Approval of a request for intervention makes the requester a “party” to the proceeding. A Commission proceeding is a formal legal action, and becoming a party to that action confers certain rights and expectations. For example, party status confers the rights to: (1) acquire evidence from other parties; (2) offer expert testimony; (3) cross-examine expert witnesses; and (4) present a written argument.

 “We are perplexed by the Judge’s idea that a not-for-profit organization could represent the detailed interests of numerous, unique, households-- not to mention those of six municipal governments with elected leadership,” observed Keith Ashley Wright, President of SOUL.

Both in principle and in practice, SOUL is unable to represent the land-based concerns raised by the private and municipal intervenors. The state’s requirement of multiple transmission route options makes it impossible for any organization to represent one landowner’s interests without creating conflicts with other landowners. Only nine of the requesting intervenors are SOUL members. The SOUL board restricted its intervention efforts to demonstrating the cost and environmental effectiveness of Non-Transmission Alternatives. The organization is not seeking funding from the state to pay for the required experts.

C. Prior to commencing construction of the direct current component of the Grain Belt Project in Kansas, Grain Belt Express will obtain the state or federal siting approvals required by law to begin construction on the entirety of the direct current portion of the Grain Belt Project outside the state of Kansas. For the avoidance of doubt, transmission line siting approvals from the Missouri, Illinois, and Indiana state utility commissions shall be sufficient to satisfy this condition.
D. This Order is conditional upon the cost of the Project and any AC Collector System owned by Grain Belt Express not being recovered through the SPP cost allocation process or from Kansas ratepayers.
E. Grain Belt Express is allowed five years from the date of the Commission's Order to begin construction of the project in Kansas or otherwise be required to reapply.
C. (again!) The Commission requires the Applicant to submit quarterly reports detailing the progress and costs of the project and a final report once construction is complete.

The CAD takes no prisoners in its attempt to “advise” the Commission of its responsibilities. In its Reply Brief, the CAD emphasizes the gravity of the situation by stating that, if this Transaction is approved, “the harm that redounds to West Virginia captive ratepayers will be a legacy of this Commission.”

Additionally,the Companies will not accept the conditions included in the Commission Order that would result in Mon Power assuming exposure and significant commodity risk, which is inconsistent with FirstEnergy’s announced corporate strategy.

First, the rate benefit to residential ratepayers is a one year benefit of $11.52. The Companies provided no evidence of rate impacts beyond December 2018. The absence of this information is intentional.

As originally proposed by the Companies, if the acquisition of Pleasants is approved, there will be a $31,486,971 net decrease in rates for the 16-month period of September 1, 2017 through December 31, 2018, which is a 1.6% overall decrease. Residential customers would experience a decrease of about 0.9%. The decrease for a residential customer using 1,000 kilowatt-hours per month would be $0.96 per month, which would result in a decrease to $111.52 from 112.48 per month.  It is important to note that the decrease in customer rates is guaranteed only through December 2018.

West Virginia captive ratepayers are not hedge managers or virtual traders in the PJM markets. If the Commission approves this transaction that is what they will become: buyers of significant surplus capacity that Companies are betting (on their behalf) will provide benefits for years into the future. Pleasants was rejected by FirstEnergy as too risky. The overwhelming evidence in this case contradicts all Companies’ claims that there will be any benefits to captive ratepayers. Now FirstEnergy wants Companies to manage that risk for 500,000 ratepayers. As the legal representative of ratepayers, no thank you. The Pleasants acquisition should not be approved.

The CAD must begin by emphasizing that if this transaction is approved the harm that redounds to West Virginia captive ratepayers will be a legacy of this Commission.

Grain Belt’s case seeks to have the PSC divested of its role in exclusive role of deciding on whether utility projects are in the state’s best interest. “The urgency in answering this question is driven by a statewide financial impact on hundreds of thousands of Missouri electrical consumers who will pay higher power prices if the Grain Belt Express wind transmission line is not built,” the company said in its announcement.

No party to this proceeding is contesting the fact that before Grain Belt may build the line, at some point it must obtain the necessary County Commission consents under § 229.100. In fact, Grain Belt has conceded that point throughout these proceedings.

Thus the basic issue in this case is whether Grain Belt must obtain the county consents before the CCN may be issued, or whether it is allowed by law to obtain those county consents after the PSC issues the CCN. In either event, as Grain Belt concedes, the County consents are required before the line may be built.

Grain Belt Express has entered a transmission service agreement (“Services Agreement” or “TSA”) with the Missouri Joint Municipal Electric Utility Commission (“Joint Municipalities” or “MJMEUC”) to purchase up to 250 MW of capacity from the Project, which would save hundreds of thousands of electrical consumers millions of dollars annually.

The Project has received regulatory approval from the relevant utility commissions in Kansas, Illinois and Indiana. Each state independently determined the Project is in the public interest and issued certificates for construction of the Project across those states. Missouri is the final state in which regulatory approval is needed for the Project to proceed.

The Commissioners identified numerous benefits the Project would have had in the public interest: “lowered energy production costs in Missouri by $40 million or more”; “a substantial and favorable effect on the reliability of electric service in Missouri”; “positive environmental impacts”; “supported 1,527 total jobs over three years, created $246 million in personal income [including easement payments], $476 million in GDP, and $9.6 million in state general revenue for the state of Missouri, and $249 million in Missouri-specific manufacturing and personal service contract spending”; and resulted in “a total of approximately $7.2 million” in yearly property tax benefits to affected counties.

In contrast, § 229.100 is a non-PSC law that relates to county roads. It requires those who wish to erect poles and power wires, or lay pipes across public roads of any county to obtain the assent of county commissioners under rules established by the county engineer.

The Court should accept transfer to secure for all Missourians the full extent of the benefits identified by the PSC, including substantial and proper leasehold payments to landowners, and to allow Missourians to begin enjoying these benefits immediately.

The Services Agreement between Grain Belt Express and the Joint Municipalities allows the Joint Municipalities to purchase up to 250 MW of from the Project.

The savings expected under the Services Agreement are indicative of what other energy purchasers throughout the state would realize and will ultimately be passed on Missouri energy consumers.

The availability of these PTCs substantially lowers overall development costs of wind-generation projects, which allows Grain Belt Express to pass on the cost savings to its customers. Grain Belt Express, like many other industry members, is relying on the availability of PTCs to complete the Project as cost-effectively as possible to deliver maximum cost-savings to energy consumers. Without the benefit of the PTCs, the completion of Project is in jeopardy and the savings to Missourians at risk.

Each Commission-approved independent system operator or regional transmission organization shall establish a tariff that provides a just and reasonable rate for the (A) purchase of electric energy from an eligible reliability and resiliency resource and (B) recovery of costs and a return on equity for such resource dispatched during grid operations. The just and reasonable rate shall include pricing to ensure that each eligible resource is fully compensated for the benefits and services it provides to grid operations, including reliability, resiliency, and on-site fuel assurance, and that each eligible resource recovers its fully allocated costs and a fair return on equity.

The Commission further erred when it determined that the Company did not submit evidence of county assents in this case. See Report and Order at 14. The record clearly contained such evidence, as the Commission found in its own findings of fact. See Report and Order, ¶ 12 at p. 8, citing Ex. 300 at 33 (Lowenstein Rebuttal) & Sched. LDL-3. In any event, while the Commission correctly noted that certain county commissions have attempted to rescind their previously-granted assents, it is not within the purview of this Commission to determine the validity of assents or rescissions. See Report and Order at 8. See also Ex. 300, Lowenstein Rebuttal, at 33, Sched. LDL-4. The Commission plainly does not have the authority to determine whether governmental approvals are valid, a question that is reserved to the courts. See State ex rel. Elec. Co. of Missouri v. Atkinson, 275 Mo. 325, 204 S.W. 897, 898
(Mo. en banc 1918).

The Commission’s conclusions in this case violate the dormant federalism principles embodied in the Commerce Clause, which restrict state intrusion upon the flow of interstate commerce. Because the Commission’s decision in its Report and Order discriminates against interstate commerce, it is unconstitutional.

Courts have long-recognized that inconsistent state regulation of those aspects of commerce that by their unique nature demand cohesive national treatment offends the Commerce
Clause.

The Commission’s decision here is equally likely to paralyze the development of interstate electric transmission to deliver low-cost renewable wind power from high capacity states to states that lack renewable energy resources. Accordingly, the Report and Order violates the Commerce Clause of the U.S. Constitution, and should be reheard.

Four of the five Commissioners found the Grain Belt Project to be “necessary or convenient for the public service.”34 Specifically, the four Commissioners found the Project “is needed primarily because of the benefits to the members of the Missouri Joint Municipal Electric Utility Commission (“MJMEUC”) and their hundreds of thousands of customers...[who] would have saved approximately $9-11 million annually.”35 But the Report and Order is unlawful and unreasonable, and must thus be subjected to appellate review, and the months or years that will be consumed in that process are likely to cause failure of the Project and denial of the hundreds of millions of dollars of acknowledged benefit to MJMEUC’s members over the planned life of the Project. Therefore, the Report and Order operates to confiscate the benefit to MJMEUC that is acknowledged in the Concurring Opinion – it is unjust for the Commission to acknowledge a benefit and then act to deprive the intended recipient of that benefit.36 The Report and Order is unjust, as well as unlawful and unreasonable, and rehearing is necessary.

The Report and Order of August 16, 2017, denied Grain Belt’s Application for a CCN, and thus totally resolved the case, leaving no remaining disputes among the parties which needed to be addressed in order to finally dispose of the case. The Concurring Opinion issued on that same date therefore had no practical effect whatsoever, nor did it provide any specific relief to any party to the case. It merely said that hypothetically, if we had to reach a decision on the merits of the Tartan criteria, which we do not, here is how we would have ruled. As such the Concurring Opinion amounts to a mere “advisory opinion”, which by law the Commission is not permitted to issue. State ex rel. Laclede Gas Co. v. Pub. Serv. Comm’n of Mo., 392 S.W.3d 24, 38 (Mo. App. 2013). See also Order Directing Filing, Commission case no. EO-2013-0359, p. 2 (EFIS No. 2). Accordingly, the Applicants respectfully suggest that the Concurring Opinion issued on August 16, 2017 is unlawful and unreasonable, and should be withdrawn.

“We will review the order in detail to determine next steps for the project,” adds Skelly. “We are currently assessing all existing authorities available to move the Grain Belt Express project forward, including but not limited to legal appeals.”

Clean Line executives said Wednesday that they were weighing their options for the Grain Belt Express power line, though they acknowledged that the “legal and regulatory conundrum” could add many months or years to the project if they decide to keep trying.

"So, the Grain Belt Project will deliver enough power for over a million homes, and will do so at costs that are extremely competitive with wind energy that is clean and renewable.”

“We absolutely want to do the project,” said Mark Lawlor, development director for Grain Belt Express. But he added: “Unfortunately, the message that we’re getting from Missouri is that investments of these kind might be better spent in other places.”

Lawlor said the four commissioners’ belief that the project was worthwhile but not approvable under state law “makes for an interesting argument” if Clean Line decides to instead seek federal permission to proceed.

Clean Line director of development Mark Lawlor said another hearing would be sought, but that the company also was exploring legal options.

He added that Clean Line would push ahead with the project, despite the setback in Missouri.

“This is a Missouri problem, it’s not just a Grain Belt problem. This says any transmission line looking to build in Missouri cannot set foot on the commission’s doorstep until there’s permission from counties for a road permit,” said Lawlor.

“It’s too important to our country, and to our energy future, to just walk away,” said Lawlor. “This project is just as valuable today as when we started and probably more so.”

The project’s developers and other supporters harshly criticized Wednesday’s PSC ruling.

“It’s going to apply to future infrastructure projects — not just ours, but anyone who wants to come to Missouri and build transmission lines or pipelines, they’re gonna pay attention to this,” said Mark Lawlor, vice president at Clean Line. “It sends a bad signal to the marketplace.”

He argued that Grain Belt Express and projects of statewide significance should be decided by the PSC.

“It’s certainly not what the legislature intended,” Lawlor said. “It’s certainly not how the commission has worked in its 113-year history, but that’s somehow where we found ourselves today.”

Lawlor said Clean Line would need time to determine its next course of action.

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.”

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.”

“It’s impossible if you’re building a multi-state transmission line to get agreements from all 30 counties that you might cross,” said Michael Skelly, the president of Houston-based Clean Line, which is planning about $9 billion of power lines across the Great Plains, Midwest and the Southwest. 

Clean Line has at least three options it is considering, according to Skelly. It can appeal the decision, seek a change of state law or bypass the state by asking the U.S. Energy Department to approve it.

“If none of those three work, we’re toast,” Skelly said in an interview Wednesday.

Clean Line’s other options, said spokesperson Sarah Bray, include asking the PSC for a rehearing, working with the state’s legislature to revise pertinent laws or seeking U.S. Energy Department approval under Section 1222 of the 2005 Energy Policy Act. The latter would authorize the department to take part in “designing, developing, constructing, operating, maintaining or owning” new transmission.

“The project is certainly not dead,” Bray said.

Bray told RTO Insider that Clean Line was “encouraged by the PSC’s determination that the project is in the public interest and will benefit the State of Missouri.”

"They're done at this point. We won. They can't build the line," said Paul Agathen, an attorney for the Missouri Landowners Alliance. "So it's up to them as to what steps, if any, they take."