Mo. courts, not regulators, may decide fate of 2 big projects

Source: Jeffrey Tomich, E&E News reporter • Posted: Wednesday, November 9, 2016

The stage is set for Clean Line Energy Partners LLC and landowner opponents to clash again before Missouri regulators over the $2.2 billion Grain Belt Express transmission project.

But both sides know the fate of the 800-mile high-voltage line through Missouri may ultimately rest on the outcome of court challenges involving a different transmission line already approved by the Public Service Commission.

That project is Ameren Transmission Co.’s 95-mile, $225 million Mark Twain transmission line running through the northeast corner of the state. The PSC approved the 365-kilovolt line this spring, granting Ameren eminent domain authority. But approval is conditioned on the company’s ability to obtain “assents” from each of five counties it crossed.

Four of the five counties subsequently voted to deny permission to construct the line across county roads, and the fifth tabled the issue. St. Louis-based Ameren responded with lawsuits against all five last month, saying the counties misused state law to deny the project.

Officials at Clean Line and members of landowner groups opposing the Grain Belt Express project are keeping a close eye on the Ameren cases, knowing the outcome could be pivotal to the future of what would be the state’s first merchant transmission line.

There’s no guarantee the PSC will approve the Grain Belt Express project. Last year, the commission voted 3-2 to deny Clean Line a certificate to build the line through Missouri (EnergyWire, July 2, 2015).

Even if the PSC approves the Grain Belt Express, it’s uncertain whether commissioners will attach the same condition requiring county approval that it did in the Ameren decision and how the courts will interpret the statute.

Ameren said the law requiring county assent is an administrative approval meant to ensure utilities adhere to applicable standards when constructing electric, gas, telephone and water lines.

“The question was whether we designed the line in a way that allows for the continued safe use of the roads in the five counties,” Maureen Borkowski, CEO of Ameren Transmission, said in a statement when the lawsuits were filed. “The information we provided to the counties confirmed that it does, and we believe the courts will agree. ”

Clean Line isn’t a party to any of the lawsuits. Not surprisingly, the company has a similar interpretation of the law.

“This is the first time we’re aware of in the state where an administrative approval is being used as a veto over the PSC’s jurisdiction,” said Mark Lawlor, director of development for the Grain Belt Express project.

By state law, jurisdiction over whether utility lines are needed and in the public interest and the siting of those lines is the PSC’s job, Lawlor said.

Also unsurprisingly, landowners opposing the Clean Line project have taken a similar view to that of the group opposing Ameren’s transmission line.

Jennifer Gatrel, a spokeswoman for Block Grain Belt Express, said obtaining road-crossing assents isn’t merely procedural and it should be up to the counties to decide whether a project meets requirements.

“It isn’t just a matter of checking boxes,” she said. “The county has authority to say yes or no.”

Mark Twain’s tangled web

The lawsuits filed by Ameren against the five rural counties last month are only the latest in a tangled web of litigation concerning the Mark Twain project.

The saga began in 2012 when Ameren sued the PSC claiming that the Federal Energy Regulatory Commission, not the state commission, had jurisdiction over the Mark Twain line because it was a regional transmission project that didn’t provide energy to Missouri.

A Missouri court disagreed. Soon after, Ameren filed with the commission, leading to an 11-month process that concluded with the PSC’s order in April.

Not long after the PSC gave its approval, a group of landowner opponents — Neighbors United Against Ameren’s Power Line — sought a rehearing of certain matters of the case. Turned back by the commission, the group challenged the order in the Missouri Western District Court of Appeals.

The appeal states that county assent is a prerequisite for PSC approval of the transmission project, not a post-approval condition.

The filing also says the PSC failed to take into account Missouri’s 2014 constitutional “right to farm” amendment by granting approval even though its order acknowledges that “farmland will be taken out of production and farming and ranching practices will be infringed.”

Ameren said it is confident that the appeals court will uphold the PSC’s order and that the company will more fully outline its legal position on the matter in a response filed with the court in coming weeks.

Several pages of the PSC’s 44-page order, in fact, detail the project’s impact on farming. It concludes that the transmission line will remove less than an acre of farmland from production.

While the easement for the line includes 523 acres of agricultural land, the only farmland removed from production would be that used for monopoly structures that support the line.

“There should be no impact on farming operations outside the easement area and, for that matter, only minimal farming-related impacts inside the easement area around the footings as farmers may continue to use the land under the transmission lines,” the order said.

Right to farm

Voters narrowly approved the controversial right to farm amendment in 2014. It passed by fewer than 3,000 votes out of 1 million votes cast statewide, making Missouri the second state to make farming and ranching a constitutional right after North Dakota.

The amendment was supported by the Missouri Farm Bureau and other agriculture groups. It was thought to be aimed at helping shield farming operations from federal regulations pertaining to issues such as genetically modified crops and animal welfare.

But since its passage, the vaguely worded amendment has been cited as a defense of a woman seeking to avoid being prosecuted for growing marijuana in her basement.

Arturo Hernandez, the Jefferson City, Mo.-based attorney representing Neighbors United, said his clients maintain that the impact of the Mark Twain line will be much greater than stated by the PSC.

But the amount of land removed from production isn’t an issue in the appeal. Whether it’s an acre or 1,000 acres or more, “the plain language reading of the statute is that the right to farm shall not be infringed on,” Hernandez said.

It’s unclear yet whether the right to farm issue will be raised in the Clean Line case when landowner groups submit testimony to the PSC.

The commission last month set a procedural schedule for the case, including a series of December public hearings to be conducted in all eight counties that would be crossed by the line. The commission also set dates for evidentiary hearing in March with a potential decision as soon as later in the spring.

Clean Line’s road ahead

Since its initial application was denied by the commission in April, Houston-based Clean Line has worked hard to address any concerns of the commission, Lawlor said.

“We took to heart the commission’s order in the last case,” he said.

The company struck an agreement with a public power agency representing dozens of Missouri municipal utilities to sell the cities 225 megawatts of long-term transmission service on the transmission line with an option for an additional 25 MW (EnergyWire, June 30).

Clean Line has also signed on dozens of supporters, led by an endorsement from Gov. Jay Nixon (D). The project has backing from diverse group of interests ranging from the Sierra Club to the AFL-CIO to the St. Louis NAACP, as well as corporate support from the likes of the Missouri Chamber of Commerce, General Motors and Nestle.

The landowner groups, informally known as Block Grain Belt Express, too, have been busy lining up support. They’ve urged members to pack next month’s public hearings, sign petitions, send written comments to the PSC and contribute money for legal expenses.

“The public hearings are an integral part of why the commission decided what they decided,” Gatrel said.

Like Neighbors United, the group fighting the Mark Twain project, landowners opposing the Grain Belt Express believe Missouri law gives county commissions the power to block the project by refusing to grant Clean Line the needed assent to cross county roads.

While some county elected officials have been vocal opponents of the Grain Belt Express project, at least one commissioner from Randolph County in north-central Missouri said he supports the project.

In testimony supplied to the PSC, Commissioner Robert Wayne Wilcox said the Grain Belt Express will bring affected Missouri counties jobs, taxes and access to clean wind energy. And Wilcox is not only a county official; the transmission line would cut across his farm.

“I am submitting this testimony to take a stand against the vocal minority that is opposed to this project,” he said in his written testimony. “I believe there are a lot of half-truths or just total falsehoods that area people are spreading.”

Gatrel disagrees and said a majority of county officials and landowners along or near the route disapprove of the project.

Gatrel said she is also worried about the precedent that would be set if the PSC gives Clean Line eminent domain authority. While the transmission line route was changed to exclude her family’s ranch, the next one might not be, she said.

“If we don’t get hit this time, we’ll get hit by the next project that goes through,” Gatrel said.