The Fifth District Appellate Court in Illinois has issued a stay of implementation of the Illinois Commerce Commission CPCN issued to Grain Belt Express on March 8, 2023. This means that GBE has to cease its land acquisition efforts until the appeal runs its course.
Read the Court's Order here.
Read the Court's Order here.
| order_from_appellate_court.pdf |
The ICC permit was appealed by a group consisting of the Farm Bureau, Concerned Citizens and Property Owners, Concerned People Alliance, Nafsica Zotos and York Township Irrigators. Let's just call them the Landowners. The appeal has yet to be decided. However, GBE has begun sending out packages containing eminent domain threats to landowners, which causes the landowners to have to spend money on appraisers, lawyers, etc. to defend their properties. If the appeal is successful, then this would be a complete waste of landowner cash that could never be recovered. The Landowners filed a motion asking the Court to issue a stay.
...the odds that any affected landowner will ever recover from a penniless project finance limited liability vehicle the costs and expenses they will have incurred in consequence of GBE's premature attempts to obtain easement rights will range somewhere between slim and none.
Read the Landowners motion here.
| motion_to_stay.pdf |
A stay of an ICC order is warranted when it is likely that the appealing party may be harmed, and when there is a likelihood that the appealing party may prevail on the merits. That's right. The landowners think their case is so strong that it is likely they will win. Since the Court granted the stay, apparently they think so also.
The landowners have a very strong case that rests on several different arguments.
The landowners have a very strong case that rests on several different arguments.
Special legislation is expressly prohibited by our state constitution: “The General Assembly shall pass no special or local law when a general law is or can be made applicable.
Whether a general law is or can be made applicable shall be a matter for judicial determination.”
Section 8-406(b-5) benefits only GBE as opposed to all other potential applicants because GBE is the only entity that can take advantage of its specific requirements. There is no rational basis for the General Assembly to require that any application for a “qualifying direct current project” be filed by December 31, 2023, except to specifically favor GBE against all other applicants. In fact, the sponsor of the legislation that added Section 8-406(b-5) to the Act specifically admitted during the debate on the amendment that the new law was for “the transmission line [G]rain [B]elt.”
The legislature passed special purpose legislation just to grease GBE's approval by the PSC.
Section 8-406(b-5) also arbitrarily discriminates against landowners, including the Landowner Alliance, who own land within Pike, Scott, Greene, Macoupin, Montgomery,
Christian, Shelby, Cumberland and Clark Counties, Illinois (the “Enumerated Counties”), to the benefit of landowners that own real estate outside of the Enumerated Counties. Section 8-406(b-5) arbitrarily and unfairly deprives the landowners in the Enumerated Counties of the same legal threshold for the involuntary transfer of their private property by eminent domain as landowners in non-Enumerated Counties enjoy.
This violates the equal protection guarantee.
"The equal protection clause provides a basis for challenging legislative classifications that treat one group of persons as inferior or superior to others, and for contending that general rules are being applied in an arbitrary or discriminatory way."
"The equal protection clause provides a basis for challenging legislative classifications that treat one group of persons as inferior or superior to others, and for contending that general rules are being applied in an arbitrary or discriminatory way."
The legislation violates separation of powers whereby the legislature declared GBE to be a public utility.
It is well settled under Illinois law that "…the determination of whether a given use is a public use is a judicial function."
Section 8-406(b-5) takes out of the hands of
the courts the determination of whether a particular use is a public one. Article II, Section 1 of the Illinois Constitution states that "[t]he legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another."
Only a court can determine if GBE is a public use. The legislature cannot make such a determination, nor should it. Just look at how stupid the enabling GBE legislation was -- would you want people who passed this hot mess also determining whether private companies can take your property? Legislators are often not the brightest bulbs in the string, but they don't have to be because that's what lobbyists are for. Lobbyists write legislation that favors their employers and legislators pass it. That's probably what happened with Grain Belt Express. Nobody with any legal knowledge could have written that legislation. Thank goodness for our courts!
In addition, the ICC issued a 5-year CPCN when they are only permitted by statute to issue a 2-year CPCN.
The ICC should not have approved GBE because it failed to demonstrate that it could finance its project. It was all coulda, woulda, shoulda. The mechanics are in place to receive financing IF and only IF GBE signs customers. GBE has not yet found enough customers to receive financing for its project. That's like saying I could buy a yacht, if I only won the lottery. First I would have to win the lottery and the chances of that are looking about as good as GBE finding customers.
In addition, the ICC issued a 5-year CPCN when they are only permitted by statute to issue a 2-year CPCN.
The ICC should not have approved GBE because it failed to demonstrate that it could finance its project. It was all coulda, woulda, shoulda. The mechanics are in place to receive financing IF and only IF GBE signs customers. GBE has not yet found enough customers to receive financing for its project. That's like saying I could buy a yacht, if I only won the lottery. First I would have to win the lottery and the chances of that are looking about as good as GBE finding customers.
Though GBE asserts that it is presently capable of financing the Project, this is false. GBE’s own witnesses testified that financing for the Project will not be in place until it has secured transmission contracts with customers whose credit ratings are acceptable to lenders willing to lend to GBE on the strength of those customers’ creditworthiness. As GBE stated in its Initial Brief before the Commission, it will not be able to obtain financing for the Project until customer contracts are executed.
All the special purpose legislation, gladhanding, and influencing in the world can't produce customers for GBE. A merchant transmission project without customers is NOT NEEDED.
Keep your fingers crossed while this appeal is considered and decided. Will GBE have to return to Go and not collect $200? Is it possible to unfairly influence the Illinois Appeals Courts? Will justice prevail?
Keep your fingers crossed while this appeal is considered and decided. Will GBE have to return to Go and not collect $200? Is it possible to unfairly influence the Illinois Appeals Courts? Will justice prevail?
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