Missouri is no longer the lone holdout to approve a high-voltage transmission project scheduled to span four states, bringing wind energy from western Kansas through Northeast Missouri further east.
An Illinois Court of Appeals ruled on Tuesday that the Illinois Commerce Commission (ICC) could not legally approve necessary permits for the Grain Belt Express project. The court reversed the decision and sent it back to the ICC, Illinois’ utility regulatory body equivalent to the Missouri Public Service Commission.
Before Clean Line Energy – the parent company behind Grain Belt Express – can begin construction on the roughly 780-mile transmission line, it must receive approval of regulatory commissions in all four states – Kansas, Missouri, Illinois and Indiana.
Grain Belt applied for necessary permits under an expedited review system with the ICC in April 2015. Shortly thereafter, a group of concerned landowners and other concerned organizations filed a motion to dismiss Grain Belt’s petition, claiming it was not yet a public utility in Illinois and therefore could not apply under the expedited system. In June 2015, ICC commissioners, in a 3-2 decision, denied the motions to dismiss Grain Belt’s application, and subsequently approved permits for Grain Belt in November 2015.
Those same landowners and organizations took their complaints to the 5th District Illinois Court of Appeals. Oral arguments took place in February 2017.
At issue is whether Grain Belt meets the definition of a public utility in Illinois and is therefore qualified to go through the expedited review system.
Illinois statutes dictate that a public utility “owns, controls, operates or manages, within this State, directly or indirectly, for public use, any plant, equipment or property used or to be used for” public utility purposes.
Grain Belt, like in Missouri, does not yet own land or control infrastructure to be used for the project in Illinois.
That, the appellants argued, precludes Grain Belt from filing in the expedited process as a public utility. The court agreed with this argument, citing an Illinois Supreme Court case that decided a company must present ownership of utility infrastructure assets to qualify as a public utility.
Grain Belt did not argue that it owns, controls or manages infrastructure assets in Illinois.
“We cannot reason that the legislature intended to give unlimited discretion through an expedited review process to nonpublic entities, which would ultimately provide the Commission with no jurisdiction to enforce their projects,” judges said in their ruling.
With the court’s decision, Grain Belt must now circle back and present evidence to the ICC that it meets the criteria for a public utility.
Tuesday’s ruling is the second court decision in less than a month to impact the power project.
On Feb. 27, the Missouri Eastern District Court of Appeals forwarded the Grain Belt case to the Missouri Supreme Court for consideration. In that case, the Eastern District Court of Appeals disagreed with the ruling in another unrelated, but similar case that ultimately led to the denial of permits for Grain Belt in Missouri.
The Missouri Public Service Commission relied on the Western District Court of Appeal’s opinion that public utilities need to gain assent from counties in a proposed project’s path before gaining the Public Service Commission’s approval.
Because Grain Belt has faced a long history of opposition from county commissions, including those in Ralls and Monroe, the commission denied the project’s latest application. The Eastern District Court disagreed with the Western District’s interpretation of state statute that led to the commission’s decision.
The Missouri Eastern District Court’s decision has given new life to the project in the Show-Me State after three rounds of disapproval from the Public Service Commission. The Grain Belt case has been placed on the Missouri Supreme Court docket for arguments April 3.
The fate of Grain Belt remains uncertain in Missouri and now in Illinois, but none of the current court cases delve into whether Grain Belt is needed or beneficial to the states involved. In fact, Missouri Public Service Commissioners said they would have approved the project if not for the Western District’s ruling.
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