MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2022 ME	48

Docket: BCD-21-416

Argued: May	10,	2022

Decided: August	30,	2022

Panel: STANFILL,	C.J.,	JABAR	and	HORTON,	JJ.,	CLIFFORD,	A.R.J., and HUMPHREY,	A.R.J.

*

NECEC	TRANSMISSION	LLC	et	al.

v.

BUREAU	OF	PARKS	AND	LANDS	et al.

STANFILL,	C.J.

[¶1]	 The	 New	 England	 Clean	 Energy	 Connect	 project	 (the	 Project)	 is	

designed	 to	 transmit	 power	 generated	 in	 Québec	 through	 Maine	 and	 into	

Massachusetts.	 	 The	 Project	 includes	 a	 new	 145.3-mile,	 high-voltage	 direct

current	 (HVDC)	 transmission	 line,	 proposed	 to	 run from	 the	 Maine-Québec	

border	in	Beattie	Township	to	a	new	converter	station	in	Lewiston	and	 from	

there	 to	 an	 existing	 substation	 by	 a	 new	 1.2-mile,	 high-voltage	 alternating	

current	 transmission	 line.	 	 Of	 the	 Project’s	 five	 segments,	 segment	 1—a	

53.1 mile-long HVDC	 transmission	 line	 running	 along a	 corridor	 from	

Beattie Township	to	the	Forks	Plantation—is	the	most	controversial	because	it	

*

		Justice	Humphrey	sat	at	oral	argument	and	participated	in	the	initial	conference	while	he	was	

an	Associate	 Justice	and,	as	directed	and	assigned	by	the	Chief	 Justice,	is	now	participating	in	this	

appeal	as	an	Active	Retired	Justice.
2

must	 be	 cut	 through	 commercial	 timberland	 and	 will	 cross	 hundreds	 of	

wetlands,	waterways,	and	other	wildlife	habitats, as	well	as	public	land.		

[¶2] On	November	2,	2021,	fifty-nine percent	of	Maine	voters	approved	

the	following	ballot question through	a	public	referendum:

Do	 you	 want	 to	 ban	 the	 construction	 of	 high-impact	 electric	

transmission	lines	in	 the	Upper	Kennebec	Region and	 to	 require	

the	 Legislature	 to	 approve	 all	 other	 such	 projects	 anywhere	 in	

Maine,	both	retroactively	to	2020,	and	to	require	the	Legislature,	

retroactively	to	2014,	to	approve	by	a	two-thirds	vote	such	projects	

using	public	land?[1]

Though	the	question did not	mention	the	Project,	the	legislation	enacted	by	the	

voters	(the	Initiative) effectively	precludes the Project.

2

[¶3] On	 November	 3,	 2021,	 NECEC	 Transmission	 LLC	 and	 Avangrid	

Networks,	 Inc.	 (collectively,	 NECEC),

3 filed	 a	 complaint	 for	 declaratory	

1		Section	4	of	the	Initiative requires	legislative	approval	of	the	construction	of	any	high-impact	

transmission	line	in	addition	to	a	CPCN	from	the	PUC.		I.B.	2021,	ch.	1,	§	4 (effective	Dec.	19,	2021).		

Section	 5	 of	 the	 Initiative	 bans	 the	 construction	 of	 any	 high-impact	 transmission	 line in the	

“Upper Kennebec	Region,”	defined	as	“the	approximately	43,300	acres	of	land	located	between	the	

Town	of	Bingham	and	Wyman	Lake,	north	along	the	Old	Canada	Road,	Route	201,	to	the	Canadian	

border,	 and	 eastward	 from	 the	 Town	 of	 Jackman	to	 encompass	 Long	 Pond	 and	 westward	 to	 the	

Canadian	border,	in	Somerset	County	and	Franklin	County.”	I.B.	2021,	ch.	1,	§	5	(effective	Dec.	19,	

2021).		Section	6	requires	sections	4	and	5	to	be	applied	retroactively to	September	16,	2020.	I.B.	

2021,	ch.	1,	§	6 (effective	Dec.	19,	2021).		

2		Consistent	with	the	terminology	used	by	the	trial	court	and	the	parties,	we	use	“the	Initiative”	

throughout	this	opinion	to	refer	to	the	legislation	enacted	by	the	passage	of	the	citizens’	initiative	

question	in	November	2021.		See I.B.	2021,	ch.	1, §§	1-6	(effective	Dec.	19,	2021).		The	Initiative	was	

the	second	attempt	at	a	citizens’	initiative	to	curtail	the	Project;	we	held	the	first	proposed	initiative	

unconstitutional	in Avangrid	Networks,	Inc. v.	Sec’y	of	State,	2020	ME	109, ¶¶ 35-38, 237	A.3d	882.

3		NECEC	Transmission	LLC	owns	the	Project;	Avangrid	owns	NECEC	Transmission	LLC	and	is	the	

indirect	parent	company	of	Central	Maine	Power	Company	(CMP).		CMP,	together	with	H.Q.	Energy	
3

judgment	in	the	Superior	Court	alleging,	among	other	things,	that	retroactive	

application	 of	 the	 Initiative	 to	 the	 Project,	 as	 required	 by	 section 6,	 is	

unconstitutional	on	a	variety	of	grounds.		The	complaint	named	the	Bureau	of	

Parks	and	Lands,	the	Public	Utilities	Commission	(PUC),	the	Maine	Senate,	and	

the	 Maine	 House	 of	 Representatives	 as	 defendants	 (collectively,	 the	 State	

parties).	 	 Thirteen	 organizations	 and	 individuals	 were	 granted	 intervenor	

status in	the	trial	court.

4

[¶4]		NECEC	moved	to	preliminarily	enjoin	the	Initiative	from	becoming	

law.		After	 transfer	 to	 the	Business	and	Consumer	Docket,	and	 following	 the	

denial	of	NECEC’s	request for a	preliminary	injunction,	the	trial	court	(Duddy, J.)	

reported	the case	to	us	pursuant	to	M.R.	App.	P.	24(c). We	accept	the	report	and	

frame	the	question	of	law	raised	by	the	court’s	reported	interlocutory	ruling	as	

follows:

Services	 (U.S.)	 Inc.,	 originally	 entered	 into	 transmission	 services	 agreements	 with	 several	

Massachusetts	electricity	distribution	companies	 to	 transmit	electricity	 through	 the	Project.		CMP	

ultimately	transferred	all of its	rights	and	responsibilities	in	the	Project	to NECEC Transmission	LLC.		

4	 	 The	 following	 parties	 intervened	 on	 the	 side	 of	 NECEC:	 H.Q.	 Energy	 Services	 (U.S.)	 Inc.,

Cianbro Corporation, International	Brotherhood	of	Electrical	Workers	Local	104, Industrial	Energy	

Consumer	Group, and	the	Maine	State	Chamber	of	Commerce.		The	following	parties	intervened	on	

the	 side	 of	 the	 State	 appellees:	NextEra	 Energy	 Resources,	 LLC	 (NextEra);	 the	Natural	 Resources	

Council	of	Maine	(NRCM);	and	individuals	Thomas	B.	Saviello,	Christine	M.	Geisser,	Wendy A.	Huish,	

Jonathan	T.	Hall,	Theresa	E.	York,	and	Robert	C.	Yorks	(the	West	Forks	residents).		
4

Would	 retroactively	 applying	 sections	 4	 and	 5	 of	 the	

Initiative	 to	 the	 certificate	 of	 public	 convenience	 and	

necessity	 (CPCN)	 issued	 for	 the	 Project,	 as	 required	 by	

section	6,	violate	due	process	under	the	Maine	Constitution,	

Me.	 Const.	 art.	 I,	 §	 6-A,	 if	 NECEC	 undertook	 substantial	

construction	 consistent	 with	 and	 in	 good-faith	 reliance	 on	

the	CPCN	before	the	Initiative	was	enacted?

Answering	 that	 question,	 we	 hold	 that	 section	 6 of	 the	 Initiative	 is

unconstitutional	 to	 the	 extent	 it	 requires	 sections	 4	 and 5	 to	 be	 applied	

retroactively	 to	 the	 CPCN	 if	 the	 appellants	 have	 acquired	 vested	 rights	 to	

proceed	with	Project	construction.		We	therefore	remand	to	the	Business	and	

Consumer	Docket	for	further	proceedings	consistent	with	this	opinion.

I.		BACKGROUND

[¶5]		The	interlocutory	ruling	underlying	this	case	is	before	us	pursuant	

to	M.R.	App.	P.	24(c),	on	report	from	the	Business	and	Consumer	Docket.		Given	

that	procedural	posture,	the	following	facts	are	taken	from	the	reported	ruling	

and our	opinion	affirming	the	PUC’s	order	granting	the	CPCN	for	the	Project,	

NextEra	Energy	Res.,	LLC	v.	Me. PUC, 2020	ME	34,	227	A.3d	1117, and	are	limited	

to	 those	 facts	 relevant	 to	 the	 question	 of	 law	 that	 we	 now	 answer.		

See Littlebrook	Airpark	Condo.	Ass’n	v.	Sweet	Peas,	LLC, 2013	ME	89,	¶ 9,	81	A.3d	

348 (outlining	the	limited	scope	of	review	for	reported	interlocutory	rulings).
5

A. Project	Permitting	and	Other	Governmental	Approvals

[¶6]		On	September	27,	2017,	CMP	filed	a	petition	with	the	PUC	to	obtain	

a	CPCN	 for	 the	Project.		NextEra	Energy	Res.,	LLC,	2020	ME	34,	¶ 3,	227	A.3d	

1117.	 	 The	 PUC	 held	 many	 days	 of	 public	 and	 evidentiary	 hearings	 and	

conferences	and	received	well	over	one	thousand	public	comments	regarding	

CMP’s	petition.		Id. ¶ 6.		On	May	3,	2019,	 the	PUC	concluded	 that	 the	Project	

meets	the	statutory	public-need	standard	and	unanimously	voted	to	grant	CMP	

a	CPCN	to construct	and	operate the	Project,	all	at	no	cost	to	Maine	electricity	

customers.		Id. ¶¶ 6-10.

[¶7]		Appellee-Intervenor	NextEra	intervened	in	the	PUC	proceeding	and

appealed to	us	from	the	order granting	the	CPCN.		Id. ¶¶ 5,	11.		We	affirmed	the	

PUC’s	 decision	 on	March	 17,	 2020,	 concluding	 that	the	 PUC’s	 determination,	

findings	of	fact,	and	application	of	the	law	were	supported	by	the	voluminous	

record.		Id. ¶ 43.

[¶8]	 	 In addition	 to	 the	 CPCN,	 NECEC	 and	 CMP	 obtained	 multiple	

authorizations	 from	 various	 government	 entities	 before	 beginning	

construction on	the	Project.		NECEC	applied	for	permits	from	the	Department	

of	Environmental	Protection	 (DEP)	as	 required	under	 the	Natural	Resources	

Protection	Act,	38	M.R.S.	 §§ 480-A to	480-JJ (2017),	and	 the	Site	 Location	 of	
6

Development	 Act,	 38	 M.R.S.	 §§ 483-A,	 484,	 487-A (2017), as	 well	 as	 for	 a	

Site Law	 Certification	 from	 the	 Land	 Use	 Planning	 Commission	 (LUPC),	 see

12 M.R.S.	§ 685-B	(2017).		On	May	11,	2020,	the	DEP	approved	NECEC’s	permit	

application	 in	 an	 order	 that	 also	 incorporated	 the	 LUPC’s	 certification.		

Appellees-Intervenors	NextEra,	NRCM,	and	the	West	Forks	residents	appealed	

the	 DEP’s	 order	 to	 the	 Superior	 Court	 and	 the	 Board	 of	 Environmental	

Protection	(BEP) and	moved	to	stay	the	order.		The	Superior	Court	denied	their	

motion	to	stay the DEP’s	order.		NextEra	Energy	Res.,	LLC	v.	Dep’t	of	Env’t	Prot.,	

2021	 Me.	 Super.	 LEXIS	 14	 (Jan.	 8,	 2021).	 	On	 November	 23,	 2021,	 the	 DEP	

suspended	 the	 permit	 it	 had	 issued	 pending	 the	 outcome	 of	 this	 case.	 	 The	

appeal	 to	 the	 BEP	 remained	 pending when	 this	 case	 was	 filed	 in	 the	

Superior Court.

5		

[¶9]		NECEC	and	CMP	also	secured	a	permit	from	the	United	States	Army	

Corps	of	Engineers	under	 the	Clean	Water	Act	and	 the	Rivers	&	Harbors	Act	

(the	ACE	permit).		See	33	U.S.C.S. § 1344 (LEXIS	through	Pub.	L.	No.	117-66);	

33 U.S.C.S.	§ 403	(LEXIS	through	Pub.	L.	No.	117-116).		The	Sierra	Club,	NRCM,	

5		The	status	of	some	of	these	proceedings has changed	during	the	time	that	this	case	has	been	

pending,	but	that	information	is	not	part	of	the	formal	record	before	us.		See,	e.g.,	Edward	D.	Murphy,	

State Environmental	Board	Denies	Appeal	of	Transmission	Line	Project,	Portland	Press	Herald	(July	21,	

2022), https://www.pressherald.com/2022/07/21/state-environmental-board-denies-appeal-oftransmission-line-project/.
7

and	the	Appalachian Mountain	Club	(AMC)	sued	the	Army	Corps	of	Engineers	

to	 enjoin	 the	 ACE	 permit,	 alleging	 that	 the	 environmental	 assessment	

underlying	the	permit	was	insufficient	and	that	the	Corps	should	have	instead	

completed	 a	 full	 environmental	 impact	 statement.	 	 Following	 an	 emergency	

appeal	 of	 the	 denial	 of	 a	 preliminary	 injunction,	 on	 January	 15,	 2021,	 the	

United States	 Court	 of	Appeals	 for	 the	 First	 Circuit	 enjoined	 construction	 on	

segment 1	of the	Project	pending	appeal.		The	First	Circuit	vacated	the	partial	

injunction	on	May	13,	2021,	Sierra	Club	v.	U.S.	Army	Corps	of	Eng’rs,	997	F.3d	

395	(1st	Cir.	2021),	but	the	case	remains	pending.	

[¶10]	 Separately,	 CMP	 received	 a	 presidential	 permit	 from	 the

United States Department	 of	 Energy	 (DOE)	 on	 January	 14,	 2021.		

NECEC Transmission	 LLC,	 DOE	 Docket	 No.	 PP-438,	 Presidential	 Permit	 (DOE	

Jan.	 14,	 2021);	see Exec.	 Order	No.	 10,485,	 3	 C.F.R.	106 (1953),	 amended	 by

Exec. Order	No.	12,038,	3 C.F.R.	136	(1978).		Thereafter,	the	Sierra	Club,	NRCM,	

and	 AMC amended	 their	 pending	 complaint	 regarding	 the	 ACE	 permit	 to	

include	claims	relating	to	the	presidential	permit.		

[¶11]	 	 Finally,	 NECEC	 obtained	 municipal	 permits	 and	 approvals	

requiring	compliance	with	local	rules in	most	municipalities	through	which	the	
8

Project	will	pass.		At	the	time	this	case was	 filed,	NECEC	had	not	yet	secured	

permits and	approvals	from	four	municipalities.		

[¶12]		In	addition	to	the	aforementioned	permits	and	approvals,	NECEC	

(through	 CMP)	 needed	 a	 lease	 from	 the	 Bureau	 of	 Parks	 and	 Lands	 for	 the	

0.9-mile	 stretch	 of	 the	 Project	 that	 crosses	 public reserved	 lands	 in	

Johnson Mountain	 Township	 and	West	 Forks	 Plantation.	 	In	 2014,	 CMP	 had	

obtained	a	lease	 from	the	Bureau	to	construct	electric	transmission	 facilities,	

and	in	2020	CMP	entered	into	an	amended	lease (the	BPL	lease) superseding	

the	2014	lease	for	the	public reserved	lands	through	which	the	Project	would	

pass.

6		

[¶13]	 	 In	 June	 2020,	 Senator	 Russell	 Black	 filed	 a	 complaint	 in	 the	

Superior	 Court	against	 the	Bureau,	alleging	the	BPL	lease	 violated	article	 IX,	

section	 23 of	 the	 Maine	 Constitution.	 	 The	 Business	 and	 Consumer	 Docket	

(Murphy,	 J.)	 vacated	 the	 BPL	 lease,	 Black	 v.	 Cutko,	No.	 BCDWB-CV-2020-29,	

2021	WL	3700685 (Me.	B.C.D.	Aug.	10,	2021),	and	that	decision	was appealed	

to	us,		Black	et	al. v.	Bureau	of	Parks	and	Lands	et	al.,	No. BCD-21-257.		After	

Senator	Black	moved	to	lift	the	automatic	stay	on	the	judgment,	we	issued	an	

agreed-upon	 order	 prohibiting	 NECEC	 from	 building	 on	 the	 leased	

6		CMP	assigned its	interest	in the	2020	BPL	lease	to	NECEC Transmission	LLC on	January	4,	2021.		
9

public reserved	lands	 until	 the	legal	 questions	 regarding	 the	 BPL	lease	 have	

been	resolved.		See	M.R.	Civ.	P.	62(e),	(g).

[¶14]		 In	summary,	at	 the	 time	 this	case was	 filed, (1)	 the	DEP	permit	

(incorporating	the	LUPC	Site	Law	certificate)	was	still	pending	on	appeal	before	

the	BEP, (2)	the	ACE	permit	and	the	presidential	permit	from	the	DOE	were	the	

subjects	 of	 a	lawsuit	in	federal	 court, (3)	 the	 BPL	lease	was	 the	 subject	 of	 a	

direct	 appeal	 to	 us	 in	 another	 case, and	 (4)	 not	 all	 necessary	 municipal	

approvals	had	been	obtained.		The	only	Project-wide	permit	or	approval that	

was	final	when	this	case was	filed	was	the	CPCN	from	the	PUC—an	order	that	

we	affirmed	and	that	is	not	subject	to	any	further	review.

B. Project	Construction

[¶15]	 	 The	 Project	 is	 divided	 into	 five	 segments.	 	 Segment	 1	 includes

53.1 miles	of	HVDC	line	along	a	new	corridor	running	from	Beattie	Township	

at	 the	 Canadian	 border	 to	 the	 Forks	 Plantation.	 	 Segments	 2	 and	 3	 cover	

approximately	92	miles	of	transmission	line along	an	existing	corridor	that	will	

be	 widened.	 	 Segments	 4	 and	 5	 focus	 on	 network	 upgrades,	 including	 a	

26.5-mile	transmission	line	from	Lewiston	to	Wiscasset.		

[¶16]	 	NECEC	 received	 the	 final	Project-wide	 permit—the	 presidential	

permit	 from	 the	 DOE—on	 January	 14,	 2021.	 	 On	 January	 18,	 2021,	 NECEC	
10

started clearing	 and	 construction	 activities	 in	 segments	 2 through	 5	 of	 the	

Project.		On	May 15,	2021,	NECEC	commenced	construction	on	segment 1	of	the	

Project,	the	53.1	miles	from	the	Canadian	border	to	the	Forks	Plantation.		

[¶17]		According	to	the	preliminary	injunction	record, NECEC	had	spent	

nearly	 $450	million	 on	 the	 Project,	approximately	forty-three percent	 of	 the	

projected	 total	cost,	as	of	November	3,	2021,	when	 this	case	was	 filed	in	 the	

Business	and	Consumer	Docket.		Between	January	18,	2021,	and	the	time	the	

Project	 was	 halted	 following	the	 referendum in	November	 2021,	NECEC	 cut	

approximately	 124	miles	 of	 right-of-way	for	 direct	 current	lines, cleared the	

entire	corridor	for	the	alternating	current	line,	erected transmission	structures	

along	the	corridor, and	prepared the	converter	station	site.		

C. The	2021	Citizens’	Initiative

[¶18]	 	 As	 we	 recently	 reiterated	in	 connection	 with	 a	 related	 citizens’	

initiative:

The	broad	purpose	of	the	direct	initiative	is	the	encouragement	of	

participatory	democracy.	 By	[article	IV,	part	third,]	section	18	[of	

the	 Maine	 Constitution,]	 the	 people,	 as	 sovereign,	 have	 retaken	

unto	 themselves	 legislative	 power,	 and	 that	 constitutional	

provision	must	be	liberally	construed	 to	 facilitate,	rather	 than	 to	

handicap,	 the	 people’s	 exercise	 of	 their	 sovereign	 power to	

legislate. . . . [S]ection	18	cannot	be	said	merely	to	permit the	direct	

initiative	of	legislation	upon	certain	conditions.	 Rather,	it	reserves	

to	 the	 people	 the	 right to	 legislate	 by	 direct	 initiative	 if	 the	

constitutional	conditions	are	satisfied.
11

Avangrid	Networks,	 Inc.,	2020	ME	109,	¶ 15,	237	A.3d	882	(quoting	McGee	v.	

Sec’y	of	State,	2006	ME	50,	¶ 25,	896	A.2d	933).

[¶19]		 In	accordance	with	the	Maine	Constitution’s	provision	 for	direct	

initiative	of	legislation,	Me.	Const.	art.	IV,	pt.	3,	§ 18,	voters	circulated	a	petition	

for	a	citizens’	initiative	affecting	the	Project	beginning	on	October	30,	2020.		On	

February 22,	 2021,	 the	 Secretary	 of	 State	 determined	 that	 the	 petition	 had	

garnered	enough	valid	signatures	to	present the	initiated	bill to	the	Legislature.		

See id.	§ 18(2);	21-A	M.R.S.	§ 905(1)	(2022).		Though	presented	with	the	bill,	

L.D.	1295	(130th Legis.	2021), the	Legislature	did	not	act	on	the	measure	before	

adjourning sine	die on	March	30,	2021.		See Me.	Const.	art.	IV,	pt.	3,	§ 18(2).		As	

a	result,	a	ballot	question	summarizing	the	initiated	bill	was	submitted	to	the	

public	for	a	vote	in November	2021.		See	id.	§ 18(2)-(3);	see generally Caiazzo	v.	

Sec’y	of	State,	2021	ME	42,	¶¶ 2-5,	256	A.3d	260.

[¶20]		On	November	2,	2021,	fifty-nine percent	of	Maine	voters	approved	

the	initiated	bill,	which	took	effect	on	December	19,	2021, and	effectively	halted	

the	 Project.	 	 The	 legislation	 enacted	 through	 the	 Initiative	 consists	 of	 six	

sections,	 four	 of	 which	 effect	 statutory	 changes	 with	 implications	 for	 the	

Project.7		I.B.	2021,	ch.	1,	§§ 1-6	(effective	Dec.	19,	2021).		We	do	not	address	

7	 	NECEC	 argues	 that	 the	 sections	 of	 the Initiative	 are	 not	 severable	 and	 therefore	the	 entire	

Initiative	must	fall	if	we	conclude	that	any	section	is	unconstitutional.		However,	we	need	not	consider	
12

sections	 2	 and	 3	 of	 the	 Initiative	 because	 no	 one	 challenges	 their	

constitutionality.		

[¶21]		Section	1	of	the	Initiative	amends	12	M.R.S.	§ 1852	(2021),	which

governs the	 Bureau’s authority to	 lease	 public reserved	 lands,	 by	 requiring	

legislative	 approval	 for	 leases	 for	 transmission	 lines	 retroactively	 to	

September 16,	2014.		I.B.	2021,	ch.	1,	§ 1	(effective	Dec.	19,	2021).		The	effect	of	

section	1	upon	the	portion	of	the	Project	involving	public reserved	land	is	the	

subject	of	the	separate	appeal	in	Black	et	al.	v.	Bureau	of	Parks	and	Lands	et	al.,	

No. BCD-21-257,	and	is	more	appropriately	addressed	in	 that	 context	 rather	

than	on	report	under	M.R.	App.	P.	24(c).		See	Littlebrook	Airpark	Condo.	Ass’n,	

2013	ME	89,	¶ 9,	81	A.3d	348.

[¶22]	 	 Sections	 4,	 5,	 and	 6	 of	 the	 Initiative	 amend	 35-A	 M.R.S.	 § 3132	

(2021), the	statute	requiring project	developers	to	obtain	a	CPCN	from	the	PUC	

before	constructing	certain	transmission	lines.	I.B.	2021,	ch.	1,	§§ 4-6	(effective	

the	issue	 of	 severability	 because	 the	 parties	 failed	 to	 preserve	it	in	 the	 trial	 court.	 	MP	 Assocs.	 v.	

Liberty,	2001	ME	22,	¶ 18,	771	A.2d	1040.		Even	if	the	issue	were	preserved,	the	separate	sections	of	

the	Initiative	would	be	severable.		See 1	M.R.S.	§ 71(8)	(2022)	(codifying	the	general	rule	of	statutory	

construction	that	“[t]he	provisions	of	the statutes	are	severable”);	Lambert	v.	Wentworth,	423	A.2d	

527,	535	(Me. 1980)	(establishing	the	presumption	of	severability	in	statutes	whose	unconstitutional	

provisions	 are	 separate	 and	 independent	 from	 the	 valid	 provisions);	 see	 also 16A	 Am. Jur.	 2d	

Constitutional	 Law § 211	 (“[I]f	 a	 statute	is	 unconstitutional	 as	 applied,	 the	 state	may	 continue	 to	

enforce	that	statute	in	different	circumstances	where	it	is	not	unconstitutional,	and	if	a	statute	has	

unconstitutional	applications,	 they	are	 severable	 from	 the	 constitutional	applications.” (footnotes	

omitted)).
13

Dec.	 19,	 2021). Those	 sections	 do	 not	 affect	 the	 authority	 of	 any	 executive	

agency	 other	 than	 the	 PUC,	 nor	 do they affect	 any	 of	 the	 many	 permits	 or	

approvals	obtained	by	the	Project	except	the	CPCN.

[¶23]		Section	4	of	the	Initiative	enacts	35-A	M.R.S.	§ 3132(6-C)	(2022)8

and	provides	 that	“[i]n	addition	 to	obtaining	a	[CPCN],	a high-impact	electric	

transmission	line	may	not	be	constructed	anywhere	in	the	State	without	first	

obtaining	the	approval	of	the	Legislature.”	I.B.	2021,	ch.	1,	§ 4	(effective	Dec. 19,	

2021).		Section	5	of	the	Initiative	enacts	35-A	M.R.S.	§ 3132(6-D)(2022),

9 which	

8		Section	4	states	in	full	as	follows:

Sec.	4.		35-A	MRSA	§3132,	sub-§6-C is	enacted	to	read:

6-C.		High-impact	electric	transmission	line;	legislative	approval.		In	addition	

to	obtaining	a	certificate	of	public	convenience	and	necessity,	a	high-impact	electric	

transmission	 line	 may	 not	 be	 constructed	 anywhere	 in	 the	 State	 without	 first	

obtaining	 the	 approval	 of	 the	 Legislature,	 except	 that	 any	 high-impact	 electric	

transmission	 line	 crossing	 or	 utilizing	 public	 lands	 designated	 by	 the	 Legislature	

pursuant	to	Title	12,	section	598-A	is	deemed	to	substantially	alter	the	land	and	must	

be	 approved	 by	 the	 vote	 of	 2/3	 of	 all	 the	 members	 elected	 to	 each	 House	 of	 the	

Legislature.

I.B.	2021,	ch.	1,	§ 4 (effective	Dec. 19,	2021).

9		Section	5	states	in	full	as	follows:

Sec.	5.	 35-A	MRSA	§3132,	sub-§6-D is	enacted	to	read:

6-D.	 	 High-impact	 electric	 transmission	 line;	 geographic	 prohibition.

Notwithstanding	subsection	6-C,	a	high-impact	electric	transmission	line	may	not	be	

constructed	 in	 the	 Upper	 Kennebec	 Region.	 	 For	 the	 purpose	 of	 this	 subsection,	

“Upper	 Kennebec	 Region”	 means	 the	 approximately	 43,300 acres	 of	 land	 located	

between	the	Town of	Bingham	and	Wyman	Lake,	north	along	the	Old	Canada	Road,	

Route	 201,	 to	 the	 Canadian	 border,	 and	 eastward	 from	 the	 Town	 of	 Jackman	 to	

encompass	Long	Pond	and	westward	to	the	Canadian	border,	in	Somerset	County	and	

Franklin	County.
14

bans	 all	 high-impact	 electric	 transmission	 lines	 from	 the	 “Upper Kennebec	

Region,”	 an	 area	 spanning	 portions	 of	 Franklin	 and	 Somerset	 Counties.	 I.B.	

2021,	 ch.	 1,	 § 5	 (effective	 Dec.	 19,	 2021).	 	 Finally,	 section	 6	 of	 the	 Initiative	

enacts	 35-A	 M.R.S.	 § 3132	 (6-E) (2022),

10 which	 applies	 sections	 4	 and	 5	

retroactively	 to	 high-impact	 electric	 transmission	 line	 projects	 on	 which	

construction	 had	 not	 started	 by	 September	 16,	 2020.	 I.B.	 2021,	 ch.	 1,	 § 6	

(effective	Dec. 19,	2021).		Though	the	Initiative	does	not	expressly	mention	the	

Project,	 sections	 4	 and	 5	 apply	 to	 the	 Project	 through	 section	 6	 because	

construction	did	not	begin	on	it	until	January	2021.		

D. Procedural	History

[¶24]		On	November	3,	2021,	the	day	after	the	public	referendum on	the	

initiated	 bill,	 NECEC	 (i.e.,	 NECEC	 Transmission	 LLC	 and	 Avangrid) filed	 a	

three-count	 verified	 complaint	 against	 the	 State	 parties	 seeking	 declaratory	

I.B.	2021,	ch.	1,	§ 5 (effective	Dec.	19,	2021).

10		Section	6	states	in	full	as	follows:

Sec.	6. 35-A	MRSA	§3132,	sub-§6-E is	enacted	to	read:

6-E.	Retroactivity.		Notwithstanding	Title	1,	section	302	or	any	other	provision	of	

law	 to	 the	 contrary,	 subsections	 6-C	and	 6-D	apply	 retroactively	 to	September	 16,	

2020	 and	 apply	 to	 any	 high-impact	 electric	 transmission	 line	 the	 construction	 of	

which	had	not	commenced	as	of	that	date.

I.B.	2021,	ch.	1,	§ 6	(effective	Dec.	19,	2021).
15

and	 injunctive	 relief	 to	 permanently	 block	 retroactive	 application	 of	 the	

Initiative	 to	 the	 Project.	 	 That	 same	 day,	 NECEC	 moved	 for	 a	 preliminary	

injunction	to	stay	the	initiated	legislation during the	pendency	of	the litigation.		

Several	 organizations	 and	 individuals	 moved	 to	 intervene; five	 supported

NECEC,	 and	 eight	 supported the	 State	 parties.	 	 After	 expedited	 briefing	 and	

argument,	 the	 Business	 and	 Consumer	 Docket	 denied	 NECEC’s	 motion	 for	 a	

preliminary	 injunction	 on	 December	 16,	 2021.	 	 In	 a	 comprehensive	 and	

thoughtful	opinion, the	court	rejected	the	various	constitutional	challenges	to	

the	initiated	legislation	and	found	“no	basis	to	block	the	Initiative	from	going	

into	effect	as	scheduled.”		However,	the	court	also	suggested	that	NECEC	and	

the	supporting	intervenors	move	to	have	the	questions	of	law	reported	to	us	

pursuant	to	M.R.	App.	P.	24(c).

[¶25]		On	December	22,	2021,	NECEC	moved	for	the	court	to	report	the	

interlocutory	ruling	denying	its	request	for	a	preliminary	injunction.		M.R.	App.	

P.	24(c).		Less	than	a	week	later,	the	court	reported	the	case	“in	its	entirety	for	

the	Law	Court	to	determine	the	questions	of	law	presented.”		
16

II.		DISCUSSION

A. Scope	of	Appellate	Review	under	Rule	24(c)

[¶26]	 	 Rule	 24(c)	 of	 the	 Maine	 Rules	 of	 Appellate	 Procedure	 governs	

reported	interlocutory	rulings	and	is	an	exception	to	the	 final	judgment	rule.		

As	such,	it	should	be	used	sparingly,	Bank	of	Am.,	N.A.	v.	Cloutier,	2013	ME	17,	

¶ 8,	 61	 A.3d	 1242,	 especially	 to	 report	 constitutional	 questions,	 Sirois	 v.	

Winslow,	585	A.2d	183,	185	(Me.	1991).11		Rule	24(c)	provides:

If	the	trial	court	is	of	the	opinion	that	a	question	of	law	involved	in	

an	interlocutory	order	or	ruling	made	by	it	ought	to	be	determined	

by	the	Law	Court	before	any	further	proceedings	are	taken,	it	may	

on	motion	of	the	aggrieved	party	report	the	case	to	the	Law	Court	

for	that	purpose	and	stay	all	further	proceedings	except	such	as	are	

necessary	to	preserve	the	rights	of	the	parties	without	making	any	

decision	therein.

M.R.	App.	P.	24(c).		Upon	receipt	of	a	Rule	24(c)	report,	our	broad	 task	is	 to	

determine	whether	accepting	 the	report	and	answering	 the	questions	of	law	

therein “‘is	consistent	with	our	basic	function	as	an	appellate	court,	or	would	

improperly	 place	 us	 in	 the	 role	 of	 an	 advisory	 board.’”	 	 Littlebrook	 Airpark	

Condo.	Ass’n,	2013	ME	89,	¶ 9,	81	A.3d	348	(quoting	Cloutier,	2013	ME	17,	¶ 8,	

11 Former	Rule	72	of	the	Maine	Rules	of	Civil	Procedure	governed	the	process	for	reporting	cases	

to	the	Law	Court	before	the	Maine	Rules	of	Appellate	Procedure	were	adopted	in	2001.		M.R.	Civ. P.	

72	(West 2001);	see M.R.	App.	P.	1	Advisory	Note,	Jan.	1,	2001.		Because	Rule	24	is	“derived	nearly	

verbatim	 from	 former” Rule	 72, 3A	 Harvey	 &	 Merritt,	 Maine	 Civil	 Practice § A24:1	 at	 224 (3d,	

2021-2022 ed.	2021),	we	consider	cases	that	examined	former	Rule	72	when	interpreting	Rule	24.		

Liberty	 Ins.	 Underwriters,	 Inc.	 v.	 Est.	 of	 Faulkner,	 2008	 ME	 149,	 ¶ 5	 n.4,	 957	 A.2d	 94;	 see,	 e.g.,	

Littlebrook	Airpark	Condo. Ass’n	v.	Sweet	Peas,	LLC, 2013	ME	89,	¶ 13,	81	A.3d	348.
17

61	 A.3d	 1242).	 	 We	 weigh	 three	 factors	 to	 make	 that	 determination:	

“(1) whether	 ‘the	 question	 reported	is	 of	 sufficient	importance	and	 doubt	 to	

outweigh	 the	 policy	 against	 piecemeal	 litigation’;	 (2)	 whether	 ‘the	 question	

might	 not	 have	 to	 be	 decided	 because	 of	 other	 possible	 dispositions’;	 and	

(3) whether	‘a	decision	on	the	issue	would,	in	at	least	one	alternative,	dispose	

of	the	action.’” Id. (quoting	Cloutier,	2013	ME	17,	¶ 8,	61	A.3d	1242).

[¶27]	 	 Here,	 the	 court	 reported	 its	 order	 denying	 NECEC’s	 motion	 to	

preliminarily	enjoin	the	Initiative	“in its	entirety” and	did	not	submit	specific	

questions.		The	court’s	open-ended	report	does	not	prevent	us	from	acting	on	

it.	 See,	e.g.,	Luhr	v.	Bickford,	661	A.2d	1141,	1141-42 (Me.	1995)	(considering	

whether	 to	 accept	 a	 report	 that	 presented	 “unspecified	 questions	 of	 law”	

involved	 in	 the	 trial	 court’s	 interlocutory	 order,	 identifying	 the	 operative	

question	of	law	at	issue,	and	discharging	the	report	after	concluding	that	the	

question was	not	doubtful (quotation	marks	omitted));	Churchill	v.	S.A.D.	No.	49	

Tchrs. Ass’n,	 380	 A.2d	 186,	 189	 (Me. 1977)	 (“So	 long	 as	 the	 record	 clearly	

identifies	the	issue	raised	and	contains	the	necessary	information	to	permit	a	

determination	of	 the	question,	no	 further	particularization	is	required.”); but	

see Swanson	 v.	 Roman	 Cath. Bishop,	 1997	 ME	 63,	 16 &	 n.11,	 692	 A.2d	 441

(Lipez, J.,	 dissenting)	 (urging	 caution	 when	 deciding	 whether	 to	 accept	 a	
18

reported	case	involving	constitutional	questions	and	noting	that	Luhr did	not	

involve	constitutional	claims).		It	does,	however,	require	us	to	define	the	scope	

of	our	review	before	we	reach	the	merits.		

[¶28]		NECEC	urges	us	to	accept	three	questions	on	report:12

1) Whether	the	Initiative	unlawfully	deprives	NECEC	of	a	vested	

right	to	complete	Project	construction;

2) Whether	 the	 Initiative	 violates	 the	 separation	 of	 powers	

under	the	Maine	Constitution;	and

3) Whether	 the	 Initiative	 unlawfully	 impairs	 NECEC’s	 rights	

under	 the	 contracts	 clauses	 of	 the	United	 States and	Maine	

constitutions.

[¶29]	 	 We	 limit	 our	 analysis	 to	 sections	 4	 through	 6	 of	 the	 Initiative.		

Section	 1	 of	 the	 Initiative	 affects	 the	 authority	 of	 the	 Bureau	 to	 lease	

public reserved	 lands	 by	 retroactively	 requiring	 legislative	 approval	 for	

transmission	line	leases.	 	I.B.	 2021,	 ch.	 1,	 § 1	 (effective	 Dec.	 19,	 2021).	 	The	

Business	and	Consumer	Docket	(Murphy,	J.)	vacated	the	BPL	lease	based	on	a	

determination	 that	 it	 was	 not	 validly	 issued,	 Black	 v.	 Cutko,	

12		NECEC	argues	 further	 that	we	should	address	all	issues	involved	in	 the	interlocutory	ruling	

including	 whether	 NECEC	 will	 suffer	 irreparable	 harm, whether	 the	 balance	 of	 harms	 favors	 an	

injunction, and	whether	the	public	interest	favors	an	injunction.		We	disagree.		Those	questions	are	

fact-bound	and	would	require	this	Court	to	apply	the	abuse-of-discretion	and	clear-error	standards,	

see	All.	for	Retired	Ams.	v.	Sec’y	of	State,	2020	ME	123,	¶ 12,	240	A.3d	45,	which	would	be	inconsistent	

with	the	de	novo	review	of	legal	questions	to	which	a	Rule	24(c)	report is	limited.		Moreover,	the	legal	

standards	 governing	 the	 grant	 or	 denial	 of	 a	 preliminary	injunction	 can	 be	 resolved	 by	 applying	

well-established	 principles	 of	 law	 and,	 therefore,	 are	 not	 sufficiently	 doubtful	 to	 require	 our	

attention.		Despres	v.	Moyer,	2003	ME	41,	¶ 14,	827	A.2d	61.
19

No. BCDWB-CV-2020-29,	 2021	WL	 3700685	 (Me.	 B.C.D.	 Aug.	 10,	 2021),	 and	

that	decision	has	been	appealed	to	us,		Black	et	al	v.	Bureau	of	Parks	and	Lands	

et	 al.,	 No.	 BCD-21-257.	 	 The	 constitutionality	 of	 the	 retroactive	 clause	 of	

section 1	 of	 the	 Initiative,	 which	 amends	 the	 authority	 of	 the	 Bureau	 under	

Title 12,	 may	 never	 have	 to	 be	 decided	 depending	 on	 the	 outcome	 of	 that	

appeal.	 	 Under	 those	 circumstances,	 further	 consideration	 of	 the	

constitutionality	of	section	1	of	the	Initiative	would	not	be	consistent	with	our	

basic	appellate	function.		See Littlebrook	Airpark	Condo.	Ass’n,	2013	ME	89,	¶ 9,	

81	A.3d	348.

[¶30]		The	separation	of	powers	claim requires	only	a	brief	explanation.		

We	 have	 recognized	 the	 power	 of	 a	 legislative	 body	 to	 enact	 retroactive	

legislation	that	affects	the	validity	of	a	permit	issued	by	an	executive	authority.		

See,	e.g., City	of	Portland v.	Fisherman’s	Wharf	Assocs. II,	541	A.2d	160,	162-64

(Me.	1988).		Neither	 the	CPCN	nor	any	other	permit	 that	has	been	upheld	in	

court	 as	 validly	 issued	 is	 necessarily	 categorically	 exempt	 from	 retroactive	

legislation.	 	 However,	 the	 effect	 of	 retroactive	 legislation	 upon	 existing	

proceedings	 and	 rights is	 ultimately	 for	 the	 courts,	 not	 the	 Legislature,	 to	

decide.		For	example,	in	Avangrid, we	declared	the	citizens’	initiative	at	issue

there to	be	invalid	because	it	purported	to	adjudicate	the	validity	of	the	CPCN	
20

directly, and	 thereby	 exercise	 judicial	 power	 rather	 than	 legislative	 power.		

2020	 ME	 109,	 ¶ 35,	 237	 A.3d	 882.	 	 The	 Initiative	 now	 before	 us	 is	

distinguishable	because	it	is	an	exercise	of	legislative	power	that	may	affect	the	

validity	of	the	CPCN	but	leaves judicial	review—and	the	separation	of powers—

intact.

[¶31]		With	respect	to	the	contracts	clause	claim,	we	decline	to	address	

that	 question	 because	 it	 is	 governed	 by	 established	 principles	 of	 law.	 	 See	

Kittery Retail	Ventures,	LLC	v.	Town	of	Kittery, 2004	ME	65,	¶ 38,	856	A.2d	1183	

(reciting	 the	well-settled	 test	 for	resolving	contracts	clause	claims).		In	other	

words,	 the	 question	that	 the	 contracts	 clause	 claim	 raises	 is	 not	 sufficiently	

doubtful	 “to	 outweigh	 the	 policy	 against	 piecemeal	 litigation.”	

Littlebrook Airpark	 Condo.,	 Ass’n,	 2013	 ME	 89,	 ¶ 9,	 81	 A.3d	 348	 (quotation	

marks	omitted).

[¶32]	 	 Thus,	 we	 accept	 and	 answer	 only	 the	 question	 whether	

retroactively	applying	sections	4	and	5	of	the	Initiative	to	the	CPCN	issued	for	

the	 Project, as	 required	 by	 section	 6,	 violates the due	 process	 clause	 of	the	

Maine	Constitution.
21

B. The vested rights	doctrine	arises	from	the	Maine	Constitution	and	

limits the	Legislature’s	authority	to	apply	laws	retroactively.

[¶33]		Whether	retroactive	application	of	the	Initiative	to	the	CPCN	that	

the	PUC	issued	for	the	Project	unconstitutionally	impairs	NECEC’s	vested	rights	

depends	 on	 whether	 Maine’s	 vested	 rights	 doctrine	 is	 a	 constitutional	

limitation	on	legislative	authority,	including	citizen	initiatives.		We	hold	that	it	

is.

[¶34]	 	 By	 its	 terms,	 the	 Initiative	 applies	 retroactively	 to	 the	 PUC’s	

authority	 over	 projects	 involving	 high-impact	 electric	 transmission	 lines on	

which	 construction	 had	 not	 started	 by	 September	 16,	 2020,	 35-A	 M.R.S.	

§ 3132(6-E)	(2022),	and	thus	it	applies	to	the	Project.		

[¶35]		The	same	constitutional	limitations	on	legislative	authority	apply	

to	 citizen-initiated	 legislation	 as	 apply	to	 the	 enactments	 of	 the	 Legislature.		

Opinion of	the	Justices,	2017	ME	100,	¶	59,	162	A.3d	188.		We	are	mindful	that	

citizen-initiated	legislation	enjoys	a	“heavy	presumption	of	constitutionality”

and	should	be	construed	liberally.		Id.	(quotation	marks	omitted).	 At	the	same	

time,	“[s]ince	by	the	initiative	process	the	people	of	Maine	are	exercising	their	

legislative	power,	the	constitutional	validity	of	a	citizen	initiative	is	evaluated	

under	the	ordinary	rules	of	statutory	construction.”		League	of	Women	Voters	v.	

Sec’y	of	State,	683	 A.2d	769,	771	(Me.	1996).
22

[¶36] “If	 the	 Legislature	intends	 a	 retroactive	 application,	 the	 statute	

must	be	so	applied	unless	the	Legislature	is	prohibited	from	regulating	conduct	

in	the	intended	manner,	and	such	a	limitation	upon	the	Legislature’s	power can	

only	 arise	 from	 the	 United	 States	 Constitution	 or	 the	 Maine	 Constitution.”		

Norton v.	C.P.	Blouin,	Inc.,	511	A.2d	1056,	1060	n.5	(1985)	(emphasis	added);	

see State	v.	L.V.I.	Group,	1997	ME	25,	¶ 9,	690	A.2d	960	(characterizing	the	cited	

excerpt from	 Norton as	 “clarif[ying]	 the	 proper	 analysis	 concerning	 the	

retroactive	application	of	statutes”);	cf.	Opinion of	the	Justices,	103	Me.	506,	508,	

69	A.	627	(1907)	(“[L]aws	and	regulations	are	to	be	held valid	unless	there	can	

be	pointed	out	some	provision	in	the	State	or	United	States	Constitution	which	

clearly	prohibits	them.”).

[¶37]		The	principal	parties	accept	Norton’s	directive	but	disagree	about	

the	 provenance	 of	 Maine’s	 vested rights	 doctrine.	 	 NECEC	 argues	 that	 the	

doctrine	 is	 grounded	 in	 the	 due	 process	 clause	 of	 the	 Maine	 Constitution,	

Me. Const.	art.	I,	§	6-A,	and	that	it	therefore	limits	the	Legislature	from	applying	

the	Initiative	retroactively.		The	State	appellees	contend instead	that	the	vested

rights	 doctrine	 is	 a	 creature	 of	 common	 law	 that	 citizens,	 acting	 as	 the	

Legislature,	may—and	did—abrogate	by	clear	enactment.		
23

1. The	vested	rights	doctrine	and	the	due	process	clause	of	the	

Maine	Constitution.

[¶38]	 	 Contrary	 to the	 State	 appellees’	 arguments,	 the	 protection	 of	

vested	rights	has	been	rooted	in	the	Maine	Constitution	since	Maine	became a	

state.		See David	M.	Gold,	The	Tradition	of	Substantive	Judicial	Review:	A	Case	

Study	of	Continuity	in	Constitutional	Jurisprudence,	52	Me.	L.	Rev.	355,	364-70

(2000) (chronicling	 the	 history	 of	Maine’s	 vested	 rights	jurisprudence).	 We	

first	considered	the	legal	significance	of	vested	rights	just	three	years	after	the	

Maine	Constitution	took	effect,	in	Proprietors	of	Kennebec	Purchase	v.	Laboree,

2	 Me.	 275,	 288-93 (1823).	 	 There,	 we	 considered	 the	 constitutionality	 of	

retroactively	applying	a	statute	changing	the	doctrine	of	disseisin	that	would	

have	resulted	in	a deeded	owner	losing	his	land.		Id. at	286-93.	 In	describing	

the	 effect	 of	 the	 statute,	 we	 discussed	 article	 1,	 section	 1	 of	 the	 Maine	

Constitution:

By	 the	 spirit	 and	 true	 intent	 and	 meaning	 of	 this	 section,	 every	

citizen	 has	 the	 right	 of “possessing	 and	 protecting	 property”	

according	to	the	standing	laws	of	the	state	in	force	at	the	time	of	his	

“acquiring[”]	it,	and	during	the	time	of	his	continuing	to	possess	it.		

Unless	this	be	the	true	construction,	the	section	seems	to	secure	no	

other	right	to	the	citizen	than	that	of	being	governed	and	protected	

in	 his	 person	 and	 property	 by	 the	laws	 of	 the	land,	 for	 the	 time	

being. . . . The	 design	 of	 the	 framers	 of	 our	 constitution,	it	 would	

seem, was . . . to	guard	against	 the	retroactive	effect	of	legislation	

upon	the	property	of	the	citizens.
24

Id.	 at	 290	 (quoting	 Me.	 Const.	 art.	 1,	 § 1).	 	 We	 proceeded	 to	 hold	 that	

retroactively	applying	the	challenged	statute	was	unconstitutional	to	the	extent	

that	 it	 altered	 the	 common	 law	 “because	 such	 operation	 would	 impair	 and	

destroy	 vested	 rights,	 and	 deprive	 the	 owners	 of	 real	 estate	 of	 their	 titles	

thereto,	by	changing	the	principles	and	the	nature	of	those	facts,	by	means	of	

which	 those	 titles	 had	existed	and	 been	 preserved	 to	 them	in	 safety.”	 	Id.	at	

294-95.

[¶39]	 	 Since	 Laboree,	 we	 have	 continued	 to	 frame	 vested	 rights	 in	

constitutional	terms,	albeit	broadly	and	often	without	reference	to	any	specific	

provision	 of	 the	 Maine	 Constitution.	 	 In	 Coffin	 v.	 Rich,	 45	 Me.	 507,	 514-16

(1858),	 we	 relied	 on	 Laboree to	 hold	 that	 a	 statute	 making	 individual	

stockholders	 personally	 liable	 for	 corporate	 debts	 was	 unconstitutional	 as	

applied	 retroactively	 because	 it	 created	 a	 new	 liability	 where	 none	 had	

previously	existed.		We	explained:

There	 can	 be	 no	 doubt	 that	 Legislatures	 have	 the	 power	 to	 pass	

retrospective	statutes,	if	they	affect	remedies	only.		Such	is	the	well	

settled	law	of	this	State.		But	they have	no	constitutional	power	to	

enact	 retrospective	 laws	 which	 impair	 vested	 rights,	 or	 create	

personal	liabilities.

Id. at	514-15;	see Thut	v.	Grant,	281	A.2d	1,	6	(Me.	1971)	(“[T]he	Legislature	has	

full	power	and	authority	to	regulate	and	change	the	form	of	remedies	in	actions	
25

if	 no	 vested	 rights	 are	 impaired	 or	 personal	 liabilities	 created.	 	There	 is	 no	

constitutional	inhibition	against	the	enactment	of	retroactive	legislation	which	

affects	remedies	only.”	(emphasis	and	quotation	marks	omitted)).		We	relied	on	

Coffin in	Sabasteanski	v.	Pagurko,	232	A.2d	524,	525-26	(Me.	1967),	where	we	

held	 that	 a	 statute	 validating	 deeds	 with	 certain	 administrative	 defects	 was	

unconstitutional	 as	 applied	 retroactively	 because	 it	 effectively	 ousted	

subsequent	innocent	purchasers	of	their	right	to	property.

[¶40]		In	Adams	v.	Palmer,	51	Me.	480	(1863),	we	identified	a	provision	

of	the	Maine	Constitution	as	protecting	vested	rights	different	from	the	one	we	

identified	 in	 Laboree.	 	 In	 Adams,	 a	 widow	 had,	 while	 she	 was	 still	 a	 minor,	

released	her	right	of	dower	 to	a	parcel	of	land	by	joining	in	a	deed	with	her	

husband.		Id. at	487.		Because	she	was	a	minor	when	she	signed	the	deed,	the	

deed	was	voidable	by	her.		Id. at	489.		After	she	became	an adult,	the	Legislature	

enacted	a	statute	providing	that	a	minor’s	release	of	a	right	of	dower	was	valid.		

Id.	at	490.		We	held	the statute was	unconstitutional	as	applied	retroactively.		

Id.		We	reasoned	that	the	adult	widow’s	right	to	recover	a	freehold	estate	upon	

her	 husband’s	 death	 was	 a	 vested	 property	 right.	 	 Id.	 	 We	 implied	 that	 the	

widow’s	vested	right	was	protected	by	the	guarantee	in	article	I,	section	6	of	

the	 Maine	 Constitution	 “that	 no	 one	 shall	 ‘be	 deprived	 of	 his	 life,	 liberty,	
26

property, or	privileges,	but	by	the	judgment	of	his	peers	or	the	laws	of	the	land.’”		

Id. (quoting	Me.	Const.	art.	1,	§	6 (emphasis	omitted)).13

[¶41]		Against	this	historical	backdrop,	NECEC	argues	that	vested	rights	

are	 properly	 viewed	 as	 arising	 from	 the	 Maine	 Constitution’s	 due	 process	

clause,	article	I,	section	6-A.		We	agree.		Though	our	decisions	in	Laboree and	

Adams predate	 the	 adoption	 of	 section	 6-A,	 see 1965	 Me.	 Laws	 1163	

(Proclamation	 of	 the	 Governor	 of	Maine),	 their	logic	 recognizes	implied	 due	

process	protections	in	article	I,	sections	1	and	6	that	guard	against	retroactivity.		

In	Laboree we	interpreted	section	1	as	protecting	a	person’s	inherent	right	to	

possess	and	protect	property	 “according	 to	 the	 standing	laws	 of	 the	State	in	

force	at	 the	 time	of	his	acquiring	it,	and	during	 the	 time	of	his	continuing	 to	

possess	it.” Laboree,	2 Me.	at	275,	290	(quotation	marks omitted).		The	essence	

of	 that	 right	is	 due	 process.	 	Cf. Hammond	 v.	 Temp.	 Comp.	 Rev.	 Bd.,	473	A.2d	

1267,	1272	(Me.	1984)	(observing	that	a	party	alleging	a	due	process	violation	

13		See	also Austin	v.	Stevens, 24	Me.	520,	529	(1845) (“While	the	exercise	of	the	legislative	power	

is	admitted	to	be	both	constitutional	and expedient,	to	determine	what	shall	be	the	respective	rights	

and	 duties	 of	 tenants	 for	 life,	 and	 of	 reversioners	 in	 relation	 to	 improvements	 made	 during	 the	

continuance	of	 the	estate	 for	life,	it	will	not	 follow,	 that	 their	rights	 to	such	improvements	can	be	

altered	or	changed,	after	they	have	been	fixed	and	established	by	the	laws	existing	at	the	time,	when	

the	life	estate	falls.	 The	right	of	the	legislative	department	to	authorize	a	person	holding	lands	by	

possession	 and	 improvement,	 to	 claim	 and	 obtain	 compensation	 for	 his	 improvements	 has	 been	

admitted.	 But	if	he	should	voluntarily	abandon	his	improvements	with	the	land,	and	they	should	by	

the	existing	laws,	as	they	would	now	do,	become the	property	of	the	owner	of	the	estate,	would	any	

intelligent	 person	 claim	 for	 the	 legislature	 the	 constitutional	 power	 to	 deprive	 the	 owner	 of	 any	

portion	of	his	estate	except	for	public	use?”).
27

“must	 be	 able	 to	 point	 to	 existing	 law	 or	 rules,	 or	 mutual	 understandings,	

wherein	 his	 claims	 of	 entitlement	 are	 secured	 and	 may	 be	 supported”);

Thomas M.	 Cooley,	 A	 Treatise	 on	 the	 Constitutional	 Limitations Which	 Rest	

Upon	 the	 Legislative	 Power	 of	 the	States	 of	 the	American	Union	 356	 (1868)

(“Due	 process	 of	law	in	 each	 particular	 case	means,	 such	 an	 exertion	 of	 the	

powers	 of	 government	 as	 the	 settled	 maxims	 of	 law	 sanction . . . .”);	

cf. Tinkle, The	 Maine	 State	 Constitution 29	 (2d	 ed.	 2013)	 (observing	 that	

section 1	“has	been	perceived	as	a	catchall	for	fundamental	rights	not	otherwise	

enumerated	in	Article	 I”).		 In	Adams,	we	analogized	section	6’s	protection	of	

vested	property	rights	to	the	due	process	clause	in	the	New	York	constitution	

that	 that	 state’s	 high court	 relied on	 to	 reject	 a	 retroactive	 law	 as	

unconstitutional.	 	 See	 Adams,	 51	 Me.	 at	 492-93	 (citing	 Westervelt	 v.	 Gregg,	

12 N.Y.	202 (1854)).14		Moreover,	this	court	has	long	equated	sections	6’s	“law	

of	the	land”	clause	with	“due	process	of	law.”		See,	e.g.,	State	v.	Knight,	43	Me.	11,	

122	(1857)	(defining	“law	of	the	land”	as	“the	due	course	and	process	of	law”

(quotation	marks	omitted));	State	v.	Doherty,	60	Me.	504,	509	(1872)	(“‘[D]ue	

process	of	law’	and	‘law	of	the	land’	have	the	same	meaning.”);	Jordan	v.	Gaines,	

14		Further,	Adams characterized	our	decision	in	Laboree as	approving	the	due	process	principles	

upon	which	other	courts	had	rejected	retroactive	legislation	as	“denying	the	power	of	the	Legislature	

to	take	away	vested	rights.”		Adams	v.	Palmer,	51	Me.	480,	493	(Me.	1863).
28

136	Me.	291,	294,	8	A.2d	585	(1939)	(“‘[D]ue	process	of	law’	and	‘the	law	of	the	

land’	 are	 identical	 in	 meaning.	 	 They	 are	 of	 equivalent	 import	 and	

interchangeable.”	(citations	omitted)).

[¶42]		Thus,	sections	1	and	6	of	the	Maine	Constitution’s	Declaration	of	

Rights	were	proxies	for	due	process	protections	of	vested	rights	until	section	

6-A	 was	 adopted	 in	 1963.	 	 Cf.	 L.D.	 33	 (101st	 Legis.	 1963) (“A	 due	 process	

clause . . . should	be	added	to	the	Maine	Constitution. . . . It	may	well	be	said	that	

in	various	places	within	the	Declaration	of	Rights,	as	the	same	is	now	written,	

much	of	the	protection	given	by	the	proposed	new	due-process	clause	appears.		

However,	the	rights with	which	we	are	here	concerned	are	so	fundamental	and	

so	important	that	if	there	is	a	second	or	repeat	guarantee,	such	underwriting	of	

protection	is,	we	believe,	all	to	the	good.”).		Constitutional	protection	of	vested	

rights	 properly	 resides	in	Maine’s	 due	 process	 clause.	 	 Cf.	 Tinkle,	 The	 Maine	

State	 Constitution 45	 (2d	 ed.	 2013)	 (“With	 the	 incorporation	 into	 the	 state	

constitution	of	section	6-A,	which	expressly	contains	a	due	process	clause,	the	

law	of	the	land	clause	[in	section	6]	has	become	doubly	redundant	and	fallen	

into	desuetude.”)		We	conclude	that	the	vested rights	doctrine	“arises	from”	the	

Maine	 Constitution	 such	 that	 it	 constrains	 the	 power	 to enact	 retroactive

legislation.
29

2. NECEC’s vested rights claim	to	develop	the	Project	under	

the	terms	of	the	CPCN

[¶43]	 	 Sections 4 through	 6	 of	 the	 Initiative	 relate	 to 35-A	 M.R.S.	

§ 3132(6), which	 directs the	 PUC	 to	 determine	 whether	 a	 proposed	

transmission	line	project	serves	an	identified	 “public	need.”		I.B.	2021,	ch.	1,	

§§ 4-6	(effective	Dec.	19,	2021).		Section	4	adds	a	requirement	to	the	statute	for	

legislative	 approval	 “[i]n	 addition	 to	 obtaining	 a	[CPCN].”	 Id. § 4.	 	 Section	 5	

categorically	bans	construction	of	high-impact	electric	transmission	projects	in	

the	“Upper	Kennebec	Region.”		Id. § 5.		Section	6	makes	sections	4	and	5	of	the	

Initiative	 applicable	 to	 all	 high-impact	 electric	 transmission	 lines	 on	 which	

construction had	not	started by	September	16,	2020.		Id. § 6.		Because	NECEC	

started	 construction	 on	 the	 Project	 some	 four	 months	 after	 September	 16,	

2020,	the	retroactivity	provision	in	section	6	directly	impairs NECEC’s	ability	

to	proceed	with	Project	construction	pursuant	to	the	terms	of	the	CPCN	issued	

under	then-existing	law.

[¶44]		The	issue	before	us	involves	the	intersection of	NECEC’s	private	

interest	 to	 proceed	 and	 the	 interest	 of	 the	 electorate	 to	 determine	 public	

legislative policy.		The	applicability	of	the	vested	rights	doctrine	here	turns	on	

whether	 NECEC	 acquired	 a	 cognizable	 property	 right	 that	 the	 Maine	

Constitution protects	 from	 being	 impaired	 by	 retroactive	 legislation.		
30

See J. Spencer	 Hall,	 State	 v.	 Vested	 Rights	 Statutes:	 Developing	 Certainty	 and	

Equity	 and	 Protecting	 the	 Public	 Interest,	 40	 Urb.	 Law.	 451,	 455-56 (2008)

(“‘Vested	rights	are	rights	vested	in	specific	individuals	in	accordance	with	the	

law	in	what	the	law	recognizes	as	property.’		Critical	to	the	application	of	the	

doctrine	 of	 vested	 rights,	 then,	 is	 a	 definition	 of	 what	 constitutes	

property. . . . James	 Madison	 viewed	 property	 as	 embracing	 ‘everything	 to	

which	a	man	may	attach	a	value	and	have	a	right.’”	(quoting	Edward	S.	Corwin,	

The	Basic	Doctrine	 of	American	Constitutional	Law,	12	Mich.	L.	Rev.	247,	271	

(1914) (footnotes	omitted)).		

[¶45]		NECEC	urges us	to	look	at	the	Project	as	a	whole,	arguing	that	it

has	 a	 vested	 right	 to	 complete	 construction of	 the	 entire	 Project.	 	 But	 the	

question	presented	in	this	case	and	which	we	proceed	to	answer	is	narrower.		

We	limit	our	vested rights	analysis	to	the	specific	approval	that	the	retroactivity	

provision	 in	 section	 6	 of	 the	 Initiative	 affected.	 	 The	 Initiative	 retroactively	

imposes	a	requirement	of	legislative	approval	for	a	CPCN	previously	granted	by	

the	PUC.		It	does	nothing	to	affect	the	other	permits	or	approvals	that NECEC	

needs	before	it	may complete	the	Project,	many	of	which	are	still	the	subject	of	
31

pending	proceedings.15	 	In	 other	words,	 the	 focus	 of	a	 vested	 rights	analysis	

must	 be	 upon	 the	 specific	 entitlement	 that	 is	 affected	 by	 the	 retroactively	

applied	legislation.	 	 Thus,	 the	 fact	 that	NECEC	 had	 not	 obtained	all	 required	

municipal	 permits	 at	 the	 time	 this	 case	 was	 filed	 does	 not	 bear	 on	 whether	

NECEC	has	acquired	a	constitutionally	protected	property	right	to	continue	the

work	authorized	by	the	CPCN.		Nevertheless,	NECEC’s	ability	to	complete	the	

entire	 Project	 is	 contingent	 on	 obtaining	 any	 remaining	 permits	 needed,	

assuming	 that	 NECEC	 has,	 in	 fact,	 acquired	 a	 vested	 right	 to	 proceed	 as	

authorized	by	the	CPCN’s	terms	and	conditions.	

[¶46]		In	Maine	and	other	states,	the	right	to	proceed	with	construction	

in	 the	 municipal-law context	 vests	 once	 a	 developer	 undertakes	 significant,	

visible construction	 in	 good	 faith	 and	 with	 the	 intent	 to	 carry	 construction	

through	to	completion	as	authorized	by	a	validly issued	building	permit.		Sahl v.	

Town	of	York,	2000	ME	180,	¶ 12,	760	A.2d	266;	see J.	Spencer	Hall,	State	Vested	

Rights	 Statutes:	 Developing	 Certainty	 and	 Equity	 and	 Protecting	 the	 Public	

Interest, 40 Urb.	 Law.	451,	459-94 (2008) (surveying	 state	 statutes	codifying	

the	vested	rights	doctrine).		That	permit	must	be	final	and	not	subject	to	direct	

15 Section	1	of	the	Initiative enacts	retroactive	standards	for	the	grant	of	the	BPL	lease,	but	we	do	

not	address	that	issue	because	there	is	a	separate appeal	before	us	from	the	order vacating	the	grant	

of	the	lease.		Black	et	al.	v.	Bureau	of	Parks	and	Lands	et	al.,	No. BCD-21-257.
32

or	further	appeal.		Powell	v.	Calvert	County,	795	A.2d	96,	101	(Md.	2002)	(“[A]	

special	exception	approval,	whose	validity	is being	litigated,	is	not	finally	valid	

until	all	litigation	concerning	the	special	exception	is	final.		Persons	proceeding	

under	it	prior	to	finality	are	not	‘vesting’	rights;	they	are	commencing	at	‘their	

own	 risk’	 so	 that	 they	will	 be	 required	 to	 undo	what	 they	 have	 done	if	 they	

ultimately	fail	in	the	litigation	process.”)		We	have	applied	the	test	announced	

in	Sahl only	to	resolve	a vested	rights challenge	to	retroactive	changes	in	local	

zoning	ordinances	affecting	a	project	of	limited	scale;	we	have	never	applied	it	

to	changes	in	state	law	affecting large-scale	infrastructure	projects	overseen	by	

a	matrix	of	local, state, and	federal	authorities.		Still,	Sahl’s	underlying	rationale	

for	protecting	a	developer’s	good-faith	expenditures	in	reliance	on	government	

approval	of	proposed	investments	against	retroactive	changes	is	not	limited	to	

zoning	law	and	informs	our	analysis	of	whether	NECEC	has a	vested	right	 to	

proceed	with	Project	construction	under	the	terms	of	CPCN.

[¶47]		Thus,	in	the	context	of	large-scale	infrastructure	development,	we	

conclude	 that	 a	 claim	of unconstitutional	impairment	 of	 vested	 rights	 arises	

under	the	following	conditions.		First,	the	claimant	holds	a validly issued	and	

final	permit,	license,	or	other	grant	of	authority	from	a	governmental	entity	that	

is	not	subject	to	any	further	judicial	review.		Second,	the	law	under	which	the	
33

permit,	license,	or	other	grant	of	authority	was	issued	changed	thereafter	and

would,	 if	 applied	 retroactively,	 eliminate	 or	 substantially	 limit	 the	 right	 to	

proceed	 with	 the	 activity	 authorized	 by	 the	 permit.	 	 Third,	 the	 claimant	

undertook substantial	good-faith	expenditures on	the	activity	within	the	scope	

of	 the	 affected	 permit	 prior	 to	 the	 enactment	 of	 the	 retroactive	 legislation,	

meaning	that	the	expenditure	was	made	(1)	in	reliance	on	the	affected	permit	

or	 grant	 of	 authority,	 (2) before	 the	 law	 changed, and	 (3)	 according	 to	 a	

schedule	 that	 was	 not	 created	 or	 expedited	 for	 the	 purpose	 of	 generating	 a	

vested	rights	claim.16

[¶48]	 	Here,	 the	PUC	determined	 that	 there	was	 a	 public	 need	 for	 the	

Project	and	issued	the	CPCN	on	May	3,	2019.		We	affirmed	the	issuance	of	the	

CPCN	on	March	17,	2020,	holding	that	the	PUC	followed	the	proper	procedure	

and	made	the	public-need	determination	based on	sufficient	record	evidence.		

See	NextEra	Energy	Res., LLC,	2020	ME	34,	¶ 43,	227	A.3d	1117.		

16		The	State	parties	argue	that	so	long	as	there	is	a	rational	basis	 for	the	Initiative,	the	vested	

rights	claim	fails.		We	disagree.		If	the	effect	of	the	retroactive	legislation	is	to	abrogate	vested	rights,	

the	rationale	and	basis	for	the	legislation	become	irrelevant.		See Muskin	v.	State	Dep’t	of	Assessments	

&	 Tax’n,	 30	 A.3d	 962,	 969 (Md.	 2011)	 (Under	 the	 Maryland	 Constitution,	 “[i]f	 a	

retrospectively-applied	 statute	 is	 found	 to	 abrogate	 vested	 rights	 or	 takes	 property	 without	 just	

compensation,	it	is	irrelevant	whether	the	reason	for	enacting	the	statute,	its	goals,	or	its	regulatory	

scheme	is	‘rational.’”).
34

[¶49]		The	 facts	before	us	were	generated	in	connection	with	NECEC’s	

request	for	preliminary	injunctive	relief;	they	have	not	been	finally	adjudicated.		

Nonetheless,	 the	 record	 indicates	 at	 least	 preliminarily	 that	 NECEC	 began	

construction	on	January	18,	2021,	after	having	secured	the	CPCN	and	all	other	

necessary,	Project-wide	approvals	 from	various	state	and	 federal	authorities.		

The	CPCN	was	the	only	approval	that	was	affirmed	after	appellate	review	and	

not	subject	to	any	 further	appeals.	 There	is	substantial	evidence	that	NECEC	

proceeded	 with	 construction	 thereafter	 in	 good-faith	 reliance	 on	 those	

approvals	 and	 intended	 to	 develop	 the	 Project	 to	 completion.	 	 NECEC’s	

construction	efforts	were	consistent	with	the	baseline	schedule	that	was	first	

set	in	the	transmission	service	agreements	governing	Project	construction	and	

that	was later	amended	to	reflect	permitting	delays.		As	of	November 2,	2021,	

the	day	Maine	 voters	approved	 the	initiated	bill,	NECEC	had	cut	around	124	

miles	 of	 the	 Project	 corridor	 and	 erected	 multiple	 transmission	 structures,	

spending	 nearly	 $450	million	 or	forty-three percent	 of	 the	 total	 project	 cost	

estimate at	 that	 time.	 	 NECEC	 spent	 that	 significant	 sum	 with	 the	 PUC’s	

assurance	in	issuing	the	CPCN	that	the	Project	served	the	public	need.

[¶50]	 	 Our	 decision	 affirming	 the	 PUC’s	 public-need	 determination	

enshrined	it	in	a	final judgment—in	effect	providing	NECEC	added	assurance	
35

not	only	 that	 the	CPCN	complied	with	 then-existing	law	but	also	 that	NECEC

could	 proceed	with	 Project	 construction	 according	 to	its	 terms.	 	 To	 be	 sure,	

those	terms	anticipated	additional	oversight	by	other	government	entities; in	

its order	granting	the	CPCN, the	PUC stated that	it	“expects	that	the	scenic	and	

recreational	 impacts	 of	 the	 [Project] will	 be	 reviewed	 and,	 to	 the	 extent	

appropriate	 and	 feasible,	 mitigated	 through	 the	 processes	 at	 the	 Maine	

Department	 of	 Environmental	 Protection	 (DEP)	 and	 the	 Land	 Use	 Planning	

Commission	(LUPC).”		Central Maine	Power	Co., Request	for	Approval	of	CPCN	

for	the	New	England	Clean	Energy	Connect,	No.	2017-00232,	Order	(Me.	P.U.C.	

May	 3,	 2019);	 see 35-A	 M.R.S.	 § 3132(6),	 (7)	 (acknowledging the	 DEP’s	

authority	to	modify	the	location,	size,	character,	and	design	of	transmission	line	

projects	that	the	PUC	has	already	determined	serve	an	identified public	need).		

Obtaining	the	CPCN	alone	was necessary	but	not	sufficient	to	confer	the	right	

to	complete construction.		However,	we	hold	that	NECEC	could	reasonably	rely	

on	the CPCN, and	our	judgment	affirming the	CPCN, as	valid authorization to	

begin construction	such	that	its right	to	proceed	according	to the	CPCN’s	terms	

could	vest	upon	evidence	that	it	undertook	significant,	visible	construction in	

good	 faith,	according	 to	a	schedule	 that	was	not	created	or	expedited	 for	 the	

purpose	of	generating	a	vested	rights	claim.
36

[¶51]	 	 To	 be	 clear,	 we	 do	 not	 decide	 whether NECEC	 performed	

substantial	construction	in	good	 faith17 according	 to	a	schedule	 that	was	not	

created	 or	 expedited	 for	 the	 purpose	 of	 generating	 a	 vested	 rights	 claim.		

Although	it	appears	from	the	limited	record	developed	in	connection	with	the	

request	for	preliminary	injunctive	relief that	NECEC	did	so,	it	is	up	to	the	trial	

court	to	make	those factual	determinations on	remand.		

III.		CONCLUSION

[¶52]		We conclude	that	section	6	of	the	Initiative,	as	applied	retroactively

to	 the	 CPCN,	 would	 infringe	 on	 NECEC’s	 constitutionally-protected	 vested	

rights	if	NECEC	 can	 demonstrate	 by	a	 preponderance	 of	the	evidence	 that	it	

engaged	in	substantial	construction	of	the	Project	in	good-faith	reliance	on	the	

authority	granted	by	the	CPCN	before	Maine	voters	approved	the	initiated	bill	

17		The	State	appellees	argue	 that	because	NECEC	was	aware	of	widespread	opposition	 to	 the	

Project	and	knew	that	the	Secretary	of	State	had	issued	a	petition	allowing	the	Initiative’s	proponents	

to	collect	signatures	in	October	2020,	it	could	not	have	proceeded	with	construction	on	January	18,	

2021,	in	good	faith.		We	do	not	accept	the	argument’s	implicit	premise	that,	to	be	acting	in	good	faith,	

a	developer	must	wait	to commence	construction	pursuant	to	a	valid	permit	if	there	is	a	possibility	

that	a	retroactive	change	in	the	law	could	affect	the	right	to	complete	a	project.		As	of	January	2021,	

all	that	existed	was	a	petition	in	circulation.		There	was	no	indication	whether	sufficient	signatures	

had	 been	 gathered	 for	 the	 ballot	measure	 to	 be	 presented	 to	 the	 Secretary	 of	 State,	whether	 the	

Secretary	 of	 State	 would	 certify	 that	 the	 petition	 had	 garnered	 enough	 valid	 signatures	 to	 be	

presented	to	the	Legislature,	or	whether	the	Legislature	(or	Maine	voters	acting	in	its	stead)	would	

approve	the	then-hypothetical	initiative.		In	contrast,	in	Kittery	Retail	Ventures,	LLC	v.	Town	of	Kittery,	

the	 developer	 submitted	its	 revised	 plan	 to	 the	 Planning	Board	after	a	 citizen	amendment	 to	 the	

zoning	ordinance	was	passed	and	enacted	but	before	its	effective	date.		2004	ME	65,	¶ 5,	856	A.2d	

1183.		The	potential	that	a	prospective	citizens’	initiative	might	be	voted	into	law	after	the	CPCN	was	

final	is	far	too	attenuated	to	defeat good	faith.
37

by	 public	 referendum.	 	 Even	 then,	NECEC’s	 vested	 right	 to	 proceed	with	 the	

Project	 would	 not	 be	 absolute;	 what	 would	 be	 protected	would	 be NECEC’s	

right	to	move	forward	under	the	terms	of	the	validly issued	CPCN	as	granted	

under	then-existing	law.	

[¶53]		We	emphasize	that	our	analysis	and	conclusions	are	not	based	on	

the	wisdom	of	either	the Project	or	the	Initiative.		See	Avangrid	Networks,	Inc.,	

2020	ME	 109,	 ¶ 10,	 237	A.3d	 882.	 	On	 this	 report	 of	an	interlocutory	 ruling	

pursuant	to	M.R.	App.	P.	24(c),	the	limited	question	that	we	answer	is	this:

Would	retroactively	applying sections	4	and	5	of	the	Initiative,	to	

the	 CPCN	 issued	 for	 the	 Project,	 as	 required	 by section	 6 of	 the	

Initiative,	violate	the	due	process	clause	of	the	Maine	Constitution,

if NECEC	undertook	substantial	construction	consistent	with	and	

in	 good-faith	 reliance	 on	 the	 CPCN	 before	 the	 Initiative	 was	

enacted?

Our	answer	is	yes.	

The	entry	is:

Report	 accepted	 as	 to	 one	 question,	 which	 is	

answered	in	 the	affirmative	as	indicated	in	 the	

opinion.	 	 Remanded	 for	 further	 proceedings	

consistent	with	this	opinion.
38

Timothy	 C.	 Woodcock,	 Esq.	 (orally),	 P.	 Andrew	 Hamilton,	 Esq.,	 Jonathan	 A.	

Pottle,	Esq.,	and	Casey	M.	Olesen,	Esq.,	Eaton	Peabody,	Bangor,	 for	appellant	

H.Q.	Energy	Services	(U.S.)	Inc.

John	J.	Aromando,	Esq.	(orally),	Jared	S.	des	Rosiers,	Esq.,	Joshua	D.	Dunlap,	Esq.,	

and	Sara	A.	Murphy,	Esq.,	Pierce	Atwood	LLP,	Portland,	for	appellants	NECEC	

Transmission	LLC	and	Avangrid	Networks,	Inc.	

Gerald	 F.	 Petruccelli,	 Esq.,	 and	 Scott	 D.	 Dolan,	 Esq.,	 Petruccelli,	 Martin	 &	

Haddow,	LLP,	Portland,	for	appellant	Maine	State	Chamber	of	Commerce

Sigmund	D.	Schutz,	Esq.,	Anthony	W.	Buxton,	Esq.,	Robert	B.	Borowski,	Esq.,	and	

Jonathan	 Mermin,	 Esq.,	 Preti	 Flaherty	 Beliveau	 &	 Pachios	 LLP,	 Portland, for	

appellant	Industrial	Energy	Consumer	Group

Philip	 M.	 Coffin	 III,	 Esq.,	 Jeffrey	 D.	 Russell,	 Esq.,	 and	 Cyrus	 E.	 Cheslak,	 Esq.,	

Lambert	Coffin,	Portland,	for	appellant	Cianbro	Corporation

Benjamin	K.	Grant,	Esq.,	McTeague	Higbee,	Topsham,	and	Robert	M.	Cheverie,	

Esq.,	Robert	M.	Cheverie	&	Associates,	P.C.,	Hartford, Connecticut,	for	appellant	

International	Brotherhood	of	Electrical	Workers	Local	104

Aaron	 M.	 Frey,	 Attorney	 General,	 and	 Jonathan	 R.	 Bolton,	 Asst.	 Atty.	 Gen.	

(orally),	Office	of	the	Attorney	General,	Augusta,	for	appellees	Bureau	of	Parks	

and	Lands,	Maine	Public	Utilities	Commission,	Maine	House	of	Representatives,	

and	Maine	Senate

Christopher	T.	Roach,	Esq.	 (orally),	Roach	Ruprecht	Sanchez	&	Bischoff,	P.C.,	

Portland,	for	appellee	NextEra	Energy	Resources,	LLC

James	T.	Kilbreth,	Esq.	(orally),	David	M.	Kallin,	Esq.,	Jeana	M.	McCormick,	Esq.,	

Sara	 P.	 Cressey,	 Esq.,	 and	 Oliver	 Mac	 Walton,	 Esq.,	 Drummond	 Woodsum,	

Portland,	 for	 appellees	 Thomas	 B.	 Saviello,	 Christine	 M.	 Geisser,	 Wendy	 A.	
39

Huisch,	 Jonathan	 T.	 Hull,	 Theresa	 E.	 York,	 Robert	 C.	 Yorks,	 and	 the	 Natural

Resources	Council	of	Maine

Orlando	E.	Delogu,	amicus	curiae	pro	se

Dmitry	Bam,	amicus	curiae	pro	se

James	L.	Costello,	Esq.,	and	Jason	J.	Theobald,	Esq.,	Curtis	Thaxter	LLC,	Portland,	

for	 amici	 curiae	 former	 commissioners	 of	 the	 Maine	 Public	 Utilities	

Commission

Timothy	Norton,	Esq.,	and	Shea	H.	Watson,	Esq.,	Kelly,	Remmel	&	Zimmerman,	

Portland,	 and	 David	 S.	 Rosenzweig,	 Esq.,	 Keegan	 Werlin	 LLP,	 Boston,	

Massachusetts,	for	amici	curiae	NStar	Electric	Company,	Massachusetts	Electric	

Company	 and	 Nantucket	 Electric	 Company,	 and	 Fitchburg	 Gas	 and	 Electric	

Light	Company	

Elizabeth	A.	Boepple,	Esq.,	and	Sean	R.	Turley,	Esq.,	Murray	Plumb	&	Murray,	

Portland,	 and	 Paul	 W.	 Hughes,	 Esq.,	 and	 Andrew	 A.	 Lyons-Berg,	 Esq.,	

McDermott	 Will	 &	 Emery	 LLP,	 Washington,	 D.C.,	 for	 amici	 curiae	 Calpine	

Corporation,	Vistra	Corporation,	Holly	Bragdon,	and	Brian	Ahern.	

Stacy	O.	Stitham,	Esq.,	and	Eamonn	R.C.	Hart,	Esq.,	Brann	&	Isaacson,	Lewiston,	

for	amicus	curiae	City	of	Lewiston

Timothy	A.	Pease,	Esq.,	and	Jonathan	P.	Hunter,	Esq.,	Rudman	Winchell,	Bangor,	

for	amici	curiae	Susan	Austin,	Susan	Bernard,	Jon Connor,	Steve	Foster,	Peter	

Lyford,	Beth	O’Connor,	Nathan	Wadsworth,	Dustin	White,	Harold	Stewart	 III,	

and	Andre	Cushing

Brett	D.	Baber,	Esq.,	Lanham	Blackwell	&	Baber,	PA,	Bangor,	for	amicus	curiae	

Robert	J.	Weiner

Richard	 Anderson,	 Walter	 Anderson,	 Richard	 Barringer,	 Lloyd	 Irland,	 Ellen	

Pope,	Tom	Rumpf,	and	Sam	Zaitlin,	amici	curiae	pro	se

Business	and	Consumer	Docket	docket	number	BCD-CIV-2021-00058

For	Clerk	Reference	Only