LD 2174--Unconstitutional Power Grab?
This bill in the Environmental Committee aims to infringe Home Rule by voiding Solar Ordinances and Wind Ordinances
This bill, proposed by Rep Chris Kessler out of Southern Maine (a very different place from Rural Maine), is in the Committee for Environment and Natural Resources (ENR.) Typically we watch EUT (Energy, Utilities, and Technology) because that is where most of the bills about energy legislation on rural landscapes come through. But this one ended up in ENR.
The public hearing is Wednesday, February 25, at 1pm in Cross Building Room 216. (Use your voices!)
The newest amendment, still not available on the Maine website, explicitly infringes Home Rule, by voiding municipal ordinances that are more stringent in their regulation of solar, wind, and energy storage than the state-level statutes. (See end of post for the actual current amendment)
(A solar industry insider tells us that they estimate over 60% of Maine municipalities have a solar ordinance—and that’s just since 2018. So this is a whole lot of infringement. How many volunteer hours went into those ordinances?)
But wait!
We are in second session of the legislature. According to the ACLU, second session can only be used for these sorts of bills:
budgetary matters,
the governor's legislation,
emergency legislation approved by the Legislative Council,
legislation resulting from authorized studies,
and legislation initiated by direct initiative petition of the electors.
(Now remember, we are volunteers and not lawyers, so we are just reading the plain language of the text and using basic logic. The ACLU language mirrors what Article IV, Part 3, Section 1 of the Maine Constitution says.)
And, according to the Maine Constitution (2023 version) Emergency Bills cannot be used to infringe home rule (Article IV Part 3 Section 16)
So is this one of the permitted types of second session legislation? Let’s go through the list:
Is it a budgetary matter?
The words “budget”, “$”, “dollar”, “dollars”, or “finance” or “financial” do not appear in the draft.
Is it governor's legislation?
Not in any explicit sense. The word “governor” does not appear in the bill draft.
Is it emergency legislation approved by the Legislative Council?
Well, isn’t this interesting. The original bill, which you can still see here, was Emergency Legislation. The new amendment has the emergency preamble removed.
Is it legislation resulting from authorized studies?
The words “study” or “studies” does not appear in the bill.
Is it legislation initiated by direct initiative petition of the electors?
Reading the bill, I see no evidence of a direct initiative petition, unless you call a law firm calling up a rep and proposing language a “direct initiative petition.” Somehow I don’t think that is what is meant.
To summarize:
This bill was approved by Legislative Council as an Emergency Bill. We’re in second session, which only allows certain types of bills. Emergency bills can’t be used to erode Home Rule. So it looks to me like this is an emergency bill that erodes home rule, which is unconstitutional.
Again, not a lawyer. Just reading the language.
