Who's Ready For A New Game of Whack-a-Mole?

This idiotic news article proclaims that "Grain Belt Express Has Positive Update."  For now, but things can change, just like they did last time the Illinois Commerce Commission approved GBE.

Just take a look at the ICC's Order:

The Landowner Alliance and YTI both assert that Section 8-406(b-5) constitutes special legislation in violation of Article IV, Section 13 of the Illinois Constitution of 1970 and violates the Equal Protection and Separation of Powers Clauses of Article II, Section 1 of the Illinois Constitution. The Landowner Alliance notes that Intervenor Bradley Daugherty filed the Lawsuit in the Circuit Court for the Fifth Judicial Circuit in Clark County, Illinois which asserts that Section 8-406(b-5) is unconstitutional for the same reasons outlined by Landowner Alliance and YTI. The Landowner Alliance agrees with GBX’s position that the Commission does not have jurisdiction to declare the special legislation enacted for GBX unconstitutional and that this challenge is properly before the Circuit Court in Clark County. Cinkus v. Vill. of Stickney, 228 Ill.2d 214 (2000); Bd. of Educ. of Peoria, 2013 IL 114853, ¶38. The Landowner Alliance raised the constitutional challenges under the Special Legislation Clause, the Equal Protection Clause, and the Separation of Powers Clause of Article II, Section 1 of the Illinois Constitution before this Commission to avoid any challenges based upon exhaustion of remedies or waiver raised by any party who asserts that Section 8-406(b-5) is constitutional.

The Landowner Alliance argues that determining whether a law runs afoul of the Special Legislation Clause requires a determination of whether the statutory classification discriminates in favor of a particular group, and second, if it does, whether the classification is arbitrary. Doe v. Lyft, Inc., 2020 IL App (1st) 191328, ¶34, appeal allowed, 163 N.E.3d 713 (Table). The Landowner Alliance asserts that “arbitrary” can mean motivated by caprice, politics, or bias. Foreman v. Civil Service Comm’n of the City of Chicago, 7 Ill. App. 2d 122 at 126 (1st Dist. 1955). Also, “arbitrary” can also mean whether it is rationally related to a legitimate state interest. Moline School District v. Quinn, 2016 IL 119704, ¶26.
The Landowner Alliance states that prior to the enactment of Section 8-406(b-5) a non-public utility like GBX with no ownership or control of assets to be used for the production, transmission or furnishing of electricity could not utilize the rocket docket process available only for public utilities under Section 8-406.1. The Landowner Alliance argues that after GBX failed to obtain its CPCN as a non-public utility in 2015 and the Third District Appellate Court held that Rock Island Clean Line’s project did not satisfy the public use requirement, Invenergy Transmissions, L.L.C. lobbied the General Assembly, which enacted the new Section 8-406(b-5), which allows the Commission to issue a CPCN to a “qualifying direct current applicant,” defined as “any entity” that “seeks to provide direct current bulk transmission service for the purpose of transporting electric energy in interstate commerce.” 220 ILCS 5/8-406(b-5).
The Landowner Alliance points out that if the qualifying direct current applicant has a “qualifying direct current project,” the certificate can be issued “without the taking of additional evidence on these criteria.” Id. The Landowner Alliance states that it is obvious that the amended section tracks the application of GBX almost exactly. The Landowner Alliance argues that while GBX did not have to put forth any evidence relative to Section 8-406(b), every other entity or utility has that obligation. It goes on to argue that Section 8-406(b-5) essentially states that GBX does not need to meet the requirements of Sections 3-105, 8-406(b), or 8-406.1(f)(1) and does not need to meet the public use requirement to offer services in a non-discriminatory manner.
The Landowner Alliance argues that if GBX is allowed to side-step the public use requirement, the asset ownership requirement, and Sections 8-406(b) and 406.1(f)(1) and proceed with its “qualified direct current project,” on or before the arbitrary date of December 31, 2023, the door closes, and no other entity will qualify under Section 8-406(b-5).
The Landowner Alliance further argues that Section 8-406(b-5) arbitrarily discriminates against landowners, including the Landowner Alliance, that 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 subjects the landowners within the Enumerated Counties to the possibility of the Project traversing through their property without the same level of review by the Commission that is afforded landowners in non-Enumerated Counties.
The Landowner Alliance argues that there is no rational basis for this legislative purpose, and Section 8-406(b-5) is arbitrary and unreasonable. The classification created by the statute is not based upon reasonable differences in kind or situation, and whether the basis of the classification is insufficiently related to the statutory purpose. Doe v. Lyft, Inc., 2020 IL App (1st) 191328, ¶36, citing Best v. Taylor Machine Works, 179 Ill. 2d 367, 394 (1997).
The Landowner Alliance concludes that GBX is the only entity that will be using 8-406(b-5) for its project. Section 8-406(b-5) was passed for the benefit of only one entity, GBX, to enable it to bypass the requirements of Sections 3-105, 8-406(a) and (b) and 8-406.1.
The Landowner Alliance asserts that this special legislation violates the Equal Protection Clause of the Illinois Constitution. The Landowner Alliance argues that under the new legislation, Section 8-406(b-5), landowners in the nine counties are deprived of their right to a full evidentiary hearing and were forced to participate in the rocket docket process, which is available only to public utilities, before a CPCN is granted to a non-public utility merchant transmission line developer. The Landowner Alliance claims that no other project falls within the qualified direct current project designation and that both the qualified direct current applicant and the qualified direct current project are elements of the same denial of Equal Protection.
According to the Landowner Alliance, the legislature looked at the requirements that GBX and Rock Island Clean Line failed to meet under the Act and Illinois common law, and then passed special legislation custom tailored to make sure that GBX could obtain a CPCN. As a result, the Landowners are being treated differently from all similarly situated individuals in violation of the Equal Protection Clause.
The Landowner Alliance further asserts that Section 8-406(b-5) violates the Separation of Powers Clause of the Illinois Constitution. It is the Landowner Alliance’s position that the General Assembly’s purpose in enacting subsection (b-5) was to expressly order the Commission to approve GBX’s Project and grant it a CPCN. The Landowner Alliance states that the portion of Section 8-406(b-5) declaring the Project a public use violates Article II, Section 1 of the Illinois Constitution because, by arrogating to itself the power to declare something a public use, the General Assembly is exercising the judicial power to determine whether a particular use is public or private. The Landowner Alliance argues that it is well settled Illinois law that the determination of whether, for purposes of exercising the power of eminent domain, a proposed use is a public use is a decision for the courts, not the legislature.
The Landowner Alliance further argues that if this portion of Section 8-406(b-5) is allowed to stand, the General Assembly will have acquired sole power to define what the term "public use" means in Article II, Section 1 of the Illinois Constitution. According to the Landowner Alliance, the General Assembly's eminent domain power would then be left unchecked because there would be no branch of government that could review its public use decisions. The General Assembly would have eminent domain power by fiat: it could merely declare something a public use in order to affect the involuntary transfer of private property from one party to another, which has never been the law in the State of Illinois. The Landowner Alliance concludes that in the public use declaration in Section 8-406(b-5) the General Assembly unconstitutionally usurps the judicial power. The Landowner Alliance contends that GBX’s Application should be denied due to these constitutional concerns, along with the other arguments that it has raised in this proceeding.

To sum it up, GBE's special legislation for its project is unconstitutional.  The Landowners' arguments are sound.  Let's see what a court does with it now.  Get your hammer ready to pound GBE back in its hole.

And then, back to that ridiculous article...

The project does not have all the necessary siting approvals in all states.  It is still trying to get siting approved in Missouri.  And there are some problems in Kansas that need solving.  And GBE needs a favorable Environmental Impact Statement from the U.S Government in order to get an unsecured loan from the taxpayers.

And then it spits out some completely unverified numbers of energy savings, jobs and economic activity.  Who is going to measure this to see that it actually happens?  NOBODY, that's who.  It's all just magic math.

The only thing I'm positive about is that this isn't the end.