STATE OF MAINE SUPERIOR COURT
Cumberland, ss. STATE OF MAINE Civil Action 'oe''1c.~·' -.-.:,: Cie,k's Office C um I ,_.11,J,
JUL 2 0 2018 CONSERVATION LAW FOUNDATION 2. : 2:'b (J vi;-. • RECEIVED Plaintiff
v. Docket No. CV-18-045
PAUL R. LePAGE, in his capacity as Governor of the State of Maine
Defendant
CONSOLIDATED
MAINE RENEWABLE ENERGY ASSOCIATION
Plaintiff
v. Docket No. CV-18-089
PAUL R. LePAGE, in his capacity as Governor of the State of Maine
ORDER ON PENDING MOTIONS
Before the court are the following motions:
• Defendant's Motion to Dismiss the complaint filed by Plaintiff Co.n servation
Law Foundation (CLF)
• Defendant's Motion to Dismiss the complaint filed by Plaintiff Maine
Renewable Energy Association (MREA) pursuant to M.R. Civ. P. 12(b)(I).
1 • Plaintiff MREA's Motion for Summary Judgment, joined in by Plaintiff CLF,
and opposed by Defendant LePage, with a cross-motion for summary judgment
in his favor.
Oral argument was held July l.'3, 2018.
Background
a. The parties
Conservation Law Foundation (CLF) is a regional non-profit organization
dedicated to the conservation, management, and development of New England's
natural resources. (CLF Compl. ~ 6.) As part of its advocacy, CLF engages with
attorneys and policymakers concerning the design and operation of New England's
electric grid, energy efficiency, reducing greenhouse gas emissions, and the
sustainable development of renewable energy sources. (CLF Compl. ~ 6). CLF has
also participated in task forces considering the impacts of wind energy development
in Maine and potential development of renewable energy in the Gulf of Maine. (CLF
Compl. ~ 6.)
Plaintiff MREA 1s a Maine non-profit corporation that functions as a
professional trade association of renewable power producers and suppliers, as well as
supporters of the renewable power industry in Maine. (MREA Compl. ~ 4.) As such,
MREA actively advocates for renewable energy generation in Maine and participates
in the development of Maine's renewable energy policy. (MREA Compl. ~ 6.)
MREA's membership of approximately .'36 includes wind energy producers actively
engaged in developing, or supporting the development, of wind energy projects.
2 Several MREA members intend to seek state permits for wind energy projects in areas
of Maine within the scope of the Executive Order that has been challenged in these
consolidated cases.
Defendant Paul R. LePage ("Governor LePage") has been Governor of the State
ofMaine since 2011. His current term is scheduled to expire when his successor takes
the oath of office Wednesday, January 2, 2019. See Me. Const. art V, § 2.
b. Executive Order 2018-002
On January 24, 2018, Governor LePage issued Executive Order No. 2018-002.
(CLF Compl. , 48.) The Executive Order establishes the Maine Wind Energy
Advisory Commission "for the purposes of ( 1) studying the economic impact of
potential Wind turbines in the Areas, (2) Assessing the economic impact of expedited
wind rules and procedures, (3) Assessing and developing recommendations in a
written report." (CLF Compl. , 49.) The "Areas" are defined as "the scenic vistas and
pristine waters of Western Maine, our coast and coastal islands, and our significant
avian migratory pathways ...." (CLF Compl. , 51.)
The Executive Order calls for the Commission to "deliver a report summarizing
its recommendations to the Governor when finished," but does not set a date or
deadline for the delivery of the report. The Executive Order also says that the
recommendations of the Commission are to be "formalized upon the approval of an
Executive Committee," consisting of the commissioners of the Departments of
Environmental Protection and Economic and Community Development, the director
of the Governor's Energy Office, and other officials.
3 The provision ofthe Executive Order that has generated this litigation consists
of the following single sentence: "I order that no permits related to wind turbines are
issued in the Areas until the report is issued in writing." (CLF Compl. , 50.)
c. The Plaintiffs' Claims
On January .30, 2018, CLF filed a complaint seeking a declaration that the
Executive Order is void due to its contravention of the separation of powers doctrine
as set forth in the Maine Constitution. (CLF Compl. , 64.) Specifically, CLF asserts
in its complaint that the Maine Legislature has occupied the field of wind power
permitting, and that the Order conflicts with laws and policies enacted by the
Legislature by purporting to order that no permits are to be issued until the Wind
Energy Advisory Committee releases its report. (CLF Compl. , , 60, 6.3.)
MREA filed its complaint February 16, 2018. Its complaint makes similar
assertions to those in the CLF complaint-that the Executive Order conflicts with
duly enacted laws and policies governing the issuance of permits for wind turbine
facilities. (MREA Compl. , , 44-45.)
Both complaints seek declaratory relief in the nature of a declaration that the
Executive Order is unconstitutional because it usurps the Legislature's authority, and
is therefore void. In addition, PlaintiffMREA's motion for summary judgment asserts
that it is entitled to judgment as a matter of law on that issue. MREA's motion is
supported by affidavits from its executive director and representatives of three MREA
members that contend that the members have wind energy projects in the works that
4 are being harmed or threaten to be harmed by the Executive Order's moratorium on
permits.
d. Governor LePage' s Response
Through his counsel, Governor LePage has acknowledged that the Executive
Order cannot override statutory provisions regarding the issuance of wind turbine
permits. Current law provides for expedited review by the Maine Department of
Environmental Protection (DEP) of grid-scale wind energy developments. See .'35-A
M.R.S. §§ 3451-59. A separate statute requires the DEP to issue a decision on a grid
scale wind energy development application within 185 days, except when the DEP
Commissioner holds a public hearing, in which case, the deadline for decision is 270
days. See 38 M.R.S. § 344(2-A)(A)(l).
Governor LePage concedes that he has no constitutional or legal authority to
override the statutory deadlines for action on wind energy permit applications by
delaying the issuance of permits to wind energy projects that meet permitting
requirements beyond those deadlines. However, he argues that the sentence at issue
is "ambiguous" rather than illegal, because his intent was to delay the issuance of
permits to the extent permitted by law, but not beyond that extent. If that was the
intent, the court sees no reason why the Governor cannot direct that permits not be
issued until either the issuance of the Commission report or until the statutory
deadline for action on wind turbine permit applications, whichever comes first.
Governor LePage has submitted an affidavit from Steven McGrath, director of
the Governor's Office of Energy Independence. Mr. McGrath's affidavit indicates that
5 he will serve as chair of the Commission established by the Executive Order and is in
the process of convening an initial meeting of the Commission.
The obvious import of the McGrath affidavit is to suggest that the
Commission's report will be issued without undue delay, although the affidavit does
not predict any date by which the report will be issued.
Governor LePage has also submitted the affidavit of Mark Bergeron, director
of the bureau within the DEP that handles applications for wind energy projects. Mr.
Bergeron's affidavit says that none of the MREA members who claim that their
projects have been harmed by the Executive Order has applied for a permit. The
affidavit also says, in effect, that the bureau intends to ignore the plain meaning of the
sentence in question, and will process applications for wind energy projects according
to the applicable statutes, whether or not the Commission has issued its report.
Discussion
The sentence in the Executive Order that the Plaintiffs object to does not seem
ambiguous-on its face, it appears to conflict with the DEP statute. Plaintiffs argue
that, if the sentence does not accurately reflect the intent behind the Executive Order,
what is at least an ambiguous, if not unlawful, provision should be clarified. Instead,
Governor LePage has moved to dismiss MREA's and CLF' s claims on several
grounds.
Governor LePage advances three arguments in support of his motion to dismiss
both of these actions: (1) the complaint in each fails to plead a cause of action, (2) the
6 Plaintiffs' allegations of harm are insufficient to show standing, and (3) there is no
justiciable case or controversy that is ripe for adjudication.
Although presented as distinct arguments, the three asserted grounds for
dismissal are in reality intertwined.
a. Cause of Action
Governor LePage contends that both Plaintiffs' complaints are deficient
because they fail to aver the cause of action that Plaintiffs seek to litigate.
MREA's complaint does not contain any specific invocation ofjurisdiction. It
appears to be an action arising under the Maine Constitution and the Maine
Declaratory Judgments Act. 14 M.R.S. §§ 5951 et seq. CLF's complaint does contain
a specific averment as to jurisdiction-paragraph 3 asserts that the court has
jurisdiction under the Maine Declaratory Judgments Act, 14 M.R.S. § 5953.
However, as Governor LePage' s Motion to Dismiss asserts, the Maine
Declaratory Judgments Act does not confer jurisdiction where jurisdiction would
otherwise not exist. See Colquhoun v. Webber, 684 A.2d 405, 411 (Me. 1996).
In addition, to the extent the Plaintiffs are asserting private causes of action
under the Maine Constitution as a basis for jurisdiction, Governor LePage points out
that the Law Court has specifically limited "the available remedies for a violation of
rights guaranteed by the Maine Constitution [to] those that the Legislature in its
wisdom has provided"-namely the Maine Civil Rights Act, 5 M.R.S. §§ 4681 et seq.
Andrews v. Department of Environmental Protection, 1998 ME 198, ,2s, 716 A.2d 212.
Neither Plaintiff has invoked (and based on the language of the statute, could invoke)
7 the private right of action contained in the Act. See 5 M.R.S. § 4682.
In response to these arguments, Plaintiffs point to numerous Maine cases
involving requests for declaratory judgment in which there is no particular reference
to a statutory or constitutional basis for jurisdiction, and contend that these cases
show that the only requisites for the court to assume jurisdiction over a claim for
declaratory relief are a justiciable controversy and a party with standing.
In the context of this case, the court agrees with the Plaintiffs. The Superior
Court is the court of general jurisdiction in the State ofMaine. In the absence of any
provision of law prescribing a different procedure or assigning jurisdiction to a
different court, 1 what a party must show, in order to invoke the Superior Court's
jurisdiction, is a justiciable controversy and standing to litigate it. See Lund ex rel.
Wilbur v. Pratt, .308 A.2d 554, 559 (Me. 197.3).
In determining whether an action presents a justiciable controversy, courts look
to whether the action presents a claim based on an existing right and is brought by a
party with standing to sue. See Smith v. Allstate Insurance Co., 48.3 A.2d .344, .346 (Me.
1984) (a justiciable controversy is defined as "a claim of right, buttressed by a
sufficiently substantial interest to warrant judicial intervention") ( quoting Berry v.
Daigle, .322 A.2d .320, .326 (Me. 1974)) See also Connors v. International Harvester Credit
Corp., 447 A.2d 822, 824 (Me. 1982) ("A justiciable controversy is a claim of present
1 Rule SOB of the Maine Rules of Civil Procedure furnishes an example of a prescribed procedure that limits the availability of a declaratory judgment action. See SOLD, Inc. v. Town ef Gorham, 2005 ME 24, 1[ 1[ 15-16, 868 A.2d 172 (developer's declaratory judgment action challenging municipal ordinance dismissed as untimely because it was commenced after the expiration of the Rule SOB deadline for appeal).
8 and fixed rights, as opposed to hypothetical or future rights, asserted by one party
against another who has an interest in contesting the claim.")
Although the Declaratory Judgments Act would not confer jurisdiction in the
absence of a justiciable controversy, "the declaratory judgment law may be used for
certain anticipatory challenges to applications of state or local ordinances or
administrative regulations so long as the other prerequisites of a justiciable
controversy exist." SOLD, Inc. v. Town efGorham, 2005 ME 24, ~ 14, 868 A.2d 172.
Were the Plaintiffs challenging an agency rule, the Maine Administrative
Procedure Act would dictate· that they commence a declaratory judgment action in
which they would have to demonstrate standing and the existence of a justiciable
controversy. See 5 M.R.S. § 805 8 ("Judicial review of an agency rule, or of an agency's
refusal or failure to adopt a rule where the adoption of a rule is required by law, may
be had by any person who is aggrieved in an action for declaratory judgment in the
Superior Court ...").
Both the Governor and the Legislature are expressly excluded from the scope
of the Maine Administrative Procedure Act. See id.§ 8002(2). However, this does not
change the nature of the remedy available for challenging acts of the Governor or the
Legislature.
Accordingly, the court concludes that the Plaintiffs do not need to identify a
cause of action beyond what their complaints indicate, and that the real questions here
are whether these cases present a justiciable controversy and whether they are
brought by plaintiffs with standing.
9 b. Justiciable Controversy
The jurisdictional elements of a justiciable controversy and standing are
distinct-a civil action may well raise a concrete dispute amenable to adjudication, but
the party raising it in the court may not have a sufficient stake or interest in the dispute
to warrant the court accepting jurisdiction of the action.
Governor LePage's argument that these cases do not present a justiciable
controversy rests in part on his contention that the Executive Order does not mean
what it appears to say. Although the sentence at issue purports to impose a
moratorium on permits on wind turbine projects that could last beyond the statutory
deadline for the DEP to act on permit applications, the Governor says the intent was
otherwise.
Instead of clarifying the Executive Order to reflect its true intent, the Governor
has submitted the affidavit of Mr. Bergeron to the effect that the DRP intends to
disregard the plain meaning of the sentence at issue and intends to act on wind turbine
permits by the statutory deadlines, whether or not the Commission has issued its
report. .
In the court's view, Mr. Bergeron's affidavit does not render the controversy
non-justiciable. The DEP Commissioner, acting with or without a directive from the
Governor, could countermand Mr. Bergeron's interpretation of the Executive Order
at any time.
Even more to the point, Mr. Bergeron's stated intention to act on permits by
the statutory deadlines is not binding on any opponent of a proposed wind energy
10 project. An opponent could still argue that the Executive Order should be construed
the way Plaintiffs construe it-that it prohibits any permit from being issued before
the Commission issues its report, regardless of the statutory deadlines. Were the
DEP to issue a permit to a wind turbine applicant before the issuance of the
Commission report, an opponent could appeal to the courts on the ground that the
Executive Order bars the issuance of the permit.
The Governor's argument that there is no justiciable controversy also rests on
lack of ripeness-he points out that the Commission may issue its report before any
application for wind permits reaches the point at which it must be acted upon, so any
impact of the moratorium on the Executive Order on a permit applicant is purely
speculative and hypothetical.
However, the Executive Order does not appear to contemplate a speedily issued
report, to say the least. It directs the Commission to engage in a variety of tasks in
order to develop its recommendations, and the recommendations have to be
"formalized" by yet another group-the Executive Committee-before the
recommendations can be sent to the Governor. About six months have already passed
since the Executive Order was issued and the Commission has evidently not had its
first meeting yet.
The record 1s silent as to whether there are any wind turbine project
applications now pending before the DEP. (The Bergeron affidavit speaks only to the
absence of applications by the MREA members that claim their planned projects are
being harmed). But if there were such a pending application, and if the statutory
11 deadlines for the DEP to act on the application were coming up, those circumstances,
plus the fact that it appears no Commission report will be issued anytime very soon,
would likely be sufficient to generate a justiciable controversy that the permit
applicant could litigate, before the DEP and in the courts.
It is only because neither the Plaintiffs nor their members have wind energy
permit applications pending before the DEP that would give them standing to litigate
that controversy that the existence of a justiciable controversy is in question.
Thus, the issues raised in the pending motions and oppositions seem to boil
down to a question of the Plaintiffs' standing-Do the Plaintiffs have a sufficient
existing stake in the conflict between the wording of the Executive Order and wording
of the DEP statute to be able to litigate it?
c. Standing
Maine's "standing jurisprudence is prudential, _rather than constitutional." Roop
v. City efBeifast, 2007 ME .32, ~7, 915 A.2d 966 (2007) (quotation omitted). "The gist
of the question of standing is whether the party seeking review has a sufficient
personal stake in a justiciable controversy to assure the existence of that concrete
adverseness that facilitates diligent development of the legal issues presented."
Halfway House, Inc. v. City ifPortland, 670 A.2d 1.377, 1.380 (Me. 1996) (internal quotes
omitted).
"To determine whether a party has standing, courts look to the gravamen of a
parties' complaint. Roy v. Augusta, 414 A.2d 215, 217 (Me. 1980) (citing Walsh v.
Brewer, S 15 A.sd 200, 205 (Me. 1974)).
12 In their complaints, CLF and MREA allege that the Governor has usurped the
authority of the legislature and thus acted in contravention of the separation ofpowers
clause of the Maine Constitution. Both complaints seek vindication for a public wrong.
See Heald v. School Administrative Dist., 387 A.2d 1, 4 (Me. 1978) (citing Baker v. Carr,
369 U.S. 186,208 (1962) (stating that the operation of the government in accordance
with the law is a public right possessed by every citizen of the state)).
However, in order to obtain judicial review of a public wrong, a potential
plaintiff must have suffered a direct and personal injury that is distinct from that
suffered by the public at large. See id at 3; Buck v. Town efYarmouth, 402 A.2d 860, 861
(Me. 1979) ("[A]n individual citizen who suffers no particularized injury from a public
wrong cannot seek relief from the courts."); see also Lindemann v. Commission on
Governmental Ethics & Election Practices, 2008 ME 187, ~15, 961 A.2d 538. "A mere
'interest in a problem' . . . is not sufficient by itself' to confer standing. Sierra
Club v. Morton, 405 U.S. 727, 739 (1972) .
Generally, persons engaged in a business that is directly affected by
government action have standing to challenge the validity of that action. James v.
Town ef West Bath, 437 A.2d 863, 865 (Me. 1981 ); see also Halfway House, 670 A.2d at
1381 (stating that case law has held that the prospect of economic injury is sufficient
to confer standing). However, the prospect of injury must be sufficiently concrete
and definite; a tenuous, hypothetical or indirect injury will not suffice. See Varney v.
Look, 377 A.2d 81, 83 (Me. 1977); see also In re Pittston Co. Oil Refinery & Marine
Terminal, 375 A.2d 530, 533 (Me. 1977).
13 These consolidated cases are brought by two associations that have differing
missions and memberships, but share a commitment to promoting renewable energy.
CLF and MREA appear to assert that they have standing in their own right due to
their continuing and significant participation in the development of renewable energy
policy in Maine. In this court's view, while their roles clearly might entitle them to
intervene or otherwise participate in legislative and administrative proceedings of
various kinds, neither association has demonstrated that it stands to suffer the direct
and concrete effects of a moratorium in the issuance ofpermits to wind energy projects
necessary to confer standing to sue.
However, both Plaintiffs also assert that they have associational standing, i.e.
standing by virtue of representing members who have suffered direct and concrete
injury, and this is a firmer foundation on which both Plaintiffs to stand. Such
representational standing exists where an association "allege[s] that its members, or
any one of them, are suffering immediate or threatened injury as a result of the
challenged action of the sort that would make out a justiciable case had the members
themselves brought suit." Warth v. Seldin, 422 U.S. 490, 511 ( 197 5).
CLF's complaint at paragraph 7 asserts that the moratorium on permits
contained in the Executive Order "will harm a variety of interests held by CLF
members, including their economic, public health, aesthetic and professional interests.
Defendant's Executive Order also harms CLF members' constitutional interests in
preserving the separation of powers" among branches of government."
14 In support of its opposition to Defendant's motion, CLF has provided affidavits
of two of its members, Philip Conkling and Phil Coupe. The Conkling affidavit asserts
that Mr. Conkling is personally aware of several wind power developers who have
suspended development of their work. (Conkling Aff , 11.) Mr. Conkling's affidavit
further asserts that the Governor's Order has a direct impact on both the consulting
work that he performs for proponents of renewable energy projects and his personal
interests in wind resource development, clean electricity, and the proper functioning
of state government. (Conkling Aff , , 12-14.)
The Coupe affidavit asserts that Mr. Coupe is a solar energy installer and
servicer who is working on blending large community and commercial solar arrays
with wind power projects. (Coupe Aff , , 5, 8.) Because of the Governor's Order, Mr.
Coupe contends he will not be able to co-locate or blend his solar arrays with new
wind power projects. (Coupe Aff , 11.) Mr. Coupe is also concerned about the harmful
impact the order has on his interests in seeing Maine meet its renewable energy goals
as well as his children's ability to breathe clean air and access natural resources. (Coupe
Aff , , 11, 13.). Mr. Coupe is further concerned about the potential for the governor
to issue a moratorium on future solar development. (Coupe Aff , 12.)
Neither of these affidavits asserts the kind of direct and concrete harm or injury
resulting from the Executive Order that would be sufficient to confer standing upon
Mr. Conkling and Mr. Coupe, and associationally upon CLF. Neither Mr. Conkling
nor Mr. Coupe avers that he has applied-or will apply-for a wind energy project
permit that could be delayed as a result of the Executive Order. While Mr. Coupe
15 does assert that a permitting delay will prevent him from co-locating his arrays
alongside new wind farms, he does not assert that the Executive Order will prevent
him from continuing his business or cause his business direct, concrete harm. 2 See In
re Pittston Co., S75 A.2d at 5SS.
Mr. Conkling's affidavit is similarly indirect in its assertion of economic harm
to his business. As with Mr. Coupe's business, any harm to Mr. Conkling's business
would only be the indirect result of a third-party's inability to obtain a permit. See
Collins v. State, 2000 ME 85, ~ 7, 750 A.2d 1257.
In addition to economic injury, CLF also argues that its members have suffered
non-economic injury resulting from harm to the environment caused by a moratorium
on wind development. To support its argument, plaintiff cites to Fitzgerald v. Baxter
State Park Authority, S85 A.2d 189 (Me. 1978). In Fitzgerald, the Law Court held that
five plaintiffs who were substantial users of Baxter State Park and who intended to
use the park substantially in the future had standing to obtain judicial review of a
program restoring areas of timber blow-down in the park despite the fact that they
had not suffered any economic injury. Id. at 191, 197.
In contrast to Fitzgerald, this case does not involve governmental action
affecting an existing resource like Baxter State Park. The Executive Order has no
impact on existing wind energy facilities. This distinction is important. Whereas in
Fitzgerald, the plaintiffs could assert that; as actual users of the park, they would be
2Additionally, there is no reason to believe, and Mr. Coupe does not aver, that the Order inhibits his ability to co-locate solar arrays at existing wind power sites.
16 affected by the challenged program in a way different from the general public, the
Executive Order's moratorium on wind energy permits affects the general public in
the same way it does the members of CLF. Due to their interest and involvement in
renewable energy, CLF members may be more concerned than the general public
about the effect of a moratorium on wind energy permits, but the effect-the alleged
harm-is the same. Cf Sierra Club, 405 U.S. at 739-40 ("[i]f any group with a bona
fide "special interest" [in the conservation of natural resources] could initiate ...
litigation, it is difficult to perceive why any individual citizen with the same bona fide
special interest would not also be entitled to do so.") Thus, for the court to find that
all members of CLF have standing would be to disregard the requirement of a
particularized injury. See id. at 736; see also Fitzgerald, 385 A.2d at 196-197; Buck, 402
A.2d at 861; Collins, 2000 ME 85, '7, 750 A.2d 1257.
Because CLF has not asserted or shown that its members have suffered any
particularized injury, either economic or non-economic, CLF has not shown that it has
standing to litigate this matter. See Warth, 422 U.S at 511.
MREA has, in theory, a better claim to standing simply because some MREA
members are in the business of operating wind energy facilities. In fact, MREA has
submitted affidavits indicating that three of its members will be applying for the very
permits that the Executive Order addresses and thus could be directly affected by a
delay in issuance ofpermits in a manner different from the effect on the general public.
MREA does not allege that any of its members has a pending application for a
wind energy permit, but that does not necessarily preclude MREA from having
17 representational standing to challenge the Executive Order. This is made clear in the
Law Court's Halfway House, Inc. v. Cdy efPortland decision. 670 A.2d 1.'377 (Me. 1996).
In that case, a pre-release facility was determined to have standing to challenge
a city ordinance that would prevent any expansion of the facility, even though it had
no pending application to expand and had not acquired any property for purposes of
expansion. Id. at 1.'381. The Law Court said:
[R]ight, title or interest in affected property, is simply one, and not the exclusive means of establishing a standing to sue in litigation involving exclusionary zoning ordinances. Restricting standing in exclusionary zoning cases to only those parties with a possessory interest in property affected by the ordinance would present excluded groups with a "Catch 22" situation: the more severely and successfully exclusionary a challenged ordinance is, the more difficult it would be for an excluded group to establish standing. In this case, while lacking "right, title or interest" in a particular piece of property impacted by the amended ordinance, Pharos House still has standing to sue as a result of the direct affect [sic] the amended ordinance will have on its ability to expand its business in Portland.
Id.
Similarly, in SOLD, Inc. v. Town ef Gorham, the Law Court observed, "The
declaratory judgment law does permit anticipatory challenges to a regulation or
ordinance to resolve a dispute regarding a planned action, before the matter actually
proceeds and the challenged ordinance is applied to the detriment of the plaintiffs.
Such anticipatory challenges pursuant to the declaratory judgment law have been
allowed to seek clarification of the applicability oflaws, ordinances, and administrative
regulations to impending projects." 2005 ME 24, 1f 14, 868 A.2d 172.
18 By analogy, even though MREA does not assert that any of its members have
filed permit applications with the DEP that would be affected by the moratorium
contained in the Executive Order, a showing that the Executive Order has had or will
have a concrete adverse impact on the members' "impending projects," to use the Law
Court's term, could be sufficient to confer standing on them, and through them upon
MREA.
In the context of this case, to have standing, MREA has to allege and show that
the effect of the Executive Order will more likely than not be to delay the issuance of
permits for its members' projects beyond the statutory deadlines for the DEP to act
on the yet-to-be filed applications. The delay itself need not have occurred, but it
must be threatened.
However, MREA's complaint lacks any specificity about what stage its
members' wind energy projects have reached in development or about what impact
the Executive Order has had on its members' projects. The pertinent allegations are
contained at paragraphs 8 and 9 of the MREA complaint. Paragraph 9 is insufficient
because it asserts that MREA and its members have the same interest in preserving
the separation of powers between the executive and legislative branches that all
citizens and residents ofMaine do. Paragraph 8 is insufficient because its allegations
of the impact of the Executive Order on MREA and its members are vague and
conclusory.
Governor LePage points out that, even construed on its face, the Executive
Order will not necessarily delay any wind energy permit beyond the statutory
19 deadlines. He points out that, since MREA does not allege that any of its members
has a pending application, the moratorium on issuance of permits would have to last
for at least six months from whenever an application is filed in order to extend beyond
the statutory deadlines. He notes that his term as Governor expires in January 2019
and that his successor may or may not maintain the Executive Order. The farther
away MREA's members are from filing their permit applications, the more speculative
and indefinite the effect of the Executive Order on their projects becomes.
To support its claim of standing, MREA has submitted four affidavits-those
of its executive director, Jeremy Payne, and of representatives of three MREA
members: Paul Williamson of Apex Energy; Aaron Svedlow of NextEra Energy
Resources, and Masahiro Ogiso of Trireme Energy Development II, LLC.
The three member affidavits are similar in that all three assert that the
companies they represent are developing wind energy projects that will at some point
in the future require permits from DEP. Each of the member affidavits asserts that
the moratorium on permits contained in the Executive Order "jeopardizes" the
projects and "harms" the development of the member's projects in unspecified ways. 5
None of the affidavits says that the MREA member has already filed an application for
a permit. None of the affidavits contains a specific description of what harm is
s All three affidavits also assert that the affiants' companies do not want to incur the expense and risk of preparing a permit application if the DEP cannot issue a permit due to the Executive Order or deny the permit based on the moratorium. This assertion begs the question of how the moratorium in the Executive Order threatens to cause permits for the companies' projects to be delayed beyond the statutory deadlines.
20 caused---or threatened-to the proposed project by the moratorium. None of the
affidavits indicates how close the affiant's project is to the application and permitting
stage, such that the approval of a permit would likely be delayed by a temporary
moratorium on permitting.
Moreover, it is not the affidavits submitted by CLF and MREA that are the
focus in determining their standing for purposes of a motion to dismiss. It is the
allegations of the complaints that determine standing for purposes of a Rule 12(b)( 6)
motion. See National Hearing Aid Centers, Inc. v. Smith, 376 A.2d 456, 458 (Me. 1977)
("In determining justiciability we must ascertain whether the complaint alleged a
claim of right justifying relief and whether a sufficiently substantial interest is asserted
to warrant judicial protection.").
Governor LePage contends that both complaints are too vague and conclusory
in their assertions of harm due to the Executive Order to be deemed sufficient to
establish standing. He also contends that, even if the affidavits were deemed to be
incorporated into the complaints, they are still insufficient to show that the Executive
Order has caused or threatened the concrete adverse impact-the injury in fact- that
is necessary to confer standing upon Plaintiffs or their members. The court agrees.
The court cannot issue an advisory opinion on the validity of the Executive
Order at the request of a party who possibly might be affected by it. Neither
complaint, even construed liberally, alleges the kind of direct, concrete actual or
imminent adverse impact that is necessary for standing.
21 Conclusory allegations of standing may suffice when the adverse impact on the
plaintiff is self-evident. The Law Court has on occasion deemed conclusory
allegations sufficient. See National Hearing Aid Centers, Inc. v. Smith, S76 A.2d 456,
458 (Me. 1977).
However, the difference between National Hearing Aid Centers, Inc. and these
cases is that the plaintiff in National Hearing Aid Centers, Inc. alleged that the newly
enacted statute directly threatened to harm its existing business operations, whereas
Plaintiffs in these cases allege that the Executive Order is harming their ability to
obtain yet-to-be-sought permits for non-existent facilities that are at unspecified
stages of planning. Arguably the need for specificity in a complaint's allegations
regarding standing is higher when the alleged threatened or actual harm is to a
concept or plan rather than to an existing resource, project or business.
In addition, when a plaintiff seeks judicial review of an executive or legislative
act, the need to maintain the separation of powers among the three branches of
government makes it essential that the plaintiff allege and show actual or threatened
harm. In Lewis v. Casey, Justice Scalia, writing for the Court, said:
The requirement [to] show actual injury derives ultimately from the doctrine of standing, a constitutional principle that prevents courts oflaw from undertaking tasks assigned to the political branches. It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution.
518 U.S. S4S, S49 ( 1996) (internal citations omitted).
22 For these reasons, the court deems the complaints in both of these cases to be
insufficient to show that the Plaintiffs have standing, either in their own right or
associationally through their members.
In its National Hearing Aid Centers, Inc. decision, the Law Court addressed the
effect of conclusory allegations of standing in a complaint:
Although the complaint does not allege in nonconclusory form the specific injury that will result, the complaint cannot be fatally defective on that basis alone. A complaint is sufficient to withstand a 12(b)(6) motion to dismiss if from a liberal construction of the pleadings and possible amendments thereto, the court can determine that a plaintiff can prove a set of facts to support his claim.
376 A.2d at 459 (emphasis added).
At oral argument, the court inquired about whether a supplementation of the
current record on the issue of standing was requested, and understood that it was not.
However, to avoid any uncertainty, the court will extend to both Plaintiffs the
opportunity to seek leave to amend their respective complaints to address the areas
identified in this Order.
Specifically, MREA may seek leave to file an amended complaint that alleges a
set of facts indicating how the moratorium contained in the Executive Order has
caused an actual injury in fact or threatens an imminent injury to any wind energy
project being developed by its members.
The court is in doubt as to whether any proposed amendment by CLF will be
sufficient, given that neither it nor any ofits members is asserted to be in the business
of wind energy projects and therefore can claim to be more than indirectly affected by
23 the Executive Order. However, CLF as well may seek leave to amend, provided that
the allegations in the proposed amended complaint must be sufficient to address the
areas identified in this Order.
IT IS HEREBY ORDERED AS FOLLOWS:
I. Defendant's Motion to Dismiss the complaint of Conservation Law Foundation
is hereby granted.
2. Defendant's Motion to Dismiss the complaint of Maine Renewable Energy
Association is hereby granted.
S. The Motion for Summary Judgment of Maine Renewable Energy Association is
hereby denied without prejudice.
4. Plaintiff Conservation Law Foundation's Motion to Join Maine Renewable Energy
Association's Motion for Summary Judgment is dismissed as moot.
5. Plaintiff Conservation Law Foundation may file a motion for leave to amend,
attaching the proposed amended complaint, within SO days of this Order.
Additionally or alternatively, CLF may file a motion to participate as an amicus
curiae in the MREA action within SO days of this Order.
6. Plaintiff Maine Renewable Energy Association may file a motion for leave to
amend, attaching the proposed amended complaint, within SO days of this Order.
Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this
Order by reference in the docket.
Dated July 20, 2018
A. M. Horton, Justice
Entered on the Docket: 1 · 2.o · l % 24 CFL & MREA vs. lePage, PORSC-CV-2018-45 (consolidated with CV-18-89)
Plaintiffs' Counsel:
CLF: Phelps Turner, Esq. - Lead Sean Mahoney, Esq. Emily Green, Esq.
MREA: Kevin Decker, Esq. - Lead Katherine Joyce, Esq .
Defendant's Counsel:
Gerald Reid, AAG - Lead Susan Herman, AAG Margaret Bensinger, AAG