October 29, 2014
Maine

First Wind’s investment from Emera appealed again to top court

By Darren Fishell, BDN Staff | Bangor Daily News | Oct. 28, 2014 | bangordailynews.com

Houlton Water Co. and a group representing large power consumers wants Maine’s top court to throw out state regulators’ approval of a $333 million joint venture by Emera and First Wind that would help the wind developer finance a number of wind farms in Maine.

The municipally-owned utility has argued before the Maine Public Utilities Commission that the deal runs counter to state law related to deregulation of power production, which required utilities to get rid of most of their power generation capabilities.

The appeal filed Tuesday puts the deal back before the Maine Supreme Judicial Court, which in an earlier ruling found that the PUC did not adequately determine when a financial relationship between a power generator and transportation and distribution company – such as Emera Maine – provides an incentive for the utility to favor one power generator over another.

The case has broader implications for investment in power generation in Maine, mostly because it addresses to what extent, if at all, the Nova Scotia-based parent company of the former Bangor Hydro and Maine Public Service can invest in any power generation in the state. Central Maine Power Co. is, similarly, owned by the Spanish company Iberdrola.

“It could be coal or wind or oil generation,” said Alan Stone, the attorney representing Houlton Water. “It’s about the relation of generation to transmission.”

The initial appeal prompted the state’s Department of Environmental Protection to ask First Wind for new financial assurances for some of its projects now in some stage of construction or permitting. The company told the DEP at the time that the $333 million investment from Emera would support part of its projects in Oakfield, Hancock and Bingham.

John Lamontagne, a spokesman for First Wind, said Tuesday that the company did not have a comment on the appeal.

Stone said he and the Industrial Energy Consumers Group, led by attorney Tony Buxton, are both parties to the appeal filed Tuesday with the Maine Supreme Judicial Court.

In the notice of appeal sent to the PUC, Houlton Water said that it plans to challenge the PUC decision on six different points, including whether the decision violated the Legislature’s intent in deregulating power production, whether the PUC went beyond its bounds in making certain stipulations in the case and whether the evidence in the case satisfied an earlier ruling requiring further scrutiny from regulators.

That question involves asking whether regulators’ approval of the deal was in line with one paragraph in Maine’s deregulation law that took effect March 1, 2000, stating that “an investor-owned transmission and distribution utility may not own, have a financial interest in or otherwise control generation or generation-related assets.”

The wind energy development partnership first approved in 2012 involves Emera Inc. subsidiary Northeast Wind taking a 49 percent stake in the company JV Holdco, which would have ownership of certain First Wind projects. The Ontario-based Algonquin Power & Utilities Corp. also would have a stake in those projects.

The process ahead will involve both sides filing briefs to the court, with Houlton Water and Industrial Energy Consumers Group filing first. After those filings, the PUC and perhaps other parties could deliver formal responses.

The court could decide the appeal based on that written record or ask to schedule oral arguments.

The length of that proceeding could extend beyond the timeline for changes at the PUC, where chairman Tom Welch is retiring at the end of this year and Commissioner David Littell’s term is up in March. If any part of the decision were sent back to the PUC, it could face review by different commissioners.

But Stone said he’s asking the court to reverse the PUC decision rather than remanding it to the commission for reconsideration.