Senator Mark Lawrence, Chair
Representative Seth Berry, Chair
Joint Standing Committee on Energy, Utilities & Technology
Testimony in Support of:
LD 1383, “An Act to Amend Maine’s Municipal Land Use and Eminent Domain Laws Regarding Transmission and Distribution Utilities”
LD 1363, “An Act Regarding Energy Transmission Corridors”
LD 271, “An Act Regarding a Transmission and Distribution Utility’s Use of the Right of Eminent Domain to Locate its Transmission Lines”
My name is Dylan Voorhees and I am the Clean Energy Director for the Natural Resources Council of Maine (NRCM). We would like to offer testimony in broad support of these three related pieces of legislation, with particular emphasis on LD 1383. Passage of some of the provisions in these bills is essential to protect the rights of Maine residents, municipalities, and property owners.
Maine has long granted monopoly utilities land use rights and powers not given to other businesses. To ensure the efficient development and maintenance of our electricity grid, utilities have been granted authorities normally limited to government. As in many other places, policymakers have found that the public interest in ensuring reliability can trump private property rights and local control.
Specifically, utilities in Maine have the ability to use eminent domain to seize and purchase land deemed necessary to construct wires and other electrical equipment. They can likewise gain complete exemptions from land use laws duly enacted by municipalities, including zoning and permitting requirements. These are tremendous powers.
Other businesses or developers do not have these rights, regardless of whether they might be said to provide a public benefit. In an example relevant to this committee, if you want to build a power plant—whether it uses wind power or natural gas—you do not get to seize the neighbor’s property or be exempted from municipal ordinances. If you need to build a stretch of transmission to connect your power plant to the grid (sometimes called a “generator interconnection”), you do not get to override property rights or supersede local laws. You can make all the arguments you want about whether your power plant will create jobs or lower electric rates; you still don’t get those powers.
Today Maine finds itself confronting a massive transmission project that is NOT designed to provide reliability. If this committee does not take action on these bills, Central Maine Power (CMP) will be able take advantage of a law, in a manner the Legislature never intended, to override the will of Maine people and towns for its own private gains rather than providing utility services to the Maine public.
The CMP corridor project is designed to transport electricity from another country, across our state, to provide power for specific customers outside of the state. It is what those in the industry refer to as a “merchant project,” designed for profits, not reliability. It is “elective” because it is not required to meet reliability need. This merchant project happens to have been proposed by a utility, but in this instance, the utility is clearly acting outside its utility mandate. (During the review process at the Public Utilities Commission it became clear to all parties that CMP’s parent company had inappropriately developed the project under its regulated utility instead of by an affiliate.)
Although a specific project may have prompted these bills, these bills do not single out any single project. The bills address an unforeseen limitation in the law that allows utilities to use special powers meant for traditional utility activities, even when the utilities are working outside of the traditional utility context. The bills would—and should—apply to any circumstance where a utility is not acting for the provision of public services.
Maine people are speaking out in unprecedented volumes against this corridor project. Opposition outnumbers support by overwhelming margins, especially in the affected counties, where it reaches 80-90 percent. Town after town along the corridor has announced its opposition to the project, including through votes by the entire town. Failure to pass LD 1383 would mean robbing these towns and their residents of any say in development in their communities.
CMP seems troublingly undisturbed by local concerns. The staff of the PUC recently wrote:
However, the record is replete with criticism about CMP’s insufficient and selective communication with the affected communities regarding the Project. The criticism accuses CMP of failing to provide some key stakeholders with accurate and timely information about the Project, failing to be transparent, failing to build trust throughout the area, and failing to develop relationships among the affected community that is [sic] built on mutual respect…
The Commission is troubled not only by the strength and breadth of this criticism, but also by CMP’s reaction to it. Notwithstanding this shrill criticism, Mr. Dickenson [sic] stated no less than five times during the January 9th hearing that he is either “incredibly proud” or “very proud” of the outreach team and its efforts on this Project and that, in spite of this criticism, “I can’t point to a specific thing that we would do differently.” Such a response reveals an unsettling disregard for certain members of the host communities and a stunning departure from the stated goals and priorities of CMP’s Communications Plan.
—Examiner’s Report, 2017-00232 (emphasis added)
It is unimaginable that a utility with this track record of local engagement would be able to use a loophole in Maine law to ignore and supersede local control for the purpose of increasing earnings for their shareholders.
The Committee will undoubtedly hear complaints from opponents of these bills that it is unfair to apply new laws to a project that has already been proposed. That complaint is unfounded, at least with regard to LD 271 and LD 1383. Those bills do not make any changes to the permitting criteria used by any agency. CMP has not yet applied for permission to use eminent domain. They have not yet applied for exemptions to local control. Yet. However during the PUC process they all but admitted that they intend to seek one or both. Now is the appropriate and fair time to clarify the law before it is too late.
Regarding the additional requirements in LD 1363 for voter approval for high-impact transmission lines, we believe the Committee should consider ways to make this requirement as narrow as possible. Requiring a proactive vote of all residents is an unusual requirement for development of any kind. It may be warranted in limited circumstances. High-impact transmission lines should provides substantial tangible benefits to communities and the people of Maine. Defining those benefits carefully is important and challenging. As context, some forms of energy development—such as wind power—are currently required to provide a significant additional monetary benefit to host communities. (It might be somewhat unfair to require a wind energy development to do this twice if that was the type of energy resource associated with a high-impact transmission line.)
 For reference, most of the bids Massachusetts received for its RFP were not proposed by utilities but by private developers, competitors that would not have special land use rights.