Missouri Court Avoids The Obvious

The Missouri Court of Appeals issued its decision the other day in the matter of Missouri Landowners Alliance vs. the Missouri Public Service Commission.  The Court found that the PSC properly approved the Grain Belt Express project.  There were some pretty interesting arguments presented regarding a company's use of eminent domain for private profit, so I was interested in the court's basis for dismissing them.  I was sorely disappointed.

The Court's opinion pretty much skipped over the entire eminent domain issue, choosing instead to devote much of its opinion to other issues, such as evidentiary challenges, where GBE refused to show its challengers "confidential" information the PSC relied on to approve the project, and "need" for the line.  Little was said about eminent domain.  In fact, the words "eminent domain" are nowhere to be found in the Opinion.  Instead, "public utility" gets a scant mention.  The Court recognized that a public utility must be for public use.

Regarding “public utility,” the relevant statutory definitions contain no explicit requirement that an entity be operated for a public use in order for it to constitute a public utility. However, Missouri courts have held that such a “public use” requirement was intended.

Recognizing that, the Court found a "public use" for GBE that demonstrates a complete lack of understanding of its HVDC technology and federal negotiated rate authority.  GBE is not a part of our transmission system for public use, it is a completely separate system that serves as a private extension cord for its select customers who pay the most for service.  The Court figured because one of those customers (who got a sweetheart deal below cost in order to provide an appearance of "public use") was a public utility that served all customers equally, that GBE must be offering a public service.  The Court transferred MJMEUC's public utility status to GBE, even though GBE is a private service for select customers only.  This completely fails.  GBE will serve other private customers.  In fact, GBE may never even serve MJMEUC at all because MJMEUC's service depends upon other private customers willing to subsidize the cost of the MJMEUC contract in order to make the project economic.  If there are no other customers willing to cover MJMEUC's costs, the project will fail and be scrapped.  This is the danger of allowing a customer's public utility status to filter up to the service provider.  MJMEUC does not make GBE a public utility.  See how the court did that?

Here, the evidence showed that when the Grain Belt project is constructed and begins operation, it will transmit energy from wind farms in Kansas to wholesale customers in Missouri. In the case of MJMEUC, those customers are Missouri cities and towns that serve as electric providers to approximately 347,000 Missouri citizens. An entity, such as Grain Belt, that constructs and operates a transmission line bringing electrical energy from electrical power generators to public utilities that serve consumers is a necessary and important link in the distribution of electricity and qualifies as a public utility.  Therefore, Grain Belt’s project will serve the public use, and Grain Belt qualifies as a public utility.

We should all be concerned that the Missouri court just set a horrible precedent for the use of eminent domain to benefit private companies and their select customers.

Missouri Farm Bureau President Blake Hurst gets it just right:

“We vigorously disagree with the court’s ruling upholding the Public Service Commission’s decision authorizing the use of eminent domain for the Grain Belt Express merchant transmission line. Grain Belt Express is not a public utility. Investors who want to negotiate rates privately and enter into contracts to sell electricity to the highest bidders should not be able to condemn land in order to build their dream project. Contrary to the court’s assertion, the Missouri Supreme Court has not suggested otherwise.”

Courts don't make laws, legislatures do.  Perhaps the law in Missouri needs a bit of an overhaul?  With all the time and effort devoted to opposing GBE at the PSC and in the courts, it can be quite liberating to realize that Missourians have had the power to kill it all along.

Block GBE-Missouri tells us:

One more potential obstacle that GBE faces is at the capitol. Legislation was recently pre-filed in both the Missouri House and Senate on our behalf. The House bill was filed by Representative Hansen and the Senate bill was filed by Senator Brown. We came very close to passage of the bill last session before time ran out. Since this year’s bills have been pre-filed in both houses with continued strong support from the Speaker of the House and other key leaders, we are optimistic the bills will be passed this session which begins at the first of the year. Stay tuned as we may be announcing a rally in Jeff City for the bills sometime this winter or early spring.

This battle is far from over.  The opposition is committed and will not give up.  I've seen this same commitment from transmission line opponents in Maine, who are gathering signatures to place a proposed fly-over transmission line on next year's ballot as a referendum.  That transmission project, the New England Clean Energy Connect, was approved by a captured state utility commission and politically supported by the state's governor.  The state legislature passed legislation last year aimed at the project, but the governor vetoed it.  Undaunted, the opposition has continued its push to give citizens a voice in the decision, no matter how hard corporate and political interests attempt to silence them.  I've seen this same spirit alive in Missouri during the nearly 10 years GBE has been futilely banging its head against the wall.  We can get this done!

GBE is no closer to being built after this court decision.  All the hurdles are still in front of it.  What killed the other Clean Line projects?  Legislation and the courts killed Rock Island Clean Line.  Lack of customers killed the Plains and Eastern Clean Line.  Whatever happens, I am confident that GBE will also fail.  Keep fighting!