It depends upon what the meaning of the word 'is' is...

Briefs have been filed in the Missouri Public Service Commission case alleging that Invenergy is building a materially different project than the one the PSC permitted.  If the "new" Grain Belt Express project that Invenergy announced last summer is being built, then Invenergy has effectively abandoned the project it had permitted.  No permit, no project.  Invenergy admits that the "new" project would require new approvals from the PSC, but says it alone will set the timetable for when it applies for new approvals.  Meanwhile, Invenergy wants to use its current permit to build a different project, and ask for approval after the fact.

What's the harm in this?  Two words -- eminent domain.  The currently permitted GBE was granted eminent domain authority.  The possibility of eminent domain can be used as a tool to coerce landowners to sign voluntary easements.  Without eminent domain, there is no coercion.  It's as simple as that.  However it remains to be seen if the threat of eminent domain is enough to acquire necessary easements.  How scared are landowners?  Do they believe they will get a better deal before condemnation?  Why should they?  The "fair market value" of their property will not change and will be debated  at any condemnation proceeding by a panel of their peers.  Would landowners believe that they can get more by signing a voluntary easement?  My experience with eminent domain had a different result.  Because I resisted and forced the condemning party to face a court hearing, my value suddenly went up.  It was worth a lot of money to them to avoid the court.  How much?  Six times the original offer, and double that offered before condemnation.  It's a straight up poker game... who's bluffing... and who is forced to show their hand?

Anyhow... back to the briefs.  Invenergy claimed the Missouri Landowners Alliance presented no evidence that it was building a different GBE.  The MLA brief pointed out the specific language Invenergy used in its press release and other documents  and examined the definitive nature of its statements.  It wasn't about maybe, or perhaps, it was a straight up declaration of a new plan.  For example,

Among other indications that Grain Belt now intends to materially change the original project are these additional, unequivocal statements from their press release:
● “Invenergy Transmission, the owner and developer of the Grain Belt Express transmission line project (‘Grain Belt’) today announced plans to increase local clean energy access and accelerate billions of dollars in economic investment in Kansas and Missouri.” The statement does not say Respondents “might” or “are considering” those plans. It says they are hereby announcing them.

● “Economic recovery and long-term economic competitiveness in Kansas and Missouri depend on new investment, more jobs, and tapping into low-cost, homegrown clean energy, which Grain Belt is moving full speed ahead to deliver, said Kris Zadlo, SVP [with Invenergy] .... Grain Belt is proud to increase our investment in Kansas and Missouri to rebuild the economy, deliver billions of dollars in energy cost savings, and meet growing renewable energy demand.” (emphasis added). No ambiguities there.

● “As the new owner of Grain Belt, Invenergy Transmission plans to increase the project’s delivery capacity to Kansas and Missouri to up to 2,500 megawatts of the line’s 4,000 megawatt capacity .... Previously, 500 megawatts of the transmission line’s capacity was slated for delivery to Missouri.” (emphasis added). Again, Respondents’ plan to increase delivery of power to these two states was expressed in unequivocal terms.

● ”Grain Belt will provide critical power infrastructure to the region benefiting residents for decades to come.”

● Governor Laura Kelly of Kansas is quoted in the press release as stating that “[t]his impressive project is the latest example of Kansas’ place as a wind energy leader in our region and beyond.”

● According to the Kansas Secretary of Commerce, “the unwavering commitment from Governor Kelly to further support renewable sources is paying off in many ways, including this tremendous step forward in the Grain Belt Express.” He is further quoted as saying that the revised project “will deliver a significant economic boost to our rural communities in particular. The news couldn’t come at a better time.”

Clearly, these statements from the two Kansas officials would have been authorized for inclusion in the press release only if those individuals had been convinced that Respondents actually plan to move forward with the changes announced in the press release. Had Respondents told them that the revised plans were merely under consideration, the reaction from the Kansas officials would no doubt have been different from what they are quoted as saying in the press release.

● A representative of Renew Missouri is quoted in the press release as saying that “the benefits of Grain Belt have only grown with billions of dollars of added savings ....” Again, this statement is nonsensical unless the speaker had been led to believe that Respondents are committed to moving forward with the changes announced in the press release.

● Perhaps the clearest commitment by Respondents to materially change the original project is the following statement from the press release: “With increased delivery to Missouri ... Grain Belt will double its overall economic investment in Missouri to $1 billion .... Grain Belt will now make available as much as half or more of the project’s total capacity for Missourians.”

The importance of this statement lies in how this additional $500 million is to be spent on the project. As Mr. Zadlo acknowledged, the additional $500 million announced in the press release represents the added cost of increasing the capacity of the Missouri converter station by five-fold: from the original 500 MW to 2,500 MW.35 One could hardly argue that this change is not material.
And Respondents did not state that they were merely “considering” or “contemplating” the additional $500 million investment, which was earmarked for quintupling the size of the Missouri converter station. Instead, the press release states unequivocally that the new plans for the project “would” double the investment in Missouri to $1 billion.
In addition to the press release, in a letter sent from Respondents to landowners just this past December, Respondents included the following statements, again made unequivocally and with no hint that the plans announced therein were anything short of a firm commitment:

● “As you may be aware from recent news, Grain Belt Express has announced a proposed plan to increase the project’s delivery capacity for Kansas and Missouri consumers.”
● “Under this plan, up to 2,500 megawatts of Grain Belt’s 4,000-megawatt capacity would be delivered to Kansas and Missouri consumers .... This requires expanding the already-approved converter station in northeast Missouri.” Again, Respondents do not equivocate. The new plan “requires” the expansion of the Missouri converter station. As it turns out, it requires a five-fold increase in the size of that converter station. ● “Grain Belt Express will be seeking regulatory approval for this plan.” Again, this is a firm commitment to proceed with the project as modified by the announced changes. If Respondents had not already committed to making these changes, there would be no need to state that they “will be seeking regulatory approval” for the changes. This statement also recognizes that the changes being made are “material” enough to require Commission approval under the terms of the CCN decision.

● The letter also states that Respondents will be seeking approval to begin construction of the line prior to obtaining approval for the Illinois segment of the project. This statement confirms the description of the new project in the press release as constituting a “phased construction plan.”

And as counsel for Respondents conceded, “if phasing was to occur so that the Missouri and Kansas portion of the line was built before the Illinois and Indiana portion of the line, then we would likely consider that a material change and be before the Commission.” So the newly announced phasing plan definitely constitutes a material change to the project.

● A series of emails shown at Exhibit 6 indicate that a woman named Kimberly, acting on behalf of Grain Belt, was soliciting comments from the Governor of Kansas to be used in the August 25 press release. In an email of August 6, she informed a number of Kansas officials that “The project is moving into its next phase and the company plans to announce this development.” (emphasis added). She did not tell the Kansas officials that the project might be moving into a new phase. Instead, she unequivocally assured them that the project “is” moving into the next phase.
● Finally, in his response to Data Request No. 8, Mr. Zadlo simply answered “yes” to the following question:
Do Respondents presently plan to eventually seek regulatory approval from the Missouri Commission for the changes described in the press release attached as Exhibit 1 to the Complaint in this case, assuming no other significant changes are proposed to the project as originally approved?

This answer says, plainly and simply, that Respondents do in fact “presently” plan to seek Commission approval for the changes they announced in the press release. Mr. Zadlo did not say they might do so, or that they were considering that as an option. He said they will be seeking approval for those changes, which necessarily means they have already decided to make the revisions announced in the press release. It follows that Respondents have abandoned the project as approved in the CCN case.
The press release also mentions that Grain Belt will seek regulatory approvals “to the extent necessary” for the revised project. That of course is a given. Respondents have no choice but to seek regulatory approval for what amounts to a new transmission project. But that fact has no bearing on the question of whether they have already decided, as they have said, to move “full speed ahead” with the revised project. And again, the statement reinforces the fact that Respondents themselves consider the proposed changes to be “material” enough to require Commission approval.

In attempting to explain away their answer to Data Request No. 8, Respondents claim that the revisions announced in the press release are merely “contemplated changes.” But that explanation misses the point. As of today the specifics of the new plan may well be in the “contemplated” stage, with final details still to be determined.

However, that does not mean Respondents have not already committed to building the project in accordance with the announcements in the press release, as opposed to the project approved in the CCN case. In fact, they have as much as promised officials in Kansas that those changes will be forthcoming.
Perhaps at some point Respondents realized the potential consequences of their announced changes to the project. But taking them at their word up to that point, they have clearly stated they are already committed to making material changes to the project originally approved by the Commission. For Respondents to now dismiss the press release as nothing more than “a marketing exercise” simply demonstrates a complete lack of transparency and credibility.

The same holds true for their after-the-fact attempt to dismiss the press release as merely announcing the supposed benefits of the line and “an openness by Grain Belt to increase the converter station and dropoff in Missouri.” That document goes well beyond that characterization. In fact, the additional consumer benefits would materialize only if the chances announced in the press release were implemented.

The more credible statements from Respondents concerning this project are those made before the Complaint was filed here. Assuming Respondents were not deliberately misleading Missouri landowners, public officials, and the general public up to that point, those statements can only mean that they have already decided to materially alter the project approved by the Commission.
Based on the foregoing, the design and engineering of the project presently being pursued by Respondents is materially different from that approved in the CCN case.

... she unequivocally assured them that the project “is” moving into the next phase.

Is it, or is it not?  I guess that depends on what your definition of is is.  Famous words from a famous equivocator.

The language clearly stated that Grain Belt Express was being changed.  The claims about the vagueness of this new plan only came after GBE realized it had stepped in it.

Is the MO PSC going to allow Invenergy to dictate how it regulates by allowing the company to permit its new transmission project after the fact?  I think the PSC has a greater duty to the citizens of Missouri than it has to an out-of-state corporation who appears less than honest.