Kabuki is a form of traditional Japanese drama with highly stylized song, mime, and dance, using exaggerated gestures and body movements to express emotions, and including historical plays, domestic dramas, and dance pieces. It also describes the stilted drama between the Kansas Corporation Commission staff and out-of-state energy interests Clean Line Energy Partners and Invenergy. The KCC pretends that it is serving Kansans while bending over for the whip of foreign interests and begging for more.
First there was the shameful way Kansans were treated during Clean Line's permitting process for Grain Belt Express in 2013. The only good thing to come out of that was a "Sunset Date" for GBE's permit that required it to begin construction of its transmission line within 5 years or be required to reapply. Although Kansans were tossed under the bus, there was an ending date for their misery. Kansans bravely stuck it out for 5 years. Just when their emancipation was in sight, Clean Line filed a motion to move the goal posts. It asked for a 5-year extension of the Sunset date. Clean Line lied to the KCC about its status and intentions. Outright lied. Clean Line knew full well it was negotiating a sale of the project to Invenergy, while it pretended Clean Line was just as strong as ever. The KCC was a willing participant in this little Kabuki act.
Except someone threw a monkey wrench in the works when longtime GBE opponent Matthew Stallbaumer filed a protest challenging Clean Line's viability and objecting to having the goal post moved ahead another 5 years. It was only after having its hand forced that Clean Line finally admitted to the proposed sale to Invenergy, and the KCC played its part by providing a temporary extension of the Sunset date for one year while Clean Line and Invenergy got their stuff together and applied for KCC approval of the sale in a separate docket.
And then the KCC put on some new costumes for the next act... where Invenergy decided that 5 years just wouldn't be enough time to begin construction of its project and that the deadline was much too clear. Invenergy wanted a 10 year extension cloaked in muddled opacity, but how was it going to get that without making another filing on the permit docket and potentially getting into a battle with Stallbaumer and other intervenors? How could Invenergy change the Sunset date in one docket by activity in another? The landowners who were parties to the original permitting docket have no expertise to oppose the sale of the project and had no place in the sale docket. They were not parties to the sale negotiations or the confidential settlement that took place in that docket. The goal was to change the Sunset date in the other docket without involving landowners. Another act in the drama unfolded...
First there was the shameful way Kansans were treated during Clean Line's permitting process for Grain Belt Express in 2013. The only good thing to come out of that was a "Sunset Date" for GBE's permit that required it to begin construction of its transmission line within 5 years or be required to reapply. Although Kansans were tossed under the bus, there was an ending date for their misery. Kansans bravely stuck it out for 5 years. Just when their emancipation was in sight, Clean Line filed a motion to move the goal posts. It asked for a 5-year extension of the Sunset date. Clean Line lied to the KCC about its status and intentions. Outright lied. Clean Line knew full well it was negotiating a sale of the project to Invenergy, while it pretended Clean Line was just as strong as ever. The KCC was a willing participant in this little Kabuki act.
Except someone threw a monkey wrench in the works when longtime GBE opponent Matthew Stallbaumer filed a protest challenging Clean Line's viability and objecting to having the goal post moved ahead another 5 years. It was only after having its hand forced that Clean Line finally admitted to the proposed sale to Invenergy, and the KCC played its part by providing a temporary extension of the Sunset date for one year while Clean Line and Invenergy got their stuff together and applied for KCC approval of the sale in a separate docket.
And then the KCC put on some new costumes for the next act... where Invenergy decided that 5 years just wouldn't be enough time to begin construction of its project and that the deadline was much too clear. Invenergy wanted a 10 year extension cloaked in muddled opacity, but how was it going to get that without making another filing on the permit docket and potentially getting into a battle with Stallbaumer and other intervenors? How could Invenergy change the Sunset date in one docket by activity in another? The landowners who were parties to the original permitting docket have no expertise to oppose the sale of the project and had no place in the sale docket. They were not parties to the sale negotiations or the confidential settlement that took place in that docket. The goal was to change the Sunset date in the other docket without involving landowners. Another act in the drama unfolded...
KCC staff obligingly filed testimony demanding Invenergy acquire a percentage of easements within one year or reapply, as if that had anything at all to do with the sale of the project. If you looked at it from a distance and didn't know any better, it almost looked like the KCC staff had grown a set. But it was sadly out of place... just an act to get the Sunset date introduced into the sale docket so it could be negotiated there without the interference of the landowners affected.
But, of course, Invenergy couldn't agree to the staff's condition and re-shaped and re-wrote it to suit its own purposes, and the KCC staff immediately capitulated and agreed to replace the Sunset date with a bunch of confidential actions that could extend the permit for another 10 years. Only in Kansas can you ask for a 5 year extension, get a 10 year one, and still have the state pretend they're driving a hard bargain that protects landowners. The settlement required the staff to ask the Commissioners to replace the Sunset date in the other docket with the confidential requirements in the sale docket.
And so it is... staff and Invenergy made a filing to replace the Sunset date with a bunch of unclear and confidential requirements in the sale settlement.
But, of course, Invenergy couldn't agree to the staff's condition and re-shaped and re-wrote it to suit its own purposes, and the KCC staff immediately capitulated and agreed to replace the Sunset date with a bunch of confidential actions that could extend the permit for another 10 years. Only in Kansas can you ask for a 5 year extension, get a 10 year one, and still have the state pretend they're driving a hard bargain that protects landowners. The settlement required the staff to ask the Commissioners to replace the Sunset date in the other docket with the confidential requirements in the sale docket.
And so it is... staff and Invenergy made a filing to replace the Sunset date with a bunch of unclear and confidential requirements in the sale settlement.
Joint Movants request that the Commission issue an order in this proceeding that eliminates the December 2, 2019 Sunset Term and replaces it with the Settlement Deadlines set forth in Paragraph 9.e of the Settlement Agreement.
Those deadlines are:
1. By December 2, 2024, GBE shall have either (i) obtained executed easement agreements, demonstrably commenced negotiations to obtain easements, or instituted proceedings in state district court to obtain easements, or any combination thereof, for at least **-** of the total number of easements
required to construct the Kansas portion of the Project; or (ii) satisfied the Financing Requirement as defined in Paragraph 9.a. hereof. If unable to meet the requirements of the preceding sentence, GBE shall either, at GBE's election: (a) commit to **•••••••••• **; or (b) file for an updated transmission line siting permit under K.S.A. 66-1, 178.
Unless GBE has elected to proceed with an updated transmission line siting permit under K.S.A. 66-1,178 in subsection (b) in the preceding paragraph, by December 2, 2026, GBE shall have either (i) obtained executed easement agreements, demonstrably commenced negotiations to obtain easements, or instituted proceedings in state district court to obtain easements, or any combination thereof, for at least **-** of the total number of easements required to construct the Kansas portion of the Project; or (ii) satisfied the Financing Requirement. If unable to meet the requirements of the preceding sentence, GBE shall either, at GBE's election: (a) commit to ** **; or (b) file for an updated transmission line siting permit under K.S.A. 66-1,178.
Unless GBE has elected to proceed with an updated transmission line siting permit under K.S.A. 66-1,178 in subsection (b) of the preceding paragraph, if by December 2, 2028, the Financing Requirement has not been satisfied or if at least **-** of the total number of easements has not been executed, then GBE agrees to either: (a) file for an updated transmission line siting permit under K.S.A. 66-1,178; or (b) abandon the Project and allow all easements to revert to the landowners.
In its quarterly reports to the Commission, in addition to the information already required, GBE shall provide: (i) the number of Kansas easements obtained; (ii) significant Kansas landowner contacts; (iii) significant outreach events in Kansas; and (iv) significant communications sent to Kansas landowners. Such reports shall continue to be considered confidential; however a public version of the report shall be filed in the compliance docket.
Financing requirement mentioned above:
GBE will not install transmission facilities on easement property in Kansas until it has obtained commitments for funds in an amount equal to or greater than the total cost to build the entirety of this multi-state transmission project ("Financing Requirement"). To allow the Commission to verify compliance with this condition, GBE shall file the following documents with the Commission at such a time as GBE is prepared to begin to construct electric transmission facilities in Kansas:
1. On a confidential basis, equity and loan and/or other debt financing agreements and commitments entered into or obtained by GBE or its parent company for the purpose offunding GBE's multi-state transmission project that, in the aggregate, provide commitments for the total project cost.
An attestation by an officer of GBE that GBE has not, prior to the date of the attestation, installed transmission facilities on easement property; or a notification that such installation is scheduled to begin on a specified date.
A statement of the total multi-state transmission project cost, broken out by the categories of engineering, manufacturing and installation of converter stations; transmission line engineering; transmission towers; conductor; construction labor necessary to complete the project; right-of- way acquisition costs; and other costs necessary to complete the project, and certified by an officer of GBE.
A reconciliation statement certified by an officer of GBE showing that (I) the agreements and commitments for funds provided in subsection (i), above, are equal to or greater than the total project cost provided in subsection (iii), above; and (2) the contracted transmission service revenue is sufficient to service the debt financing of the project (taking into account any planned refinancing of debt).
Invenergy filed testimony on this request that said:
As further described in the Testimony of Kris Zadlo in Support of Joint Motion, attached hereto, the requested relief is consistent with the Settlement Agreement approved in the 19-253 Docket and serves the public interest by providing more certainty with regard to the progress and completion of the Project. First, the current Sunset Term requires Grain Belt to “begin construction” before a certain date, but does not define what it means to “begin construction.” Whether a project has “begun construction” is often subjective and difficult to measure. On the other hand, the Settlement Deadlines--which require Grain Belt to acquire a specific portion of easements or obtain financing commitments for the entirety of the multi-state transmission project by specific dates--are metrics that are easily quantifiable. Second, easement acquisition and financing commitments are superior indicators of progress on the Project than a vague requirement to begin construction. Third, by requiring specific progress on easement acquisition, the Settlement Deadlines increase landowner certainty.
What was the original requirement Invenergy needs to replace for clarity?
Grain Belt Express is allowed five years from the date of the Commission's Order to begin construction of the project in Kansas or otherwise be required to reapply.
Seems pretty clear to me. If "begin construction" is unclear in that requirement, then how does it later become clear in a new requirement that "... GBE shall file the following documents with the Commission at such a time as GBE is prepared to begin to construct electric transmission facilities in Kansas..."?
Logic aside, the bigger concern is that landowners are prevented from knowing the entire condition that supposedly "protects" them because it's confidential. Kansans are just supposed to blindly trust that the KCC is protecting them in secret meetings with Invenergy?
Logic aside, the bigger concern is that landowners are prevented from knowing the entire condition that supposedly "protects" them because it's confidential. Kansans are just supposed to blindly trust that the KCC is protecting them in secret meetings with Invenergy?
Considering the way Kansans have been blindsided, lied to, and tossed under the bus by a government agency that's supposed to protect them, perhaps that is a step too far.
And, hey, where's the opportunity for landowners to weigh in on the proposed new requirements that "protect" them? There isn't one. The KCC *could* open this docket to public comment, and even hold public hearings, to see what the landowners think about extending the Sunset date that holds them in limbo another 10 years, along with a bunch of opaque requirements to negotiate with them for easements. How would a landowner even know if Invenergy was breaking the rules, if a landowner can't know the rules that supposedly "protect" them? The opportunities for abuse are ripe here.
So, what can you do? Tell the KCC that you are tired of their kabuki act and demand that the costumes come off and crack the door of the theater to let a little sunshine in.
Contact the KCC. Of course, this matter has not been scheduled for public comment or public hearing. You're going to have to write or call the Commission to demand to have your voice heard. The docket number is 13-GBEE-803-MIS.
Don't let these actors subvert democracy and silence the citizens they are supposed to work for. Tell the KCC you've seen the emperor... and he's naked!
And, hey, where's the opportunity for landowners to weigh in on the proposed new requirements that "protect" them? There isn't one. The KCC *could* open this docket to public comment, and even hold public hearings, to see what the landowners think about extending the Sunset date that holds them in limbo another 10 years, along with a bunch of opaque requirements to negotiate with them for easements. How would a landowner even know if Invenergy was breaking the rules, if a landowner can't know the rules that supposedly "protect" them? The opportunities for abuse are ripe here.
So, what can you do? Tell the KCC that you are tired of their kabuki act and demand that the costumes come off and crack the door of the theater to let a little sunshine in.
Contact the KCC. Of course, this matter has not been scheduled for public comment or public hearing. You're going to have to write or call the Commission to demand to have your voice heard. The docket number is 13-GBEE-803-MIS.
Don't let these actors subvert democracy and silence the citizens they are supposed to work for. Tell the KCC you've seen the emperor... and he's naked!
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