Even though four of its five members stated unequivocally that a proposed wind energy transmission line would be in the public interest, the Missouri Public Service Commission on Wednesday said it could not grant Clean Line Energy Partners a permit for development of the Grain Belt Express.
The commission said it was constrained by a recent state appeals court ruling in a different transmission case.
A lawyer representing clean-energy interests said that another appeal is a near-certainty. Mark Lawlor, Clean Line’s vice president for development, wasn’t quite as definite.
“I think it’s sort of placed the burden on Clean Line to go ask the courts to sort this out,” he said. “Because of this legal quagmire, the project can’t move forward. It’s a broken system. It’s a problem for Missouri.”
Dispute over interpretation of law
This was the commission’s second outright rejection of the project, which would carry about 4,000 megawatts of wind energy from western Kansas to Missouri and points east. Further development of the substantial wind resources in the Great Plains depends on more transmission capacity to carry the energy to large concentrations of customers hundreds of miles away. The 780-mile line would have crossed Missouri and Illinois and terminated near Indiana’s western border.
Four of the commission’s five members made clear in a concurring opinion that they see value in the proposed project. They cited some benefits it would provide: the lowest-cost resource available, and savings to customers along the route who were going to receive some of the power. It’s estimated that Missouri customers receiving Clean Line’s wind energy would save about $10 million annually on their electricity bills. About three dozen utilities across the state have committed to purchasing about 100 megawatts.
And yet, the commissioners wrote, “Unfortunately, because of the structure of this Commission and the legal structure in this state we were unable to act in the public interest.”
The commission said that it had no choice but to follow the ruling of the Missouri Court of Appeals, Western District. It essentially ruled in another case, Neighbors United Against Ameren’s Power Line vs. Public Service Commission of Missouri and Ameren Transmission Company of Illinois that a transmission line cannot gain state regulatory approval until it has gained the assent of county commissions all along the route. Clean Line had failed to get the nod from one of the counties along the route.
That essentially gives one county commission authority that supercedes that of a state government and the federal government, said James Owen, executive director of Renew Missouri. And that, he claims, is a misreading of the state law.
“When I read that statute, it says to me that counties need to be giving their approval to the fact that, ‘When power lines go over our roads, that is structurally sound and will keep our streets passable.’
“It’s not as though the county commissions can have this arbitrary veto authority.”
After the Public Service Commission made that ruling previously, the state appeals court affirmed it, and then the state Supreme Court declined to rule on the interpretation of the law.
“I’d say all of those people bear some responsibility for what’s happened here,” Owen said. When it was deliberating the decision it formally made on Monday, the commission asked for legal briefs “on whether they should follow that case. We worked on a brief … we were very clear that they should not.”
‘David and Goliath’
Those opposed to the project are, in a word, “ecstatic.”
Speaking for landowners along the route, Jennifer Gatrel said, “For us, it’s been four years of constant work and worry. It’s been a very David and Goliath type of battle. We have in every possible way told them ‘No.’ They have treated the landowners terribly. We will never willingly do business with them. We are hoping that they understand that farmers think in the long term, and we will fight this battle as long as we have to, to preserve our property rights.
“We are hoping the nightmare will finally be over.”
That is not likely. Lawlor said there are a few options that he and his staff are evaluating. One is to essentially take the case back to the state appeals court – the same body that took the position that in part has led to this “quagmire,” as Lawlor called it.
There is actually a chance that the same court that ruled against Clean Line’s interests could see things differently, according to Renew Missouri’s James Owen.
“There are aspects of this that haven’t been presented before,” he said. “We can point out things that haven’t been thought about.”
The legislature is another avenue, according to Lawlor. He suggested they might want to study the pertinent law and ask themselves, “Is this what we meant to do here? Is this what we want, to have county commissions decide which infrastructure moves forward in the state?
“It would be in legislature’s interests to sort this out.”
There is also a federal avenue through which Lawlor said private developers can partner with the Department of Energy to develop infrastructure.
But Lawlor claims that the issue goes beyond Clean Line’s desire to build a high-voltage transmission line across Missouri. The new administration of Gov. Eric Greitens “has made a point of saying, ‘Missouri is open for business, we want investment in our state.’
“This decision runs counter to that.” As it now stands, he predicted that, “Other investors are going to look at Missouri and this will enter into their decision as to whether this is a good place to invest money.”