After a long career with a big utility, attorney Paul Agathen brings a wealth of experience to the Alliance's legal team. Paul has gone on the offensive with a Protest of the Grain Belt Express Application for Negotiated Rate Authority at the Federal Energy Regulatory Commission and a Formal Complaint before the Missouri Public Service Commission alleging that Grain Belt Express has violated and continues to violate the Commission's rules regarding ex parte communications.
First, let's take a look at the FERC Protest. As a merchant (self-funded) transmission project, Grain Belt Express must concoct its own rate scheme to recover its cost of building and operating its proposed transmission line from customers. GBE's rate scheme is under the jurisdiction of the FERC and must adhere to FERC's rules, including its non-discriminatory open access transmission rules. GBE's rate scheme proposes that the company be allowed to negotiate rates with willing transmission customers in a open and non-discriminatory bidding process. FERC's job is to review and approve GBE's proposed negotiation process BEFORE it occurs.
And, according to the protest, that's just the problem. Although GBE hasn't "officially" initiated its "open season" for potential customers, GBE has already started soliciting interest from its preferred customers via a "Request for Information" directed solely toward wind project developers in Kansas. Directing its solicitation to only wind developers discriminates against other forms of electric generation, such as solar or gas, that could potentially bid for capacity on GBE's transmission line. This discrimination violates FERC's open access transmission rules.
GBE has been doing an elaborate fan dance with FERC, promising to provide access to all forms of generation, while touting its project as a "wind only" transmission line and soliciting interest from wind developers.
The Alliance's Protest asks that the Commission determine that GBE's proposed solicitation of customers is unduly discriminatory and dismiss GBE's application for negotiated rates.
Without negotiated rate authority from FERC, GBE will have no way to collect its cost of service. No money, no GBE.
Moving on to the Missouri PSC Complaint, the Alliance alleges that GBE has been violating the Commission's ex parte rules. Ex parte means "one side only" and refers to communication between the decisional authority and only one of two (or more) parties in a case. It's like one person getting to have a private conversation with the judge in order to sway his opinion against the other person.
But that's not exactly the way the Alliance alleges GBE has violated this rule. The ex parte rules state:
It is improper for any person interested in a case before the commission to attempt to sway the judgment of the commission by undertaking, directly or indirectly, outside the hearing process to bring pressure or influence to bear upon the commission, its employees, or the presiding officer assigned to the proceedings.
The Alliance is not objecting to GBE providing legitimate information to the public:
The Alliance is not objecting here to everything on the two Grain Belt websites.
It recognizes, for example, that it is perfectly acceptable for Grain Belt to provide nonargumentative factual descriptions of the Line and its supporting towers; to include maps of the alternative routes of the Line; to provide information for potential suppliers of
component parts for the line; and to address any other matter which is not likely to be a
contested issue at the forthcoming Commission hearings.
As is apparent from all of the above, Grain Belt has engaged and continues to engage in an elaborate PR campaign designed to sway public opinion on matters which it will litigate in the forthcoming Commission proceedings. Their campaign is extensive, it is expensive, and it is professionally managed in all of its various aspects. They have even incorporated Facebook and Twitter into their PR arsenal, and added links in their website to a number of video presentations.
For example, it its Application to the FERC for approvals regarding the proposed Line, Grain Belt refers to their video "that describes the need for the Project and how Grain Belt Express will bring significant economic benefit to states through much-needed transmission expansion for new wind energy projects .... " (Exh. 23, p. 8).
This description of the Grain Belt PR efforts is not intended in the pejorative sense at all. The Grain Belt publicity campaign is undoubtedly effective, and will no doubt accomplishing two of its principal goals: to sway public opinion on the Line in Grain Belt's favor, and to thereby convince members of the public to sign on to the computer-generated letters of support which Grain Belt will file with the Commission.
The letters may have no effect at all with the Commission. However, the ultimate impact of Grain Belt's efforts should not be the deciding question here. If Grain Belt has violated the Commission's ex parte rules, their conduct should not be excused by some sort of "no harm, no foul" escape clause.
We may never know how many people in Missouri were exposed to and influenced by Grain Belt's one-sided presentation on issues which they themselves will raise later at the Commission. Nor could the Alliance ever hope to present its own position to all of the people reached by Grain Belt. Grain Belt has been waging an extensive PR campaign for about four years, and will likely win that battle.
Just how Grain Belt has gone about doing so is illustrated in materials presented at a recent conference in Houston, where participants spent two days learning various techniques for "selling" a transmission project to the public.
A copy of the initial brochure for that conference is attached here as Exhibit 18.
As noted on the first page, the conference was held this past January, and was to be hosted by Grain Belt's parent company- Clean Line. As noted at page 3 of that brochure, the keynote speaker at the conference was to be the Executive Vice-President of Clean Line.
According to the brochure, this is a sample of what those involved with building and siting transmission lines were to learn in Houston:
• How best to utilize social media to "engage the public", including who you can expect to reach, and how to go about doing it. (Exh. 18, p. 4) Not surprisingly, an expert in social media from Clean Line was to be one of the two speakers on this subject.
• How to deal with people disparagingly referred to as "NIMBYs" and "BANANAs". Ironically, the audience at that session was also told that a driving force behind the emergence of community-based opposition groups has been the push to build more infrastructure to support more renewable energy. (Exh. 18, p. 4).
• In "Marketing to Mayberry" the attendees would learn, among other things, how to talk down to people in small town, rural America, by communicating with them "in a conversational tone rather than corporate tone ... " Presumably, these techniques were designed with the citizens of rural northern Missouri in mind.
• "How to frame and 'sell' infrastructure projects ... ", and how to use "effective
strategies and tactics, and share in critique of on-camera training ... "
• How to deal with the media, including: "Getting into a reporter's head"; "How to answer questions you don't want to be asked"; and how to "position" your message to the media. (Exh. 18, p. 6)
• Finally, the Executive Vice President from Clean Line was to explain "how to ensure that our stakeholders feel they are informed and part of the process". (emphasis added). Apparently, it is not important to Clean Line that stakeholders actually be informed, or actually be involved in the process, so long as they are somehow made to feel that they are.
Commission approval of the Line constitute the fruit of a poisonous website, and be therefore stricken from the record in that case," and other just and reasonable relief.
Everyone needs to read this Complaint. The uneven playing field on which transmission owners and the public who oppose them do battle has been clearly defined as unfair. This is the new normal of transmission opposition, so transmission developers may as well get used to it and turn over a new leaf to play fair.