JEFFERSON CITY, Mo. – It’s been a month since the Missouri Public Service Commission denied the Grain Belt Express’ application for a certificate of convenience and necessity for the third time, but Clean Line Energy isn’t done by any means.
This week, the PSC is scheduled to review an order regarding the company’s application for a rehearing.
The company contends that the PSC’s decision requires a rehearing as they applied a court decision they argue holds no water in this case.
They argue that the commission may lawfully issue a line CCN, saying that the PSC “needlessly and improperly” looked to the recent decision from the Court of Appeals in “Neighbors United Against Ameren’s Power Line v. PSC” for guidance.
They say that reading of the language doesn’t limit the PSC’s ability to issue a CCN in this case and that it doesn’t impact the PSC’s ability to grant the waiver or variance that Clean Line sought in its June 29 motion.
One argument as to why the PSC cannot grant a CCN has been a similar case involving ATXI’s proposed Mark Twin transmission line. But Clean Line contends this case is factually different, as ATXI did not request a line certificate like the Grain Belt Express did.
And as a result, the PSC granted a non-specific CCN without indicating whether a line or area CCN was being granted. They said the Court of Appeals failed to address the distinctions and issued an opinion that only applies to certain CCNs. The decision could have really broad and problematic policy implications for the state, and the PSC asked the Supreme Court to look at it, but they never took it up.
“It’s an unfortunate decision by the courts. Frankly, they just got it wrong,” Mark Lawlor, Vice President, Development at Clean Line Energy, said. “And it’s not very often that you would just call out a Court of Appeals for just missing this, but that’s what happened here. And the PSC made the argument that because of the court decision, they could not distinguish it from the ATXI case.”
“What was not present in the court’s decision was an acknowledgment of the distinction between a line and an area franchise certificate. And they’re two entirely different things. This court decision did not address and further made this leap that the requirement for an area certificate is that for a line certificate, and that’s not what the statute requires.”
Clean Line also contends that, as the proposed project would cross multiple states, the PSC’s conclusions in the case “violate the dormant principles embodied in the Commerce Clause.”
That clause restricts state intrusion on the flow of interstate commerce, but as the company’s application points out, even if the law does not “overtly discriminate against interstate commerce,” the law will be stricken if the burden imposed on interstate commerce is “clearly excessive” in relation to putative local benefits.
While the PSC has the order before them on Tuesday morning, what the commission does will potentially decide what Clean Line does next. If the PSC would grant a rehearing, obviously the company would begin preparing once again for the case. If the commission strikes down their application, then they would appeal the decision with the courts. It’s expected that the commission will decline a rehearing, as they sided with the Court of Appeals, saying the decision had tied their hands. It would then be up to the courts to once again choose to take up the case.
Benjamin Peters was a reporter for The Missouri Times and Missouri Times Magazine and also produced the #MoLeg Podcast. He joined The Missouri Times in 2016 after working as a sports editor and TV news producer in mid-Missouri. Benjamin is a graduate of Missouri State University in Springfield.