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In re Application of Ameren Transmission Co.

Court of Appeals of Missouri, Western District, Fourth Division

March 28, 2017

IN THE MATTER OF THE APPLICATION OF AMEREN TRANSMISSION COMPANY OF ILLINOIS FOR OTHER RELIEF OR, IN THE ALTERNATIVE, A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY AUTHORIZING IT TO CONSTRUCT, INSTALL, OWN, OPERATE, MAINTAIN AND OTHERWISE CONTROL AND MANAGE A 345, 000-VOLT ELECTRIC TRANSMISSION LINE FROM PALMYRA, MISSOURI, TO THE IOWA BORDER AND ASSOCIATED SUBSTATION NEAR KIRKSVILLE, MISSOURI NEIGHBORS UNITED AGAINST AMEREN'S POWER LINE, Appellant,
v.
PUBLIC SERVICE COMMISSION OF MISSOURI and AMEREN TRANSMISSION COMPANY OF ILLINOIS, Respondents.

         Appeal from the Public Service Commission

          Before Mark D. Pfeiffer, Chief Judge, and Thomas H. Newton and Anthony Rex Gabbert, Judges.

          Mark D Pfeiffer, Chief Judge.

         Neighbors United Against Ameren's Power Line ("Neighbors United") appeals from the Missouri Public Service Commission's ("PSC") conditional report and order granting Ameren Transmission Company of Illinois ("ATXI") a conditional certificate of convenience and necessity ("CCN") to construct a long-distance electric transmission line. Because the PSC has no statutory authority to grant a preliminary or conditional CCN contingent on the required county commission consents being subsequently obtained, the Report and Order was entered in excess of the PSC's authority and is vacated.

         Factual and Procedural Background

         ATXI is an Illinois corporation authorized to do business in Missouri and engaged in the construction, ownership, and operation of interstate transmission lines that transmit electricity for the public use. It does not generate, distribute, or sell electricity to the general public or serve any retail service territory. In May 2015, ATXI applied to the PSC for a CCN authorizing ATXI to construct, install, operate, control, manage, and maintain a new 345, 000-volt (345-kV) electric transmission line running generally from Palmyra, Missouri, and extending westward through Marion, Shelby, Knox, and Adair counties to a new substation located near Kirksville, Missouri (the Zachary Substation), and proceeding through Schuyler County, Missouri, to a connection point on the Iowa border, together with a 2.2-mile 161, 000-volt (161-kV) connector line from the Zachary Substation to the existing Adair substation owned by Ameren Missouri (collectively, the "Mark Twain Project" or "Project"). The 345-kV transmission line conductors will be supported primarily by single-shaft, self-supported steel pole structures 90-130 feet in height, with typical spans of 850 feet, and for the majority of the route will be erected within a 150-foot right-of-way. The 161-kV transmission line conductors will also be supported primarily by single-shaft, self-supported steel pole structures 70-100 feet in height, with typical spans of 600 feet, and for a majority of the route will be erected within a 100-foot right-of-way.

         Neighbors United is a Missouri not-for-profit corporation. A majority of its members live or own property near the proposed Project route. In June 2015, Neighbors United moved to intervene in ATXI's CCN case before the PSC in order to oppose ATXI's application. In July 2015, the PSC granted Neighbors United permission to intervene.

         Thereafter, Neighbors United filed a motion to dismiss ATXI's application. Neighbors United argued that the PSC was constitutionally prohibited from granting the relief requested by ATXI because the proposed Project would impair the right of farmers and ranchers to engage in farming and ranching practices conferred by article I, section 35 of the Missouri Constitution, commonly referred to as the "Right to Farm Amendment." Additionally, Neighbors United argued that ATXI's application should be dismissed because ATXI did not have the requisite approvals from the county commissions of the counties its proposed transmission line would traverse as required under section 229.100 and Commission Rule 4 CSR 240-3.105(1)(D)1. The PSC denied the motion.

         After an evidentiary hearing on January 25-29, 2016, the PSC issued its Report and Order on April 27, 2016, with an effective date of May 27, 2016. The PSC granted ATXI's application for a CCN to construct the Mark Twain Project, subject to certain conditions, including that the CCN was contingent upon ATXI providing certified copies of county assents for the Project from the Missouri counties of Marion, Shelby, Knox, Adair, and Schuyler.

         ATXI timely applied to the PSC for rehearing and moved for reconsideration of the PSC's Order granting a CCN for the Mark Twain Project, arguing that it was unlawful and/or unreasonable for the PSC to make the CCN contingent on providing certified copies of assents from the five counties through which the Project would be built. Neighbors United also timely applied for rehearing, arguing that filing evidence of county assent with the PSC was a mandatory prerequisite to the approval of an application for a CCN and that the PSC's Order violated the Right to Farm Amendment because farmland would be taken out of production and farming and ranching practices would be infringed. The PSC denied ATXI's and Neighbors United's applications for rehearing and ATXI's motion for reconsideration.

         Neighbors United timely appealed.

         Standard of Review

         An original order or decision of the PSC is subject to judicial review to determine: first, whether the order is lawful; and second, whether the order is reasonable. § 386.510.[1] The PSC's order is presumed valid. Office of Pub. Counsel v. Mo. Pub. Serv. Comm'n, 409 S.W.3d 371, 375 (Mo. banc 2013). The party challenging the order has the burden "to show by clear and satisfactory evidence that the determination, requirement, direction or order of the [PSC] complained of is unreasonable or unlawful." § 386.430. "The lawfulness of the PSC's order is determined by whether statutory authority for its issuance exists, and all legal issues are reviewed de novo." Office of Pub. Counsel v. Mo. Pub. Serv. Comm'n (In re Verified Application & Petition of Liberty ...


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