The Iowa Utilities Board denied Clean Line's third attempt to bifurcate the regulatory process in Iowa yesterday. No big surprise, really. Clean Line is once again dead in the water in Iowa.
The IUB evaluated Clean Line's motion using four factors: Preservation of constitutional rights; Clarity vs. the possibility of confusion; Administrative efficiency and the convenience of the parties; and Other considerations.
On the constitutional rights issue:
The IUB evaluated Clean Line's motion using four factors: Preservation of constitutional rights; Clarity vs. the possibility of confusion; Administrative efficiency and the convenience of the parties; and Other considerations.
On the constitutional rights issue:
It appears that notices could be prepared based upon this language that would be sufficient to satisfy the applicable legal requirements and give all interested persons adequate notice of which issues would be considered at which time. Accordingly, the Board finds that setting a procedural schedule with two phases, divided as proposed by Clean Line, would not necessarily impair the constitutional rights of any party because adequate notice could be given.
On the clarity vs. confusion issue:
As noted above, it appears that the issues for each hearing have been defined with sufficient specificity that clear notice could be given to all interested persons. This factor does not weigh against the use of separate phases in the manner proposed by Clean Line.
Administrative efficiency and convenience is where it gets dicey for Clean Line:
The Board finds that the considerations of administrative efficiency and convenience do not support establishment of a procedural schedule with two separate phases in the manner proposed by Clean Line. The efficiencies and benefits accrue primarily to Clean Line and its supporters, which the inefficiencies and inconveniences fall to the affected landowners. There is no basis in this record to justify such an inequitable result.
The IUB wasn't impressed by Clean Line's arguments that other municipalities and state agencies in Iowa use the same bifurcated procedure Clean Line proposes. The Board determined that Clean Line's proposal is not a two-step process, but a three-step process:
The Board would first determine whether to approve the proposed line, then determine whether to grant the power of eminent domain, and then Clean Line would be permitted to proceed to condemnation. The situations are not parallel; Clean Line proposes to add an additional step to the process.
The IUB also was not swayed by Clean Line's assertions that other states do it Clean Line's way. You're not in Kansas anymore, Clean Line. This is Iowa, and
The Board’s concern is with following and implementing Iowa law.
So, let's recap: Are the IUB's concerns with a bifurcated process something Clean Line can fix with a fourth motion to bifurcate?
1. Benefits to Clean Line at the expense of landowners. Clean Line can't remedy this by making a landowner's need to participate in both phases of a bifurcated proceeding disappear. And it can't be outweighed by the "convenience" of any number of other parties. The IUB reasoned that those other parties can simply elect not to participate in the parts of a single hearing they aren't interested in. There, all fixed. This is a logic hurdle Clean Line simply can't jump.
2. Iowa law. It is what it is, and Clean Line has been previously unsuccessful in changing it. Considering how much Clean Line has angered legislators in Iowa, it's not looking promising in the future, either.
So, what's Clean Line's next move? Checkmate.
It's time for RICL to be moved to the "failed" category.
1. Benefits to Clean Line at the expense of landowners. Clean Line can't remedy this by making a landowner's need to participate in both phases of a bifurcated proceeding disappear. And it can't be outweighed by the "convenience" of any number of other parties. The IUB reasoned that those other parties can simply elect not to participate in the parts of a single hearing they aren't interested in. There, all fixed. This is a logic hurdle Clean Line simply can't jump.
2. Iowa law. It is what it is, and Clean Line has been previously unsuccessful in changing it. Considering how much Clean Line has angered legislators in Iowa, it's not looking promising in the future, either.
So, what's Clean Line's next move? Checkmate.
It's time for RICL to be moved to the "failed" category.
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