Grain Belt Express Clean Line files appellate briefs in Missouri court regarding commission order

Clean Line Energy PartnersGrain Belt Express Clean Line on Nov. 28 filed appellate briefs with the Missouri Court of Appeals Eastern District arguing that the Missouri Public Service Commission has a specific role in regulating electrical utilities and exclusively determining whether utility projects are in the best interest of Missouri, according to a Nov. 29 company statement.

The filing notes that if the Grain Belt Express transmission line is not built, higher power prices would impact hundreds of thousands of Missouri electrical consumers, the company said.

As noted in the court filing, the project is an approximately 780-mile, overhead, high-voltage direct current (HVDC) transmission line and associated facilities that would traverse Kansas, Missouri, Illinois, and Indiana, delivering 2,000 MW of wind-generated electricity to those states and beyond.

There were no objections to the identified route by stakeholders involved in the routing process, which included federal, state, and local agencies, environmental NGOs, and conservation groups. The filing added that the commissioners and commission staff also did not object to the proposed route.

In Missouri, the project would span about 206 miles, on a route that crosses the Missouri River south of St. Joseph, and continues east across eight Missouri counties until it crosses the Mississippi River, just south of Hannibal in Ralls County into Illinois, the filing noted.

The project would have a converter station in Ralls County – in addition to converter stations in western Kansas and eastern Illinois – to deliver 500 MW of wind-generated electricity to Missouri, the filing said.

Missouri ratepayers would bear no costs or risks related to project construction, the filing said, adding that the project’s costs would not be recovered through the cost allocation process of other RTOs approved by FERC. Grain Belt Express would pay for the costs of development, construction, and operation of the project, and would recover its costs by selling transmission service to wind generators and entering market-driven contracts with load-serving entities that use the line, the filing noted.

“The Grain Belt Express Clean Line represents one of Missouri’s largest energy infrastructure projects and will deliver enough clean, affordable electricity to power … more than 200,000 Missouri homes each year,” Clean Line Energy President Michael Skelly said in the statement. “Missouri consumers stand to save hundreds of millions in lower electricity bills if the Grain Belt Express is built. We remain encouraged by the [commission’s] determination that the Grain Belt Express is in the public interest and will benefit the State of Missouri. As our filing this week shows, we are committed to moving the project forward.”

According to the court filing, Grain Belt Express in August 2016 filed its application with the commission for a line certificate of convenience and necessity (CCN) authorizing it to build, own, operate, control, manage, and maintain the project.

The filing noted that the case is about the statutory authority of the commission to grant Grain Belt Express’ application for a CCN to build and maintain the interstate electrical transmission line and associated facilities, which four out of five commissioners concluded is necessary or convenient for the public service in Missouri.

Despite a majority of commissioners issuing a written opinion finding that Grain Belt Express met the requirements to obtain a line CCN, the commission denied Grain Belt Express’ application wrongly believing it was bound by an erroneous decision from the Western District Missouri Court of Appeals in another case involving Ameren Transmission Company of Illinois (ATXI), the filing claimed.

A commission spokesperson on Nov. 30 told TransmissionHub that the commission does not comment on pending litigation.

In Missouri, Grain Belt Express has already entered into contracts that would enable dozens of municipalities throughout Missouri to access cheaper, wind-generated power, saving Missouri ratepayers about $10m annually upon project completion, the filing claimed.

Grain Belt Express presented evidence that the project had already received regulatory approval from the relevant commissions in Kansas, Illinois, and Indiana, the filing noted, adding that Missouri is the final state in which regulatory approval is needed for the project to proceed.

FERC has granted Grain Belt Express negotiated rate authority to charge transmission service rates to direct users of the project. That authorization, the filing added, allows Grain Belt Express to subscribe 100% of the project’s capacity through an open solicitation process, which has been completed with requests from shippers that exceed fivefold the project’s capacity.

According to the filing, in Grain Belt Express’ case, the commission concluded that while it “disagreed with the legal analysis in” the ATXI case, based on its holding that county assents is a prerequisite to the commission exercising its jurisdiction, “the commission cannot lawfully issue a CCN to [Grain Belt Express] until … it has obtained the necessary county assents.”

As TransmissionHub reported, the commission, in its August order denying Grain Belt Express’ application for a CCN, said that Grain Belt Express did not submit evidence of county assents in this case, and there is clear evidence that Grain Belt Express lacks a county assent from at least one county.

The court filing noted that the commission may grant CCNs for the “construction” of production or transmission facilities, commonly referred to as a Line CCN, or for the exercise of “rights or privileges under a franchise,” commonly referred to as an Area CCN.

Grain Belt Express applied for a Line CCN to transmit wind-generated energy through Missouri, the filing said, adding that the company did not apply for an Area CCN because it would not be providing retail service to electric consumers. Nevertheless, Grain Belt Express was denied its Line CCN based solely on the ATXI case’s improper application of the Area CCN subsection of the CCN statute to a Line CCN application, the filing claimed.

The ATXI case held that the County Road Provision – a non-commission-related requirement – was an additional prerequisite incorporated solely by way of the administrative filing rule, the filing said, adding that the County Road Provision “requires a utility to obtain asset of the county prior to beginning construction ‘through, on, under, or across’ the county roads.”

The provision does not purport to give counties the authority to stand in the shoes of the commission in determining whether a proposed utility project is in the public interest of the state, or whether a utility should be granted a CCN, the filing said.

The commission’s denial of Grain Belt Express’ application for a Line CCN, based solely on the Western District’s decision in the ATXI case, is erroneous because the ATXI case analyzed the wrong subsection and the ATXI case should not be extended in this case, the filing claimed.

Among other things, the filing said that the commission has authority to grant a Line CCN with a condition requiring subsequent county assents.

The CCN statute and case law are clear – line and area certificates are distinct, and each has different prerequisites, the filing said.

“To construct transmission lines, a utility must secure a Line CCN and need only obtain ‘the permission and approval of the commission’ after the [commission] determines a line CCN is ‘necessary or convenient for the public service,’” the filing said, adding, “Whether a line is necessary or convenient for the public service does not depend on county assents.”

About Corina Rivera-Linares 3058 Articles
Corina Rivera-Linares, chief editor for TransmissionHub, has covered the U.S. power industry for the past 15 years. Before joining TransmissionHub, Corina covered renewable energy and environmental issues, as well as transmission, generation, regulation, legislation and ISO/RTO matters at SNL Financial. She has also covered such topics as health, politics, and education for weekly newspapers and national magazines. She can be reached at clinares@endeavorb2b.com.