Could Maine's Hancock County hold a county-wide vote on whether to allow a proposed cogeneration power plant?

Plain-English summary

Representative Glenith Gray asked the Attorney General whether Hancock County could put a question on a county-wide ballot: should the proposed AES-Harriman Cove, Inc. cogeneration power project in Bucksport be built? Attorney General Michael Carpenter said no, and laid out the reasoning in some depth.

The reasoning has three steps.

Step one: counties have no constitutional referendum power. The Maine Constitution authorizes three kinds of referenda: the statewide "people's veto" (Article IV, Part 3, Section 17), the statewide direct initiative (Section 18), and city-level initiatives and people's vetoes (Section 21). The constitution does not mention counties. So counties have no inherent referendum power.

Step two: counties only get specific statutory authority. The Legislature has, in some specific cases, authorized particular county referenda. Examples include 30-A M.R.S.A. § 122 (prohibiting erection of a county building outside the county seat without county-voter approval) and P.& S.L. 1989, ch. 63 (authorizing the Cumberland County jail bond referendum). But the Legislature has not enacted a general statute giving counties referendum power, and has not authorized Hancock County specifically to refer the AES-Harriman Cove project to a vote.

Step three: counties cannot referendum issues outside their authority anyway. The AG surveys Maine cases (Burkett v. Youngs, 135 Me. 459 (1938), on the Bangor city budget; Farris ex rel. Anderson v. Colley, 145 Me. 95 (1950), on Portland police salaries) and out-of-state cases (Fossella v. Dinkins (N.Y.); Gumprecht v. City of Coeur d'Alene (Idaho); Alaska Conservative PAC v. Anchorage; State ex rel. Rhodes (Ohio, Viet Nam war referendum); Atlantic City Housing (N.J.)) holding that political subdivisions cannot referendum issues outside their authority. The single contrary case (Farley v. Healey, 431 P.2d 650 (Cal. 1967), Viet Nam war referendum) is distinguishable because San Francisco's charter expressly authorized "any declaration of policy."

Two New York and Idaho decisions also flag the public-funds concern. Ordering a referendum on an issue the political subdivision has no power to act on would, in those courts' words, involve taxpayers "in a useless expense." This is an additional reason to deny the referendum.

Applied to Hancock County: the county has no legal authority over the AES-Harriman Cove cogeneration project. Permitting and oversight authority rests with state regulators (Maine Board of Environmental Protection and others) and with the relevant municipal governments (the Town of Bucksport, where the project would sit). The county is not a permitting authority. Even if it had referendum authority generally (which it does not), it could not referendum a project over which it has no jurisdiction.

The same principle, that a referendum may not be held on a subject beyond the relevant body's authority (as Farris v. Colley holds), was applied to citizen initiatives later in the year in the Department's August 5, 1991 opinion. [[1991-08-05-citizen-initiative-proposing-to-limit-the-power-of-the-legis]]

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Maine's constitution carves out referendum authority by level of government. Article IV, Part 3, Sections 17 (people's veto), 18 (direct initiative), and 21 (city referendum) are the only constitutional referendum provisions. There is no county referendum provision.

The Legislature has authorized specific county-level referenda by statute. 30-A M.R.S.A. § 122 conditions out-of-county-seat building construction on voter approval. P.& S.L. 1989, ch. 63 was a one-time authorization for Cumberland County jail bonds. These authorize specific narrow referenda. They do not establish a general county referendum power.

Maine cases on the limit of referendum power within a political subdivision's authority:

• Burkett v. Youngs (1938): refused to compel Bangor to submit its city budget to referendum because state law controlled many budget items, putting them outside "municipal affairs."
• Farris v. Colley (1950): refused to compel Portland to submit police salaries to referendum because state charter law controlled. Quoted: "The proposed ordinance, if adopted, would be void. It is not a proper matter for submission to the voters."

Out-of-state authority is consistent with the Maine cases. The doctrine is sometimes called the "no advisory referendum" rule, on the theory that referenda must be tied to a legally cognizable government action that can flow from the vote, not merely to a poll on public preference.

The AES-Harriman Cove project itself was a proposed cogeneration plant in Bucksport. The opinion does not address the project's merits.

Common questions

Could the Legislature authorize a Hancock County referendum?
Yes. The opinion is explicit: counties can hold referenda only with specific legislative authorization. If the Legislature passed a statute authorizing the referendum, Hancock County could hold it. Whether the project would be affected by the outcome would still depend on what the statute said.

Could Hancock County hold an "advisory" referendum that doesn't actually decide anything?
No, under the opinion's reasoning. The cases cited (especially the New York and Idaho cases) treat advisory polling as the same problem: a political subdivision committing public funds to a vote on an issue it has no authority to act on. The "no advisory referendum" rule applies whether the referendum is labeled binding or advisory.

Could the Town of Bucksport hold a referendum on the project?
Possibly, if the question fell within Bucksport's municipal-affairs authority. But state regulatory authority over major energy projects (BEP permitting, Public Utilities Commission siting) limits how much a municipal vote could actually change. The opinion does not analyze the municipal question.

What's the practical upshot for citizen groups opposing a project?
They would need to engage at the actual permitting forums (state environmental, municipal zoning) or persuade the Legislature to either authorize a referendum or change the regulatory regime. A county referendum is not a viable path.

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1991/ag_19910122.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

State of Maine
Department of the Attorney General
State House Station 6
Augusta, Maine 04333

January 22, 1991

Representative Glenith Gray
P.O. Box 254
Sargentville, ME 04673

Dear Representative Gray:

You have inquired whether it is legally possible for the Hancock County Commissioners to authorize a county-wide referendum on the question of whether the proposed cogeneration power project of the AES-Harriman Cove, Inc., Co. in Bucksport, Maine should be built. For the reasons which follow, it is the Opinion of this Department that, absent specific legislative authorization, the counties of Maine cannot conduct county-wide referenda.

The concept of a referendum appears in three places in the Maine Constitution. Article IV, Part 3, Section 17 contemplates that within 90 days after the recess of the Legislature the voters of the State may compel a state-wide referendum (known as the "people's veto") on any act passed by that Legislature, upon the submission of a petition containing a certain number of signatures. Article IV, Part 3, Section 18 provides that the voters of the State may directly initiate legislation by submitting a similar petition to the Legislature, which must then either enact the proposed legislation as written or send it to state-wide referendum. Finally, Article IV, Part 3, Section 21 provides that the city council of any city may provide by ordinance for the direct initiative or people's veto of legislation. The Constitution, therefore, does not contemplate the conduct of referenda by the counties of the State.

Notwithstanding the absence of any constitutional provision relating to counties, however, the Legislature has, from time to time, authorized the conduct of county referenda. See, e.g., 30-A M.R.S.A. § 122 (prohibiting the erection of a county building outside of the county seat without the approval of a majority of county voters voting at municipal elections); P.& S.L. 1989, ch. 63 (authorizing county-wide referendum for bonds for construction of Cumberland County jail). The Legislature has not, however, enacted any statute giving specific authority to counties to conduct referenda generally, nor has it passed legislation authorizing Hancock County to conduct a referendum on the specific matter which gives rise to your inquiry. The question which that inquiry raises, therefore, is whether such specific authorizing legislation is necessary.

While no cases can be found addressing the legality of the unilateral action by the legislative body of a political subdivision of a state to hold a referendum on any particular question, the issue of the authority of such bodies to conduct referenda has arisen frequently in the context of proposed initiated local legislation. In these circumstances, the typical scenario is that a group of voters, utilizing a local initiative provision, present to the legislative body of a political subdivision a proposal for a referendum on a subject over which the body in question has no legal authority to take action. The legislative body then refuses to authorize the referendum, whereupon the initiators institute legal action seeking to have the courts compel the conduct of the referendum. Generally speaking, the courts have not been sympathetic to such cases.

In Maine, two such efforts have been rebuffed by the Supreme Judicial Court. In 1938, voters in the City of Bangor sought to compel the City Council to send the city budget out to referendum. The Law Court, noting that the power to hold a municipal referendum under Article IV, Part 3, Section 21 of the Maine Constitution was limited to "municipal affairs", refused to order the referendum on the ground that many of the items of the city's budget were controlled by state law and therefore were not purely "municipal" in nature. Burkett v. Youngs, 135 Me. 459 (1938). In 1950, the Court similarly refused to order a referendum sought by voters of the City of Portland concerning the salaries to be paid to patrolmen, because the matter had already been addressed by the city's charter, which had been enacted by the State Legislature, and was therefore beyond the City Council's power to amend by ordinance. Farris ex rel. Anderson v. Colley, 145 Me. 95 (1950). In so ruling, the Court concluded: "The proposed ordinance, if adopted, would be void. It is not a proper matter for submission to the voters." Id. at 102.

Similar results have obtained elsewhere in the country. Most notably, in two of these cases, the courts noted that were they to order the proposed referendum, in the absence of any legislative authority on the part of the political subdivision in question to take action, they would be countenancing an unauthorized use of public funds. In Fossella v. Dinkins, 494 N.Y.S.2d 1012, 1017-20 (N.Y. App. Div. 1985), the Appellate Division of the New York Supreme Court summarized prior New York case law as establishing the principle that "[i]n the absence of an express statutory authority, an advisory referendum by a city is not authorized," id., at 1018, and observed that these cases "strongly suggest that the use of a referendum to obtain advisory opinion polls is impermissible." Id., at 1020. Likewise, the Supreme Court of Idaho held that to authorize an election where the political subdivision in question had no authority to take the action required would "involve the taxpayers ... in a useless expense." Gumprecht v. City of Coeur d'Alene, 661 P.2d 1214, 1215-16 (Idaho 1983) citing Perrault v. Robinson, 159 P. 1074, 1075 (Idaho 1916). See also Alaska Conservative Political Action Committee v. Municipality of Anchorage, 745 P.2d 936 (Alaska 1987); State ex rel. Rhodes v. Board of Elections of Lake County, 230 N.E.2d 347 (Ohio 1967) (Ohio law found not to authorize referendum on Viet Nam war); Atlantic City Housing Action Coalition v. Deane, 437 A.2d 918 (N.J. Super. 1981).

The only case arguably to the contrary of this authority is the divided opinion of the Supreme Court of California in Farley v. Healey, 431 P.2d 650 (Cal. 1967), in which that Court directed the City of San Francisco to hold a public referendum, at the request of initiators, on the advisability of the Viet Nam war. As the New York Supreme Court noted, however, in refusing to direct the City of New York to hold a similar referendum, the charter of the City of San Francisco provided that "Any declaration of policy may be submitted to the electors." Silberman v. Katz, 283 N.Y.S.2d 895, 900 (N.Y. Sup. Ct. 1967). Thus, the California case can be viewed as simply holding that the referendum in question was statutorily authorized. In any event, it is clear that, as a general rule in California law, such authorization is required. Simpson v. Hite, 222 P.2d 225 (Cal. 1950).

In view of the foregoing authority, both within and without Maine, it is the Opinion of this Department that, were it to be faced with the question, the Supreme Judicial Court of Maine would not permit the legislative body of a political subdivision of the State, such as a board of commissioners of a county, to authorize a referendum on a subject over which the county had no legal authority, in the absence of specific authorization from the State Legislature. With regard to the specific project which prompted your inquiry, Hancock County has no legal authority, the Legislature having entrusted such authority exclusively to various state and municipal regulatory bodies. In the absence of such authority, and in the absence of any constitutional or legislative provisions authorizing the conduct of a referendum, the county would have no legal ability to conduct the referendum.

I hope the foregoing answers your question. Please feel free to reinquire if further clarification is necessary.

Sincerely,

Michael E. Carpenter
Attorney General

MEC: SW

cc: District Attorney Michael Povich