Transmission Developers in Missouri Will Have to Get County Assents Before the PSC Can Grant Approval

Stinson LLP

Wednesday, August 16, the Missouri Public Service Commission (PSC) denied Grain Belt Express Clean Line's (GBX) application for a certificate of convenience and necessity (CCN) for a 4,000 MW high-voltage direct current transmission line. The line would have brought low-cost wind energy from western Kansas to regions in the east. The three other affected states (Kansas, Illinois, and Indiana) have already approved the GBX transmission line. Missouri was the remaining holdout after an unsuccessful initial application in 2014.

In its second application to the Missouri PSC, GBX pointed to a transmission service agreement the company entered into with the Missouri Joint Municipal Electric Utility Commission for 500 MW of wind power. This low-cost wind power would have been sold to numerous Missouri municipal utilities to serve their customers. In the August 16th public agenda meeting, four out of the five Missouri PSC commissioners indicated they would join in a concurring opinion that the GBX transmission line is in the public interest and would have been approved but for a recent Missouri Court of Appeals decision.

In Neighbors United Against Ameren's Power Line, the Western District Court of Appeals, vacated the Missouri PSC's conditional approval of Ameren's proposed "Mark Twain" transmission line. The court found that the Missouri PSC is without statutory authority to grant a CCN prior to the applicant obtaining all county road-crossing assents from local county commissions as required under Missouri statute. Historically, the PSC has granted a "conditional" CCN to electric corporations that want to develop a transmission line if the PSC found the transmission line to be in the public interest. The conditional CCN required the applicant to return to the Missouri PSC with the necessary county road-crossing assents as a condition of the CCN. GBX had not yet obtained all the necessary road-crossing assents from local county commissions, so the Missouri Commission reasoned that it could not grant the CCN under the Neighbors United decision.

For a transmission developer, the Court's opinion in Neighbors United answers the question of timing for county assents. The developer must obtain all county road crossing assents prior to the issuance of a CCN. Unfortunately, the Neighbors United decision does not clarify the purpose of the road-crossing assent statute. Currently, an affected county commission may deny a road-crossing assent for any reason, including a determination that the proposed transmission line is not in the public interest. This pits the clear statutory authority of the Missouri PSC in determining the public interest of a proposed transmission line against affected county commissions. Until the purpose of the county road-crossing assent is clarified by a court or legislation, affected county commissions will have a veto over the Missouri PSC's determination of which transmission lines are in the public interest. This will undoubtedly increase the cost of transmission development in Missouri significantly and affect the cost-benefit analysis of a proposed transmission line in the State.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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