To illustrate these conflicts in energy transportation, Professor Rossi used two transportation examples that differ in geography, product transported, governing body historically responsible for regulation, and often in public perception. Despite these differences, both means of transportation face legal hurdles that require consideration of federalism principles. The examples include the Constitution Pipeline, a natural gas pipeline segment connecting Pennsylvania to New York, and the Plains & Eastern Clean Line Project, a direct current transmission line transporting wind energy from Oklahoma, Kansas, and Texas to Tennessee, Arkansas, and the rest of the south and southeast.

After presenting these conflicts, Professor Rossi engaged the audience in discussions about the need for future collaboration between the federal and state authorities and the impact of the new administration on these battles.

Members of the Southern Corona Landowner Association (“Corona Landowners Association”) have executed long-term lease agreements for the development of Mesa Canyons on their properties. The Corona Landowners Association was formed in 2007 to facilitate wind energy development in the area.

The agreement also establishes a new committee on the board that will review NRG's initiatives, asset portfolio, capital structure and broad strategic plans, and make recommendations on those to the board, according to the SEC filing. Wilder will chair that committee.

For starters, there is this claim: “With more than 640,000 miles of high-voltage transmission lines across the three interconnected electric transmission grids … the lower 48 states’ power grid is at full capacity, with many lines operating well beyond their design.”

The fact is that 0 (zero) transmission lines are being operated beyond their design capacity. The grid has been and continues to be designed and constructed to cover projected peak demand years in advance. And every line is operated within its design limits. The ASCE claim is alarmist and wrong.

"What Rock Island is asking the Commission to do is grant it a CPCN so it looks like a 'public utility' for purposes of condemning private property to build its line, while at the same time it plans to offer only a token percentage of that line's capacity for 'public use'. The transmission service that Rock Island plans to provide on its transmission line does not meet the public use standard under Section 3-105 of the PUA." (R.V27, C6629).
These are the words of the ICC Staff at the close of a five day evidentiary hearing at the
Commission on Rock Island's Verified Petition. Rock Island is not a public utility, and it does not commit to serve the public. Despite the express language of the PUA, Rock Island, as a non-utility startup company, sought a CPCN from the Commission for which it is not statutorily eligible. Rock Island's public policy arguments regarding an apparent desire for an expansion to the statutory definition of''public utility" should have been, and still can be, made to the legislature.

Grain Belt Express is a merchant transmission company. It is proposing to build a participant funded transmission line. As such, neither the applicant nor the proposed project embody the business characteristics the Legislature authorized this Commission to regulate.

The Court recognized that when a private business enters into special contracts upon its own terms and not at a regular rate, there is not only no need for the Commission to regulate, to do so would be a violation of the constitution. The purpose of regulation is to bring the power of government to bear on a common carrier service. Private initiatives not devoted to the public use of all do not justify the comprehensive regulations dictated by the Public Service Commission Law. Stated another way, when facilities are not devoted to a public use, there is no need for the Commission. That is the situation before the Commission in this Grain Belt Express case.

The issues presented by this case are twofold: (1) whether Clean Line fits the statutory definition of an Arkansas “public utility” and is entitled to a CCN to provide public utility service in the state; and (2) if so, whether Clean Line is entitled to exemption from certain public utility statutes. For the reasons stated more fully below, the Commission finds that Clean Line does not meet the statutory definition of a public utility at this time.  The Commission’s ruling on the first issue moots the necessityof ruling on the second.
The Commission is a creature of the General Assembly, and it performs a legislative function in regulating all public utilities. Bryant u, Arkansas Pub. Sew. Comm‘n, 46 Ark. App. 88,877 S.W.2d 594 (1994); Sw. Bell Tel. Co. v. Ark. Pub. Serv. Comm’n, 267 Ark. 550, 593 S.W.2d 434 (1980).  The Commission’s statutory mandate extends to and includes “all matters pertaining to the regulation and operation of all ... electric lighting companies and other companies furnishing gas or electricity for light, heat, or power purposes.” Ark. Code Ann. 23-2-302.

The Commission’s decision in this case turns on the statutory definition of a “public utility” found in Ark. Code Ann,  23-1-101(9)(a) cited above. Although Clean Line’s presentation of its case was strong on policy considerations and certainly Clean Line worked hard to analogize its case to that of the SPP RTO, the Commission’s authority cannot exceed that which is delegated to it by the Arkansas General Assembly. The “public utility” definition requires “owning or operating in this state equipment or facilities for...transmitting...power to or for the public for compensation.” Ark. Code Ann. 23-1-101(9)(A).

The Parties’ legal filings and opening arguments at the December 7 hearing discussed to varying degrees what each of these key phrases means, but the Commission is not convinced the totality of the evidence satisfies this statutory threshold. Recognizing, as Clean Line pointed out, there is some circularity involved in the fact that Clean Line cannot own or operate regulated major utility facilities pursuant to Arkansas law in this state without first being declared a public utiliity, in isolation, this portion of the statute is not determinative of Clean Line’s utility status. However, read in tandem with the facts that the transmission of the power must also be “to or for the public for compensation’’ when Clean Line, to date, has no contracts for public utility service with any utility, including Arkansas utilities, and there also can be no transmission of power at this time, the Commission is not prepared to approve Clean Line’s CCN Application.

Rock Island’s plan offers the public the nondiscriminatory right to bid for transmission capacity. But it does not offer the public the nondiscriminatory right to use transmission capacity. Under well-settled authority dating back a century, Rock Island’s plan does not meet the “public use” requirement.

As a threshold matter, it is important to clarify what this means. As Rock Island’s witness makes clear in his testimony, the open season auction will be open to the public on non-discriminatory terms. In other words, any member of the public can bid. But there is a difference between being able to bid for a service through an auction and being able to actually use a service at a tariffed price. When Christie’s auctions a painting, any member of the public can bid on non-discriminatory terms; but only the winner takes the painting home.

The ICC points out that the open season will be “fair, transparent and non-discriminatory.” ICC Br. 25-26. ComEd agrees. But this simply means that the auction process will be fair, and that all bidders would have the same opportunity to bid. It does not mean that all members of the public can use the service on equal terms. Those who cannot pay the auction price are left with only the chance of receiving non-firm service and are expressly subordinated to anchor tenants and auction winners. Non-auction winners who do not, or who cannot use non-firm service, are left completely empty- handed.

Grain Belt Express is proposing a duplicate service to the existing, well-established transmission grid. It is seeking to provide discriminatory service to one particular customer to obtain this Commission’s approval. It is proposing as a merchant a service that is participant-funded. It wants to maintain that merchant status, free from the obligations imposed on an “electrical corporation” by the Missouri Public Service Commission Law. This unregulated utility will create many problems that the Missouri Public Service Commission Law was designed to thwart, such as destructive competition, damage to property from duplicative facilities, and the exercise of market power in a traditional monopoly service. Grain Belt is seeking the power of the state of Missouri granted by this CCN without any of the obligations imposed by the law. Show Me is concerned with one enterprise whose property is not devoted to the public service using the land (I think he meant to say "laws") of the state, particularly the eminent domain power of the state, for their own business interests. It is not just and it is not in the public interest of the state of Missouri.

 Among the sea of red t-shirts, jackets, hats and signs were small, blue stickers, each handwritten with a different number. It was a description, in feet, of how far their home was situated from a proposed JCP&L power line poles. For some, it was a couple thousand feet. For others, it a few hundred feet. And there were those whose number was expressed in two digits.

Buildings, building extensions and additions (homes, businesses, garages, barns), swimming pools, above ground fuel tanks, tall signs or billboards, tall trees, obstructions and mounding of soil in the right of way are encroachments that are prohibited.

[a] minimum of a 60 ft. wide corridor will be cleared (30 ft. from either side of conductor or approximately 45 ft. from centerline of the poles on the rail side and 15 ft. from centerline of the poles on the opposite side/vacant side of pole).

JCP&L will clear the NJT and JCP&L ROW to the specified width in accordance with the FirstEnergy Initial Clearing of Transmission Lines Specification and the FirstEnergy Detailed Property and Provision List. Trees located outside the ROW which are deemed Priority Trees shall be removed. Priority Trees are defined as trees located adjacent to transmission corridors that are dead, dying, diseased, structurally defective, leaning or significantly encroaching, where the transmission facilities are at risk of arcing or failing should the tree or portions of the tree (1) fall into or near the transmission facilities; or (2) grow into or towards the transmission facilities. JCP&L will obtain the necessary rights from applicable property owners before removing trees and vegetation both on and off the ROW.

“This meeting tonight was to hear what the public had to say,” said JCP&L spokesman Ron Morano. “We elected to not have any supporters speak at this event.”

When Donald Trump and Mike Pence met this month to discuss a promised $1 trillion infrastructure plan, the Cabinet Room was filled with half a dozen billionaire executives, from Tesla’s Elon Musk to Steve Roth, a New York developer and longtime friend to the president.

One person who wasn’t there? The man who worked for months to line up priority infrastructure projects for the Trump transition team.

Just a few weeks earlier, Dan Slane had been jetting around the country — on his own dime — to meet with governors, contractors, investors, labor union officials and others eager to influence Trump’s infrastructure plan. He developed a 50-project proposal filled with exactly the kind of “shovel-ready” investments the White House wanted – the kind that needed regulatory relief, not federal dollars.

But as Trump’s attention turns to infrastructure after suffering defeat on his first policy priority, the White House will not even acknowledge Slane, except to say he has “no official or unofficial role” in the administration. He says his infrastructure plan, and indeed his very connection to the president, has become the victim of a power struggle for control of this big-ticket infrastructure agenda between Peter Navarro, a Trump loyalist and economic populist who advised his campaign, and Gary Cohn, a former Goldman Sachs president who now runs the National Economic Council.

Anderson’s company had compiled a list of 100 top infrastructure projects with input from senior-level investors, engineers and developers. The list would have been offered to whichever presidential candidate had won in November, Anderson said.

A week after Trump’s unexpected win, Anderson found a white paper online that Navarro and now-Commerce Secretary Wilbur Ross had written for the Trump campaign. It proposed tax credits to fund infrastructure. He emailed Navarro, and offered some suggestions.

“Navarro asked Dan to talk to me the next day,” Anderson said.

Slane, who was working without a staff, asked Anderson to help him screen a list of projects Navarro wanted for the administration. Anderson in turn hired Boston Consulting Group to analyze how many direct and indirect jobs each project would create.

Playing the liaison

Leaders at the state and local level, and executives at the National Governors Association, thought they had been working with the White House, through Slane.

Paul Aucoin, executive director of the Southern Louisiana Port, said he assumed Slane was a shoo-in for a White House infrastructure job when he met him at Anderson’s offices in Washington in December.

Aucoin made the trip to DC to promote his port and try to secure federal assistance to dredge the mouth of the Mississippi River.

The meeting with Slane had been arranged for Aucoin by the public relations firm of Gary Meltz, a former aide to Democratic Rep. Eliot L. Engel of New York.

Slane introduced himself as a member of the Trump transition, and Aucoin made his pitch.

Slane promised to get the dredging project on the list he and Anderson were compiling for the transition.

“They were very receptive, they got it, they understood what I was saying, they asked all the right questions,” Aucoin said. “It wasn’t like I was talking to a wall. I was finally talking to some one who understood what I was trying to say.”

Later Slane would visit the port and meet with Louisiana Gov. John Bel Edwards. He reassured Edwards and Aucoin that congressional Republicans would pledge money to the project from the Harbor Maintenance Trust Fund. That promise that has yet to be fulfilled.

Aucoin said he’s since hired a lobbying firm in Washington that was working on getting him a meeting with Gribbin.

“It was a blow for us to lose Dan,” Aucoin said.

"When the Trump campaign was looking at infrastructure, we thought it was a good thing to mention. We're just happy to be part of the conversation."

Sean McGarvey, president of North America’s Building Trades Unions, said his organization consulted with Slane on his plan. His union delivered to the White House its own list of priority infrastructure projects in February, after meeting with Trump.

“The way Dan framed it was really good because Dan took projects that had all funding but lacked permitting or some who had permitting,” McGarvey said.

“He did a lot of thoughtful work on the initial ready-to-go, out-of-the gate stuff,” he said. “The projects that Dan was talking about really don’t require a new infrastructure bill. Those are ones that exist, that are both private and public, and have the three elements you need: the financing, the engineering, and permitting. And some of them will happen this year.”

...county commission assents required by
section 229.100 and 4 CSR 240-3.105(1)(D)1 must be submitted to the PSC before the PSC grants a CCN.

No person or persons, association, companies or corporations shall erect poles for the suspension of electric light, or power wires, or lay and maintain pipes, conductors, mains and conduits for any purpose whatever, through, on, under or across the public roads or highways of any county of this state, without first having obtained the assent of the county commission of such county therefor; and no poles shall be erected or such pipes, conductors, mains and conduits be laid or
maintained, except under such reasonable rules and regulations as may be prescribed and promulgated by the county highway engineer, with the approval of the county commission.

No such corporation shall exercise any right or privilege under any franchise hereafter granted, or under any franchise heretofore granted but not heretofore actually exercised, or the exercise of which shall have been suspended for more than one year, without first having obtained the permission and approval of the commission. Before such certificate shall be issued a certified copy of the charter of such corporation shall be filed in the office of the commission, together with a verified statement of the president and secretary of the corporation, showing that it has received the required consent of the proper municipal authorities.

JCP&L spokesman Ron Morano said the utility is following procedures. "All costs associated with the project will be reviewed as part of that process," Morano said.

"I fear all we have done is to awaken a sleeping giant and fill him with a terrible resolve."  --  Isoroku Yamamoto