For now, Court of Appeals decision will stand, vacating the Public Service Commission's decision to approve an Ameren power project in Marion County.
*Editor's Note: The original version of this story published at 11:08 a.m. June 29. It has since been updated with comments from Marion County Presiding Commissioner Lyndon Bode and Clean Line Energy Vice President Mark Lawlor.
By declining to hear a controversial case originating in Northeast Missouri, the Missouri Supreme Court has likely strengthened local control in regards to large, multi-county power projects — at least for the time being.
For now, a decision by the Missouri Western District Court of Appeals will stand, reversing the Missouri Public Service Commission’s approval of necessary permits for Ameren Transmission Company of Illinois’ (ATXI) Mark Twain Transmission Project — a power line slated to go through rural northern Marion County northwest to Kirksville, Mo.
Local residents called the Supreme Court’s decision not to hear the case a victory, and opponents of another controversial energy project have taken note of the court’s decision as the PSC considers its case.
The Mark Twain Transmission Project is a proposed 100-mile, 345,000-volt transmission line running from Maywood to the Zachary substation in Kirksville, spanning Adair, Knox, Lewis, Marion and Schuyler counties. Neighbors United, a coalition of landowners along the proposed path of the project, organized to oppose the project, citing various issues with the project, including loss of land, use of eminent domain, and potential safety hazards.
In April 2016, the Missouri Public Service Commission — the state’s utility regulatory board — approved ATXI’s application for a Certificate of Convenience and Necessity, required permits to begin the project.
At that time, ATXI had not yet received assent — or permission to use roads for construction — from county commissions in the proposed path.
Subsequent to the PSC approval of a CCN, all of the counties denied assent to ATXI.
The ensuing court battle has centered around the issue of assent and whether public utilities are required to attain assent before the PSC can grant permits.
In July 2016, Neighbors United filed an appeal of the PSC’s decision with the Missouri Court of Appeals. They argued state statutes require public utilities to receive assent from county commissions prior to approval.
On March 28, the Court of Appeals sided with Neighbors United in Neighbors United Against Ameren’s Power Line vs. Public Service Commission of Missouri and Ameren Transmission Company of Illinois.
The Court of Appeals interpreted existing state statute to mean that potential power projects must first receive assent from counties before a CCN may be granted (§ 229.0100).
In the case of the ATXI project, the PSC granted the CCN first.
Moreover, a different statute requires utilities to provide proof of county assent prior to project approval.
“Before such certificate shall be issued a certified copy of the charter of such corporation shall be filed in the office of the commission, together with a verified statement of the president and secretary of the corporation, showing that it has received the required consent of the proper municipal authorities,” Missouri Revised Statutes 393.170.2 states.
The Court of Appeals vacated the PSC’s decision.
ATXI appealed to the state’s highest court.
On June 27, the Supreme Court declined to hear the case, cementing — at least for now — the Court of Appeals’ decision to nullify the PSC’s approval of a CCN, meaning the project’s future may lie in the hands of five NEMO county commissions.
“We are disappointed by this decision but our main focus has been to work with landowners, county commissioners and other stakeholders to move the project forward with our current plan that involves a new route,” said Shawn Schukar, president, Ameren Transmission.
In May, officials from ATXI and Northeast Missouri Electric Power Cooperative (Northeast Power) unveiled a new path for the project which would will use existing right-of-ways for each entity.
“We believe it is in the long-term best interests of the member-consumers within this region to co-locate ATXI’s Mark Twain Transmission Project on existing transmission line right-of-way to minimize the impact on landowners and farmers in Northeast Missouri,” Douglas Aeilts, CEO and General Manager of Northeast Power, said at the time.
The reworked path received praise from regional lawmakers, but the affected county commissions have remained mostly quiet on the recent development.
“Based on positive feedback from open house meetings this past month, we are encouraged that we will be able to deliver all of the benefits to northeast Missouri associated with the Mark Twain Project,” Schukar said.
ATXI has pending lawsuits against each of the five county commissions.
Even with a lawsuit against the Marion County Commission pending, Presiding Commissioner Lyndon Bode expects ATXI will ask for the county’s assent sometime in July.
“We will take a look at it at that time,” Bode said.
Although the commission voted 2-0 against granting ATXI assent in 2016, Bode said the cooperation between ATXI and Northeast Power looks promising.
“I see it as a reasonable compromise if they use the co-location route but am still waiting on their final decision and more public comments and input,” he said.
Effect on other cases
The Supreme Court’s apparent support of county commissions will likely have an impact on the Grain Belt Express, another controversial power project proposed to traverse Monroe and Ralls Counties.
The PSC, at its May 24 meeting, said it would wait to render a decision on Grain Belt until the Supreme Court takes action — or in this case, does not — on the Mark Twain Transmission Project.
Block Grain Belt Express, a grassroots coalition of landowners similar in mission to Neighbors United, called the Supreme Court’s refusal to hear the ATXI case a win in the fight against the Grain Belt Express, a proposed energy line that would carry wind-generated energy from Kansas through Missouri to states further east. Grain Belt and its owners, Clean Line Energy, have run into similar roadblocks as the ATXI project. Ralls County in particular stands staunchly against the project.
“We celebrate with Neighbors United for their incredible victory for property rights. We would also like to thank all the County Commissioners who have stood with us in our battle for our way of life and against eminent domain abuse,” commented Jennifer Gatrel, spokesperson for Block Grain Belt Express-Missouri.
Block Grain Belt has said in light of the findings of teh Court of Appeals, the PSC should deny the Grain Belt Project.
But the devlopers of Grain Belt disagree.
“The appellate court evaluated the Ameren project under a completely different section of the statute than that which the Grain Belt Express used. In fact, nowhere in the court decision does it even reference the specific statute utilized by Grain Belt Express. The Missouri Public Service Commission has the legal authority to move forward with a decision on the Grain Belt Express case,” Mark Lawlor, Vice President at Clean Line Energy, said. “While the appellate court decision may impact the Mark Twain certificate, we believe it does not impact the status of the Grain Belt Express application. County assents under Missouri law are not intended to serve as the county’s opinion on a project. Rather, the assents are the county’s opportunity to review the locations of powerline and pipeline projects which propose to cross county roads to ensure that projects comply with any engineering requirements in the county.”
It is unclear when the PSC may issue a decision on Grain Belt.
Reach editor Eric Dundon at firstname.lastname@example.org .