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Court of Appeals vacates PSC decision approving transmission line

In a stunning win for Marion County landowners, the Missouri Court of Appeals vacated a Missouri Public Commission decision to grant necessary certificates to an Illinois company seeking to erect an electricity line through the western part of the county.

Neighbors United, who fought for three years against the Mark Twain Transmission Project, called the unanimous March 28 decision by the three-person court a “tremendous victory for our members.”

Leaders of Ameren Transmission Company of Illinois (ATXI), which applied for a Certificate of Convenience and Necessity with the PSC, called the court’s decision disappointing.

Maureen Borkowski, Chairman and President of ATXI, said the company will review if the company will ask the state’s Supreme Court to hear the case.

Borkowski said the PSC determined “that the project is in the best interest of the citizens of Missouri – greatly benefiting the state through economic growth and tax revenue, greater reliability, and improved access to lower-cost renewable energy such as wind power.”

The Court of Appeals disagreed with a stipulation the PSC placed on a conditional approval of the CCN.

While the PSC granted the permits to ATXI to build a transmission line from roughly Palmyra to Kirksville, it said approval was contingent on ATXI receiving assent – or permission to use county roads – from the affected counties. In September 2016, Marion County commissioners voted to deny assent to ATXI, as did the commissions of four other counties in the project’s proposed path.

The Court of Appeals interpreted existing state statute to mean that potential power projects much first receive assent from counties before a CCN may be granted (§ 229.0100).

In this case, the PSC granted the CCN first.

Moreover, a different statute requires utilities to provide proof of county assent prior to project approval.

“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,” Missouri Revised Statutes 393.170.2 states.

Neighbors United hailed the decision as a victory for local government, which now might ultimately have the final say in the Mark Twain Transmission project and future projects.

“We would like to thank the county commissioners who continued to listen to their constituents’ concerns about the project and decided that what was in the best interest of the citizens was to affirmatively say no to the project,” the group said in a press release.

The PSC approved the 95-mile, 345,000-volt transmission line project by a unanimous in April 2016. In its decision, the PSC said the project could open the door for greater use of wind energy in Northeast Missouri.

Neighbors United appealed the PSC’s decision in July 2016 on the grounds that the decision didn’t first get proper assent – the point with which the Court of Appeals concurred – and violates Missouri’s Right to Farm law.

“While we are happy that the Court of Appeals has confirmed our belief that the county commissioners must have a say in the process before the hearing at the PSC take place, we are concerned that the Court decided to not address our position as to the Right to Farm,” Neighbors United said.

When the five affected counties declined to provide assent, ATXI filed a lawsuit against the county commissions in each of the counties. The case against Marion County is still pending.

Because of that pending litigation, Marion County officials referred comment on the decision to the county’s attorney.

Borkowski did not say if or when ATXI might request the Supreme Court hear the case.