The Law of the Instrument is a cognitive bias that is often expressed with the phrase, "If
the only tool you have is a hammer, every problem looks like a nail.” The draft National
Transmission Needs Study epitomizes the Law of the Instrument because it prioritizes
transmission as the only possible solution. Three years ago, DOE’s last congestion study
concluded, “…the Department has not identified transmission congestion conditions that would merit proposing the designation of National Corridors.”   Now the Department has
found terrible congestion in an area so vast that if the DOE were to designate corridors to
solve it, the entire continental U.S. would be one gigantic “corridor.” The only conclusion that can be drawn by these drastically different findings is that the DOE’s transmission studies are not based on data and science, but on political goals. This does not benefit the citizens the Department exists to serve. Although politics produces a vast supply of hot air, it cannot keep the lights on.

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Grain Belt Express has kept Staff apprised of the updates that are the subject of this Motion, including as recently as March 1, 2023.

How will the Amended Financing Requirement protect landowners?

The Amended Financing Requirement will prevent any possibility that Grain Belt Express begins construction of the Project and installs structures on easements but later abandons them because of insufficient funds to complete the Project.

Constructing the Project in two phases is in the public interest of Kansas because it will allow the benefits of Phase I to accrue much earlier than would otherwise be possible. The regulatory approval process in Illinois had been subject to extensive delays because of now resolved appeals of the ICC’s 2015 decision to grant a CPCN to Grain Belt Express Clean Line LLC in ICC Docket 15-0277.

Grain Belt Express will use project financing as previously approved in this Docket. As a reminder, after advancing development and permitting activities to a status at which developers of wind and solar generation facilities and other potential customers of the transmission line are willing to enter into commercial agreements for an undivided interest (purchase or lease) or long-term contracts for transmission capacity on the Project, Grain Belt Express will enter such contracts with interested parties that satisfy necessary creditworthiness requirements. Grain Belt Express will then raise debt capital using the aforementioned contracts as security for the debt. Grain Belt Express may also raise additional equity capital.
In addition to obtaining state regulatory approvals, Grain Belt Express will need to enter contracts for a portion of the transmission capacity on each Phase prior to obtaining full financial commitments for the Project. The exact percentage of capacity that needs to be under contract prior to obtaining full financing commitments for each Phase will depend on the price, counterparty creditworthiness and terms in years of the signed transmission contracts.

Phase I being independently economically viable ensures that Phase I will be completed. Phase I is independently economically viable because, upon completion, it will be operational and capable of delivering power into Missouri. As described above, Phase I will be capable of delivering power into Missouri via its interconnections with the MISO system along the Ameren 345 kV AC transmission line connecting the McCredie substation and the Montgomery substation and with the AECI system at the McCredie 345 kV substation. Not only do these circumstances ensure that Phase I will be completed, they also ensure that Phase I by itself will allow large amounts of renewable energy to be built in southwest Kansas and to access the MISO markets and AECI system and compete to serve customer load without impacting Kansas ratepayers.

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.

John Podesta, senior adviser to Joe Biden on clean energy, said that the loans office is “essential to the effective implementation” of the administration’s goal to eliminate planet-heating emissions by 2050. “Jigar is laser-focused on working with all levels of government, project sponsors and affected communities to deliver on that mission and realize results for the American people,” Podesta said.

...Shah, a debonair former clean energy entrepreneur and podcast host who matches his suits with pristine Stan Smiths, oversees resources comparable to the GDP of Norway: all to help turbocharge solar, wind, batteries and a host of other climate technologies in the US.

Deep in the confines of the hulking, brutalist headquarters of the US Department of Energy, down one of its long, starkly lit corridors, sits a small, unheralded office that is poised to play a pivotal role in America’s shift away from fossil fuels and help the world stave off disastrous global heating.

To conservatives, the loans office, which was founded in 2005, is forever tarred by the much-criticized decision during Barack Obama’s administration to loan $535m to Solyndra, the California solar firm, only for the company to file for bankruptcy two years later, in 2011.

The huge new financial arsenal at the office’s disposal risks “Solyndra on steroids”, according to Cathy McMorris Rodgers, the incoming Republican chair of the House energy committee. A group of Republicans led by Rodgers have said the new loan authorities “raise questions about increased risks of waste, fraud and abuse, especially if the administration uses the program for its rush-to-green agenda”.

Proactive engagement with all of these stakeholders can lead to stronger projects and better outcomes, increase transparency, and the reduction or elimination of associated risks that can often stall transmission projects before they can be constructed.

It’s thus critical that Congress pass permitting reform legislation that will add to America’s capacity to transmit clean electricity and speed up the approval of clean energy projects that are waiting to be built, while preserving communities’ ability to make their voices heard on the environmental and other impacts of proposed energy projects.

Each compliance monitoring report shall: (1) identify any known violations of Commission regulations that occurred during the applicable period, including a description of the nature of the violation and what steps were taken to rectify the situation; (2) describe all compliance measures and procedures FirstEnergy instituted or modified during the reporting period related to compliance with Commission regulations; and (3) describe all Commission-related compliance training that FirstEnergy administered during the reporting period, including the dates such training occurred, the topics covered, and the procedures used to confirm which personnel attended.

Over the course of several sets of data requests and three site visits, DAA requested various information related to FirstEnergy’s lobbying and governmental affairs expenses and accounting.  FirstEnergy responded to those requests in both written and oral form throughout 2019 and early 2020, and submitted an affidavit from a senior FirstEnergy executive, which stated that FirstEnergy’s responses to the data requests were “to the best of [his] knowledge and belief . . . complete and accurate.”  In March 2020, the DAA audit team previewed its preliminary audit findings for FirstEnergy.

On July 21, 2020, prior to the completion of the audit report but after DAA had previewed its preliminary audit findings, the U.S. District Court for the Southern District of Ohio unsealed a criminal complaint charging the then-Speaker of the Ohio House of Representatives and others with a racketeering conspiracy relating to the passage of Ohio House Bill 6.

While FirstEnergy provided DAA with certain information related to its lobbying and governmental affairs expenses and accounting during the Audit, it did not provide any information related to its efforts on Ohio House Bill 6 and associated payments or payments related to Generation Now, the Speaker of the Ohio House of Representatives, or the Chairman of the Ohio PUC.

Each compliance monitoring report shall also include an affidavit executed by an officer of FirstEnergy stating that it is true and accurate to the best of his/her knowledge.

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On March 17, 2021, MISO laid out its initial roadmap for LRTP transmission solutions based on the Futures analysis. The initial roadmap included a proposed line from central Iowa, through northern Missouri, with two offshoots further south into Missouri with one in a similar area as the proposed Point(s) of Connection for the GBX Line, and finally into central Illinois.
 
It was announced during that meeting that the analysis had been completed on the proposed Transmission Solutions linking central Iowa to Northern Missouri to central Illinois and that those upgrades would be included in the LRTP portfolio. It was only after this announcement that Invenergy approached MISO to express its views regarding the GBX Line and how it interacted with LRTP.

In comments to MISO, Invenergy claimed that “[f]ailure to account for the GBX Line may cause economic harm to GBX.”

Grain Belt Express acknowledges how it intends to edge out new MISO projects by taking their place:

“Across the Midwest and Great Plains, several potential transmission projects have been proposed over the next decade to address regional reliability needs, enable the delivery of power to load centers, reduce congestion, and unlock renewables potential. While there still may be a need for localized upgrades, given that the Project addresses these broader goals, it stands to logically reason that the Project could plausibly defer/eliminate the need for certain future major transmission developments."

Invenergy also compares the expected timeline of its proposed projects to the expected timelines of the LRTP Tranche 1 projects, but that comparison does not help Invenergy’s argument, even if taken on its face value. Under the Tariff, the MTEP is “developed to facilitate the timely and orderly expansion of and/or modification to the [MISO] Transmission System.

Including projects without sufficient certainty, regardless of timeline, does not advance system reliability.

Invenergy also fails to show that the GBX Line should receive special treatment and circumvent the MISO planning process. As a project that is not yet certain, MISO properly excluded the GBX Line from the planning studies for LRTP projects.

Invenergy claims that its GBX Line, a merchant high voltage direct current (“MHVDC”) transmission project designed to carry up to 5,000 megawatts (“MW”) of energy, should have been accounted for in MISO’s transmission planning analyses even though it has not yet obtained all necessary approvals and interconnection agreements, and its prospects for achieving such statuses are not at all certain.

While Invenergy explains the status of the GBX Line noting the number of approvals and permits it has obtained, the prospects for the project are far from certain. For example, as Invenergy concedes, permits are still required in one state. In addition, on August 24, 2022, Invenergy submitted an amended Certificate of Convenience and Necessity Application in Missouri to request significant changes in the GBX Line.   Invenergy also has not yet executed interconnection agreements with half of the transmission systems it proposes to interconnect—MISO and PJM.

The Commission should deny Invenergy’s attempt to obtain preferred treatment for the GBX line.

In its Complaint, Invenergy claims “Grain Belt Express has secured voluntary easements for over 75% of the necessary right-of-way in Kansas and Missouri.” However, in its Application in Missouri, Grain Belt claims it has “[a]cquired 72% of all easements required for the Kansas and Missouri portion of the Project.” While only a difference of 3%, it is notable that the percentage of easements acquired went down in the two weeks between the filing of this Complaint and the filing of the Missouri application.

“Subject to additional oversight and approval by the Federal Energy Regulatory Commission (“FERC”), Grain Belt Express may sell and/or lease an undivided interest in the project to potential buyers and/or lessees, and Grain Belt Express and those buyers/lessees may seek to provide transmission service over the line to eligible customers as defined by FERC on a non-discriminatory basis under a FERC-approved open access transmission tariff (“OATT”). Any co-owner or lessee of Grain Belt Express that seeks to provide transmission service will be required to operate pursuant to an OATT on file with FERC that will meet the requirements of the Federal Power Act and FERC’s regulations. Grain Belt Express may also sell a cotenancy interest or lease a long-term leasehold interest in the transmission line, in which case it is not providing transmission service to such buyer/lessee because the buyer/lessee has control over that undivided interest”.