NECEC Transmission LLC v. Bureau of Parks and Lands

2022 ME 48, 281 A.3d 618

• Court: Supreme Judicial Court of Maine
• Decided: August 30, 2022
• Status: Published

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2022 ME 48 Docket: BCD-21-416 Argued: May 10, 2022 Decided: August 30, 2022

Panel: STANFILL, C.J., JABAR and HORTON, JJ., CLIFFORD, A.R.J., and HUMPHREY, A.R.J.*

NECEC TRANSMISSION LLC et al.

v.

BUREAU OF PARKS AND LANDS et al.

STANFILL, C.J.

[¶1] The New England Clean Energy Connect project (the Project) is

designed to transmit power generated in Québec through Maine and into

Massachusetts. The Project includes a new 145.3-mile, high-voltage direct

current (HVDC) transmission line, proposed to run from the Maine-Québec

border in Beattie Township to a new converter station in Lewiston and from

there to an existing substation by a new 1.2-mile, high-voltage alternating

current transmission line. Of the Project’s five segments, segment 1—a

53.1 mile-long HVDC transmission line running along a corridor from

Beattie Township to the Forks Plantation—is the most controversial because it

* Justice Humphrey sat at oral argument and participated in the initial conference while he was an Associate Justice and, as directed and assigned by the Chief Justice, is now participating in this appeal as an Active Retired Justice. 2

must be cut through commercial timberland and will cross hundreds of

wetlands, waterways, and other wildlife habitats, as well as public land.

[¶2] On November 2, 2021, fifty-nine percent of Maine voters approved

the following ballot question through a public referendum:

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?[1]

Though the question did not mention the Project, the legislation enacted by the

voters (the Initiative) effectively precludes the Project.2

[¶3] On November 3, 2021, NECEC Transmission LLC and Avangrid

Networks, Inc. (collectively, NECEC),3 filed a complaint for declaratory

1 Section 4 of the Initiative requires legislative approval of the construction of any high-impact

transmission line in addition to a CPCN from the PUC. I.B. 2021, ch. 1, § 4 (effective Dec. 19, 2021). Section 5 of the Initiative bans the construction of any high-impact transmission line in the “Upper Kennebec Region,” defined as “the approximately 43,300 acres of land located between the Town of Bingham and Wyman Lake, north along the Old Canada Road, Route 201, to the Canadian border, and eastward from the Town of Jackman to encompass Long Pond and westward to the Canadian border, in Somerset County and Franklin County.” I.B. 2021, ch. 1, § 5 (effective Dec. 19, 2021). Section 6 requires sections 4 and 5 to be applied retroactively to September 16, 2020. I.B. 2021, ch. 1, § 6 (effective Dec. 19, 2021).

2Consistent with the terminology used by the trial court and the parties, we use “the Initiative” throughout this opinion to refer to the legislation enacted by the passage of the citizens’ initiative question in November 2021. See I.B. 2021, ch. 1, §§ 1-6 (effective Dec. 19, 2021). The Initiative was the second attempt at a citizens’ initiative to curtail the Project; we held the first proposed initiative unconstitutional in Avangrid Networks, Inc. v. Sec’y of State, 2020 ME 109, ¶¶ 35-38, 237 A.3d 882.

3NECEC Transmission LLC owns the Project; Avangrid owns NECEC Transmission LLC and is the indirect parent company of Central Maine Power Company (CMP). CMP, together with H.Q. Energy 3

judgment in the Superior Court alleging, among other things, that retroactive

application of the Initiative to the Project, as required by section 6, is

unconstitutional on a variety of grounds. The complaint named the Bureau of

Parks and Lands, the Public Utilities Commission (PUC), the Maine Senate, and

the Maine House of Representatives as defendants (collectively, the State

parties). Thirteen organizations and individuals were granted intervenor

status in the trial court.4

[¶4] NECEC moved to preliminarily enjoin the Initiative from becoming

law. After transfer to the Business and Consumer Docket, and following the

denial of NECEC’s request for a preliminary injunction, the trial court (Duddy, J.)

reported the case to us pursuant to M.R. App. P. 24(c). We accept the report and

frame the question of law raised by the court’s reported interlocutory ruling as

follows:

Services (U.S.) Inc., originally entered into transmission services agreements with several Massachusetts electricity distribution companies to transmit electricity through the Project. CMP ultimately transferred all of its rights and responsibilities in the Project to NECEC Transmission LLC.

4 The following parties intervened on the side of NECEC: H.Q. Energy Services (U.S.) Inc., Cianbro Corporation, International Brotherhood of Electrical Workers Local 104, Industrial Energy Consumer Group, and the Maine State Chamber of Commerce. The following parties intervened on the side of the State appellees: NextEra Energy Resources, LLC (NextEra); the Natural Resources Council of Maine (NRCM); and individuals Thomas B. Saviello, Christine M. Geisser, Wendy A. Huish, Jonathan T. Hall, Theresa E. York, and Robert C. Yorks (the West Forks residents). 4

Would retroactively applying sections 4 and 5 of the Initiative to the certificate of public convenience and necessity (CPCN) issued for the Project, as required by section 6, violate due process under the Maine Constitution, Me. Const. art. I, § 6-A, if NECEC undertook substantial construction consistent with and in good-faith reliance on the CPCN before the Initiative was enacted?

Answering that question, we hold that section 6 of the Initiative is

unconstitutional to the extent it requires sections 4 and 5 to be applied

retroactively to the CPCN if the appellants have acquired vested rights to

proceed with Project construction. We therefore remand to the Business and

Consumer Docket for further proceedings consistent with this opinion.

I. BACKGROUND

[¶5] The interlocutory ruling underlying this case is before us pursuant

to M.R. App. P. 24(c), on report from the Business and Consumer Docket. Given

that procedural posture, the following facts are taken from the reported ruling

and our opinion affirming the PUC’s order granting the CPCN for the Project,

NextEra Energy Res., LLC v. Me. PUC, 2020 ME 34, 227 A.3d 1117, and are limited

to those facts relevant to the question of law that we now answer.

See Littlebrook Airpark Condo. Ass’n v. Sweet Peas, LLC, 2013 ME 89, ¶ 9, 81 A.3d

348 (outlining the limited scope of review for reported interlocutory rulings). 5

A. Project Permitting and Other Governmental Approvals

[¶6] On September 27, 2017, CMP filed a petition with the PUC to obtain

a CPCN for the Project. NextEra Energy Res., LLC, 2020 ME 34, ¶ 3, 227 A.3d

1117. The PUC held many days of public and evidentiary hearings and

conferences and received well over one thousand public comments regarding

CMP’s petition. Id. ¶ 6. On May 3, 2019, the PUC concluded that the Project

meets the statutory public-need standard and unanimously voted to grant CMP

a CPCN to construct and operate the Project, all at no cost to Maine electricity

customers. Id. ¶¶ 6-10.

[¶7] Appellee-Intervenor NextEra intervened in the PUC proceeding and

appealed to us from the order granting the CPCN. Id. ¶¶ 5, 11. We affirmed the

PUC’s decision on March 17, 2020, concluding that the PUC’s determination,

findings of fact, and application of the law were supported by the voluminous

record. Id. ¶ 43.

[¶8] In addition to the CPCN, NECEC and CMP obtained multiple

authorizations from various government entities before beginning

construction on the Project. NECEC applied for permits from the Department

of Environmental Protection (DEP) as required under the Natural Resources

Protection Act, 38 M.R.S. §§ 480-A to 480-JJ (2017), and the Site Location of 6

Development Act, 38 M.R.S. §§ 483-A, 484, 487-A (2017), as well as for a

Site Law Certification from the Land Use Planning Commission (LUPC), see

12 M.R.S. § 685-B (2017). On May 11, 2020, the DEP approved NECEC’s permit

application in an order that also incorporated the LUPC’s certification.

Appellees-Intervenors NextEra, NRCM, and the West Forks residents appealed

the DEP’s order to the Superior Court and the Board of Environmental

Protection (BEP) and moved to stay the order. The Superior Court denied their

motion to stay the DEP’s order. NextEra Energy Res., LLC v. Dep’t of Env’t Prot.,

2021 Me. Super. LEXIS 14 (Jan. 8, 2021). On November 23, 2021, the DEP

suspended the permit it had issued pending the outcome of this case. The

appeal to the BEP remained pending when this case was filed in the

Superior Court.5

[¶9] NECEC and CMP also secured a permit from the United States Army

Corps of Engineers under the Clean Water Act and the Rivers & Harbors Act

(the ACE permit). See 33 U.S.C.S. § 1344 (LEXIS through Pub. L. No. 117-66);

33 U.S.C.S. § 403 (LEXIS through Pub. L. No. 117-116). The Sierra Club, NRCM,

5The status of some of these proceedings has changed during the time that this case has been pending, but that information is not part of the formal record before us. See, e.g., Edward D. Murphy, State Environmental Board Denies Appeal of Transmission Line Project, Portland Press Herald (July 21, 2022), https://www.pressherald.com/2022/07/21/state-environmental-board-denies-appeal-of- transmission-line-project/. 7

and the Appalachian Mountain Club (AMC) sued the Army Corps of Engineers

to enjoin the ACE permit, alleging that the environmental assessment

underlying the permit was insufficient and that the Corps should have instead

completed a full environmental impact statement. Following an emergency

appeal of the denial of a preliminary injunction, on January 15, 2021, the

United States Court of Appeals for the First Circuit enjoined construction on

segment 1 of the Project pending appeal. The First Circuit vacated the partial

injunction on May 13, 2021, Sierra Club v. U.S. Army Corps of Eng’rs, 997 F.3d

395 (1st Cir. 2021), but the case remains pending.

[¶10] Separately, CMP received a presidential permit from the

United States Department of Energy (DOE) on January 14, 2021.

NECEC Transmission LLC, DOE Docket No. PP-438, Presidential Permit (DOE

Jan. 14, 2021); see Exec. Order No. 10,485, 3 C.F.R. 106 (1953), amended by

Exec. Order No. 12,038, 3 C.F.R. 136 (1978). Thereafter, the Sierra Club, NRCM,

and AMC amended their pending complaint regarding the ACE permit to

include claims relating to the presidential permit.

[¶11] Finally, NECEC obtained municipal permits and approvals

requiring compliance with local rules in most municipalities through which the 8

Project will pass. At the time this case was filed, NECEC had not yet secured

permits and approvals from four municipalities.

[¶12] In addition to the aforementioned permits and approvals, NECEC

(through CMP) needed a lease from the Bureau of Parks and Lands for the

0.9-mile stretch of the Project that crosses public reserved lands in

Johnson Mountain Township and West Forks Plantation. In 2014, CMP had

obtained a lease from the Bureau to construct electric transmission facilities,

and in 2020 CMP entered into an amended lease (the BPL lease) superseding

the 2014 lease for the public reserved lands through which the Project would

pass.6

[¶13] In June 2020, Senator Russell Black filed a complaint in the

Superior Court against the Bureau, alleging the BPL lease violated article IX,

section 23 of the Maine Constitution. The Business and Consumer Docket

(Murphy, J.) vacated the BPL lease, Black v. Cutko, No. BCDWB-CV-2020-29,

2021 WL 3700685 (Me. B.C.D. Aug. 10, 2021), and that decision was appealed

to us, Black et al. v. Bureau of Parks and Lands et al., No. BCD-21-257. After

Senator Black moved to lift the automatic stay on the judgment, we issued an

agreed-upon order prohibiting NECEC from building on the leased

6 CMP assigned its interest in the 2020 BPL lease to NECEC Transmission LLC on January 4, 2021. 9

public reserved lands until the legal questions regarding the BPL lease have

been resolved. See M.R. Civ. P. 62(e), (g).

[¶14] In summary, at the time this case was filed, (1) the DEP permit

(incorporating the LUPC Site Law certificate) was still pending on appeal before

the BEP, (2) the ACE permit and the presidential permit from the DOE were the

subjects of a lawsuit in federal court, (3) the BPL lease was the subject of a

direct appeal to us in another case, and (4) not all necessary municipal

approvals had been obtained. The only Project-wide permit or approval that

was final when this case was filed was the CPCN from the PUC—an order that

we affirmed and that is not subject to any further review.

B. Project Construction

[¶15] The Project is divided into five segments. Segment 1 includes

53.1 miles of HVDC line along a new corridor running from Beattie Township

at the Canadian border to the Forks Plantation. Segments 2 and 3 cover

approximately 92 miles of transmission line along an existing corridor that will

be widened. Segments 4 and 5 focus on network upgrades, including a

26.5-mile transmission line from Lewiston to Wiscasset.

[¶16] NECEC received the final Project-wide permit—the presidential

permit from the DOE—on January 14, 2021. On January 18, 2021, NECEC 10

started clearing and construction activities in segments 2 through 5 of the

Project. On May 15, 2021, NECEC commenced construction on segment 1 of the

Project, the 53.1 miles from the Canadian border to the Forks Plantation.

[¶17] According to the preliminary injunction record, NECEC had spent

nearly $450 million on the Project, approximately forty-three percent of the

projected total cost, as of November 3, 2021, when this case was filed in the

Business and Consumer Docket. Between January 18, 2021, and the time the

Project was halted following the referendum in November 2021, NECEC cut

approximately 124 miles of right-of-way for direct current lines, cleared the

entire corridor for the alternating current line, erected transmission structures

along the corridor, and prepared the converter station site.

C. The 2021 Citizens’ Initiative

[¶18] As we recently reiterated in connection with a related citizens’

initiative:

The broad purpose of the direct initiative is the encouragement of participatory democracy. By [article IV, part third,] section 18 [of the Maine Constitution,] the people, as sovereign, have retaken unto themselves legislative power, and that constitutional provision must be liberally construed to facilitate, rather than to handicap, the people’s exercise of their sovereign power to legislate. . . . [S]ection 18 cannot be said merely to permit the direct initiative of legislation upon certain conditions. Rather, it reserves to the people the right to legislate by direct initiative if the constitutional conditions are satisfied. 11

Avangrid Networks, Inc., 2020 ME 109, ¶ 15, 237 A.3d 882 (quoting McGee v.

Sec’y of State, 2006 ME 50, ¶ 25, 896 A.2d 933).

[¶19] In accordance with the Maine Constitution’s provision for direct

initiative of legislation, Me. Const. art. IV, pt. 3, § 18, voters circulated a petition

for a citizens’ initiative affecting the Project beginning on October 30, 2020. On

February 22, 2021, the Secretary of State determined that the petition had

garnered enough valid signatures to present the initiated bill to the Legislature.

See id. § 18(2); 21-A M.R.S. § 905(1) (2022). Though presented with the bill,

L.D. 1295 (130th Legis. 2021), the Legislature did not act on the measure before

adjourning sine die on March 30, 2021. See Me. Const. art. IV, pt. 3, § 18(2). As

a result, a ballot question summarizing the initiated bill was submitted to the

public for a vote in November 2021. See id. § 18(2)-(3); see generally Caiazzo v.

Sec’y of State, 2021 ME 42, ¶¶ 2-5, 256 A.3d 260.

[¶20] On November 2, 2021, fifty-nine percent of Maine voters approved

the initiated bill, which took effect on December 19, 2021, and effectively halted

the Project. The legislation enacted through the Initiative consists of six

sections, four of which effect statutory changes with implications for the

Project.7 I.B. 2021, ch. 1, §§ 1-6 (effective Dec. 19, 2021). We do not address

7 NECEC argues that the sections of the Initiative are not severable and therefore the entire Initiative must fall if we conclude that any section is unconstitutional. However, we need not consider 12

sections 2 and 3 of the Initiative because no one challenges their

constitutionality.

[¶21] Section 1 of the Initiative amends 12 M.R.S. § 1852 (2021), which

governs the Bureau’s authority to lease public reserved lands, by requiring

legislative approval for leases for transmission lines retroactively to

September 16, 2014. I.B. 2021, ch. 1, § 1 (effective Dec. 19, 2021). The effect of

section 1 upon the portion of the Project involving public reserved land is the

subject of the separate appeal in Black et al. v. Bureau of Parks and Lands et al.,

No. BCD-21-257, and is more appropriately addressed in that context rather

than on report under M.R. App. P. 24(c). See Littlebrook Airpark Condo. Ass’n,

2013 ME 89, ¶ 9, 81 A.3d 348.

[¶22] Sections 4, 5, and 6 of the Initiative amend 35-A M.R.S. § 3132

(2021), the statute requiring project developers to obtain a CPCN from the PUC

before constructing certain transmission lines. I.B. 2021, ch. 1, §§ 4-6 (effective

the issue of severability because the parties failed to preserve it in the trial court. MP Assocs. v. Liberty, 2001 ME 22, ¶ 18, 771 A.2d 1040. Even if the issue were preserved, the separate sections of the Initiative would be severable. See 1 M.R.S. § 71(8) (2022) (codifying the general rule of statutory construction that “[t]he provisions of the statutes are severable”); Lambert v. Wentworth, 423 A.2d 527, 535 (Me. 1980) (establishing the presumption of severability in statutes whose unconstitutional provisions are separate and independent from the valid provisions); see also 16A Am. Jur. 2d Constitutional Law § 211 (“[I]f a statute is unconstitutional as applied, the state may continue to enforce that statute in different circumstances where it is not unconstitutional, and if a statute has unconstitutional applications, they are severable from the constitutional applications.” (footnotes omitted)). 13

Dec. 19, 2021). Those sections do not affect the authority of any executive

agency other than the PUC, nor do they affect any of the many permits or

approvals obtained by the Project except the CPCN.

[¶23] Section 4 of the Initiative enacts 35-A M.R.S. § 3132(6-C) (2022)8

and provides that “[i]n addition to obtaining a [CPCN], a high-impact electric

transmission line may not be constructed anywhere in the State without first

obtaining the approval of the Legislature.” I.B. 2021, ch. 1, § 4 (effective Dec. 19,

2021). Section 5 of the Initiative enacts 35-A M.R.S. § 3132(6-D) (2022),9 which

8 Section 4 states in full as follows:

Sec. 4. 35-A MRSA §3132, sub-§6-C is enacted to read:

6-C. High-impact electric transmission line; legislative approval. In addition to obtaining a certificate of public convenience and necessity, a high-impact electric transmission line may not be constructed anywhere in the State without first obtaining the approval of the Legislature, except that any high-impact electric transmission line crossing or utilizing public lands designated by the Legislature pursuant to Title 12, section 598-A is deemed to substantially alter the land and must be approved by the vote of 2/3 of all the members elected to each House of the Legislature.

I.B. 2021, ch. 1, § 4 (effective Dec. 19, 2021).

9 Section 5 states in full as follows:

Sec. 5. 35-A MRSA §3132, sub-§6-D is enacted to read:

6-D. High-impact electric transmission line; geographic prohibition. Notwithstanding subsection 6-C, a high-impact electric transmission line may not be constructed in the Upper Kennebec Region. For the purpose of this subsection, “Upper Kennebec Region” means the approximately 43,300 acres of land located between the Town of Bingham and Wyman Lake, north along the Old Canada Road, Route 201, to the Canadian border, and eastward from the Town of Jackman to encompass Long Pond and westward to the Canadian border, in Somerset County and Franklin County. 14

bans all high-impact electric transmission lines from the “Upper Kennebec

Region,” an area spanning portions of Franklin and Somerset Counties. I.B.

2021, ch. 1, § 5 (effective Dec. 19, 2021). Finally, section 6 of the Initiative

enacts 35-A M.R.S. § 3132 (6-E) (2022),10 which applies sections 4 and 5

retroactively to high-impact electric transmission line projects on which

construction had not started by September 16, 2020. I.B. 2021, ch. 1, § 6

(effective Dec. 19, 2021). Though the Initiative does not expressly mention the

Project, sections 4 and 5 apply to the Project through section 6 because

construction did not begin on it until January 2021.

D. Procedural History

[¶24] On November 3, 2021, the day after the public referendum on the

initiated bill, NECEC (i.e., NECEC Transmission LLC and Avangrid) filed a

three-count verified complaint against the State parties seeking declaratory

I.B. 2021, ch. 1, § 5 (effective Dec. 19, 2021).

10 Section 6 states in full as follows:

Sec. 6. 35-A MRSA §3132, sub-§6-E is enacted to read:

6-E. Retroactivity. Notwithstanding Title 1, section 302 or any other provision of law to the contrary, subsections 6-C and 6-D apply retroactively to September 16, 2020 and apply to any high-impact electric transmission line the construction of which had not commenced as of that date.

I.B. 2021, ch. 1, § 6 (effective Dec. 19, 2021). 15

and injunctive relief to permanently block retroactive application of the

Initiative to the Project. That same day, NECEC moved for a preliminary

injunction to stay the initiated legislation during the pendency of the litigation.

Several organizations and individuals moved to intervene; five supported

NECEC, and eight supported the State parties. After expedited briefing and

argument, the Business and Consumer Docket denied NECEC’s motion for a

preliminary injunction on December 16, 2021. In a comprehensive and

thoughtful opinion, the court rejected the various constitutional challenges to

the initiated legislation and found “no basis to block the Initiative from going

into effect as scheduled.” However, the court also suggested that NECEC and

the supporting intervenors move to have the questions of law reported to us

pursuant to M.R. App. P. 24(c).

[¶25] On December 22, 2021, NECEC moved for the court to report the

interlocutory ruling denying its request for a preliminary injunction. M.R. App.

P. 24(c). Less than a week later, the court reported the case “in its entirety for

the Law Court to determine the questions of law presented.” 16

II. DISCUSSION

A. Scope of Appellate Review under Rule 24(c)

[¶26] Rule 24(c) of the Maine Rules of Appellate Procedure governs

reported interlocutory rulings and is an exception to the final judgment rule.

As such, it should be used sparingly, Bank of Am., N.A. v. Cloutier, 2013 ME 17,

¶ 8, 61 A.3d 1242, especially to report constitutional questions, Sirois v.

Winslow, 585 A.2d 183, 185 (Me. 1991).11 Rule 24(c) provides:

If the trial court is of the opinion that a question of law involved in an interlocutory order or ruling made by it ought to be determined by the Law Court before any further proceedings are taken, it may on motion of the aggrieved party report the case to the Law Court for that purpose and stay all further proceedings except such as are necessary to preserve the rights of the parties without making any decision therein.

M.R. App. P. 24(c). Upon receipt of a Rule 24(c) report, our broad task is to

determine whether accepting the report and answering the questions of law

therein “‘is consistent with our basic function as an appellate court, or would

improperly place us in the role of an advisory board.’” Littlebrook Airpark

Condo. Ass’n, 2013 ME 89, ¶ 9, 81 A.3d 348 (quoting Cloutier, 2013 ME 17, ¶ 8,

Former Rule 72 of the Maine Rules of Civil Procedure governed the process for reporting cases 11

to the Law Court before the Maine Rules of Appellate Procedure were adopted in 2001. M.R. Civ. P. 72 (West 2001); see M.R. App. P. 1 Advisory Note, Jan. 1, 2001. Because Rule 24 is “derived nearly verbatim from former” Rule 72, 3A Harvey & Merritt, Maine Civil Practice § A24:1 at 224 (3d, 2021-2022 ed. 2021), we consider cases that examined former Rule 72 when interpreting Rule 24. Liberty Ins. Underwriters, Inc. v. Est. of Faulkner, 2008 ME 149, ¶ 5 n.4, 957 A.2d 94; see, e.g., Littlebrook Airpark Condo. Ass’n v. Sweet Peas, LLC, 2013 ME 89, ¶ 13, 81 A.3d 348. 17

61 A.3d 1242). We weigh three factors to make that determination:

“(1) whether ‘the question reported is of sufficient importance and doubt to

outweigh the policy against piecemeal litigation’; (2) whether ‘the question

might not have to be decided because of other possible dispositions’; and

(3) whether ‘a decision on the issue would, in at least one alternative, dispose

of the action.’” Id. (quoting Cloutier, 2013 ME 17, ¶ 8, 61 A.3d 1242).

[¶27] Here, the court reported its order denying NECEC’s motion to

preliminarily enjoin the Initiative “in its entirety” and did not submit specific

questions. The court’s open-ended report does not prevent us from acting on

it. See, e.g., Luhr v. Bickford, 661 A.2d 1141, 1141-42 (Me. 1995) (considering

whether to accept a report that presented “unspecified questions of law”

involved in the trial court’s interlocutory order, identifying the operative

question of law at issue, and discharging the report after concluding that the

question was not doubtful (quotation marks omitted)); Churchill v. S.A.D. No. 49

Tchrs. Ass’n, 380 A.2d 186, 189 (Me. 1977) (“So long as the record clearly

identifies the issue raised and contains the necessary information to permit a

determination of the question, no further particularization is required.”); but

see Swanson v. Roman Cath. Bishop, 1997 ME 63, 16 & n.11, 692 A.2d 441

(Lipez, J., dissenting) (urging caution when deciding whether to accept a 18

reported case involving constitutional questions and noting that Luhr did not

involve constitutional claims). It does, however, require us to define the scope

of our review before we reach the merits.

[¶28] NECEC urges us to accept three questions on report:12

1) Whether the Initiative unlawfully deprives NECEC of a vested right to complete Project construction;

2) Whether the Initiative violates the separation of powers under the Maine Constitution; and

3) Whether the Initiative unlawfully impairs NECEC’s rights under the contracts clauses of the United States and Maine constitutions.

[¶29] We limit our analysis to sections 4 through 6 of the Initiative.

Section 1 of the Initiative affects the authority of the Bureau to lease

public reserved lands by retroactively requiring legislative approval for

transmission line leases. I.B. 2021, ch. 1, § 1 (effective Dec. 19, 2021). The

Business and Consumer Docket (Murphy, J.) vacated the BPL lease based on a

determination that it was not validly issued, Black v. Cutko,

12NECEC argues further that we should address all issues involved in the interlocutory ruling including whether NECEC will suffer irreparable harm, whether the balance of harms favors an injunction, and whether the public interest favors an injunction. We disagree. Those questions are fact-bound and would require this Court to apply the abuse-of-discretion and clear-error standards, see All. for Retired Ams. v. Sec’y of State, 2020 ME 123, ¶ 12, 240 A.3d 45, which would be inconsistent with the de novo review of legal questions to which a Rule 24(c) report is limited. Moreover, the legal standards governing the grant or denial of a preliminary injunction can be resolved by applying well-established principles of law and, therefore, are not sufficiently doubtful to require our attention. Despres v. Moyer, 2003 ME 41, ¶ 14, 827 A.2d 61. 19

No. BCDWB-CV-2020-29, 2021 WL 3700685 (Me. B.C.D. Aug. 10, 2021), and

that decision has been appealed to us, Black et al v. Bureau of Parks and Lands

et al., No. BCD-21-257. The constitutionality of the retroactive clause of

section 1 of the Initiative, which amends the authority of the Bureau under

Title 12, may never have to be decided depending on the outcome of that

appeal. Under those circumstances, further consideration of the

constitutionality of section 1 of the Initiative would not be consistent with our

basic appellate function. See Littlebrook Airpark Condo. Ass’n, 2013 ME 89, ¶ 9,

81 A.3d 348.

[¶30] The separation of powers claim requires only a brief explanation.

We have recognized the power of a legislative body to enact retroactive

legislation that affects the validity of a permit issued by an executive authority.

See, e.g., City of Portland v. Fisherman’s Wharf Assocs. II, 541 A.2d 160, 162-64

(Me. 1988). Neither the CPCN nor any other permit that has been upheld in

court as validly issued is necessarily categorically exempt from retroactive

legislation. However, the effect of retroactive legislation upon existing

proceedings and rights is ultimately for the courts, not the Legislature, to

decide. For example, in Avangrid, we declared the citizens’ initiative at issue

there to be invalid because it purported to adjudicate the validity of the CPCN 20

directly, and thereby exercise judicial power rather than legislative power.

2020 ME 109, ¶ 35, 237 A.3d 882. The Initiative now before us is

distinguishable because it is an exercise of legislative power that may affect the

validity of the CPCN but leaves judicial review—and the separation of powers—

intact.

[¶31] With respect to the contracts clause claim, we decline to address

that question because it is governed by established principles of law. See

Kittery Retail Ventures, LLC v. Town of Kittery, 2004 ME 65, ¶ 38, 856 A.2d 1183

(reciting the well-settled test for resolving contracts clause claims). In other

words, the question that the contracts clause claim raises is not sufficiently

doubtful “to outweigh the policy against piecemeal litigation.”

Littlebrook Airpark Condo., Ass’n, 2013 ME 89, ¶ 9, 81 A.3d 348 (quotation

marks omitted).

[¶32] Thus, we accept and answer only the question whether

retroactively applying sections 4 and 5 of the Initiative to the CPCN issued for

the Project, as required by section 6, violates the due process clause of the

Maine Constitution. 21

B. The vested rights doctrine arises from the Maine Constitution and limits the Legislature’s authority to apply laws retroactively.

[¶33] Whether retroactive application of the Initiative to the CPCN that

the PUC issued for the Project unconstitutionally impairs NECEC’s vested rights

depends on whether Maine’s vested rights doctrine is a constitutional

limitation on legislative authority, including citizen initiatives. We hold that it

is.

[¶34] By its terms, the Initiative applies retroactively to the PUC’s

authority over projects involving high-impact electric transmission lines on

which construction had not started by September 16, 2020, 35-A M.R.S.

§ 3132(6-E) (2022), and thus it applies to the Project.

[¶35] The same constitutional limitations on legislative authority apply

to citizen-initiated legislation as apply to the enactments of the Legislature.

Opinion of the Justices, 2017 ME 100, ¶ 59, 162 A.3d 188. We are mindful that

citizen-initiated legislation enjoys a “heavy presumption of constitutionality”

and should be construed liberally. Id. (quotation marks omitted). At the same

time, “[s]ince by the initiative process the people of Maine are exercising their

legislative power, the constitutional validity of a citizen initiative is evaluated

under the ordinary rules of statutory construction.” League of Women Voters v.

Sec’y of State, 683 A.2d 769, 771 (Me. 1996). 22

[¶36] “If the Legislature intends a retroactive application, the statute

must be so applied unless the Legislature is prohibited from regulating conduct

in the intended manner, and such a limitation upon the Legislature’s power can

only arise from the United States Constitution or the Maine Constitution.”

Norton v. C.P. Blouin, Inc., 511 A.2d 1056, 1060 n.5 (1985) (emphasis added);

see State v. L.V.I. Group, 1997 ME 25, ¶ 9, 690 A.2d 960 (characterizing the cited

excerpt from Norton as “clarif[ying] the proper analysis concerning the

retroactive application of statutes”); cf. Opinion of the Justices, 103 Me. 506, 508,

69 A. 627 (1907) (“[L]aws and regulations are to be held valid unless there can

be pointed out some provision in the State or United States Constitution which

clearly prohibits them.”).

[¶37] The principal parties accept Norton’s directive but disagree about

the provenance of Maine’s vested rights doctrine. NECEC argues that the

doctrine is grounded in the due process clause of the Maine Constitution,

Me. Const. art. I, § 6-A, and that it therefore limits the Legislature from applying

the Initiative retroactively. The State appellees contend instead that the vested

rights doctrine is a creature of common law that citizens, acting as the

Legislature, may—and did—abrogate by clear enactment. 23

1. The vested rights doctrine and the due process clause of the Maine Constitution.

[¶38] Contrary to the State appellees’ arguments, the protection of

vested rights has been rooted in the Maine Constitution since Maine became a

state. See David M. Gold, The Tradition of Substantive Judicial Review: A Case

Study of Continuity in Constitutional Jurisprudence, 52 Me. L. Rev. 355, 364-70

(2000) (chronicling the history of Maine’s vested rights jurisprudence). We

first considered the legal significance of vested rights just three years after the

Maine Constitution took effect, in Proprietors of Kennebec Purchase v. Laboree,

2 Me. 275, 288-93 (1823). There, we considered the constitutionality of

retroactively applying a statute changing the doctrine of disseisin that would

have resulted in a deeded owner losing his land. Id. at 286-93. In describing

the effect of the statute, we discussed article 1, section 1 of the Maine

Constitution:

By the spirit and true intent and meaning of this section, every citizen has the right of “possessing and protecting property” according to the standing laws of the state in force at the time of his “acquiring[”] it, and during the time of his continuing to possess it. Unless this be the true construction, the section seems to secure no other right to the citizen than that of being governed and protected in his person and property by the laws of the land, for the time being. . . . The design of the framers of our constitution, it would seem, was . . . to guard against the retroactive effect of legislation upon the property of the citizens. 24

Id. at 290 (quoting Me. Const. art. 1, § 1). We proceeded to hold that

retroactively applying the challenged statute was unconstitutional to the extent

that it altered the common law “because such operation would impair and

destroy vested rights, and deprive the owners of real estate of their titles

thereto, by changing the principles and the nature of those facts, by means of

which those titles had existed and been preserved to them in safety.” Id. at

294-95.

[¶39] Since Laboree, we have continued to frame vested rights in

constitutional terms, albeit broadly and often without reference to any specific

provision of the Maine Constitution. In Coffin v. Rich, 45 Me. 507, 514-16

(1858), we relied on Laboree to hold that a statute making individual

stockholders personally liable for corporate debts was unconstitutional as

applied retroactively because it created a new liability where none had

previously existed. We explained:

There can be no doubt that Legislatures have the power to pass retrospective statutes, if they affect remedies only. Such is the well settled law of this State. But they have no constitutional power to enact retrospective laws which impair vested rights, or create personal liabilities.

Id. at 514-15; see Thut v. Grant, 281 A.2d 1, 6 (Me. 1971) (“[T]he Legislature has

full power and authority to regulate and change the form of remedies in actions 25

if no vested rights are impaired or personal liabilities created. There is no

constitutional inhibition against the enactment of retroactive legislation which

affects remedies only.” (emphasis and quotation marks omitted)). We relied on

Coffin in Sabasteanski v. Pagurko, 232 A.2d 524, 525-26 (Me. 1967), where we

held that a statute validating deeds with certain administrative defects was

unconstitutional as applied retroactively because it effectively ousted

subsequent innocent purchasers of their right to property.

[¶40] In Adams v. Palmer, 51 Me. 480 (1863), we identified a provision

of the Maine Constitution as protecting vested rights different from the one we

identified in Laboree. In Adams, a widow had, while she was still a minor,

released her right of dower to a parcel of land by joining in a deed with her

husband. Id. at 487. Because she was a minor when she signed the deed, the

deed was voidable by her. Id. at 489. After she became an adult, the Legislature

enacted a statute providing that a minor’s release of a right of dower was valid.

Id. at 490. We held the statute was unconstitutional as applied retroactively.

Id. We reasoned that the adult widow’s right to recover a freehold estate upon

her husband’s death was a vested property right. Id. We implied that the

widow’s vested right was protected by the guarantee in article I, section 6 of

the Maine Constitution “that no one shall ‘be deprived of his life, liberty, 26

property, or privileges, but by the judgment of his peers or the laws of the land.’”

Id. (quoting Me. Const. art. 1, § 6 (emphasis omitted)).13

[¶41] Against this historical backdrop, NECEC argues that vested rights

are properly viewed as arising from the Maine Constitution’s due process

clause, article I, section 6-A. We agree. Though our decisions in Laboree and

Adams predate the adoption of section 6-A, see 1965 Me. Laws 1163

(Proclamation of the Governor of Maine), their logic recognizes implied due

process protections in article I, sections 1 and 6 that guard against retroactivity.

In Laboree we interpreted section 1 as protecting a person’s inherent right to

possess and protect property “according to the standing laws of the State in

force at the time of his acquiring it, and during the time of his continuing to

possess it.” Laboree, 2 Me. at 275, 290 (quotation marks omitted). The essence

of that right is due process. Cf. Hammond v. Temp. Comp. Rev. Bd., 473 A.2d

1267, 1272 (Me. 1984) (observing that a party alleging a due process violation

13See also Austin v. Stevens, 24 Me. 520, 529 (1845) (“While the exercise of the legislative power is admitted to be both constitutional and expedient, to determine what shall be the respective rights and duties of tenants for life, and of reversioners in relation to improvements made during the continuance of the estate for life, it will not follow, that their rights to such improvements can be altered or changed, after they have been fixed and established by the laws existing at the time, when the life estate falls. The right of the legislative department to authorize a person holding lands by possession and improvement, to claim and obtain compensation for his improvements has been admitted. But if he should voluntarily abandon his improvements with the land, and they should by the existing laws, as they would now do, become the property of the owner of the estate, would any intelligent person claim for the legislature the constitutional power to deprive the owner of any portion of his estate except for public use?”). 27

“must be able to point to existing law or rules, or mutual understandings,

wherein his claims of entitlement are secured and may be supported”);

Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest

Upon the Legislative Power of the States of the American Union 356 (1868)

(“Due process of law in each particular case means, such an exertion of the

powers of government as the settled maxims of law sanction . . . .”);

cf. Tinkle, The Maine State Constitution 29 (2d ed. 2013) (observing that

section 1 “has been perceived as a catchall for fundamental rights not otherwise

enumerated in Article I”). In Adams, we analogized section 6’s protection of

vested property rights to the due process clause in the New York constitution

that that state’s high court relied on to reject a retroactive law as

unconstitutional. See Adams, 51 Me. at 492-93 (citing Westervelt v. Gregg,

12 N.Y. 202 (1854)).14 Moreover, this court has long equated sections 6’s “law

of the land” clause with “due process of law.” See, e.g., State v. Knight, 43 Me. 11,

122 (1857) (defining “law of the land” as “the due course and process of law”

(quotation marks omitted)); State v. Doherty, 60 Me. 504, 509 (1872) (“‘[D]ue

process of law’ and ‘law of the land’ have the same meaning.”); Jordan v. Gaines,

14 Further, Adams characterized our decision in Laboree as approving the due process principles upon which other courts had rejected retroactive legislation as “denying the power of the Legislature to take away vested rights.” Adams v. Palmer, 51 Me. 480, 493 (Me. 1863). 28

136 Me. 291, 294, 8 A.2d 585 (1939) (“‘[D]ue process of law’ and ‘the law of the

land’ are identical in meaning. They are of equivalent import and

interchangeable.” (citations omitted)).

[¶42] Thus, sections 1 and 6 of the Maine Constitution’s Declaration of

Rights were proxies for due process protections of vested rights until section

6-A was adopted in 1963. Cf. L.D. 33 (101st Legis. 1963) (“A due process

clause . . . should be added to the Maine Constitution. . . . It may well be said that

in various places within the Declaration of Rights, as the same is now written,

much of the protection given by the proposed new due-process clause appears.

However, the rights with which we are here concerned are so fundamental and

so important that if there is a second or repeat guarantee, such underwriting of

protection is, we believe, all to the good.”). Constitutional protection of vested

rights properly resides in Maine’s due process clause. Cf. Tinkle, The Maine

State Constitution 45 (2d ed. 2013) (“With the incorporation into the state

constitution of section 6-A, which expressly contains a due process clause, the

law of the land clause [in section 6] has become doubly redundant and fallen

into desuetude.”) We conclude that the vested rights doctrine “arises from” the

Maine Constitution such that it constrains the power to enact retroactive

legislation. 29

2. NECEC’s vested rights claim to develop the Project under the terms of the CPCN

[¶43] Sections 4 through 6 of the Initiative relate to 35-A M.R.S.

§ 3132(6), which directs the PUC to determine whether a proposed

transmission line project serves an identified “public need.” I.B. 2021, ch. 1,

§§ 4-6 (effective Dec. 19, 2021). Section 4 adds a requirement to the statute for

legislative approval “[i]n addition to obtaining a [CPCN].” Id. § 4. Section 5

categorically bans construction of high-impact electric transmission projects in

the “Upper Kennebec Region.” Id. § 5. Section 6 makes sections 4 and 5 of the

Initiative applicable to all high-impact electric transmission lines on which

construction had not started by September 16, 2020. Id. § 6. Because NECEC

started construction on the Project some four months after September 16,

2020, the retroactivity provision in section 6 directly impairs NECEC’s ability

to proceed with Project construction pursuant to the terms of the CPCN issued

under then-existing law.

[¶44] The issue before us involves the intersection of NECEC’s private

interest to proceed and the interest of the electorate to determine public

legislative policy. The applicability of the vested rights doctrine here turns on

whether NECEC acquired a cognizable property right that the Maine

Constitution protects from being impaired by retroactive legislation. 30

See J. Spencer Hall, State v. Vested Rights Statutes: Developing Certainty and

Equity and Protecting the Public Interest, 40 Urb. Law. 451, 455-56 (2008)

(“‘Vested rights are rights vested in specific individuals in accordance with the

law in what the law recognizes as property.’ Critical to the application of the

doctrine of vested rights, then, is a definition of what constitutes

property. . . . James Madison viewed property as embracing ‘everything to

which a man may attach a value and have a right.’” (quoting Edward S. Corwin,

The Basic Doctrine of American Constitutional Law, 12 Mich. L. Rev. 247, 271

(1914) (footnotes omitted)).

[¶45] NECEC urges us to look at the Project as a whole, arguing that it

has a vested right to complete construction of the entire Project. But the

question presented in this case and which we proceed to answer is narrower.

We limit our vested rights analysis to the specific approval that the retroactivity

provision in section 6 of the Initiative affected. The Initiative retroactively

imposes a requirement of legislative approval for a CPCN previously granted by

the PUC. It does nothing to affect the other permits or approvals that NECEC

needs before it may complete the Project, many of which are still the subject of 31

pending proceedings.15 In other words, the focus of a vested rights analysis

must be upon the specific entitlement that is affected by the retroactively

applied legislation. Thus, the fact that NECEC had not obtained all required

municipal permits at the time this case was filed does not bear on whether

NECEC has acquired a constitutionally protected property right to continue the

work authorized by the CPCN. Nevertheless, NECEC’s ability to complete the

entire Project is contingent on obtaining any remaining permits needed,

assuming that NECEC has, in fact, acquired a vested right to proceed as

authorized by the CPCN’s terms and conditions.

[¶46] In Maine and other states, the right to proceed with construction

in the municipal-law context vests once a developer undertakes significant,

visible construction in good faith and with the intent to carry construction

through to completion as authorized by a validly issued building permit. Sahl v.

Town of York, 2000 ME 180, ¶ 12, 760 A.2d 266; see J. Spencer Hall, State Vested

Rights Statutes: Developing Certainty and Equity and Protecting the Public

Interest, 40 Urb. Law. 451, 459-94 (2008) (surveying state statutes codifying

the vested rights doctrine). That permit must be final and not subject to direct

15 Section 1 of the Initiative enacts retroactive standards for the grant of the BPL lease, but we do not address that issue because there is a separate appeal before us from the order vacating the grant of the lease. Black et al. v. Bureau of Parks and Lands et al., No. BCD-21-257. 32

or further appeal. Powell v. Calvert County, 795 A.2d 96, 101 (Md. 2002) (“[A]

special exception approval, whose validity is being litigated, is not finally valid

until all litigation concerning the special exception is final. Persons proceeding

under it prior to finality are not ‘vesting’ rights; they are commencing at ‘their

own risk’ so that they will be required to undo what they have done if they

ultimately fail in the litigation process.”) We have applied the test announced

in Sahl only to resolve a vested rights challenge to retroactive changes in local

zoning ordinances affecting a project of limited scale; we have never applied it

to changes in state law affecting large-scale infrastructure projects overseen by

a matrix of local, state, and federal authorities. Still, Sahl’s underlying rationale

for protecting a developer’s good-faith expenditures in reliance on government

approval of proposed investments against retroactive changes is not limited to

zoning law and informs our analysis of whether NECEC has a vested right to

proceed with Project construction under the terms of CPCN.

[¶47] Thus, in the context of large-scale infrastructure development, we

conclude that a claim of unconstitutional impairment of vested rights arises

under the following conditions. First, the claimant holds a validly issued and

final permit, license, or other grant of authority from a governmental entity that

is not subject to any further judicial review. Second, the law under which the 33

permit, license, or other grant of authority was issued changed thereafter and

would, if applied retroactively, eliminate or substantially limit the right to

proceed with the activity authorized by the permit. Third, the claimant

undertook substantial good-faith expenditures on the activity within the scope

of the affected permit prior to the enactment of the retroactive legislation,

meaning that the expenditure was made (1) in reliance on the affected permit

or grant of authority, (2) before the law changed, and (3) according to a

schedule that was not created or expedited for the purpose of generating a

vested rights claim.16

[¶48] Here, the PUC determined that there was a public need for the

Project and issued the CPCN on May 3, 2019. We affirmed the issuance of the

CPCN on March 17, 2020, holding that the PUC followed the proper procedure

and made the public-need determination based on sufficient record evidence.

See NextEra Energy Res., LLC, 2020 ME 34, ¶ 43, 227 A.3d 1117.

16 The State parties argue that so long as there is a rational basis for the Initiative, the vested rights claim fails. We disagree. If the effect of the retroactive legislation is to abrogate vested rights, the rationale and basis for the legislation become irrelevant. See Muskin v. State Dep’t of Assessments & Tax’n, 30 A.3d 962, 969 (Md. 2011) (Under the Maryland Constitution, “[i]f a retrospectively-applied statute is found to abrogate vested rights or takes property without just compensation, it is irrelevant whether the reason for enacting the statute, its goals, or its regulatory scheme is ‘rational.’”). 34

[¶49] The facts before us were generated in connection with NECEC’s

request for preliminary injunctive relief; they have not been finally adjudicated.

Nonetheless, the record indicates at least preliminarily that NECEC began

construction on January 18, 2021, after having secured the CPCN and all other

necessary, Project-wide approvals from various state and federal authorities.

The CPCN was the only approval that was affirmed after appellate review and

not subject to any further appeals. There is substantial evidence that NECEC

proceeded with construction thereafter in good-faith reliance on those

approvals and intended to develop the Project to completion. NECEC’s

construction efforts were consistent with the baseline schedule that was first

set in the transmission service agreements governing Project construction and

that was later amended to reflect permitting delays. As of November 2, 2021,

the day Maine voters approved the initiated bill, NECEC had cut around 124

miles of the Project corridor and erected multiple transmission structures,

spending nearly $450 million or forty-three percent of the total project cost

estimate at that time. NECEC spent that significant sum with the PUC’s

assurance in issuing the CPCN that the Project served the public need.

[¶50] Our decision affirming the PUC’s public-need determination

enshrined it in a final judgment—in effect providing NECEC added assurance 35

not only that the CPCN complied with then-existing law but also that NECEC

could proceed with Project construction according to its terms. To be sure,

those terms anticipated additional oversight by other government entities; in

its order granting the CPCN, the PUC stated that it “expects that the scenic and

recreational impacts of the [Project] will be reviewed and, to the extent

appropriate and feasible, mitigated through the processes at the Maine

Department of Environmental Protection (DEP) and the Land Use Planning

Commission (LUPC).” Central Maine Power Co., Request for Approval of CPCN

for the New England Clean Energy Connect, No. 2017-00232, Order (Me. P.U.C.

May 3, 2019); see 35-A M.R.S. § 3132(6), (7) (acknowledging the DEP’s

authority to modify the location, size, character, and design of transmission line

projects that the PUC has already determined serve an identified public need).

Obtaining the CPCN alone was necessary but not sufficient to confer the right

to complete construction. However, we hold that NECEC could reasonably rely

on the CPCN, and our judgment affirming the CPCN, as valid authorization to

begin construction such that its right to proceed according to the CPCN’s terms

could vest upon evidence that it undertook significant, visible construction in

good faith, according to a schedule that was not created or expedited for the

purpose of generating a vested rights claim. 36

[¶51] To be clear, we do not decide whether NECEC performed

substantial construction in good faith17 according to a schedule that was not

created or expedited for the purpose of generating a vested rights claim.

Although it appears from the limited record developed in connection with the

request for preliminary injunctive relief that NECEC did so, it is up to the trial

court to make those factual determinations on remand.

III. CONCLUSION

[¶52] We conclude that section 6 of the Initiative, as applied retroactively

to the CPCN, would infringe on NECEC’s constitutionally-protected vested

rights if NECEC can demonstrate by a preponderance of the evidence that it

engaged in substantial construction of the Project in good-faith reliance on the

authority granted by the CPCN before Maine voters approved the initiated bill

17 The State appellees argue that because NECEC was aware of widespread opposition to the Project and knew that the Secretary of State had issued a petition allowing the Initiative’s proponents to collect signatures in October 2020, it could not have proceeded with construction on January 18, 2021, in good faith. We do not accept the argument’s implicit premise that, to be acting in good faith, a developer must wait to commence construction pursuant to a valid permit if there is a possibility that a retroactive change in the law could affect the right to complete a project. As of January 2021, all that existed was a petition in circulation. There was no indication whether sufficient signatures had been gathered for the ballot measure to be presented to the Secretary of State, whether the Secretary of State would certify that the petition had garnered enough valid signatures to be presented to the Legislature, or whether the Legislature (or Maine voters acting in its stead) would approve the then-hypothetical initiative. In contrast, in Kittery Retail Ventures, LLC v. Town of Kittery, the developer submitted its revised plan to the Planning Board after a citizen amendment to the zoning ordinance was passed and enacted but before its effective date. 2004 ME 65, ¶ 5, 856 A.2d 1183. The potential that a prospective citizens’ initiative might be voted into law after the CPCN was final is far too attenuated to defeat good faith. 37

by public referendum. Even then, NECEC’s vested right to proceed with the

Project would not be absolute; what would be protected would be NECEC’s

right to move forward under the terms of the validly issued CPCN as granted

[¶53] We emphasize that our analysis and conclusions are not based on

the wisdom of either the Project or the Initiative. See Avangrid Networks, Inc.,

2020 ME 109, ¶ 10, 237 A.3d 882. On this report of an interlocutory ruling

pursuant to M.R. App. P. 24(c), the limited question that we answer is this:

Would retroactively applying sections 4 and 5 of the Initiative, to the CPCN issued for the Project, as required by section 6 of the Initiative, violate the due process clause of the Maine Constitution, if NECEC undertook substantial construction consistent with and in good-faith reliance on the CPCN before the Initiative was enacted?

Our answer is yes.

The entry is:

Report accepted as to one question, which is answered in the affirmative as indicated in the opinion. Remanded for further proceedings consistent with this opinion. 38

Timothy C. Woodcock, Esq. (orally), P. Andrew Hamilton, Esq., Jonathan A. Pottle, Esq., and Casey M. Olesen, Esq., Eaton Peabody, Bangor, for appellant H.Q. Energy Services (U.S.) Inc.

John J. Aromando, Esq. (orally), Jared S. des Rosiers, Esq., Joshua D. Dunlap, Esq., and Sara A. Murphy, Esq., Pierce Atwood LLP, Portland, for appellants NECEC Transmission LLC and Avangrid Networks, Inc.

Gerald F. Petruccelli, Esq., and Scott D. Dolan, Esq., Petruccelli, Martin & Haddow, LLP, Portland, for appellant Maine State Chamber of Commerce

Sigmund D. Schutz, Esq., Anthony W. Buxton, Esq., Robert B. Borowski, Esq., and Jonathan Mermin, Esq., Preti Flaherty Beliveau & Pachios LLP, Portland, for appellant Industrial Energy Consumer Group

Philip M. Coffin III, Esq., Jeffrey D. Russell, Esq., and Cyrus E. Cheslak, Esq., Lambert Coffin, Portland, for appellant Cianbro Corporation

Benjamin K. Grant, Esq., McTeague Higbee, Topsham, and Robert M. Cheverie, Esq., Robert M. Cheverie & Associates, P.C., Hartford, Connecticut, for appellant International Brotherhood of Electrical Workers Local 104

Aaron M. Frey, Attorney General, and Jonathan R. Bolton, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellees Bureau of Parks and Lands, Maine Public Utilities Commission, Maine House of Representatives, and Maine Senate

Christopher T. Roach, Esq. (orally), Roach Ruprecht Sanchez & Bischoff, P.C., Portland, for appellee NextEra Energy Resources, LLC

James T. Kilbreth, Esq. (orally), David M. Kallin, Esq., Jeana M. McCormick, Esq., Sara P. Cressey, Esq., and Oliver Mac Walton, Esq., Drummond Woodsum, Portland, for appellees Thomas B. Saviello, Christine M. Geisser, Wendy A. 39

Huisch, Jonathan T. Hull, Theresa E. York, Robert C. Yorks, and the Natural Resources Council of Maine

Orlando E. Delogu, amicus curiae pro se

Dmitry Bam, amicus curiae pro se

James L. Costello, Esq., and Jason J. Theobald, Esq., Curtis Thaxter LLC, Portland, for amici curiae former commissioners of the Maine Public Utilities Commission

Timothy Norton, Esq., and Shea H. Watson, Esq., Kelly, Remmel & Zimmerman, Portland, and David S. Rosenzweig, Esq., Keegan Werlin LLP, Boston, Massachusetts, for amici curiae NStar Electric Company, Massachusetts Electric Company and Nantucket Electric Company, and Fitchburg Gas and Electric Light Company

Elizabeth A. Boepple, Esq., and Sean R. Turley, Esq., Murray Plumb & Murray, Portland, and Paul W. Hughes, Esq., and Andrew A. Lyons-Berg, Esq., McDermott Will & Emery LLP, Washington, D.C., for amici curiae Calpine Corporation, Vistra Corporation, Holly Bragdon, and Brian Ahern.

Stacy O. Stitham, Esq., and Eamonn R.C. Hart, Esq., Brann & Isaacson, Lewiston, for amicus curiae City of Lewiston

Timothy A. Pease, Esq., and Jonathan P. Hunter, Esq., Rudman Winchell, Bangor, for amici curiae Susan Austin, Susan Bernard, Jon Connor, Steve Foster, Peter Lyford, Beth O’Connor, Nathan Wadsworth, Dustin White, Harold Stewart III, and Andre Cushing

Brett D. Baber, Esq., Lanham Blackwell & Baber, PA, Bangor, for amicus curiae Robert J. Weiner

Richard Anderson, Walter Anderson, Richard Barringer, Lloyd Irland, Ellen Pope, Tom Rumpf, and Sam Zaitlin, amici curiae pro se Business and Consumer Docket docket number BCD-CIV-2021-00058 For Clerk Reference Only