Referendum on the Hydro-Quebec project in Maine deemed unconstitutional

A Hydro Quebec logo is seen on their head office building, February 26, 2015 in Montreal. Ryan Remiorz/The Canadian Press

The specter of a referendum campaign in Maine is dissipating for Hydro-Quebec and its American partner: the referendum that was to take place on their hydroelectric transmission line project has been ruled unconstitutional by the highest court in this American state.

On Thursday, the Maine Supreme Court ruled that the initiative by opponents of New England Clean Energy Connect (NECEC) did not meet the requirements for voters to be consulted in November in the presidential poll, so there shouldn’t be any consultation.

“(It) goes beyond the scope of the legislative powers of the people conferred by (…) the Constitution of Maine,” the document reads.

The Maine Supreme Court also ordered the lower court to reverse its decision rendered at the end of June in order to recognize the unconstitutional nature of the referendum process put forward by opponents of the NECEC.

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This is an important decision for the state-owned company and its partner Central Maine Power, which could have seen opponents bypass their project. The energy corridor, however, still needs to obtain regulatory approvals on both sides of the border.

“Since the start of our efforts, this project has met all regulatory requirements in Maine,” said Hydro-Quebec, in a statement sent by email. “The decision allows NECEC to continue moving forward.”

Hydro-Quebec is relying heavily on the NECEC, which is scheduled to come into service in 2022, to deliver 9.45 terawatt-hours of hydroelectricity per year for 20 years to Massachusetts under a contract with estimated revenues of around US$10 billion.

On American soil, the project bill is estimated at US$950 million and the 233 kilometre route must cross the territory of Maine.

Constitutional debate

It was the certificate granted by the Maine Utilities Commission — a regulatory body — which was in the crosshairs of opponents. Initiatives can be taken in the United States so that voters can vote on an issue in a referendum if a sufficient number of signatures are collected.

“This referendum has always been in direct violation of the Constitution of Maine,” stressed Jon Breed, the director of the committee ‘Clean Energy Matters’, formed by Central Maine Power.
“The decision (of Thursday) was the only one that is compliant to our laws and our Constitution.”

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Some had questioned the approach of opponents, arguing that under Maine rules, popular consultations are about laws. In the case of the certificate granted to the NECEC, we are talking more about a permit.

University of Maine law professor emeritus Orlando Delogu was among those who questioned the constitutionality of a referendum.
“If this does not concern a law, you have nothing that can be submitted to the voters”, he said, during a telephone interview, considering that the Supreme Court of Maine had clearly communicated this message.

In a statement, the director of the committee “Say NO to NECEC”, Sandi Howard, deplored the decision of the Supreme Court, which, according to her, is behind the interests of foreign companies rather than the citizens of Maine. Opponents will continue “to assess all their options,” Howard added, warning that the battle “was far from over.”

Since the start of the year, Hydro-Quebec has spent no less than $8.5 million on its referendum campaign for the purchase of advertisements in the local media, professional service fees and expenses — travel, in particular. ​​

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