Due Process, Retroactive Laws, and Vested Rights in Development Projects
Last week marked the close of a major legal dispute under Maine law regarding the applicability of retroactive laws to development projects already under construction. The issue in the case was one of fundamental fairness: if a person obtains a valid permit under existing law and then in good faith expends significant sums building a project based on that permit, can the permit later be taken away based on newly enacted requirements? The case, NECEC Transmission LLC v. Bureau of Parks and Lands, provided a definitive answer—under the Maine Constitution, due process prevents such an outcome.
Full disclosure: this author, together with colleagues at Pierce Atwood including John Aromando, Sara Murphy, and Jared des Rosiers, obtained this first-of-its-kind ruling on vested rights.
The retroactive law at issue was a citizen initiative adopted in 2021 that purported to bar completion of the New England Clean Energy Connect (or “NECEC”) project, a