Plaintiff is quick to claim that it does not need any court order to enter upon the lands because it has that inherent right pursuant to the Eminent Domain Code. (Plaintiff's Brief in Opposition to Defendants' Preliminary Objections ... p. 7.) Yet, Plaintiff is here in Court seeking just that -- a court order permitting it and its agents entry onto lands of Defendants.

...claiming an immediate need to access Defendants' property for the purpose of obtain[ing] critical information, including various environmental studies, (including, wetland delineations, habitat assessments, and threatened or endangered species surveys), appraisals, geotechnical surveys (including soundings and drillings for testing soil and bedrock, cultural resources surveys, civil surveys (including trimming or cutting vegetation necessary for survey purposes) and all other surveys and tests necessary to properly assess the area, design and construct the proposed electric transmission line ...
(Plaintiff's Motion,~ 22).

From this description, the nature of the proposed intrusion onto Defendants' land appears to be quite extensive, quite possibly resulting in damage to the land. In fact, Defendants acknowledge the possibility of damage by noting in its Motion that it stands ready to pay damages should such occur.

disrupt Defendants' peaceful possession and enjoyment of their lands with "soundings and drillings ... [and] trimming or cutting vegetation ... " possibly resulting damages, on the off chance that the power line may, in fact, run over a portion of those lands, with one exception.

We fully realize that the final route may not be able to be approved absent the studies Plaintiff seeks to undertake. However something more than Plaintiff's mere assertions as to whose lands might be affected is required to satisfy us that Plaintiff is not on the proverbial "fishing expedition." We are mindful of Plaintiff's argument that preventing discovery at this stage of the proceedings makes it difficult for it to obtain final route approval. However, our concern is not with what Plaintiff must do to satisfy the PUC, our concern within the context of this litigation in general, and regarding Plaintiff's discovery request in particular, is to ensure that a party does not suffer from "unreasonable annoyance, embarrassment, oppression, [or] burden" during the discovery process.

PSO will suffer irreparable harm, damage, and injury unless the acts and conduct of Defendants above complained of are enjoined because further work and construction of the
transmission line cannot continue unless the location and description of the right-of-way easement across the Property owned by the Defendants can be determined.

AEP also did not want to discuss specific eminent domain cases. However, AEP spokesperson Melissa McHenry specified that as of this past spring, the company had more than 3,200 easements on projects, including more than 903 miles of transmission line. Out of the 3,200 easements, only 41, or 1.28%, required eminent domain filings, she said. In some of those cases, eminent domain was necessary “because the land was without clear title, and, therefore, condemnation by publication was necessary,” she said.

According to McHenry, when AEP constructs or upgrades a transmission line that requires the use of a landowner’s property, easement negotiations begin with property owners after state regulators have approved the project. The negotiations are based on the fair market value of the property needed for the ROW, she said. Appraisals and market data studies are conducted to determine market values and a basis for acquisition negotiations. Negotiations will continue “as long as practical” to reach a voluntary agreement.

If it becomes clear that a voluntary agreement between AEP and the property owner cannot be reached and other viable alternatives do not exist, the company will then exercise the right to eminent domain to secure required easements.

...the new results are a clear sign that Americans support cleaner, renewable power and that it has carried over to the distribution of that power through their own backyard.

High-voltage transmission lines generate some of the most adamant NIMBY (Not In My Back Yard) opposition in the country. That such a large percentage of people are willing to allow green lines in their community says a lot about the awareness and importance of renewable energy and climate change issues in addition to the education efforts undertaken by the renewable energy industry.

Polling indicates the public’s feelings about a number of various topics on any given day. But it can also be misleading if viewed out of context — especially when it comes to land use issues.

How is it, for example, that most Americans support wind energy in general, but emotive opponents can block transmission lines delivery wind energy or wind farms in some local communities?

So, the jury’s in, right? Everyone loves renewable energy projects. But wait.

But the emotional opposition appears to fly in the face of surveys and polls showing national support for clean energy generation and transmission. What’s going on? Do these polls and surveys lack credibility? No. In fact, they are spot-on in terms of reflecting how Americans feel about renewable generation and distribution projects and how they may positively impact our communities given the perceived global threats of climate change, greenhouse gases and negative impact to wildlife over time. Today, based on a solid campaign by climate change advocates, the renewable energy industry, the current Obama administration and constant media pounding, the threat to our economy and the environment posed by carbon-emitting generation sources is very real and frankly easy to grasp. The arguments have been made and, let’s face it, many Americans are buying in.

But it’s easy to support a wind energy project without a real wind turbine or transmission line literally staring you in the face. That’s where rational thinking ends and passionate “defense of the community” (or defense of the children for that matter) campaigns begin.

...shop for a home in a community of interest and share the rumor of a new 765 kV transmission line going across the property down the road, in front of the view of the mountain range. What’s the survey say then? Chances are you may not find majority support, even from residents who responded in the poll you fielded yesterday.

Perhaps at best, polling identifies the size of the silent majority you have on your side when they are under no local threat of changing their daily lives. Winning hearts and minds in a poll won’t necessarily win you a permit at town hall.

Renewable energy is great in our public opinion, just not when it gets in the way of our personal point of view.

Grant authority to obtain rights-of­ way for electricity transmission lines with the goal of creating a reliable na­tional transmission grid. Similar au­thority already exists for natural gas pipelines and highways.

And both that morning equally lay
In leaves no step had trodden black.
Oh, I kept the first for another day!
Yet knowing how way leads on to way,
I doubted if I should ever come back.

I shall be telling this with a sigh
Somewhere ages and ages hence:
Two roads diverged in a wood, and I--
I took the one less traveled by,
And that has made all the difference.

The order of the Commission is hereby reversed and remanded where it granted a
nonpublic utility company the authority to construct and manage an electrical transmission line project under the Act's expedited review process without the requisite
finding that the applicant was a public utility.

Pursuant to section 8-406.1, the section utilized by GBX in the instant case, "[a]
public utility may apply for a certificate of public convenience and necessity pursuant to
this Section for the construction of any new high voltage electric service line and related
facilities (Project)."

Section 3-105 of the Act defines a "public utility" as follows:
"[E]very corporation, company, limited liability company, association, joint stock company or association, firm, partnership or individual, their lessees, trustees, or receivers appointed by any court whatsoever that owns, controls, operates or manages, within this State, directly or indirectly, for public use, any plant,
equipment or property used or to be used for or in connection with, or owns or controls any franchise, license, permit or right to engage in ***

We note, however, that the definition of "public utility" was recently clarified by the Illinois Supreme Court in Illinois Landowners Alliance, NFP v. Illinois Commerce Comm'n, 2017 IL 121302. In Illinois Landowners Alliance, NFP, our supreme court determined that when the Commission grants a company a certificate of public convenience and necessity under section 8-406 of the Act, the "central question remains: Does it even qualify as a public utility under Illinois law so as to be eligible for such a certificate under section 8-406 of the Public Utilities Act?"

Our supreme court determined that Rock Island, a new entrant, was required to present ownership of utility infrastructure assets to qualify as a public utility, as defined in section 3-105, in order to obtain a certificate of public convenience and necessity under section 8-406 of the Act. Id. ¶ 48. In order to qualify as a public utility, our supreme court concluded that "the company must also own, control, operate , or manage, within this State, directly or indirectly, a plant, equipment, or property used or to be used for or in connection with (or must own or control any franchise, license, permit, or right to engage in) the production, transmission, sale, etc. of one of the specified commodities or services." Id. ¶ 39. The supreme court noted that the statute is phrased in the present tense because it requires that a company must own, control, operate, or manage, within the state, a plant, equipment, property, franchise, etc. at the time it seeks certification by the Commission.

The supreme court reasoned that when the General Assembly repealed the prior language in section 3-105 of the Act, which defined a public utility as "every corporation *** that now or hereafter *** may own, control, operate or manage" specific plants, equipment, or property (Ill. Rev. Stat. 1965, ch. 1112/3, ¶ 10.3), it intended, as the court
must presume, to speak only to ownership in the present tense when it eliminated the words "that now or hereafter *** may." Id. ¶ 42. As a result, the court determined that courts must read the statute as "evincing an intention by the legislature to limit the definition of 'public utility' to situations where the subject entity meets the ownership test
at the present time."

Here, GBX similarly fails to establish that it was a public utility at the time it filed its application with the Commission. It is undisputed that GBX does not presently, or at
the time it filed its disputed application with the Commission, own, control, manage, or operate any plant, equipment, or property in Illinois used or to be used for or in connection with the production, transmission, sale, etc. of one of the specified commodities or services. Accordingly, GBX did not meet the definition of a "public utility" under section 3-105 of the Act at the time it filed its application with the
Commission.

...we are not persuaded that the legislature intended for the expedited review process to be an available avenue for nonpublic utility entities. The Commission's conclusion that any nonpublic utility may apply to be a public utility under section 8-406.1 ignores the express language set out in section 8-406.1(a). Significantly, section 8-406.1 of the Act clearly and unambiguously reads that "[a] public utility may apply for a certificate of public convenience and necessity pursuant to this Section ***."  As such, our interpretation of section 8-406.1 requires that the applicant must meet the definition of a public utility. In order to obtain status as a public utility, the applicant must meet the ownership test at the time of application, the same prerequisite in section 8-406, and the Commission must make this finding before issuance of a certificate. Here, GBX holds an option to purchase property that would serve as the site to place equipment for the proposed project. "[H]aving an option to buy something is not the same as owning or even controlling it," and an option agreement "does not involve the transfer or [sic] property or an interest therein." Illinois Landowners Alliance, NFP

The supreme court noted, however, that the Act does not prohibit new entrants from commencing development as a purely private project before applying to become a public utility in Illinois:
"Once their projects are further underway and they have obtained the ownership, management, or control of utility-related property or equipment required to qualify as public utilities, they may then seek certification to operate as public utilities if they wish to conduct their business in a way that would make them subject to the Public Utilities Act's regulatory framework."

As a result, the Commission must find that an entity is a public utility at the time of application in order to utilize the expedited review process in section 8-406.1 of the Act.
Unable to meet the requisite ownership test, GBX is not a public utility under section 3-105 of the Act, but rather an entity with a purely private project that does not require the
Commission's authority to proceed.

The Republican Party’s current infrastructure spending bill is missing one item: a provision establishing federal siting authority for electric transmission lines. Oddly, this idea has few champions in Congress and only tepid support from environmental groups.

Problematically, the best locations for wind and solar power plants are far from population centers—in the windy central plains or the sunny southwestern deserts.

More than ever, consumers want green power.

Conservatives claim that federal transmission siting authority would threaten state sovereignty or landowner property rights, but those claims ring hollow. Why are those values worth protecting against transmission lines but not against natural gas pipelines?

Defendants will suffer no damage as a consequence of granting immediate possession, because any damage to the land will be remedied by the payment of money, per the statute.

Transource appreciates that many landowners have granted them access to conduct surveys, Foster said. 
​
"Transource and its representatives are committed to treating landowners and their properties with respect," Foster said. "While reaching a voluntary agreement with property owners is a high priority, it is imperative for Transource to continue through the phases of the project as the company seeks regulatory approvals. The approval of this filing will allow Transource to proceed with field work for those landowners who have not yet granted the company access.”

Transource PA will not be able to begin construction in time to allow the Project to be completed to meet the in-service date set by PJM.  If Transource PA misses the PJM-mandated in-service date, the public will suffer irreparable harm in the form of continued electric gridlock, and delay or ultimate failure  of the project.  Furthermore, Transource P A will suffer irreparable harm as Transource Energy has invested considerable time and money in attempting to obtain access rights to the route.

In fact, Transource PA has invested more than $6.0 million to date in siting, design and engineering. The foregoing harms would also result if Transource PA's access is obstructed by Landowners, or other unauthorized and untrained third parties who are present on the Property in the vicinity of the work corridor at the invitation of Landowners

Accordingly, this Court may issue an Order, granting this petition and authorizing Transource MD to enter onto the Subject Property to conduct surveys, and obtain information in connection with the acquisition and project, without the need for a hearing prior to the issuance of the Order.

Michael Skelly, the company's president, told Arkansas Business that the direct-current project, which would have transmitted 4,000 megawatts of renewable energy from Western Oklahoma to eastern Tennessee, is basically on life support.

"Everybody knows that if you can delay a project, you can hurt it or force a different outcome," Skelly said after devoting nearly nine years and some $100 million in private investor money to the project, which would have crossed 12 Arkansas counties with 200-foot-high transmission towers. "We're ending up with an outcome that's just fine for us business-wise, but not as good for Arkansas."

Clean Line Energy spokeswoman Vicki Ayres-Portman explained the impact wind energy has had on local county budgets and what it would mean to be the member of a state that divests in wind energy at Monday's get-together.
Ayres-Portman was taking the place of originally scheduled speaker Mark Yates, Oklahoma director for the Wind Coalition.
“Most of you have probably heard there are two bills running on the floor of the house today that would have a detrimental impact on the future and possibly retroactive on wind development,” she said. “So Mark felt like he really needed to stay at the capitol today and asked if I would stop by on my way to the capitol and give you guys an update on wind energy in Oklahoma.”

Ayres-Portman detailed the well publicized and still working 9-year-old Clean Line project set to run from the Oklahoma Panhandle to Tennessee. The $2.5 billion, 4,000 megawatt project that was set to provide energy to customers in Arkansas, Tennessee and other markets stalled recently. The issues hamstringing the plans come after President Trump began pushing coal and nuclear power options.
"The market has really changed since Clean Line started this effort eight, nine years ago,” Ayres-Portman said. “At that time, the bioenergy centers to the East were really looking forward to more renewables. We had a new President elected. And although I agree with a lot of great things he’s done, one of the things, pushing coal and nuclear has really dampened the power purchase agreements from big utilities that were looking at doing renewables, whether that was natural gas, wind or solar.”
So those companies that had memorandums of understanding to come onto the Clean Line transmission line, have pulled away from those agreement.

Furthermore, the Transource letter sent to landowners  dated January 5, 2018 is inaccurate  and misrepresentative of the proper procedures set in place  under the Eminent  Domain  Code and public  codes of the Commonwealth. In  the letter, your company  stated it  has obtained utility status by Pennsylvania. While the Public Utility Commission (PUC) approved Transource's application for utility  status on December 21, 2017, your company  has yet to obtain  the appropriate certificate  and orders from  the PUC to  operate as a public utility  and conduct land surveys/assessments. Moreover,  even after obtaining the appropriate approvals,  Transource must follow the Eminent Domain Code  and issue a  10-day notice to all landowners before  accessing private property. As of today, Transource cannot  send such a notice until the proper certificate and approvals from the PUC.

I have received numerous complaints from constituents in my legislative district who experienced threatening behavior from your contracted land  services agent, Western Land Services. In communication with landowners,  agents from Westem Land  Services threatened to call the sheriff's office  and arrest residents who did not  sign letters granting access to their properties. This type of coercive behavior and  harassment by your contracted  agent is unacceptable  and illegal  at best. I  am requesting punitive actions be  taken to  ensure this type of disrespectful behavior  does not  happen again during  the remainder of  the project.

The nation's biggest wind generator, NextEra Energy Resources, has bought the Oklahoma portion of the proposed 700-mile-long Plains and Eastern Line to serve Oklahoma and Midwest customers. But for now, plans to bring wind energy from the windy areas of Oklahoma and Texas into the less-windy Tennessee Valley and Southeastern part of the United States are stalled and unlikely to be resurrected for years.

"Unfortunately, this represents a significant delay in our ability to deliver this energy in the Southeast," Skelly said of the decision not to actively pursue the project at this time. "TVA's lack of interest has certainly not been helpful."

Skelly said other utilities want to buy wind-generated power, and Clean Line is now focusing on its four other transmission projects in the Midwest and the Western part of the United States. NextEra will use the Oklahoma part of the Plains and Eastern line to begin serving parts of Oklahoma, Kansas with wind-generated power that NextEra plans to develop.

"We are hanging onto our permits and rights of way in Arkansas in the event TVA in the future says it might like this power somewhere down the line, " Skelly said. "But at this point it would take considerably more effort to get this project moving for TVA again."


"TVA obviously has to make its own decisions about its future power supply, and we understand that," Skelly said. "But for now, we've stopped the process [of pursuing an interconnection agreement with TVA] because TVA required a whole lot of money to continue in this process but they have not wanted to make any commitments to buy the energy off of this line."

But Skelly said other utilities have found that their projections about the costs of using a variable source of power like wind have often proven more than expected "and as battery and other storage methods become better, wind will prove even more attractive."

"We think we gave TVA a very good offer, but apparently they did not," he said. "We're still getting a lot of interest from other utilities that want to increase their renewable energy and see wind as a good way to achieve that at a reasonable cost."

Skelly said Duke Power and other Southeastern utilities have expressed interest in buying more wind-generated power, but TVA was needed to buy and/or readily transmit the 3,500 megawatts the line was designed to deliver to Memphis.

Skelly said he and his partners have been working on the Clean Line transmission project for more than eight years and have had to battle local landowners who didn't want to sell their land and regulators in Arkansas who balked at permitting the transmission line rights of way to a developer from another state.
"We've been able to overcome those obstacles, but we always knew when we started it wouldn't necessarily be easy or quick," he said. "But we do think it is the right choice in the long run."