consolidating them into one proceeding. The parties are:

• Natural Resources Council of Maine, the state’s leading environmental organization. Among other things, it argued that DEP’s decision failed to meet the standards of Maine’s environmental laws or assess the project’s greenhouses gas impacts. NRCM also said the DEP commissioner lacked the authority to issue CMP’s permit, because only the citizen board has jurisdiction over permits for projects of statewide significance.

• NextEra Energy Resources, a Florida-based diversified energy company. NextEra owns the Seabrook nuclear power station in New Hampshire, which would be financially threatened by cheaper power from NECEC. The company also has proposed renewable energy projects in western Maine that would be unable to connect on the dedicated, NECEC line.

NextEra spent $20 million in support of the 2021 referendum campaign against the project. The company said the DEP failed to consider steps to lessen the project’s impact, such as running wires underground and further shrinking the width of the corridor.

• West Forks Group, a collection of western Maine residents and interests centered along the power line route. They include the town of Caratunk, local businesses and guide services. The group said the DEP disregarded a variety of negative impacts on wildlife and the environment, and that the NECEC lacks a clear title to all the land along the route.

Separately, the NRCM also appealed Loyzim’s 2021 approval of transferring CMP’s initial license to a limited liability corporation.

A COMPLEX PROCESS

Why did it take more than two years to hold this meeting?

The BEP members are appointed by the governor and confirmed by the Legislature. The board is part of the DEP, but it has independent rule- and decision-making authority in certain matters, such as appeals of licenses.

A meeting was scheduled for February, and then for May, but both needed to be postponed.

Project opponents have been frustrated by the delay, and by the board’s unwillingness to incorporate new developments into the appeals process. They say additional public input is needed to reflect changes that have taken place since the permit was approved. Organized by the Say No to NECEC citizen group, they held a rally outside the Augusta Civic Center prior to the meeting holding signs such as, “follow the law, no CMP corridor.”

Wednesday’s meeting was live-streamed on Zoom. Thursday’s session, which starts at 9 a.m., also is available online.

PUSH FOR MORE PUBLIC INPUT

During Wednesday’s presentation, the lead attorney representing NRCM, James Kilbreth, pressed the board to hold a public hearing. He recounted the history of how the Legislature clarified after 2011 that projects of statewide significance – those affecting multiple towns and attracting significant public attention – shall be deferred by the DEP commission to the board.

“If there’s a project of statewide significance,” Kilbreth said, “it has to come to the board.”

In addition, he said, the board should gather new input from the public, to honor that legislative intent.

Kilbreth also attempted to introduce an acknowledgment that voters had passed a referendum aimed at killing the project, but the board’s chair and presiding officer reminded him that new information isn’t open for consideration. Kilbreth demurred, but suggested the public take note of the “Alice in Wonderland quality of this proceeding,” for not considering the obvious new realities.

The board’s chair, Susan Lessard, asked Kilbreth which topics were not adequately addressed in past public hearings. He highlighted three – the disputed values of “tapering” trees along the corridor edge, wetlands of special significance and how requirements for NECEC to compensate the state for impacts of the project are measured. Kilbreth suggested the board could cover these topics in a one-day hearing.

Elizabeth Boepple, an attorney representing the West Forks Group, gave a brief, personal overview of the people behind the appeal, the Maine Guides, the local recreational and tourist businesses. She wanted to “humanize” the board’s decision, to show the project’s impact on people living and working in woodlands along the route.

Because 53 miles of the corridor from The Forks to the Canadian border has already been clear cut, Boepple said, there’s no reason for the board to rely on photo simulations and evidence introduced two years ago. Hold a hearing based on what’s happening on the ground today, she said.

But Matthew Manahan, an attorney representing CMP and NECEC, said the DEP had spent more than two years conducting one of its most comprehensive reviews ever of a project and is requiring an unprecedented level of natural resource protection. There’s no reason for a new hearing, Manahan said, after hundreds of people already have testified and the record has generated tens of thousands of pages of evidence.

Manahan acknowledged that all projects have some environmental impact, but said the mitigation steps required by the DEP compensate for that. He also asserted that the biggest impact on Maine’s environment is climate change, which he said would be offset by the clean power from NECEC.

NRCM and the appellees simply don’t like the outcome of the commissioner’s order, Manahan said, and are using delay tactics to derail the process. They are raising meritless claims designed to confuse the board.

“Don’t let them confuse you,” he urged the board.

CANADIAN ENERGY GOING TO MASSACHUSETTS