Bill Nemitz: Introducing Maine’s latest bogeyman: Retroactivity!

  • Sep 16, 2021
  • Portland Press Herald

How unpopular is the high-voltage electronic transmission line linking Quebec to Massachusetts by way of the western Maine forests?

Here’s a hint: Its supporters have stopped mentioning it by name.

If you’ve been anywhere near a TV or computer screen in recent days, you’ve undoubtedly seen a couple of ads sounding the alarm against a new threat to life the way it should be:

That’s right, fellow Mainers. Opponents to Question 1 on the November ballot – which essentially asks whether we want to pull the construction mats out from under the ongoing electric transmission corridor project – apparently would rather not talk these days about what’s going on up there in the scenic upper Kennebec Valley.

Instead, they’re fixated on the horrors of laws that are – brace yourselves – retroactive!

Now, I admit that when I first heard the ads, I flashed on the rancorous days preceding the 1996 shutdown of the Maine Yankee nuclear power plant in Wiscasset. The buzzword back then was “radioactivity,” and it was indeed something well worth our anxiety.

But this is nothing of the sort. This is political hokum of the highest order.

In addition to the ban on “high-impact electric transmission lines” in the Upper Kennebec Region, it would require legislative approval of other such projects anywhere in Maine, retroactive to when the citizen’s initiative was launched in September of 2020.

The proposed legislation also would require two-thirds approval by the Legislature for “poles, transmission lines and facilities, landing strips, pipelines and railroad tracks” built on public lands. That provision would be retroactive to 2014, when Central Maine Power Co. first signed a legally flawed lease with the state for a portion of the 145-mile transmission corridor.

And who would be affected by these retroactivity clauses? Specifically, New England Clean Energy Connect, the spinoff corporation created by Central Maine Power and its owner, Avangrid, to build the project.

Still, you wouldn’t know that from the anti-Question 1 ads.

“This is Ballot Question One,” warns Mainer for Fair Laws. “It’s a lot of words, but there is really only one that matters. Retroactivity would give politicians the power to apply new laws to things that happened legally in the past. Meaning people and businesses could be unfairly punished for things that happened long before the laws were even on the books.”

Echoes the other ad by Hydro-Quebec Maine Partnership, “It gives politicians power to impose new laws and restrictions retroactively as far back as 2014. Power to overturn projects and interfere with private investment.”

On a scale of pristine political persuasion to murky messaging, this stuff is pure hogwash.

In a letter two weeks ago to television stations that have aired the ads incessantly since Labor Day, Adam Cote, the attorney for the pro-Question 1 group Mainers for Local Power, urged removal of the ads on two grounds.

First, he noted, the ads claim that Question 1 would “give politicians power to apply new laws to things that happened in the past.” In reality, Cote noted, lawmakers already have that power.

“Politicians have always had the ability to pass retroactive laws, which are governed by … a Maine statute that has been on the books for decades,” he wrote. “Ballot Question One does not grant them any new power.”

What’s more, Cote cited three precedents in which the Maine Supreme Judicial Court has upheld retroactive legislation, including two that involved development projects.

The second prong of Cote’s objection centers on the implication by Mainers for Fair Laws that the lease of state-owned land between CMP and Maine’s Bureau of Public Lands for the transmission line is something “that happened legally in the past.”

“This is demonstrably false,” Cote wrote, citing last month’s ruling by Superior Court Justice Michaela Murphy that invalidated the lease for a 1-mile stretch of the corridor. Murphy found that the state failed – in 2014 and again in 2018 – to first determine that the public land would be reduced or that its use would be substantially altered by the lease. Thus, she determined, the lease is kaput.

Murphy’s decision, which is rooted in the Maine Constitution, is being appealed by both NECEC and the state. But currently, as Cote asserts, any suggestion that the lease was legally executed is simply not true.

To be sure, complaining to the TV stations – with the ad money pouring in and Election Day just seven weeks away – isn’t likely to knock the 30-second spots off the air.

But beyond the ads’ overstatements and inaccuracies lies a telltale sign that opponents to Question 1 are stuck playing defense as the campaign hits the home stretch.

If the transmission project is such a good thing, why aren’t they saying so?

If 1,200 megawatts of hydropower flowing from Quebec through Maine to primarily benefit Massachusetts electricity ratepayers is worthy of our vote, why have earlier ads extolling the endeavor all given way to the “retroactivity” bogeyman?

“First of all, they stopped mentioning CMP – that was a year ago,” Cote said in an interview. “Then they started talking ‘clean-energy corridor’ – and that didn’t stick. So now they just abandon talking about the project or the group behind it completely – and they talk about retroactivity and unintended consequences. It’s ridiculous.”

If CMP and NECEC thought this project could stand on its own merits, they’d be saying so right now. Instead, they’re working overtime to erase it from voters’ minds and replace it with a newfound – and entirely disingenuous – fear of “retroactivity.”

If Maine stands to benefit significantly from the concessions that have been doled out like pacifiers to date, why not double down on that message?

If the project is good for the environment, where are the breezy drone shots of the Maine forest, the native brook trout, the soaring bald eagles?

If it’s so much about moving forward, then why does the current TV blitz look so myopically backward?

Because they have no choice, that’s why. Their market testing, focus groups and internal polls have clearly run into turbulence, and they’re descending, mid-flight, in search of smoother air.

Maybe it will work. But my bet is most folks will see right through this flick of the switch from “Trust us, we need more electricity” to “Run for your lives – retroactivity is coming!”

The former is a legitimate public-policy issue. The latter is an insult to Maine voters.

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