If last week’s decision by the Maine Supreme Judicial Court concerning the attempt to bring Canadian hydropower to New England left you scratching your head, welcome to the club.

The SJC decision – concerning the November 2021 referendum seeking to cancel the NECEC line – fails the first test of judicial decision-making: to present a clear and decisive outcome to contested legal questions.

In fact, it’s a bit of a hodge-podge. The court, decisively, sided with Central Maine Power on the idea that this referendum – like one it removed from the ballot in 2020, lest we forget – was an unconstitutional attempt to retroactively cancel a project that was already permitted.

The project’s opponents have never answered a simple question: If it received all necessary state and federal (and Canadian) permits for construction, why are we still trying to shut it down? At some point, it’s over.

Yet the court muddled that point, too. While it concluded that, with $450 million expended and 124 miles of corridor cleared, there were substantial “vested rights” before the referendum vote, it wouldn’t actually make that ruling itself.

It sent the issue back to the Business Court for an evidentiary hearing, which is also head-spinning. When the issue first went to the Business Court last November, it sent the whole package straight to the SJC to expedite matters since – with construction halted due to passage of Question 1 – further delays were to be avoided; now there are more.

Two substantive footnotes in the decision strongly disagree with the defendants on issues of retroactive legislation, again buttressing the point the referendum was unconstitutional – but not quite yet.

Finally, the court didn’t even decide a related case involving the lease of public lands in one northern township, leaving that issue up in the air. The lease case should have been comparatively easy, yet it, too, remains undecided.

Courts, appropriately, do not comment on their decisions, but this one cries out for explanation. Unfortunately, it may have been an effort, in order to achieve unanimity, to blur the justices’ differences.

Simply put, if the court had not remanded, headlines would have read “Court finds second referendum unconstitutional,” rousing the ire of those Mainers who voted for it – a substantial majority.

It would be good to find a more exculpatory reason for the court’s reluctance to rule, but nothing suggests itself.

So, we are left with a half-finished project and lots more uncertainty ahead – with two more

referendums, one directly and one tangentially related to this one, that could be certified for the ballot in 2023.

My guess is that the line will ultimately be built, because there are no good alternatives to fulfill the contract with Massachusetts – at no cost to Maine ratepayers, we must recall, with substantial benefits.

As for the idea that Massachusetts will turn elsewhere – such as an Aroostook County wind project that’s not even off the drawing board and would take years to permit – forget it. If NECEC gets the go-ahead, Massachusetts will extend the completion deadline as needed, and get the power flowing.

The Maine referendum was confusingly argued by both sides, which obscured the most obvious facts: That bringing 1,200 megawatts of hydropower into the New England grid, of which Maine is part, will quickly lower natural gas prices, the major competing source, while cleaning the air we all breathe and lowering carbon emissions.

It’s frustrating that, with a climate emergency unfolding, Maine is wasting time with referendums aimed at shutting down remedial projects, and which could put ownership of Maine’s electric utilities into question.

The SJC failed to do its part. It could have decided the issue on grounds that the referendum violated the separation of powers between the legislative branch and that of an independent agency, the Public Utilities Commission, whose decisions permitting the project would have been overturned.

Courts like to decide difficult legal questions on narrow grounds, and the vested rights issue meets that test – fair enough. But even if had ruled against NECEC, the developers would have had an excellent chance of winning an appeal in federal court.

The Constitution’s requirement that contracts not be “impaired” is highly relevant, since the project crosses state and international boundaries. As interpreted by the U.S. Supreme Court, this “contract clause” is one of the strongest guarantees of property rights in the world.

But a federal appeal would cause even more delays, so the state court venue was appropriate. It’s too bad the SJC wouldn’t provide more clarity, leaving these seemingly endless legal battles unresolved.

Douglas Rooks, a Maine editor, commentator and reporter since 1984, is the author of three books, and is now researching the life and career of a U.S. Chief Justice. He welcomes comment at drooks@tds.net