Checkmate, Grain Belt Express!

Just when Grain Belt Express thinks it's getting close to the  finish line, someone moves the finish line.

After months of very expensive preparation, and a week-long evidentiary hearing before the Missouri Public Service Commission, perhaps Grain Belt Express thought it could be granted a conditional permit (CCN).

But hope was dashed once again yesterday by the opinion of the Western District of the Missouri Court of Appeals.  The Court found that

...county commission assents required by
section 229.100 and 4 CSR 240-3.105(1)(D)1 must be submitted to the PSC before the PSC grants a CCN.

Missouri law provides:

No person or persons, association, companies or corporations shall erect poles for the suspension of electric light, or power wires, or lay and maintain pipes, conductors, mains and conduits for any purpose whatever, through, on, under or across the public roads or highways of any county of this state, without first having obtained the assent of the county commission of such county therefor; and no poles shall be erected or such pipes, conductors, mains and conduits be laid or
maintained, except under such reasonable rules and regulations as may be prescribed and promulgated by the county highway engineer, with the approval of the county commission.

The assent of the county commission must be filed as evidence at the PSC before the PSC issues a CCN:

No such corporation shall exercise any right or privilege under any franchise hereafter granted, or under any franchise heretofore granted but not heretofore actually exercised, or the exercise of which shall have been suspended for more than one year, without first having obtained the permission and approval of the commission. 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.

And there it is.  In Missouri statute.  In black and white.

But the Missouri PSC issued a "conditional" CCN for a transmission line to applicant ATXI last year, requiring the company to obtain county assent before construction. 

Which came first?  The chicken or the egg?  The PSC must have the assent BEFORE issuing the permit.  It cannot issue a permit now with the condition that assent is obtained later.  The Court vacated the PSC's conditional grant of CCN.

Grain Belt Express does not have all of its county assents necessary as a prerequisite to a CCN.  It cannot be granted a "conditional" permit without assent.

While Grain Belt Express obtained many county assents years ago, before landowners found out about its transmission plan, all but two counties have since rescinded assent.  While there may be debates about whether those rescissions were legal, a court has found that the assent of Caldwell County was never legal in the first place because it violated sunshine laws.  It is not disputed that GBE does not have the assent of Caldwell County.  And without that assent, GBE cannot proceed and the PSC cannot issue a conditional permit.

Checkmate, Grain Belt Express!