State of Maine: State’s referendum process may need a closer look 



An election is meant to end public debate on candidates and issues. A campaign is waged, the voters have their say and what’s done is done. Now? Not so much. Recently, elections have raised more questions than answers. 

The 2020 presidential election is still up for grabs, according to some who do not believe the data before their very eyes, the failure of every election challenge and the attestations of election officials of both parties. 

In Maine, Question 1 to ban “high-impact electric transmission lines in the Upper Kennebec region” was no sooner passed than Avangrid, now the parent company of CMP (Central Maine Power), filed a lawsuit challenging the measure’s constitutionality. Its rationale? This referendum, passed by a process managed by the Legislature, overturns executive branch decisions that permitted the project. In other words, it is a violation of the separation of powers. 

Mind you, the Avangrid lawsuit is not without merit. Scale it down to your own backyard and see what you think. Suppose you want to build a garage on your property. You plow through the requisite process in your community, submitting plans to your local code enforcement authority, observing setbacks and height restrictions and paying the fees for necessary permits along the way. 

Your project is approved, so you order materials and pour the footings. As you begin to frame in the garage of which dreams are made, joyfully anticipating the coming winter when, for the first time ever, you will not have to chip ice from your car windows, your neighbors cry foul. Your garage will block their view of the river. It is adjacent to a popular riverfront park. It leaves your neighbor’s garden in shade. They sue to stop construction. 

Wait. You followed the established process to the letter. All your permits were granted, for which you paid a bucketload of money. You purchased the materials, which now sit in a heap in your dooryard. Is this fair? Can they do that? 

A 150-mile energy pipeline is a much more complicated proposal, but isn’t the principle the same? The project was approved by the state, and never mind whether the state erred when it permitted the use of public lands, it was approved. The company says it invested over $350 million in the pipeline since it was permitted. Whether you support the project or hate it, is this fair? 

What about the referendum process itself? Let’s go back to your garage. Suppose someone in your town initiated a local ballot question that ordered a stop to all home construction – garages, decks, patios – because your town is getting gentrified, it’s getting too built up. And suppose that referendum was retroactive to any project started in the last year. That’s you and your garage, buddy. 

The analogy is imperfect, of course, but there is an underlying debate to be had about referendums in general. They are not deliberative processes. They are supposed to address the “will of the people,” but the degree of confusion that surrounded questions 1 and 3, the “right to food” question, suggests that the will of the people might have been formed to a large degree by the vested interests of both proponents and opponents. 

Utility companies opposing the ban (supporting the corridor) spent about $70 million. Other utility companies whose interests are said to conflict with pipeline supporters spent about $30 million urging a “yes” vote to ban the corridor. That’s about $100 million that produced a debate that often seemed to cloud the question rather than elucidate it for voters. 

Surely there is a better way to go about this. Is the referendum process outgrowing its usefulness? Question 1 included statutory language in support of the initiative that imposes six new sections of law “governing the lease of public reserved lands and the construction of electric transmission lines,” according to Maine’s Attorney General’s Office. Now the Legislature we love to hate has the final say on these projects. 

Question 3, the “right to food,” included no such statutory language because it proposed an amendment to Maine’s constitution rather than a change to Maine law. The details of what it means and how it applies will be a matter for the courts to decide each time someone exercises their “right to grow, raise, harvest, produce and consume the food of their own choosing” in a way that someone else challenges. Will state and local regulations remain in effect, or are they all superseded by this constitutional amendment? 

Questions 1 and 3 are far from resolved. We will be wrestling with their outcomes for a good long time. That includes we, the people, who voted for them. It is not so much the outcomes, but the question of how well the referendum process served us in both cases. 

Jill Goldthwait worked for 25 years as a registered nurse at Mount Desert Island Hospital. She has served as a Bar Harbor town councilor and as an independent state senator from Hancock County. 

 

Jill Goldthwait

Jill Goldthwait

Jill Goldthwait worked for 25 years as a registered nurse at Mount Desert Island Hospital. She has served as a Bar Harbor town councilor and as an independent state senator from Hancock County.

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