...request that the Appellate Court for the Fifth Judicial District REVERSE the above referenced orders of the Commission in their entirety, and declare Section 8-406(b-5) of the Public Utilities Act unconstitutional as Special Legislation, as violative of the Equal Protection Clause, and as violative of the Separation of Powers Clause.

“The Commission previously found that the economic feasibility of the project is dependent on the project’s ability to sell to PJM as the revenues from the Missouri converter station, based on the MJMEUC contract, were insufficient to cover the project’s costs.”

“...the impact of generation that fluctuates hour to hour may ultimately increase prices. The injection of wind or other intermittent energy in a given area can result in the energy markets needing more expensive generation that can handle the ramping up and down of energy supply. Such generation is often more inefficient, which can paradoxically result in higher emissions, not less. A comparable example is the fuel efficiency of a vehicle at highway speeds compared to the same vehicle in stop-and-go traffic.”

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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...in the Buchanan County Courthouse, where Grain Belt has agreed to pay more than $300,000 over 20 years to bring the power line through this area.
The deal, based on a similar agreement in Randolph County, would provide Buchanan County with one lump-sum payment of $75,000 plus $15,000 annually for 20 years.

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.

John Arnold, a billionaire from Houston, is making a big bet on modernizing the outdated transmission infrastructure in the United States to transport electricity to areas where it is needed, including the distribution of wind and solar energy to towns and cities nationwide for the clean-energy transition. 
Arnold told Bloomberg he has invested "several hundred million dollars" into Houston-based Grid United, a company he co-founded with transmission line developer Michael Skelly, to purchase land, easements, and the necessary permits for constructing electric highways that can stretch hundreds of miles.

Arnold and Skelly are planning long-haul transmission lines across multiple states on private land that might be very difficult to achieve because failing to win over every landowner could quickly scuttle the entire project.

"We are trying to break this chicken and egg cycle by acquiring the land position first."

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.

The fact these long-in-the-works projects are reaching similar milestones appears to be coincidence; no single policy is moving them forward. They are, however, advancing at a time of increasing understanding by local communities and even traditional opponents — including some conservation groups — of the need to move clean energy from rural outposts and to build more durable electric systems after a series of weather and climatic events have felled grids in recent years.

Polling indicates the public’s feelings about a number of various topics on any given day. But it can also be misleading if viewed out of context — especially when it comes to land use issues.

How is it, for example, that most Americans support wind energy in general, but emotive opponents can block transmission lines delivery wind energy or wind farms in some local communities?

So, the jury’s in, right? Everyone loves renewable energy projects. But wait.

But the emotional opposition appears to fly in the face of surveys and polls showing national support for clean energy generation and transmission. What’s going on? Do these polls and surveys lack credibility? No. In fact, they are spot-on in terms of reflecting how Americans feel about renewable generation and distribution projects and how they may positively impact our communities given the perceived global threats of climate change, greenhouse gases and negative impact to wildlife over time. Today, based on a solid campaign by climate change advocates, the renewable energy industry, the current Obama administration and constant media pounding, the threat to our economy and the environment posed by carbon-emitting generation sources is very real and frankly easy to grasp. The arguments have been made and, let’s face it, many Americans are buying in.

But it’s easy to support a wind energy project without a real wind turbine or transmission line literally staring you in the face. That’s where rational thinking ends and passionate “defense of the community” (or defense of the children for that matter) campaigns begin.

...shop for a home in a community of interest and share the rumor of a new 765 kV transmission line going across the property down the road, in front of the view of the mountain range. What’s the survey say then? Chances are you may not find majority support, even from residents who responded in the poll you fielded yesterday.

Perhaps at best, polling identifies the size of the silent majority you have on your side when they are under no local threat of changing their daily lives. Winning hearts and minds in a poll won’t necessarily win you a permit at town hall.

Renewable energy is great in our public opinion, just not when it gets in the way of our personal point of view.