Congress should create legislative authority for siting major electricity transmission lines that follows the authority it has already granted to siting major gas lines.

"What Rock Island is asking the Commission to do is grant it a CPCN so it looks like a 'public utility' for purposes of condemning private property to build its line, while at the same time it plans to offer only a token percentage of that line's capacity for 'public use'. The transmission service that Rock Island plans to provide on its transmission line does not meet the public use standard under Section 3-105 of the PUA." (R.V27, C6629).
These are the words of the ICC Staff at the close of a five day evidentiary hearing at the
Commission on Rock Island's Verified Petition. Rock Island is not a public utility, and it does not commit to serve the public. Despite the express language of the PUA, Rock Island, as a non-utility startup company, sought a CPCN from the Commission for which it is not statutorily eligible. Rock Island's public policy arguments regarding an apparent desire for an expansion to the statutory definition of''public utility" should have been, and still can be, made to the legislature.

Grain Belt Express is a merchant transmission company. It is proposing to build a participant funded transmission line. As such, neither the applicant nor the proposed project embody the business characteristics the Legislature authorized this Commission to regulate.

The Court recognized that when a private business enters into special contracts upon its own terms and not at a regular rate, there is not only no need for the Commission to regulate, to do so would be a violation of the constitution. The purpose of regulation is to bring the power of government to bear on a common carrier service. Private initiatives not devoted to the public use of all do not justify the comprehensive regulations dictated by the Public Service Commission Law. Stated another way, when facilities are not devoted to a public use, there is no need for the Commission. That is the situation before the Commission in this Grain Belt Express case.

The issues presented by this case are twofold: (1) whether Clean Line fits the statutory definition of an Arkansas “public utility” and is entitled to a CCN to provide public utility service in the state; and (2) if so, whether Clean Line is entitled to exemption from certain public utility statutes. For the reasons stated more fully below, the Commission finds that Clean Line does not meet the statutory definition of a public utility at this time.  The Commission’s ruling on the first issue moots the necessityof ruling on the second.
The Commission is a creature of the General Assembly, and it performs a legislative function in regulating all public utilities. Bryant u, Arkansas Pub. Sew. Comm‘n, 46 Ark. App. 88,877 S.W.2d 594 (1994); Sw. Bell Tel. Co. v. Ark. Pub. Serv. Comm’n, 267 Ark. 550, 593 S.W.2d 434 (1980).  The Commission’s statutory mandate extends to and includes “all matters pertaining to the regulation and operation of all ... electric lighting companies and other companies furnishing gas or electricity for light, heat, or power purposes.” Ark. Code Ann. 23-2-302.

The Commission’s decision in this case turns on the statutory definition of a “public utility” found in Ark. Code Ann,  23-1-101(9)(a) cited above. Although Clean Line’s presentation of its case was strong on policy considerations and certainly Clean Line worked hard to analogize its case to that of the SPP RTO, the Commission’s authority cannot exceed that which is delegated to it by the Arkansas General Assembly. The “public utility” definition requires “owning or operating in this state equipment or facilities for...transmitting...power to or for the public for compensation.” Ark. Code Ann. 23-1-101(9)(A).

The Parties’ legal filings and opening arguments at the December 7 hearing discussed to varying degrees what each of these key phrases means, but the Commission is not convinced the totality of the evidence satisfies this statutory threshold. Recognizing, as Clean Line pointed out, there is some circularity involved in the fact that Clean Line cannot own or operate regulated major utility facilities pursuant to Arkansas law in this state without first being declared a public utiliity, in isolation, this portion of the statute is not determinative of Clean Line’s utility status. However, read in tandem with the facts that the transmission of the power must also be “to or for the public for compensation’’ when Clean Line, to date, has no contracts for public utility service with any utility, including Arkansas utilities, and there also can be no transmission of power at this time, the Commission is not prepared to approve Clean Line’s CCN Application.

Rock Island’s plan offers the public the nondiscriminatory right to bid for transmission capacity. But it does not offer the public the nondiscriminatory right to use transmission capacity. Under well-settled authority dating back a century, Rock Island’s plan does not meet the “public use” requirement.

As a threshold matter, it is important to clarify what this means. As Rock Island’s witness makes clear in his testimony, the open season auction will be open to the public on non-discriminatory terms. In other words, any member of the public can bid. But there is a difference between being able to bid for a service through an auction and being able to actually use a service at a tariffed price. When Christie’s auctions a painting, any member of the public can bid on non-discriminatory terms; but only the winner takes the painting home.

The ICC points out that the open season will be “fair, transparent and non-discriminatory.” ICC Br. 25-26. ComEd agrees. But this simply means that the auction process will be fair, and that all bidders would have the same opportunity to bid. It does not mean that all members of the public can use the service on equal terms. Those who cannot pay the auction price are left with only the chance of receiving non-firm service and are expressly subordinated to anchor tenants and auction winners. Non-auction winners who do not, or who cannot use non-firm service, are left completely empty- handed.

Grain Belt Express is proposing a duplicate service to the existing, well-established transmission grid. It is seeking to provide discriminatory service to one particular customer to obtain this Commission’s approval. It is proposing as a merchant a service that is participant-funded. It wants to maintain that merchant status, free from the obligations imposed on an “electrical corporation” by the Missouri Public Service Commission Law. This unregulated utility will create many problems that the Missouri Public Service Commission Law was designed to thwart, such as destructive competition, damage to property from duplicative facilities, and the exercise of market power in a traditional monopoly service. Grain Belt is seeking the power of the state of Missouri granted by this CCN without any of the obligations imposed by the law. Show Me is concerned with one enterprise whose property is not devoted to the public service using the land (I think he meant to say "laws") of the state, particularly the eminent domain power of the state, for their own business interests. It is not just and it is not in the public interest of the state of Missouri.

When Donald Trump and Mike Pence met this month to discuss a promised $1 trillion infrastructure plan, the Cabinet Room was filled with half a dozen billionaire executives, from Tesla’s Elon Musk to Steve Roth, a New York developer and longtime friend to the president.

One person who wasn’t there? The man who worked for months to line up priority infrastructure projects for the Trump transition team.

Just a few weeks earlier, Dan Slane had been jetting around the country — on his own dime — to meet with governors, contractors, investors, labor union officials and others eager to influence Trump’s infrastructure plan. He developed a 50-project proposal filled with exactly the kind of “shovel-ready” investments the White House wanted – the kind that needed regulatory relief, not federal dollars.

But as Trump’s attention turns to infrastructure after suffering defeat on his first policy priority, the White House will not even acknowledge Slane, except to say he has “no official or unofficial role” in the administration. He says his infrastructure plan, and indeed his very connection to the president, has become the victim of a power struggle for control of this big-ticket infrastructure agenda between Peter Navarro, a Trump loyalist and economic populist who advised his campaign, and Gary Cohn, a former Goldman Sachs president who now runs the National Economic Council.

Anderson’s company had compiled a list of 100 top infrastructure projects with input from senior-level investors, engineers and developers. The list would have been offered to whichever presidential candidate had won in November, Anderson said.

A week after Trump’s unexpected win, Anderson found a white paper online that Navarro and now-Commerce Secretary Wilbur Ross had written for the Trump campaign. It proposed tax credits to fund infrastructure. He emailed Navarro, and offered some suggestions.

“Navarro asked Dan to talk to me the next day,” Anderson said.

Slane, who was working without a staff, asked Anderson to help him screen a list of projects Navarro wanted for the administration. Anderson in turn hired Boston Consulting Group to analyze how many direct and indirect jobs each project would create.

Playing the liaison

Leaders at the state and local level, and executives at the National Governors Association, thought they had been working with the White House, through Slane.

Paul Aucoin, executive director of the Southern Louisiana Port, said he assumed Slane was a shoo-in for a White House infrastructure job when he met him at Anderson’s offices in Washington in December.

Aucoin made the trip to DC to promote his port and try to secure federal assistance to dredge the mouth of the Mississippi River.

The meeting with Slane had been arranged for Aucoin by the public relations firm of Gary Meltz, a former aide to Democratic Rep. Eliot L. Engel of New York.

Slane introduced himself as a member of the Trump transition, and Aucoin made his pitch.

Slane promised to get the dredging project on the list he and Anderson were compiling for the transition.

“They were very receptive, they got it, they understood what I was saying, they asked all the right questions,” Aucoin said. “It wasn’t like I was talking to a wall. I was finally talking to some one who understood what I was trying to say.”

Later Slane would visit the port and meet with Louisiana Gov. John Bel Edwards. He reassured Edwards and Aucoin that congressional Republicans would pledge money to the project from the Harbor Maintenance Trust Fund. That promise that has yet to be fulfilled.

Aucoin said he’s since hired a lobbying firm in Washington that was working on getting him a meeting with Gribbin.

“It was a blow for us to lose Dan,” Aucoin said.

"When the Trump campaign was looking at infrastructure, we thought it was a good thing to mention. We're just happy to be part of the conversation."

Sean McGarvey, president of North America’s Building Trades Unions, said his organization consulted with Slane on his plan. His union delivered to the White House its own list of priority infrastructure projects in February, after meeting with Trump.

“The way Dan framed it was really good because Dan took projects that had all funding but lacked permitting or some who had permitting,” McGarvey said.

“He did a lot of thoughtful work on the initial ready-to-go, out-of-the gate stuff,” he said. “The projects that Dan was talking about really don’t require a new infrastructure bill. Those are ones that exist, that are both private and public, and have the three elements you need: the financing, the engineering, and permitting. And some of them will happen this year.”

Slick Willie is a term that, upon hearing it, is understood to mean something uncomplimentary towards the person to whom it refers.  Those who are called Slick Willies are cunning and deceptive people who are superficially appealing and polished, but who are shallow and glib, and able to deftly execute convincing arguments that favors the con man and defrauds the mark.

To my ear, that backstory "so" is merely a little geeky, but it rouses some critics to keening indignation. A BBC host says speakers use it to sound important and intellectual. A columnist at Fast Company warns that it undermines your credibility. A psychologist writes that it's a weasel word that people use to avoid giving a straight answer.

When Sabal Trail approached him, Dowdy agreed to a negotiated fee for the right-of-way and estimated crop loss because he knew if he balked, the government would help the company take it anyway. He agreed in good faith, as well. Sabal Trail promised that Dowdy’s land would be returned to its original state by early January, in time for the new planting season.

And this is where the dispute begins.

“I was assured that Sabal would adhere to Georgia Soil and Water provisions,” says Dowdy, “that they would adhere to guidelines for segregated top soil and sub soil…rebuild my terracing to insure erosion wouldn’t occur…and put everything back in pre-construction condition. They said they would do…in their words…everything it takes.”

Andrea Grover, Director of Stakeholder Communications for Sabal Trail, says the company “followed specific protocols in place for construction which include storm water, erosion and sediment control plans which all require best management practices or “BMPs.”

“Our representatives have worked with individual landowners over the course of the past 3 ½ years to address concerns as related to the project and its impact to agriculture,” Grover explains. “The Federal Energy Regulatory Commission (“FERC”) is the lead agency which approves pipeline projects, and Sabal Trail’s work is limited to only the FERC approved areas and conditions for construction. Project inspection personnel and our contractors all have the appropriate level of certifications for storm water controls inspection in Georgia.”

While Sabal Trail management promised that Dowdy’s farm would be back in business by the first week in January, and ensured that the project right-of-way would be “restored to its previous condition and contours,” that wasn’t the case. Repairs continued into February—and, worse, were still in progress when a major late January storm hit the state.

“I had already reached out to Sabal Trail management at least five times in December to say I was seeing erosion issues,” recalls Dowdy. “They promised to fix it immediately, but they never did, so when the storm came, we were completely unprotected.”

Dowdy thought he had made some headway with Sabal Trail when the company, in an attempt to make peace with an unhappy landowner, offered to pay Dowdy to make additional repairs to his land.

“They asked me to put together an estimate for attempting to repair the land, including an acceptable value I placed on my wetlands, and additional future yield loss,” says Dowdy. “We made a verbal agreement and I began repairs as instructed. Sabal knew the costs and agreed to pay for the estimated costs of repair.”

“When it came time for them to pay though, they introduced a condition—in order to get my reimbursement, I would have to sign a document releasing Sabal from future long-term yield loss, wetland violations and compensation. Here I was repairing what they messed up at my own expense and then they want more.”

Dowdy says his lawyer advised him not to sign and, thus far, he has not signed nor has he received a penny of the promised reimbursement from Sabal Trail.

Next Step…Litigation?

Dowdy’s laundry list of what wasn’t completed correctly by Sabal Trail is long.

“Sediment barriers were placed wrong, no hay was spread, there were no temporary terraces or berms…water was moving off my land at a 10% grade and sediment was going right into the surrounding wetlands and waterways. If Sabal had been in compliance with BMPs, I wouldn’t have been replacing 15,000 cubic yards of topsoil as I am having to do after the storm.”

Grover says Sabal Trail did return to Dowdy’s farm, and others impacted by pipeline construction, after the late January storm event, to “inspect the construction areas to ensure soil erosion devices installed according to the BMPs are working properly or repaired if necessary.”

But by then, says Dewey Lee, UGA Professor and Extension Agronomist, even though Sabal Trail installed additional BMPs after the storm damage was discovered, it was too late.

Lee who has worked with Dowdy on conditioning his farmland for a decade, says, “In the restoration that Sabal did, it appears they did not follow regulatory protocols perfectly. It appears that the crew handling the reconstruction did not have a full understanding of what their responsibilities were. This ultimately caused erosion down Randy’s waterways and across his field.”

Like Lee, irrigation specialist, Rance Harrod, knows well Dowdy’s attention to detail when it comes to his land. Dowdy and Lee’s suspicions that co-mingling of the top and sub soils in the fields was confirmed just last week after an irrigation supply line to the pivot began leaking. It was Harrod, along with Dowdy and a Sabal Trail employee, who worked on the fix.

Dowdy says as soon as Harrod began digging, it was apparent that the Sabal Trail repair crew had paid little attention to BMPs when it came to replacing the soil.

“Sabal has created tremendous soil loss and erosion resulting in offsite movement into the wetlands, no question about that. Randy’s damages are almost incalculable,” Lee adds.

“I shared pictures of the problems I was seeing with the Georgia Environmental Protection Department to show them things weren’t being done to regulations, hoping that they would take it up with Sabal,” says Dowdy. “But they said they needed to see it at the time it happened…that a later complaint wasn’t enough.”

Dowdy recalls he asked the agent “well where were you when it needed to be inspected?” He says the agent told him they didn’t have enough manpower to be everywhere along a 500-mile pipeline at all times.

“The only people inspecting what Sabal was doing to my land was Sabal,” says Dowdy. “The way I see it, it was like the proverbial fox guarding the hen house.”

Like many policies that were proposed by the Obama Administration, the DOE/Clean Line agreement is currently tied up in the courts.  DOE is involved in a lawsuit, forcing the agency to address the lingering doubts regarding the legal justification for the department’s decision.

If these concerns are ignored and the project is allowed to move forward, not only are Arkansans facing the prospect of losing their property due to a decision by the federal government, but your department risks codifying into law the practice of federal eminent domain seizures.  This dangerous precedent is antithetical to your distinguished record as a champion for states’ rights in the face of federal overreach.

Throughout your career you have been a champion of states’ rights.  This Administration has promised to give a voice back to its citizens.  This is a good way to show that commitment.

We will continue working to halt the project, not only because it violates property rights of Arkansans, but also because it violates the rights of all Americans to have their voices heard at the state and local level.  We hope you can appreciate our concerns and work with us to fight against this lingering overreach of the Obama Administration.

In a statement provided Monday to the media, Clean Line officials said the APPROVAL Act “creates more red tape and kills jobs by attempting to pull back approvals the project has already received.” The Clean Line statement also included a note of support from a large national union.

Clean Line Founder and President Michael Skelly said much consideration was given to the project before it was approved.

“We are very confident in the nearly decade long process undertaken by the U.S. Department of Energy in order to decide to participate in the project under Section 1222 of the 2005 Energy Policy Act. This law was passed with bipartisan support, including then-Congressman John Boozman’s, and signed by President George W. Bush,” Skelly said in the statement. “The Plains & Eastern Clean Line is a pro-jobs, pro-consumer, pro-environment public energy infrastructure project that will help to create a secure energy future for the country, and we are ready to get to work.”

Plains and Eastern state that they will assume all market risk associated with the development and construction of the Project and that there will be no captive customers.

“At the same time that our country is focused on creating opportunities for American workers, Arkansas Congressmen introduced a bill that will kill thousands of American jobs and, specifically, hundreds of Arkansas jobs,” said Lonnie Stephenson, International President of the International Brotherhood of Electrical Workers (IBEW). “Whether the infrastructure project be a pipeline or an electric transmission line, the IBEW strongly disapproves of politics getting in the way of American job creation.”

The withdrawal of official support also comes not long after John Hobbs was voted in as a commissioner for Randolph County. Hobbs has been a vocal opponent of the Grain Belt Express.

Hobbs confirmed that the commission had rescinded the letter of support but declined to comment further on the matter.

Truesdell clarified that, although the commission has rescinded its official support for the wind energy transmission line, the attitude hasn't changed. The commission assumed a neutral stance on the matter around two years ago.

"The only thing that prompted action is that our legal counsel said that, if we wanted to be truly neutral, we should draft a letter to rescind the prior document," Truesdell said.


The move was meant to solidify the neutral stance of the commission, setting aside personal views the commissioners might hold, Truesdell said.

Randolph County Commissioner Wayne Wilcox said he was not present for the commission's vote to rescind the letter of support for the Grain Belt Express.

As was its position in Case No. EA-2015-0146, it is still Staff Counsel’s position that, not only must Grain Belt have the consent from each of the Missouri county commissions for its transmission line to cross the public roads and highways in their respective county before a Commission certificate for the line is effective, Grain Belt must have those consents before the Commission can lawfully issue the certificate, i.e., those consents are prerequisites to the certificate.