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Grain Belt Express Clean Line, LLC v. Public Service Commission

Court of Appeals of Missouri, Eastern District, Second Division

February 27, 2018

GRAIN BELT EXPRESS CLEAN LINE, LLC; MISSOURI JOINT MUNICIPAL ELECTRIC UTILITY COMMISSION; AND MISSOURI LANDOWNERS ALLIANCE, Appellants,
v.
PUBLIC SERVICE COMMISSION, Respondent IN THE MATTER OF THE APPLICATION OF GRAIN BELT EXPRESS CLEAN LINE, LLC FOR A CERTIFICATE OF CONVENIENCE AND NECESSITY AUTHORIZING IT TO CONSTRUCT, OWN, OPERATE, CONTROL, MANAGE, AND MAINTAIN A HIGH VOLTAGE, DIRECT CURRENT TRANSMISSION LINE AND AN ASSOCIATED CONVERTER STATION PROVIDING AN INTERCONNECTION ON THE MAYWOOD-MONTGOMERY 345 KV TRANSMISSION LINE.

         Appeal from the Public Service Commission

          OPINION

          Lisa P. Page, Presiding Judge.

         Grain Belt Express Clean Line, LLC ("Grain Belt"), and the Missouri Joint Municipal Electric Utility Commission ("MJMEUC") appeal the report and order issued by the Public Service Commission of the State of Missouri ("Commission") denying Grain Belt's application for a certificate of convenience and necessity ("CCN") to construct and maintain an interstate electrical line and associated facilities. In addition, although it prevailed before the Commission, Missouri Landowner's Alliance ("MLA") also filed a separate appeal of the Commission's order.

         BACKGROUND

         The legal issue presented in this matter is simple even though the underlying project is incredibly complex involving multiple states, counties, and hundreds of miles of potential construction, as well as economic and environmental implications. In August 2016, Grain Belt filed an application for a certificate of convenience and necessity with the Commission pursuant to Section 393.170.1 RSMo (2016), [1] 4 CSR 240-2.060, and 4 CSR 240-3.105(1)(B). Grain Belt sought permission from the Commission to construct, own, operate, control, manage, and maintain a high voltage direct current transmission line and associated facilities. The Commission held public hearings in Ralls and Monroe counties during which evidence was presented regarding the scope of the proposed project. The overhead, multi-terminal line would span over 700 miles across three states. The project would cross 206 miles through the eight Missouri counties of Buchanan, Caldwell, Carroll, Chariton, Clinton, Monroe, Randolph, and Ralls. The line would deliver 500 megawatts of wind-generated electricity from western Kansas to customers in Missouri.

         The Commission subsequently issued its report and order, deciding it could not lawfully issue a CCN to Grain Belt without consent from each county affected because it was bound by the decision of the Western District in Matter of Ameren Transmission Co. of Illinois, 523 S.W.3d 21 (Mo. App. W.D. 2017) ("ATXI"). In a concurring opinion joined by Commissioners Hall, Kenney, Rupp, and Coleman, the Commission disagreed with the Western District's opinion in ATXI, but believed it to be binding precedent upon their decision, mandating denial of Grain Belt's CCN. The present appeal followed.

         DISCUSSION

         Grain Belt presents three points on appeal, all of which contend the Commission erred in denying Grain Belt's application for a CCN pursuant to Section 393.170.1 based upon the decision in ATXI. We agree and decline to follow the Western District's interpretation of Section 393.170. Therefore, we consider all three points together.

         Standard of Review

         Pursuant to Section 386.510, our review of the Commission's order is two-pronged. First, we determine whether the order is lawful. Second, if lawful, we consider whether the order is reasonable. The burden of showing the order is unlawful or unreasonable rests with the appellant. Matter of Application of KCP&L Greater Missouri Operations Company, 515 S.W.3d 754, 758 (Mo. App. W.D. 2016). Whether the Commission's decision is lawful is determined by whether statutory authority exists for its issuance. Id. We review all legal issues de novo. Id. Neither convenience nor necessity is a proper consideration for this court in determining whether the Commission's decision is authorized by statute. State ex rel. Cass County v. Public Service Commission, 259 S.W.3d 544, 548 (Mo. App. W.D. 2008). As previously noted, MLA and MJMEUC each filed appellate briefs asserting several points and sub-points on appeal relating to the reasonableness of the Commission's order. However, our review as to the lawfulness of the Commission's order is dispositive; therefore, we do not reach the question of reasonableness in this case.[2]

         Analysis

         I. Public Service Commission

         The Missouri Public Service Commission was created by Section 386.040 and only has such powers as expressly conferred upon it by statute. State ex rel. Harline v. Public Service Commission, 343 S.W.2d 177, 181 (Mo. App. K.C. 1960). The Commission's powers are purely regulatory. Id. The primary purpose of the Commission is to promote public welfare. The enabling statutes permit the Commission to enact regulations to correct a public utility's abuse of any property right, rather than direct its use. Id. The Commission must balance the interests of the general public as well as the interests of customers and investors of a regulated utility on a statewide basis and not consider the utility's operating area in isolation. State ex rel. Cass County, 259 S.W.3d at 549.

         II.Two Distinct Certificates of Convenience and ...


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