August 30, 2017

After permit denial, Grain Belt Express asks for rehearing

Eric Dundon, Hannibal Courier-Post managing editor | Aug 29, 2017 |

As expected, the developers of a controversial wind energy transmission line has asked the Missouri Public Service Commission (PSC) for a rehearing, after commissioners denied necessary permits for the project earlier this month.

Developers of the Grain Belt Express (GBE) argued in their application for a rehearing that the decision in a court case involving a similar, but unrelated, electric line case was improperly applied to GBE. That case, Neighbors United vs. PSC, ended when the Missouri Court of Appeals overturned the PSC’s approval of permits for an Ameren Transmission Company of Illinois project, ruling the utility must first receive assent from the counties in the line’s proposed path.

Most of the counties in the proposed path of the GBE have expressly not given assent to the project – which would potentially bring wind energy from the plains of Kansas through northern Missouri to states further east. Plans also call for the construction of a converter facility near the town of Center through which the electricity could enter the Missouri grid.

GBE’s application for a rehearing largely reiterates previous arguments about why the Neighbors United case isn’t applicable to the GBE. Of note, the application specifically states that developers understand and respect the importance of assent, but disagree on when assent is necessary – the key to the Neighbors United case.

The application also differentiates between the state statutes invoked in the two cases. GBE argues that a decision on Neighbors United case can’t be applied to the GBE case because one deals with a “line” permit while the other deals with an “area” permit. The PSC said the two cases were materially the same.

Additionally, according to the application, the PSC decision violates the Commerce Clause, which restricts state intrusion on interstate commerce.

“Because the Commission’s decision in its Report and Order discriminates against interstate commerce, it is unconstitutional,” the application reads.

An application for a rehearing with the PSC is not an uncommon practice. In fact, the Missouri Landowners Alliance, the main opponent of the GBE, also filed a request for a rehearing. Parties often file for rehearing to lay out evidence and arguments if a rehearing is granted. The Missouri Landowners Alliance filed for a rehearing, “to preserve the issues discussed in the event the Commission significantly revises its Aug. 16 Report and Order, or an opposing party appeals that Report and Order and the case is remanded for further consideration by the Commission.” If the PSC does not grant a rehearing pursuant to the GBE application, the project’s opponents would drop their request for a rehearing.

The application of the Neighbors United case is now the main point of discussion regarding the GBE. PSC commissioners, in denying the GBE based on the outcome of the Neighbors United case, said they would have otherwise approved the project. Four of the five commissioners signed a concurring opinion that the project is viable and needed in Missouri, which is contrary to the PSC staff opinion issued earlier this year. The PSC staff serves in an advisory capacity, but do not have direct authority to approve or deny projects. The Missouri Landowners Alliance pointed out that the concurring opinion is not binding, and for all intents and purposes, is an advisory opinion only.

If the PSC does not grant GBE a rehearing, another recourse for the project is to appeal the PSC denial to the Missouri Court of Appeals – much like Neighbors United did when the PSC approved the Ameren project. Missouri is the only state in which the GBE has not received necessary approval. Similar energy regulatory commissions in Kansas, Illinois and Indiana have approved the project.

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