A U.S. court has issued an injunction suspending construction of New England Clean Energy Connect (NECEC), a 1,200 MW transmission project from Québec to Massachusetts by way of Lewiston, Maine. The project, which would transmit electricity purchased from Hydro-Québec pursuant to a 20-year 9.45 TWh per year purchase agreement, will now be delayed – a setback for proponents of Québec hydro power as a green alternative in the U.S. Northeast.

Project Background

The project requires the construction of 233 km of high voltage transmission lines mostly following existing power rights-of-way, with only about 85 km being on a new right-of-way to be cut through working forest lands from Forks, Maine up to the Québec border. Interestingly, the right-of-way will be much narrower than what is usually provided, substantially reducing the environmental footprint of the new-built line.

Although most of the electricity transmitted via the new lines will be consumed in Massachusetts, Maine is guaranteed 500,000 MWh per year for the same period as an inducement to allow the NECEC to traverse the state.

On January 15, 2020, NECEC’s sponsors, including Hydro-Québec, publicly confirmed that after a complex process lasting nearly three years, the NECEC had secured all major state and federal permits and was now “shovel-ready.”

Legal Challenges

Ordinarily, this milestone would mark the beginning of the construction phase. Not this time, however. On January 15, 2021, The U.S. Court of Appeals for the First Circuit, which sits in Boston, issued an injunction suspending work on the Forks-to-Québec section of the project. Environmental groups are challenging the project on the ground that one of the federal permits was improperly issued.

In addition, on January 21, 2021, a coalition of groups opposed to the NECEC delivered a petition with 100,000 signatures to the Maine Secretary of State. The petition asks that the Secretary of State place on the November ballot a citizens’ initiative that would, among other things, retroactively require state legislature approval for transmission lines over 50 miles and prohibit power line construction in the Upper Kennebec region – thus, in effect, preventing the NECEC.

According to press reports, the Secretary of State has until February 23, 2021 to determine whether the petition meets the 63,000-signature threshold and is otherwise legally compliant. If so, the matter would be placed on the November ballot and the political and legal debates would continue until November and possibly much, much later.

The opposition to the NECEC appears to be a coalition of NGOs, individuals and businesses with disparate reasons for opposing the project. Depending on the opponent, one of three arguments is given: (i) opposition to the construction of the Forks-to-Québec portion as it would encroach on the wilderness, (ii) dissatisfaction with, and distrust of, the local power company Central Maine Power, a major proponent of the NECEC, and (iii) competition with local electricity producers. The opposition appears well funded and has “lawyered up”.

Implications

As the NECEC saga demonstrates, acquiring rights-of-way and building energy infrastructure in the U.S. continues to be an uncertain endeavour for Canadian energy producers, however “green” they might be. This uncertainty, if protracted, would impact not only the NECEC but also activities on the Québec side of the border, from the construction of transmission lines to the Maine border to the rollout of Hydro-Québec’s next call for wind power proposals.