Legal transcripts contain an index. The transcript of last week's Missouri Public Service Commission Oral Argument in the Grain Belt Express case includes the word "nightmare."
There was a bit of debate regarding exactly what constitutes Grain Belt Express's worst nightmare. PSC Chairman Hall thought issuing a non-appealable favorable finding (but not a permit) for GBE to use as leverage for assent of county commissions would create GBE's "worst nightmare" of hanging in limbo forever. However, GBE's attorney was quick to correct him. He said dismissal of the application was GBE's "worst nightmare," because dismissal means the project is dead. Chairman Hall started to disagree, then changed his mind. I still think a dead project is better than a limbo project, at least it has finality and stops costing the investors money that maybe they don't want to invest anymore.
Chairman Hall thought GBE's idea that a "favorable finding" by the PSC would convince the counties to give assent to the project "naive."
Chairman Hall thought GBE's idea that a "favorable finding" by the PSC would convince the counties to give assent to the project "naive."
CHAIRMAN HALL: Yes, I have a few. I want to start with your alternative argument that
the Commission go through the Tartan analysis, determine that Grain Belt has met each of those factors, but then withhold issuing the certificate. Would that be an appealable decision?
MR. ZOBRIST: I think it would be because if you construe Neighbors United to say that you cannot issue a CCN, you're making these other findings and you're simply withholding it at that point. To be honest, I really haven't thought through that. It may be -- it depends on what your language is. I think if you say that this part is final, you view it as appealable, that that might be something for us to take a look at because it may not be an appealable order until either --
CHAIRMAN HALL: I think that would be your worst-case scenario. Then you're sitting in limbo here and you can't take the order up. MR. ZOBRIST: Well, I'm being the optimist, Chairman. I'm assuming we get favorable factual findings on the public convenience and necessity. We'd use those to go to the county commissions and say the Public Service Commission has weighed in and says the public is not going to be harmed and you should issue your county assents and then we'll be back. Now, if you -- if you deny it, if you dismiss it, then I think --
CHAIRMAN HALL: Well, that's --
MR. ZOBRIST: Pardon me. Go ahead.
CHAIRMAN HALL: That, to be perfectly blunt, seems a little naive to me that this commission's decision on public interest is going to sway the county commissions, and so --
MR. ZOBRIST: Like I said --
CHAIRMAN HALL: I think the reality is that that would be almost your worst nightmare because then the case just sits in limbo here and you can't take it up on appeal.
MR. ZOBRIST: Well, let me put it this way. The nightmare is if you just dismiss it out of hand because then the project's dead. The
problem --
CHAIRMAN HALL: I would say that's better than this because at least then -- oh, okay. I'm sorry. I'm with you now. Keep going.
The transcript also contains derivatives of the word "baffle." As in
I mean, I completely understand Mr. Zobrist's argument. I'm baffled by yours.
So said Chairman Hall regarding MJMEUC's argument that the ATXI decision supports the issuance of a conditional permit for GBE.
I'm thinking that the hearing did not go well for GBE. Chairman Hall did not seem to be buying the arguments that the ATXI decision wasn't relevant to the GBE case. In order to declare the ATXI decision inapposite, GBE would have had to distinguish itself from ATXI, and it completely failed to do so. Instead it put forth arguments that were "naive" and "baffling" that urged the Commission to defy the courts and issue a CCN with language that tells the court their ATXI decision was wrong. If the Missouri Supreme Court declined to do so, it's not the place of the PSC to attempt to re-interpret the law. The law is clear, and the courts have spoken. Done.
And speaking of specious arguments, the attorney for the Sierra Club and other parties really stepped in it. He told the Commission,
I'm thinking that the hearing did not go well for GBE. Chairman Hall did not seem to be buying the arguments that the ATXI decision wasn't relevant to the GBE case. In order to declare the ATXI decision inapposite, GBE would have had to distinguish itself from ATXI, and it completely failed to do so. Instead it put forth arguments that were "naive" and "baffling" that urged the Commission to defy the courts and issue a CCN with language that tells the court their ATXI decision was wrong. If the Missouri Supreme Court declined to do so, it's not the place of the PSC to attempt to re-interpret the law. The law is clear, and the courts have spoken. Done.
And speaking of specious arguments, the attorney for the Sierra Club and other parties really stepped in it. He told the Commission,
We've also raised the possibility of a county veto being in violation of federal law, and this is based solely on my general knowledge, but it seems that local interference with interstate commerce and electricity would violate the Commerce Clause of the Constitution. The Federal Power Act gives FERC authority over interstate transmission lines. The state still has authority to regulate the siting of interstate transmission lines, but they're otherwise preempted.
This guy's "general knowledge" is flat out wrong. The Federal Power Act only gives FERC authority over interstate transmission RATES. It does not give them permitting or siting authority. FERC cannot approve transmission projects. The states have complete jurisdiction over the siting and permitting of interstate transmission lines and are not "preempted" from acting. With this kind of stellar legal analysis, can we believe anything this guy says? The Sierra Club needs to mind its own business and stop trying to interfere in state transmission permitting cases. They only succeed in making themselves irrelevant.
So now it's up to the Missouri PSC to decide what to do with this case. The ATXI decision does preclude the issuance of a CCN for GBE. Any attempt to go around it, as suggested by GBE and its sycophants, will most likely be struck down by the courts. GBE's attorney has to recognize this. He seemed nearly hysterical in his anger and frustration when it appeared that he failed to convince the Commissioners to go along with his "path forward." Remember, the nightmare isn't keeping this case in limbo, but in dismissing it. While logical thinking says that limbo is the worst thing that could happen, for some reason GBE is looking forward to it. It's almost as if GBE is already hanging in limbo, unable to unlock enough cash to continue operations unless it receives some sort of "favorable" opinion from the MO PSC. It doesn't seem to matter if the favorable opinion hangs the project in legal limbo, or results in a future court vacating the favorable opinion. It's all about having that piece of paper right now.
The Missouri Public Service Commission holds the key to the Clean Line money vault. Without it, the project is dead... and likely the other Clean Line projects as well. In the wilds of Mayberry, an animal so injured it cannot recover is put out of its misery. It's a kindness to end its suffering. GBE is suffering. It cannot be saved. It's time...
So now it's up to the Missouri PSC to decide what to do with this case. The ATXI decision does preclude the issuance of a CCN for GBE. Any attempt to go around it, as suggested by GBE and its sycophants, will most likely be struck down by the courts. GBE's attorney has to recognize this. He seemed nearly hysterical in his anger and frustration when it appeared that he failed to convince the Commissioners to go along with his "path forward." Remember, the nightmare isn't keeping this case in limbo, but in dismissing it. While logical thinking says that limbo is the worst thing that could happen, for some reason GBE is looking forward to it. It's almost as if GBE is already hanging in limbo, unable to unlock enough cash to continue operations unless it receives some sort of "favorable" opinion from the MO PSC. It doesn't seem to matter if the favorable opinion hangs the project in legal limbo, or results in a future court vacating the favorable opinion. It's all about having that piece of paper right now.
The Missouri Public Service Commission holds the key to the Clean Line money vault. Without it, the project is dead... and likely the other Clean Line projects as well. In the wilds of Mayberry, an animal so injured it cannot recover is put out of its misery. It's a kindness to end its suffering. GBE is suffering. It cannot be saved. It's time...
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