Ex-Missouri governor urges court to allow wind-energy line
Missouri’s former governor, now arguing as a private attorney, urged the state’s highest court on Tuesday to overturn a decision blocking a proposed 780-mile power line that would carry wind energy across north Missouri.
Former Gov. Jay Nixon, who backed the project before his term ended in January 2017, led a team of lawyers arguing before the Missouri Supreme Court on behalf Clean Line Energy Partners. The Houston-based renewable energy firm wants to build a $2.3 billion transmission line, known as Grain Belt Express, from western Kansas across Missouri and Illinois to an Indiana power grid serving eastern states.
It’s one of the longest transmission lines proposed in the U.S., but it was rejected last year by Missouri utility commissioners whom Nixon appointed. The state Public Service Commission cited a state appeals court ruling in a separate case that determined a utility first must get approval from local governments to string power lines across roads before the state regulatory commission can grant permission.
Nixon argued that was an “erroneous interpretation” that ran contrary to more than 70 years of precedent.
Using a hand-held laser, the former Democratic governor pointed judges to three large posters he placed in the courtroom, displaying the highlighted text of Missouri’s law regarding certificates to construct electric lines and receive franchises. He argued that the law envisions two distinct certificates, and that only the franchise to serve customers — which Clean Line isn’t seeking — requires pre-approval from local governments. The distinction between a “line” permit and an “area” permit has now become a central focal point in the case. The court’s interpretation of the statute will almost certainly decide in the Grain Belt Express is built.
To interpret the law otherwise would lead to a “myriad of other permissions making it impossible” to build a power line, Nixon told the judges.
If the denial of permits for Grain Belt is sent back to the Public Service Commission, it could mean approval of the project. Four of five commissioners indicated they would have approved the project had they not felt bound by the Western District Court of Appeals ruling in the other case. The Eastern District Court of Appeals sided with Clean Line, arguing the Western District’s decision was in error. That court, though, sent the case on to the Missouri Supreme Court.
Attorney Paul Agathen, representing landowners opposed to the power line, argued that Clean Line essentially was seeking franchise permission from counties and thus should need their pre-approval. Some landowners have opposed the project because of it could be an eyesore or hurt their property values. Others fear the use of eminent domain to take property for the project.
The seven-member Missouri Supreme Court includes two judges appointed by Nixon — George Draper III and Paul Wilson, who was a longtime aide to Nixon in the governor’s and attorney general’s offices. Neither judge recused himself from the case, and neither asked questions during the roughly 30-minutes of arguments.
Most of the questioning was done by Judge Laura Denvir Stith, the longest serving member of the court.
Stith posed pointed question to Jennifer Heintz, the attorney representing the Public Service Commission. The court’s most senior judge asked Heintz to differentiate between the two statutes used in the Grain Belt case and the other case ruled on by the Western District Court of Appeals. The utilities in the two cases cited different statutes when applying to be a public utility in Missouri.
“Why were (commissioners) bound by something the court didn’t say?” asked Stith, referring to the Western District’s opinion interpreting the statute Grain Belt didn’t cite in its application.
Clean Line began working toward its Grain Belt Express power line in 2010. Missouri was the only state where it lacked regulatory approval until March, when an Illinois appeals court overturned that state’s approval. The Illinois court said Clean Line didn’t qualify as a public utility there because it didn’t own property.
Mark Lawlor, Clean Line’s vice president of development, said the company could purchase something like a transmission line or substation in Illinois and reapply for approval.
He said Missouri’s regulatory approval was “essential” for the project to go forward.
“Transmission lines and infrastructure unfortunately are really hard to do in this country,” Lawlor said outside of court. “The big projects like this that have happened have often taken a decade and a lot of persistence. We’re still confident we can make it work.”
The proposed power line would carry about 4,000 megawatts of power. About 500 megawatts would be available to sell in Missouri, and a coalition of Missouri municipal utilities already has agreed to purchase some of that. Attorneys for the coalition said that if the case is not resolved in about a year, they may have to look for alternative sources of power.
Nixon said if Clean Line receives approval from the Public Service Commission, the company will be glad to work with counties to attain assent, but commissioners in Ralls and Monroe Counties have remained steadfast in their opposition of the project.
Courier-Post editor Eric Dundon contributed to this report.