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Conservation Law Foundation v. LePage

Superior Court of Maine, Cumberland

July 20, 2018

PAUL R. LePAGE, in his capacity as Governor of the State of Maine Defendant MAINE RENEWABLE ENERGY ASSOCIATION Plaintiff
PAUL R. LePAGE, in his capacity as Governor of the State of Maine

          Plaintiffs' Counsel: CLF: Phelps Turner, Esq. - Lead Sean Mahoney, Esq. Emily Green, Esq. MREA: Kevin Decker, Esq. - Lead Katherine Joyce, Esq.

          Defendant's Counsel: Gerald Reid, AAG - Lead Susan Herman, AAG Margaret Bensinger, AAG


          A. M. Horton, Justice.

         Before the court are the following motions:

         • Defendant's Motion to Dismiss the complaint filed by Plaintiff Conservation Law Foundation (CLF)

         • Defendant's Motion to Dismiss the complaint filed by Plaintiff Maine Renewable Energy Association (MREA) pursuant to M.R. Civ. P. 12(b)(1).

         • Plaintiff MREA's Motion for Summary Judgment, joined in by Plaintiff CLF, and opposed by Defendant LePage, with a cross-motion for summary judgment in his favor.

         Oral argument was held July 13, 2018.


         a. The parties

         Conservation Law Foundation (CLF) is a regional non-profit organization dedicated to the conservation, management, and development of New England's natural resources. (CLF Compl. ¶ 5.) As part of its advocacy, CLF engages with attorneys and policymakers concerning the design and operation of New England's electric grid, energy efficiency, reducing greenhouse gas emissions, and the sustainable development of renewable energy sources. (CLF Compl. ¶ 6). CLF has also participated in task forces considering the impacts of wind energy development in Maine and potential development of renewable energy in the Gulf of Maine. (CLF Compl. ¶ 6.)

         Plaintiff MREA is a Maine non-profit corporation that functions as a professional trade association of renewable power producers and suppliers, as well as supporters of the renewable power industry in Maine. (MREA Compl. ¶ 4.) As such, MREA actively advocates for renewable energy generation in Maine and participates in the development of Maine's renewable energy policy. (MREA Compl. ¶ 5.) MREA's membership of approximately 35 includes wind energy producers actively engaged in developing, or supporting the development, of wind energy projects. Several MREA members intend to seek state permits for wind energy projects in areas of Maine within the scope of the Executive Order that has been challenged in these consolidated cases.

         Defendant Paul R. LePage ("Governor LePage") has been Governor of the State of Maine since 2011. His current term is scheduled to expire when his successor takes the oath of office Wednesday, January 2, 2019. See Me. Const, art V, § 2.

         b. Executive Order 2018-002

         On January 24, 2018, Governor LePage issued Executive Order No. 2018-002. (CLF Compl. ¶ 48.) The Executive Order establishes the Maine Wind Energy Advisory Commission "for the purposes of (1) studying the economic impact of potential Wind turbines in the Areas, (2) Assessing the economic impact of expedited wind rules and procedures, (3) Assessing and developing recommendations in a written report." (CLF Compl. ¶ 49.) The "Areas" are defined as "the scenic vistas and pristine waters of Western Maine, our coast and coastal islands, and our significant avian migratory pathways . . . ." (CLF Compl. ¶ 51.)

         The Executive Order calls for the Commission to "deliver a report summarizing its recommendations to the Governor when finished," but does not set a date or deadline for the delivery of the report. The Executive Order also says that the recommendations of the Commission are to be "formalized upon the approval of an Executive Committee," consisting of the commissioners of the Departments of Environmental Protection and Economic and Community Development, the director of the Governor's Energy Office, and other officials.

         The provision of the Executive Order that has generated this litigation consists of the following single sentence: "I order that no permits related to wind turbines are issued in the Areas until the report is issued in writing." (CLF Compl. ¶50.)

         c. The Plaintiffs' Claims

         On January 30, 2018, CLF filed a complaint seeking a declaration that the Executive Order is void due to its contravention of the separation of powers doctrine as set forth in the Maine Constitution. (CLF Compl. ¶ 64.) Specifically, CLF asserts in its complaint that the Maine Legislature has occupied the field of wind power permitting, and that the Order conflicts with laws and policies enacted by the Legislature by purporting to order that no permits are to be issued until the Wind Energy Advisory Committee releases its report. (CLF Compl. ¶¶ 60, 63.)

         MREA filed its complaint February 16, 2018. Its complaint makes similar assertions to those in the CLF complaint-that the Executive Order conflicts with duly enacted laws and policies governing the issuance of permits for wind turbine facilities. (MREA Compl. ¶¶ 44-45.)

         Both complaints seek declaratory relief in the nature of a declaration that the Executive Order is unconstitutional because it usurps the Legislature's authority, and is therefore void. In addition, Plaintiff MREA's motion for summary judgment asserts that it is entitled to judgment as a matter of law on that issue. MREA's motion is supported by affidavits from its executive director and representatives of three MREA members that contend that the members have wind energy projects in the works that are being harmed or threaten to be harmed by the Executive Order's moratorium on permits.

         d. Governor LePage's Response

         Through his counsel, Governor LePage has acknowledged that the Executive Order cannot override statutory provisions regarding the issuance of wind turbine permits. Current law provides for expedited review by the Maine Department of Environmental Protection (DEP) of grid-scale wind energy developments. See 35-A M.R.S. §§ 3451-59. A separate statute requires the DEP to issue a decision on a grid-scale wind energy development application within 185 days, except when the DEP Commissioner holds a public hearing, in which case, the deadline for decision is 270 days. See 38 M.R.S. § S44(2-A)(A)(1).

         Governor LePage concedes that he has no constitutional or legal authority to override the statutory deadlines for action on wind energy permit applications by delaying the issuance of permits to wind energy projects that meet permitting requirements beyond those deadlines. However, he argues that the sentence at issue is "ambiguous" rather than illegal, because his intent was to delay the issuance of permits to the extent permitted by law, but not beyond that extent. If that was the intent, the court sees no reason why the Governor cannot direct that permits not be issued until either the issuance of the Commission report or until the statutory deadline for action on wind turbine permit applications, whichever comes first.

         Governor LePage has submitted an affidavit from Steven McGrath, director of the Governor's Office of Energy Independence. Mr. McGrath's affidavit indicates that he will serve as chair of the Commission established by the Executive Order and is in the process of convening an initial meeting of the Commission.

         The obvious import of the McGrath affidavit is to suggest that the Commission's report will be issued without undue delay, although the affidavit does not predict any date by which the report will be issued.

         Governor LePage has also submitted the affidavit of Mark Bergeron, director of the bureau within the DEP that handles applications for wind energy projects. Mr. Bergeron's affidavit says that none of the MREA members who claim that their projects have been harmed by the Executive Order has applied for a permit. The affidavit also says, in effect, that the bureau intends to ignore the plain meaning of the sentence in question, and will process applications for wind energy projects according to the applicable statutes, whether or not the Commission has issued its report.


         The sentence in the Executive Order that the Plaintiffs object to does not seem ambiguous-on its face, it appears to conflict with the DEP statute. Plaintiffs argue that, if the sentence does not accurately reflect the intent behind the Executive Order, what is at least an ambiguous, if not unlawful, provision should be clarified. Instead, Governor LePage has moved to dismiss MREA's and CLF's claims on several grounds.

         Governor LePage advances three arguments in support of his motion to dismiss both of these actions.- (1) the complaint in each fails to plead a cause of action, (2) the Plaintiffs' allegations of harm are insufficient to show standing, and (3) there is no justiciable case or controversy that is ripe for adjudication.

         Although presented as distinct arguments, the three asserted grounds for dismissal are in reality intertwined.

         a. Cause of Action

         Governor LePage contends that both Plaintiffs' complaints are deficient because they fail to aver the cause of ...

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