Court of Appeals’ two districts differ on certification opinion
By Scott Lauck
BridgeTower Media Newswires
ST. LOUIS — Not that he would put it this way, but former Gov. Jay Nixon on Tuesday urged the Missouri Supreme Court to find that one appellate judge he appointed got it wrong and another he named got it right.
Nixon urged the high court to allow the state’s Public Service Commission to give a green light to the Grain Belt Express Clean Line, a proposed 780-mile power line that would carry wind-generated electricity from western Kansas to Indiana. The privately funded $2.3 billion project would cross eight counties in northern Missouri. Nixon joined Dowd Bennett in St. Louis in early 2017 after he left office.
Construction of the line requires the Missouri Public Service Commission to grant regulatory permission, known as a certificate of convenience and necessity. Last year, the PSC said it would have granted such a certificate for Grain Belt were it not for a March 2017 ruling from the Court of Appeals Western District in an unrelated case that suggested a power line’s builders first had to get consent from the counties through which the line would pass.
Nixon, sounding ever much the governor, pitched the court on the project’s merits.
“For our state, this would bring not only clean, renewable wind power to tens of thousands of Missourians, but also generate millions of dollars in savings on energy bills and provide over $7 million in yearly property-tax payments to our schools, first responders and other entities along its path,” he said.
He also said the Western District’s earlier ruling was wrong on the law. So did the appeals court’s Eastern District, which earlier this year transferred the Grain Belt case to the Supreme Court for a final determination. Tuesday’s argument came only five weeks after the appeals court’s tentative ruling.
“At stake is the very jurisdiction of the PSC to perform its essential role,” Nixon said.
The Western District ruling in Matter of Ameren Transmission Co. of Illinois held that Ameren had failed to get permission from the counties before seeking PSC approval of the 100-mile Mark Twain Transmission line in northeastern Missouri. (Following additional negotiations, the PSC gave its OK for the project in January.)
The Eastern District said its sister court’s earlier ruling conflated two sections of state law, leaving an interpretation that “empowers a local entity to withhold its consent” and “effectively nullifies” the relevant part of the statute.
Under state law, the Eastern District said, there are two types of certificates of convenience and necessity. “Area certificates” are needed for projects in which the utility will exercise a franchise by serving customers, so they require consent from “the proper municipal authorities.” In contrast, “line certificates” need only PSC approval before construction because such projects don’t serve the public generally along the line’s path. The Eastern District said the Grain Belt project (and by extension the earlier Mark Twain line) fell under the “line certificate” part of the statute.
Chief Judge Mark D. Pfeiffer, whom Nixon appointed in 2009, wrote the Western District ruling. Judge Lisa Page, whom Nixon named in 2015, authored the Eastern District’s ruling. The former governor, of course, didn’t mention either judge by name, though he did approvingly quote Page’s characterization that the “legal issue presented in this matter is simple.”
Nixon also named two of the Supreme Court’s seven members: Judges George W. Draper III and Paul C. Wilson. Both took part in Tuesday’s case.
On Tuesday, the court noted repeatedly that the Western District’s ruling never discussed the distinction between the certificates and didn’t mention the specific statute that governs line certificates.
“Why were you bound by something they didn’t say, in a section they didn’t interpret?” Judge Laura Denvir Stith asked Jennifer Heintz, an attorney for the PSC. Heintz responded that the two cases involved exactly the same facts, so the regulatory body felt bound to follow it. It was, Stith agreed, “an odd situation.”
Nixon was one of several attorneys who argued over the project on Tuesday. The Missouri Joint Municipal Electric Utility Commission, as well as the Sierra Club and Renew Missouri Advocates, are urging the court to allow the line to be built. But Paul A. Agathen, an attorney for the Missouri Landowners Alliance, which opposes construction of the line, said the Grain Belt project should qualify as a “franchise” under the law and should be subject to county approval.
