Clean Line Needs to Hurry Missouri Courts

Because, apparently, due process for Missourians is much too costly for this Texas company, and time is money.

This week, Grain Belt Express announced:

Grain Belt’s case seeks to have the PSC divested of its role in exclusive role of deciding on whether utility projects are in the state’s best interest. “The urgency in answering this question is driven by a statewide financial impact on hundreds of thousands of Missouri electrical consumers who will pay higher power prices if the Grain Belt Express wind transmission line is not built,” the company said in its announcement.

Well, color me confused.  I figured if I unearthed the source documents filed with the Missouri Supreme Court that GBE's petition for transfer to the Supreme Court might make sense.  Obviously this reporter is confused, right?  Nope.  GBE's petition to skip the appellate court process and have its matter heard by the Missouri Supreme Court, like right now because it's such an economic emergency, makes absolutely no sense.

GBE says it must have the Neighbors United decision reversed so that the PSC can issue it a conditional permit.  A conditional permit?  So GBE would still have to get county assent for its project under Sec. 229.100 of Missouri law, right?  A conditional permit doesn't alleviate GBE's problems and allow the project to be built.  All GBE's economic arguments (contrived as they are) should fall on deaf ears.  Grain Belt Express is creating its own problem and shouldn't be wasting a court's time on this (not to mention all its precious economic resources that make its project so expensive to construct). 

What's the problem?  Affected Missouri counties have not granted assent for GBE to cross county roads as clearly set forth in Sec. 229.100.  If Missouri counties grant assent, the PSC can freely issue that approval it wanted to issue.  The courts wouldn't have to waste their time on this issue.  If GBE tried to work this issue out with the counties, none of this appeal nonsense would be necessary.  None of it!  But GBE has refused to have anything to do with Missouri counties, even after telling the PSC that it would only use an advisory opinion on whether the project met PSC criteria to convince the counties to grant assent.  GBE got its advisory opinion but hasn't even tried to get county assent. 

Missouri Landowner's Alliance attorney Paul Agathen filed a suggestion to the Missouri Supreme Court, pointing out the obvious and pouring some cool common sense on GBE's confused and affected firestorm about why the Supreme Court should waste its valuable time.

No party to this proceeding is contesting the fact that before Grain Belt may build the line, at some point it must obtain the necessary County Commission consents under § 229.100. In fact, Grain Belt has conceded that point throughout these proceedings.

Thus the basic issue in this case is whether Grain Belt must obtain the county consents before the CCN may be issued, or whether it is allowed by law to obtain those county consents after the PSC issues the CCN. In either event, as Grain Belt concedes, the County consents are required before the line may be built.

Go to the counties and get your consents, Clean Line, and all these "legal clouds" will completely disappear.  Whether the consents come before or after the CCN issues, they still have to come.  GBE is barking up the wrong tree, wasting its own precious economic resources (and everyone else's) on an appeal it doesn't need to make.  I'm pretty sure even state supreme court judges don't like having their time wasted any more than anyone else does.

Okay, now that we've gotten the only part that should matter to a court over with, can we take a minute here to examine Clean Line's completely bogus, over the top, fake and contrived "economic" argument that it uses to prop up its need to have the Supreme Court intervene now, right now?  I'm completely flummoxed over the colossal stupidity of it.  C'mon, no energy attorney wrote this!  The author doesn't understand the first thing about energy, transmission, or the Grain Belt Express project.  I guess Clean Line put too much value on influence and appeals practice and zero value on accuracy.  None of GBE's attorneys list "energy" as a practice area.  And apparently Clean Line staff attorneys were too awed by greatness to correct any of the gross errors in a filing they signed their names to.  I hope they soon develop some self-worth.  Maybe this will help?

So, what stupid things did GBE say in its filing?

Grain Belt Express has entered a transmission service agreement (“Services Agreement” or “TSA”) with the Missouri Joint Municipal Electric Utility Commission (“Joint Municipalities” or “MJMEUC”) to purchase up to 250 MW of capacity from the Project, which would save hundreds of thousands of electrical consumers millions of dollars annually.

Funny, in its own overblown request for transfer MJMEUC called its "contract" "the option to purchase up to 200 MW of firm transmission capacity at a discounted rate."  Oh, right, option.  It's only an option.  MJMEUC can back out of it and purchase nothing at any time.  And while GBE says this option is 250 MW, MJMEUC claims it is 200 MW.  That 50 MW in dispute?  It's 50 MW of export capacity from Missouri, because the munis will continue to run their polluting power plants in Missouri (so Missouri gets all that delicious environmental pollution) and attempt to sell the power to "states further east" that don't want to pollute their own air producing power for their own use.

The Project has received regulatory approval from the relevant utility commissions in Kansas, Illinois and Indiana. Each state independently determined the Project is in the public interest and issued certificates for construction of the Project across those states. Missouri is the final state in which regulatory approval is needed for the Project to proceed.

Except that "certificate for construction" from Illinois is currently on appeal.  The appeals court could rule any day and vacate that certificate.  And they most likely will, since the appeal deals with the issue of whether or not GBE was a public utility when it applied for the certificate, and the Illinois Supreme Court has already ruled that another Clean Line project is not a utility even AFTER it received its certificate.  Clean Lines are dead in Illinois.  ALL of them!  So, no matter what the Missouri Supreme Court does here, it's almost a certainty that GBE will not be able to use eminent domain in Illinois.  End of project.

The Commissioners identified numerous benefits the Project would have had in the public interest: “lowered energy production costs in Missouri by $40 million or more”; “a substantial and favorable effect on the reliability of electric service in Missouri”; “positive environmental impacts”; “supported 1,527 total jobs over three years, created $246 million in personal income [including easement payments], $476 million in GDP, and $9.6 million in state general revenue for the state of Missouri, and $249 million in Missouri-specific manufacturing and personal service contract spending”; and resulted in “a total of approximately $7.2 million” in yearly property tax benefits to affected counties.

Did you ever stop to look at what you did here in your ineffectual rage, Chairman Hall?  You set Clean Line up to get this project cost allocated to all Missouri ratepayers, didn't you?  I didn't see any conditions on that "concurrence" that required GBE to remain a participant funded merchant.  In fact, there were no conditions at all.  Not even those purported "Landowner Protections" negotiated on behalf of landowners by former Governor Nixon on his way out the door of the Governor's mansion.  Which, in retrospect, are a conflict of interest joke.  How could the PSC accept any conditions negotiated between GBE and its attorney on behalf of GBE's opponents?  It's ludicrous.

In contrast, § 229.100 is a non-PSC law that relates to county roads. It requires those who wish to erect poles and power wires, or lay pipes across public roads of any county to obtain the assent of county commissioners under rules established by the county engineer.

Well, no, that's not actually what it says, Clean Line.  That's what you want it to say.  That's what Ameren wanted it to say.  But what it actually says is..."No person or persons, association, companies or corporations shall erect poles for the suspension of electric light, or power wires, or lay and maintain pipes, conductors, mains and conduits for any purpose whatever, through, on, under or across the public roads or highways of any county of this state, without first having obtained the assent of the county commission of such county therefor" and then it has a semi-colon before continuing by using the word AND to indicate an additional requirement "and no poles shall be erected or such pipes, conductors, mains and conduits be laid or maintained, except under such reasonable rules and regulations as may be prescribed and promulgated by the county highway engineer, with the approval of the county commission."  The county commission can refuse assent for the crossing for any reason.  The county commission does not have to assent to any county engineer plan, or even order one made.  There's a legal distinction between the words "may" and "shall".  Eventually, Clean Line's ridiculous appeals are going to come around to misinterpreting Sec. 229.100 for its own benefit.  Might as well head that one off at the pass.

The Court should accept transfer to secure for all Missourians the full extent of the benefits identified by the PSC, including substantial and proper leasehold payments to landowners, and to allow Missourians to begin enjoying these benefits immediately.

Leasehold payments to landowners are not a BENEFIT.  They would be "just compensation" for private property condemned.  COMPENSATION for something taken from the landowner.  Compensation means:  something that counterbalances or makes up for an undesirable or unwelcome state of affairs.  Since the landowner is saddled with the undesirable and unwelcome transmission line for perpetuity, a handful of beads tossed at them today is compensation, not benefit.  A benefit is a windfall.  Nothing must be sacrificed in exchange for a benefit.  A benefit allows the landowner to remain whole while receiving something additional. 

Get it through your thick head, Clean Line.  Landowners hate you.  They abhor you.  They would NEVER allow you to speak for them to a court or at the PSC.  Quit trying to pretend you are fighting for landowner interests, okay?  Nobody believes it anyway.

The Services Agreement between Grain Belt Express and the Joint Municipalities allows the Joint Municipalities to purchase up to 250 MW of from the Project.

Dr. Freud, paging Dr. Freud.  Slippage at GBE's office.  Stat.

MJMEUC is purchasing 250 MW of WHAT, exactly.  It doesn't say, does it?  Perhaps there was some internal debate (or stealth editing) about exactly what GBE was selling.  Is it energy?  Or is it merely transmission capacity?

The fact is, MJMEUC can purchase renewable energy from anyone, for any price, even if GBE is never built.  What GBE did here is offer MJMEUC transmission service at a loss-leader price.  That's right, GBE's pricing is below GBE's cost to provide the service.  GBE will have to make that loss up on other customers.  Except it has no other customers.  Which calls into question whether or not this project will ever be built, even with approvals.  If the project doesn't sign up some customers paying above cost rates for its service, it cannot financially sustain itself.  It can never be built.

The savings expected under the Services Agreement are indicative of what other energy purchasers throughout the state would realize and will ultimately be passed on Missouri energy consumers.

Well, no, GBE.  You can't afford to provide service at below cost rates to all your customers, as noted above.

And this.  This has to be the biggest lie yet!

The availability of these PTCs substantially lowers overall development costs of wind-generation projects, which allows Grain Belt Express to pass on the cost savings to its customers. Grain Belt Express, like many other industry members, is relying on the availability of PTCs to complete the Project as cost-effectively as possible to deliver maximum cost-savings to energy consumers. Without the benefit of the PTCs, the completion of Project is in jeopardy and the savings to Missourians at risk.

1.  Clean Line is not eligible to take advantage of the production tax credit.  It is a credit for generators.  It is not available to transmission lines.  Clean Line does not sell energy.  Clean Line sells transmission capacity.  Transmission capacity rates have nothing to do with the PTC.  The PTC can only lower the rates for energy generated.  It cannot lower transmission rates.  There is nothing for Clean Line to "pass on" to its customers.

2.  Since Clean Line cannot receive the tax credit, it cannot affect Clean Line's cost to build its project "cost-effectively."  Since it cannot lower the cost to build the project, there is no savings to pass on to energy consumers in transmission rates.

See what I mean?  Colossal stupidity.  The author(s) of this document don't understand anything about the production tax credit, nor are they aware of what GBE is selling and how it might impact consumers.  It's all unicorn sprinkles.  Attorney fantasy.

And it's all so pointless.  Clean Line, you're living somewhere underneath desperate, by about 50 yards.  You can't win this.  Game over.