JEFFERSON CITY, Mo. – The latest hearing concerning the Grain Belt Express wind transmission project could have far-reaching ramifications for the Missouri Public Service Commission.
The PSC on Thursday heard oral arguments from all of the parties involved in the matter of Grain Belt’s request for a Certificate of Convenience and Necessity (CCN) to begin construction and installation on transmission lines spanning through northern Missouri.
Several groups appeared before the commission on Thursday, arguing in favor of granting a CCN to Grain Belt. At the heart of this hearing was the question about the PSC’s authority and the impact of a recent decision by the Missouri Court of Appeals on a different energy project involving Ameren and the Mark Twain Transmission project. The commission had asked for direct input on the effect that decision may or may not have on the Grain Belt Express project from the parties involved.
That court ruling could prove to be the undoing of the Grain Belt Express, as the Court of Appeals stated that Ameren needed to get county assent before PSC approval, as per § 229.100, RSMo.
The PSC staff’s position, which was presented before the commission on Thursday morning, stated that the commission should dismiss the case as Grain Belt has failed to prove that it has the consent of Caldwell County to cross the county’s public roads and highways.
“The PSC is a creature of statute and is subject to statutes. The county has authority over the county and county roads,” David Linton said, speaking on behalf of Show Me Concerned Landowners. “The commission has no authority to run the business of the community or interpret the law. The authority of the commission is to grant its permission and approval.”
He said that the facilities are not devoted to public use, but to a certain select group of customers.
“If we were starting here from scratch, that might, at first blush, sound appealing. As you recall in the ATXI case, they were also applying for a line certificate and made the same arguments that Grain Belt made here today. It is in essence and substance the same argument,” Paul Agathen of the Missouri Landowners Alliance said. “And that was rejected in the ATXI case. They have raised no new arguments in this case.”
But the other groups present at the hearing argued that the PSC should grant the CCN, citing a number of reasons to support their case.
While appearing before the commission, Karl Zobrist of Dentons, on behalf of Grain Belt, said that the Court of Appeals decision actually sets a “clear path” for the commission to grant a CCN.
He argued that by not doing so, it should invalidate a number of other projects throughout the years, while also giving up their own authority.
“As many as two county commissioners would have the power to block you from making a decision,” Zobrist said. “The commission would be voluntarily giving up the jurisdiction given to you by the General Assembly.
“Preventing this project from moving forward would announce to the world that investments designed to bring low-cost energy and other benefits to Missouri customers are now subject to the politics of a few county commissions, and that developers and investors contemplating infrastructure projects should not come to Missouri. Such an outcome would be contrary to the precepts under which this Commission has long operated, contrary to Missouri law, and inconsistent with good government and sound public policy.”
A joint statement from the NRDC, Sierra Club, Renew Missouri, IBEW Unions, Wind on the Wires, and The Wind Coalition stated that the “Grain Belt Express has met the Tartan criteria, and, given the stakes for Grain Belt Express, its investors and the municipal utilities that wish to subscribe to the line, and the public interest in clean and affordable power, the Commission should grant the CCN or make clear that it will grant it if the resolution of the county assent issue permits. A municipality may have unfettered discretion to deny a franchise to serve its territory, but the same does not apply to a county. A county may not deny assent just because it comes under political pressure from landowners. Any denial must have a basis in the county’s highway regulations. The most troubling aspect of this case is the possibility that a single county could torpedo a four-state transmission line for which Grain Belt Express already has rate approval from FERC.”
The real issue all comes down to the PSC’s discretion in issuing certificates. There are two types that can be granted, with each having distinct requirements in the law: line certificates and area certificates.
In the case of an “area” certificate, where an applicant is requesting the ability to provide retail service to an area, the appellate court ruled that certain local permits must be obtained prior to the PSC granting approval of the project. Line certificates do not have anything in the law that would make local permits a prerequisite to PSC approval, but opponents say the court decision should apply to both. Supporters of the Grain Belt project argue that it only applies to area certificates. Grain Belt has applied for a line certificate.
While a final decision on the matter could a long time coming, the PSC’s decision in this matter could ultimately decide how much power and jurisdiction they want in this types of cases from here on out.
If they choose to apply the appellate court decision to both types of certificates, then all future lines would be put in the hands of the counties.
The PSC, if ruling otherwise, could specify that “line” certificates are different from “area” certificates and say that the local approval is only a prerequisite when the utility is asking to provide retail service. Local county approval is still required, but not as a prerequisite prior to the PSC’s approval.