Missouri Legislators Act

Missouri legislators are working feverishly on legislation that would close a gaping hole in state eminent domain law that allows the taking of private property by private enterprise, for-profit, electric transmission companies that seek to increase their profits by using eminent domain to build cheaper, overhead high voltage direct current transmission across the state in order to export power to eastern states.  HB 1062 will add a new section to Section 523.262, RSMo, that prohibits the use of eminent domain for the purposes of constructing above-ground merchant electric transmission lines.  The new section reads:

Private entities shall not have the power of eminent domain under the provisions of this section for the purposes of constructing above-ground merchant lines. For the purposes of this subsection, "merchant line" means a high-voltage direct current electric  transmission line which does not provide for the erection of electric substations at intervals of less than fifty miles, which substations are necessary to accommodate both the purchase and sale to persons located in this state of electricity generated or transmitted by the private entity.

Missouri landowners enthusiastically support this legislation.  Why should a private business proposal be given legal authority to impact existing businesses against their will in order to increase its own profits?  The construction of overhead transmission lines across existing agricultural businesses causes loss that cannot be adequately compensated with one-time land value payments, and provides no benefit to the existing businesses.

Marilyn O’Bannon of Monroe County says she will lose farmland and room to till:

“When do you give the right to somebody to take their business across your business. I’m going, as a landowner, to give up a lot of income. I’m not talking a few dollars here, a lot of income to allow something to come across my property that I will get no value from.”

Although the legislation has some opponents, opposition is coming from those who stand to profit from just such a proposal, the Grain Belt Express (GBE) merchant transmission project.  The right to own and use land should be sacred, not subject to the whims of out-of-state investors or electric customers who want to save a few cents on their electric bills.  In order to realize their profits, these entities propose taking from the profits of others.  And it's not as if there is no other way to route GBE across the state.  High-voltage direct current merchant transmission projects buried along existing rail and road rights-of-way are now technologically possible and have been proposed in other states.  However, they cost more.  A higher cost to construct the for-profit transmission line eats away at GBE's profit, essentially putting a landowner's property loss directly in the pockets of Chicago-based Invenergy, who proposes to buy GBE if the sale can be approved by Missouri and Kansas.  Why should struggling farmers be saddled with additional loss that turns into additional profit for a private company?

There must be a lot of money at stake to get Invenergy and its lobbyists to Jefferson City, along with a host of others who all stand to make money from killing this legislation.  And isn't it funny that a whole pack of new lies have surfaced?  If that's the way these opponents of the legislation make their case, they're on the express train to Loserville.  Lies?  Certainly.  I'm talking about this:

The Public Service Commission ruled that the landowners would have to be compensated for use of the land and caps the amount of agricultural land used for each tower.

There is no "cap" on the amount of agricultural land used for each tower.  I've read the PSC Order thoroughly and no such "cap" exists.  As written, GBE can use and control the entirety of its 200-foot wide approved right of way across the state.  The origin of this lie seems to come from perhaps the most bogus statement in the PSC's Order:  that only 9 acres of agricultural land will be used for the entire 200 mile route across the state.  This presumption is flawed and based on a straight up math equation that doesn't translate into real life.  Some genius calculated the actual footprint base of each transmission tower into a total acreage number.  This "9 acres" includes only the footprint of each tower, as if a farmer could work right up against the base of the tower using huge pieces of farm equipment, and as if there would be no other agricultural impacts from the disturbance of a 200-foot wide, 200-mile long, linear strip of land.  The truth of the matter is that the entire right-of-way will be disturbed during construction, along with miles and miles of new access roads across productive agricultural land.  Chances of top soil being replaced perfectly and other damage to the land not affecting future operations are slim to none.  Moreover, there is no legal significance to the 9-acre lie.  It is not a cap, not a limit.  It's nothing more than weasel words from someone trying to minimize the actual impacts.  It's going to be a lot more than 9 acres.

And then there's this:

But the Public Service Commission on this past March voted unanimously to give Grain Belt Express Clean Line LLC a “certificate of need and necessity.” Former Missouri Gov. Jay Nixon argued on behalf of the company.

Not before the PSC, he didn't.  GBE only used Nixon to grease their way through the Missouri Supreme Court.  But, really, what difference does it make who the company's lawyer was?  Are they trying to insinuate this is nothing but a political battle?  Well, in that case, I guess the fight is on -- elected legislators with enormous power against former governor with no actual political power.  Who should win?

Here's another:

The proposed line promises to deliver 3,500 megawatts of renewable energy from western Kansas to southeastern Missouri and into Illinois, and Indiana where it would connect to a grid that supplies energy to heavily populated northeastern states. 

Reality check.  The energy on the line could come from anywhere.  There's plenty of wind in the Midwest, including new owner Invenergy's stranded "Wind Catcher" project in the Oklahoma panhandle.  Won't Kansas look surprised if it permits (and abates property taxes for) a transmission line that moves wind from Oklahoma through Kansas for benefit of other states?  If that happens, Kansas gets nothing from this project.  And there are no promises about where this power would be "delivered" either.  GBE has no permit to cross Illinois, and without that there is no connection to eastern states.  Invenergy could sell capacity to anyone, who could then sell the power to other states... maybe Arkansas, Texas, Louisiana and Oklahoma?  It could go any number of places if it doesn't go through Illinois.

Here's another misconception:

Peggy Whipple, who argued on behalf of Clean Line before the Missouri Supreme Court and the PSC, says the commission decision legally deems the company to be a public utility, answerable to local regulators.
“We have legal control over this company that will develop this line for everything that we could hope to have it for, other than rates only.”  Rates would come from the U.S. Federal Energy Regulatory Commission and must be just and reasonable, she says.”

Peggy, Peggy, Peggy, this is why we have courts.  Just because the PSC deemed the company a "public utility" does not mean it is.  That question is one that will be answered by a court.  The PSC's decision will be appealed.  As an attorney, you should know this well.  However, it looks like your working knowledge of FERC might be lacking.  Just and reasonable rates, FERC-style, includes strict rules against self-dealing and market power.  What do you suppose would happen, Peggy, if FERC revoked GBE's Negotiated Rate Authority?  Who would pay for GBE then?  And how would that affect its public utility status?  And, just one more thing... who is "we," Peggy?  "We have legal control..."?  You represent the regulated, not the regulator.  How much regulatory capture is going on at the MO PSC anyhow?

And this guy:

Small cities and their utilities spoke against the bill, saying they need the new power lines. Carroll County Commissioner Bill Boelsen:
“My previous job before I took on this job was high-voltage electricity. I traveled the entire United States working on substation transformers.  This country’s infrastructure is crap anymore. It’s 70, 80 years old at least.”

My, my, my, it's a wonder the lights stay on at all, isn't it?  Fact:  We have reliability mandates and laws that keep the electric grid reliable.  New additions and improvements to the system happen all the time under the supervision of regional planning organizations.  None of these organizations have found GBE to be a necessary addition for reliability, or any other purpose.  Exaggeration and fear mongering like this isn't helpful.  People are smarter than that.  The electric grid is not "crap."  Your exaggeration, though, is crap.

Another crappy opinion shot down:

Stephen Franke, a businessman from Hannibal says they’ve been promised energy a third cheaper than the open market.
“Two cents a kilowatt-hour an entire third cheaper for a community with 20 percent poverty rate. That’s substantial. In addition, a 25-year contract, we’re locked in which means we can do capital planning, we can do reserve planning. We’re not exposed to the risk of an open and volatile market.”

So, we're robbing from the rich (farmers) to give to the poor (communities with 20% poverty rate).  Robin Hood you're not.  The PSC Order revealed that municipalities who may "save" with possible price benefits may not even pass this "savings" on to customers.  The municipalities may use this "savings" to improve their systems, or give pay raises to their executives.  There's no guarantee that any "savings" will find its way to customers.  And, really, with the "savings" numbers being bandied about applied to millions of customers, the actual maximum monthly "savings" parceled out to any one of these people living below the poverty level wouldn't amount to the price of a cup of coffee.  It's not going to raise these unfortunate souls above the poverty level.  Your glittering generality is absurd when logic is applied.

Support for HB 1062 by Missourians will be crucial.  Let your legislators know that you support this bill today!  And be on the lookout to lend your support to upcoming grassroots lobbying efforts at the legislature!  Allowing private enterprise to condemn and take private property to increase its profits affects everyone in the state.  Next time, it could be you.  Let's close this gap now and require for-profit electric transmission to pay its own freight to get across the state without burdening agricultural businesses!