Politics & Other Mistakes: Corridor and Constitution collide

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In 1993, Maine’s Constitution was amended to make sure governors couldn’t mess with public lands. Apparently, the two most recent holders of that office never got the memo.

Both former Gov. Paul LePage, a Republican, and current Gov. Janet Mills, a Democrat, approved leasing about 33 acres of public land in the West Forks area to Central Maine Power Co. for a transmission line, euphemistically called the New England Clean Energy Connect, or NECEC, to carry Canadian electricity to Massachusetts.

The two guvs went ahead with these deals even though that constitutional amendment says anything that would “substantially alter” public lands must be approved not by the state’s chief executive, but by a two-thirds vote of the Legislature.

Early in this messy process, CMP had cited a Maine statute that exempted power lines from the rules that covered other projects on public lands. But the company neglected to mention the old law was invalidated by the constitutional amendment. That little oversight would prove costly.

In early August, Superior Court Justice Michaela Murphy ruled that the state Bureau of Public Lands had made “very fundamental” mistakes in approving the LePage and Mills leases because it had “provided no public administrative process at all” in approving the deal.

In other words, the BPL hadn’t gone through a formal hearing to figure out if the land was being substantially altered, which would have alerted the public to what was going on and might have triggered the need for legislative approval. Instead, it just sorta decided in private that the whole deal didn’t give off a stench that fell somewhere between the odor of incompetence and the reek of outright corruption.

After the court decision invalidating the leases, the state Department of Environmental Protection began the process of revoking NECEC’s permit that allowed construction on public lands. The future of the project looked hazy.

CMP and the state attorney general immediately filed an appeal with the Maine Supreme Court, because they know there’s no way in hell the leases could win even majority approval in the Legislature, let alone the required two-thirds vote. They’ll now try to convince the justices that cutting a nearly one-mile swath through public lands and erecting a bunch of big towers isn’t a substantial change.

More hangs in the balance than a billion-dollar power line deal. The outcome of this case will define the authorities of the executive and legislative branches of state government. If Justice Murphy’s ruling is upheld on appeal, it’ll set firm limits on the governor’s power.

“This is all about Janet Mills being in control,” said Tom Saviello, a former state senator and a leader of efforts to stop the power corridor. “She loves the fact she’s calling the shots. She’s just as bad as Paul LePage. Not as obnoxious, but the same results.”

Saviello could be considering a gubernatorial run, which would pit him against both Mills, seeking a second term as governor, and LePage, looking to reclaim the job after a four-year hiatus. Saviello is also one of the leaders of the campaign to pass a referendum on the November ballot that would reject NECEC. No matter how that vote goes, the whole matter of whether these leases were negotiated without legislative or public knowledge or input will likely be an issue in the 2022 race.

Since that’s the case, it’s worth noting that the Mills administration and the BPL still don’t think they did anything wrong. Earlier this summer, BPL spokesman Jim Britt emailed Maine Public: “The allegation that there was a ‘concerted effort’ to keep the Legislature in the dark is plainly false. … Additionally, the assertion that the Office of then-Attorney General Janet Mills ‘kept the discussions about an earlier version of the CMP lease under wraps’ is patently false.”

The political defense of choice in these unsettled times is defiance. It fires up the base and negates the need to develop arguments that actually make sense.

It doesn’t work too well in the court of law, but it often succeeds in the court of public opinion.

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