Property Over Planet: How the Grain Belt Express Sparked Utility Eminent Domain Reform in Missouri

New Missouri legislation addressing eminent domain for utilities adequately satisfies landowners’ concerns, and the overall benefit to the public good outweighs the detriment to landowners. Yet, further evolution of the regime should be considered.

By: Elizabeth L. Reiher*

I.   Introduction

Energy is essential to our daily lives, but we rarely consider what is necessary to ensure its flow into homes and businesses.  The U.S. energy infrastructure relies on transmission lines to bring energy from its source to power grids and then to homes and businesses.  This energy can come from a variety of sources such as fossil fuels, nuclear energy, or renewable energy, all of which are ultimately turned into electricity for consumption.[1]

­The U.S. energy landscape has changed over the years, and currently, renewable energy accounts for twelve percent of U.S. energy consumption.[2]  As renewable energy production increases, our energy infrastructure must adapt to transport this power to communities further away from production sites.  For example, energy generated in Kansas would need to travel over 600 miles through transmission lines to supply power to an apartment in Chicago.  Other types of energy such as coal, oil, and natural gas are transported by trucks, but renewable energy may only travel through electric transmission lines.  Thus, to deliver more renewable energy to homes and businesses, the U.S. electric transmission system needs to expand.

The Grain Belt Express (“GBE”) is an electric transmission line that will span three states: Kansas, Missouri, and Illinois.[3]  It will carry renewable energy from Southwest Kansas to power grids across the Midwest.[4]  Transmission lines, like the GBE, are important for energy infrastructure and ensure electricity generated by renewables can be transported from production sites to consumers who need it.[5]  However, to build the transmission line, the GBE needs to acquire easements from landowners to erect transmission structures on their land.[6]  

Image depicting the path the GBE will take across Missouri.[7]
Image depicting the easement and utility structure. [8]

In Missouri, the GBE has faced significant opposition from landowners, farmers, and ranchers since its inception.[9]  Those who initially opposed the GBE viewed the project as a way for a private corporation to take advantage of them to make a profit.[10]  Due to public pushback against the GBE, the Missouri Legislature enacted eminent domain reform in 2022 that requires companies using eminent domain to build electric transmission lines to compensate landowners for easements on their land at 150 percent of the fair market value of their land.[11]  This Summary will analyze and explore over a decade of the GBE’s legal and legislative history in Missouri and how the legislature should continue to evolve the state’s eminent domain for utilities to encourage the use of eminent domain for renewable energy projects.

II.   Legal Background

This section provides an overview of the legal background of eminent domain, the Takings Clause of the state and federal constitution, a review of relevant case law, and the administrative and regulatory procedures required before a utility can use eminent domain power.

A.   Federal Law

The Fifth Amendment provides the government with the general power to gain title and access to the property of private parties absent their consent through the Takings Clause, which states “nor shall private property be taken for public use without just compensation.”[12]  The Takings Clause restricts the government’s ability to acquire private property even if just compensation is paid.[13]  This restriction requires the government to determine what constitutes a public good and whether the public good is furthered by taking the land for a different use.[14]  The Takings Clause is applied to the states through the Fourteenth Amendment.[15]  However, states may enact protections for private property rights that go beyond federal law.[16]

In Missouri, the constitutional power of eminent domain closely aligns with the powers provided to the federal government.[17]  Two articles of the Missouri Constitution provide the eminent domain power.[18]  Article I, section 26 of the Missouri Constitution provides “[t]hat private property shall not be taken or damaged for public use without just compensation.”[19]  Article I, section 28 provides, “[t]hat private property shall not be taken for private use with or without compensation, unless by consent of the owner ….”[20]  Together, these constitutional provisions enable the state to use eminent domain power if the land is being taken for a public purpose and the state pays just compensation.[21]

Missouri grants the power of eminent domain to common carriers, such as electric utilities, through statute.[22]  However, before a utility can begin construction on a transmission line and acquire land through eminent domain, other administrative requirements must be met.  Before construction on a transmission line in Missouri, a utility must apply for a Certificate of Convenience and Necessity (“CCN”) from the Missouri Public Service Commission (“PSC”)[23] and engage in good faith negotiations with landowners before attempting to exercise eminent domain power.[24]  Unsurprisingly, landowners often oppose utility companies that try to take their property by eminent domain for transmission lines.[25]  More recently, these challenges stem from arguments that the taking is not a public use because the electricity flowing through the line will not solely benefit in-state residents.[26]  Challenges like these came to the forefront of public opinion in Kelo v. City of New London, where the Supreme Court considered the question of what constitutes public use.

B.   Eminent Domain and Public Use

Through the power of eminent domain, the government may obtain title and access to the property of private parties without their consent.[27]  However, since the controversial 2005 Supreme Court decision in Kelo v. City of New London, eminent domain power has been highly criticized.[28]  After Kelo, criticism primarily focused on eminent domain power that stemmed from the public use and economic development standards put forth by the Court.[29]

In Kelo, a five-member majority of the Supreme Court held New London’s use of eminent domain power to acquire houses to assemble land for a major redevelopment project did not violate the Fifth Amendment’s public use clause.[30]  The city intended to spur economic development in the area with the major redevelopment project.[31]  Pfizer, Inc., a pharmaceutical company, planned to build a research facility and a “small urban village” with a hotel, conference center, restaurants, and shopping.[32]  The city estimated the project would create thousands of jobs, increase tax revenues, and help revitalize the city.[33]  The Court had to determine whether this major redevelopment project satisfied the public use clause.[34]  Ultimately, the Court held the city’s use of eminent domain satisfied the public use requirement of the Takings Clause.[35]

In the majority opinion, the Court again emphasized it had traditionally recognized that the public use requirement did not actually require the taken property be used by the general public.  Rather, the Court had interpreted the clause in a manner that required the exercise of eminent domain power be “rationally related” to furthering a public use.[36]  In determining that the public purpose requirement had been satisfied, the Court gave substantial deference to the city’s legislative determination that the project would spur economic development, which the Court determined was evidenced by the city’s extensive planning leading up to the ultimate approval of the project.[37]

C.   Kelo’s Initial Impact on Eminent Domain in Missouri

Just days after the Kelo decision, then-Missouri Governor Matt Blunt announced he was creating a task force that would examine “the use of eminent domain, especially when the proposed public use of the property being acquired by eminent domain [was] not directly owned or primarily used by the general public.”[38]  The task force held ten meetings during the second half of 2005.[39]  Four of those meetings primarily consisted of witness testimony.[40]  Among those witnesses were farmers who felt they had received unfair treatment from electric utility companies, the Missouri Department of Transportation, or other authorities with eminent domain power.[41]  The task force’s final report was released on December 30, 2005, and contained eighteen recommendations.[42]  A few bills with eminent domain provisions were filed during the 2006 session of the Missouri General Assembly, but only H.B. 1944 received significant attention.[43]

Representative Steve Hobbs of Audrain County filed H.B. 1944, and Hobbs’s had some political leverage due to his position on the Eminent Domain Task Force and his involvement with the Missouri Farm Bureau.[44]  Only a few changes were made to the bill through the legislative process, and the full House adopted it on April 12, 2006.[45]   The rehabilitated bill addressed several eminent domain issues,[46] but one of the most prominent was the “heritage value” provision.[47]  The idea of heritage value gained significant support from the Missouri Farm Bureau because properties in Missouri that had been owned by families for long periods were more likely to be agricultural.[48]  However, this provision was not limited to farms or any specific type of property.[49]  The provision “applied even to land owned by corporations or other entities, provided that a ‘family’ had controlled at least fifty percent of the entity.”[50]  The language in the final bill stipulated that the heritage value would not impact the condemnation “unless the property had been owned by the same family for fifty years or more, and the ‘heritage increment’ was to be a flat [fifty percent] of fair market value.”[51]  Thus, condemned land that met these criteria would have a just compensation value of the fair market value plus the heritage value.[52]

The heritage value provision gave some landowners a huge windfall, but only impacted a small number of landowners.[53]  Additional language classified some takings as “homestead takings,” which provided protections for landowners who did not qualify under the heritage value provision.[54]  To qualify as a homestead taking, the owner had to suffer a loss of their primary place of residence that “prevent[ed] the owner from utilizing the property in substantially the same manner as it was currently being utilized on the day of the taking.”[55]  Under the homestead takings provision, a homeowner would receive an amount equivalent to the fair market value of such property multiplied by 125%.[56]  Thus, after the bill was adopted, just compensation for condemned property was defined as the fair market value plus the heritage value or the homestead-taking provision if applicable.[57]

D.   Administrative and Regulatory Procedures

Under RSMo. § 393.170, the PSC has the discretion to grant or deny a transmission line’s application for a CCN, and the statute provides that the PSC must determine whether the construction is “necessary or convenient for the public service.”[58]  Typically, this standard has been interpreted by the courts as requiring the evidence “show that the additional service would be an improvement justifying its cost and that the inconvenience of the public occasioned by the lack of a carrier is sufficiently great to amount to a necessity.”[59]

The PSC articulated the specific factors to be used in evaluating utility CCN applications within In Re Intercon Gas, Inc.  The Intercon case combined the standards outlined in similar CCN application cases.[60]  The following criteria, known as the Tartan Factors, are used to determine whether a CCN should be granted: (1) there must be a need for the service; (2) the applicant must be qualified to provide the proposed service; (3) the applicant must have the financial ability to provide the proposed service; (4) the applicant’s proposal must be economically feasible; and (5) the service must promote the public interest.[61]

E.   Background on Grain Belt Express and Legislation

In July 2015, the PSC denied the Grain Belt Express Clean Line’s initial application for a CCN.[62]  The PSC analyzed GBE’s request under the Tartan Factors and found that GBE failed to make a showing on three of the factors: (1) the need for the service, (4) the economic feasibility of the project, and (5) the promotion of the public interest.[63]  Under these factors, the PSC determined there would be significant burdens on landowners under the proposal.[64]  Because the PSC determined that GBE failed to meet these initial criteria, it did not consider the remaining disputed issues and determined that GBE failed to show that its application for a CCN was necessary or convenient for the public service.[65]  

On June 30, 2016, GBE filed again with the PSC for a CCN.[66]  The PSC again denied the application for the CCN, this time relying on In re Ameren Transmission Co., which set a precedent requiring prior consent from each county that the transmission line would affect.[67]  GBE then appealed the decision to the PSC, and the PSC denied its application for a rehearing.[68]  GBE then appealed this decision to the Eastern District of Missouri Court of Appeals, and the court held that an electric utility seeking a CCN was not required to get consent from each county.[69]  The court reasoned that the legislature had intended for there to be “two separate certificates of convenience and necessity under Section 393.170 by setting each forth in its own subsection and by use of the disjunctive ‘or’ in Section 393.170.3.”[70]  Thus, the court determined that the PSC erred in finding it could not grant the CCN to the GBE.[71]  However, the court determined the case needed to be transferred to the Supreme Court of Missouri under Rule 83.02 because of the general interest and importance of the question to be resolved in the case.[72]

On transfer to the Supreme Court of Missouri, the issue considered was whether consent was required from potentially affected counties before the PSC could issue a CCN line.[73]  The court determined the PSC erroneously concluded it could not grant the CCN to GBE unless GBE received permission from each county.[74] The court concluded that consent from each county was not required for this situation, but consent is required if a utility is seeking a different type of CCN under RSMo. Section 393.170.2.[75]  Thus, the court reversed the PSC’s decision and remanded the case to the PSC to determine whether GBE’s proposed project was necessary or convenient for service to the public.[76]

Finally, on March 20, 2019, the PSC approved GBE’s application for a CCN.[77]  After significant investigation, the PSC determined “the broad economic, environmental, and other benefits of the Project to the entire state of Missouri outweigh[ed] the interests of the individual landowners,” and landowner concerns would be “addressed through carefully considered conditions placed on the CCN.”[78]

In making its decision, the PSC again examined the Tartan factors.[79]  Regarding the need for the service, the PSC determined the factor was met primarily because of the benefits GBE would provide to the Missouri Joint Municipal Electric Utility Commission (“MJMEUC”).[80]  The MJMEUC and its customers had already agreed to purchase 136 megawatts of wind power from GBE.[81]  Furthermore, purchasing this power from GBE would provide millions of dollars in savings to MJMEUC utility members, which would ultimately be passed through to its customers.[82]  The PSC also examined the impact GBE would have on other relevant regional electric markets and determined that there was a “demonstrable need” for the service offered by GBE in the regions that impact the Missouri energy market.[83]

Concerning the applicants’ qualifications and financial ability, the PSC recognized at that time GBE had no employees and insufficient cash on hand to complete the development and construction of the project.[84] However, in February 2019, Invenergy and its parent company filed a joint application with GBE asking the PSC to approve a transaction so Invenergy could acquire ownership of GBE.[85]  The PSC determined GBE met, by a preponderance of the evidence, the necessary burden of proof to demonstrate that Invenergy’s acquisition of GBE was not against the public interest.[86]  Because Invenergy had acquired the line, the PSC considered its financial position when examining GBE’s financial position.[87]  The PSC determined that Invenergy had a strong financial position and had demonstrated its ability to raise capital for large energy projects.[88]  This was sufficient to demonstrate that Invenergy had the financial ability to develop the project.[89]

When evaluating the economic feasibility of the project, the PSC determined GBE was economically feasible because it linked “customers in Missouri who desire[d] to purchase low-cost wind power from western Kansas with wind generation companies.”[90]  There was also significant evidence that the cost of bringing wind energy from western Kansas to Missouri and eastward using GBE was the lowest-cost resource option when compared to wind, gas, and utility-scale solar generation.[91]

Ultimately, the PSC concluded the GBE would create many benefits for Missourians that outweigh the concerns of landowners, such as lowering energy production costs, displacing fossil fuels, and the belief that Missouri should invest in renewable energy. [92]  The PSC reasoned, “The Grain Belt Project will facilitate this movement in Missouri, will thereby benefit Missouri citizens, and is, therefore, in the public interest.”[93]

III.   Recent Developments

A.   Compromise Legislation

Due to push back from landowners, farmers, and ranchers, Missouri lawmakers had been trying to stop the development of GBE for years.[94]  However, in early May of 2022, lawmakers were finally able to develop a compromise bill, HB 2005, which they felt adequately protected the needs of impacted landowners while still allowing the state to take advantage of the benefits of GBE.[95]  Previous legislation addressing utility eminent domain reform would have effectively killed GBE.[96]  One previous version of the bill would have required electrical transmission lines to receive approval from county commissions in every Missouri county that the line would pass through.[97]  When this legislation was proposed, county commissions in eight of the counties that GBE would pass through opposed the project.  Thus, the legislation would have stopped the development of GBE.[98]  This iteration of the bill was essentially the legislature’s attempt to implement the county consent requirement found in RSMo. § 393.170.2, which the court determined did not apply to GBE.[99]

Another previous version of HB 2005 required that at least fifty percent of the power carried by a transmission line be “dropped off” for use by Missouri customers.[100]  However, the compromise bill required that the transmission line be capable of providing power to the state that is  proportional to the length of the line that runs across the state.[101]  HB 2005 required companies using eminent domain to build electric transmission lines to compensate landowners for easements on their land at 150 percent of the fair market value of their land.[102]  The bill also required that the commissions tasked with determining the fair market value of the land include at least one farmer who had lived in the area for at least ten years.[103]  Additionally, the bill provided that if the transmission line developers did not begin construction on the easement within seven years of acquiring it, their rights to the property would expire.[104]  However, the statutory provisions passed in HB 2005 only apply to CCN applications filed after August 28, 2022, and thus, the provisions passed in HB 2005 do not apply to GBE .[105]

B.   Protesting the Tiger Connector Line

After the compromise legislation was passed, GBE announced the transmission line would deliver 2,500 megawatts of clean energy to the state of Missouri, a substantial increase from the initial 500 megawatts it promised.[106]  However, this increase required an extra forty-mile connector line called the Tiger Connector Line (“TCL”).[107]  To build the TCL, GBE asked the PSC to amend its original plan instead of applying for a new transmission line.[108]  Because GBE asked to amend its original plan, the new provisions passed in HB 2005 that required a higher compensation rate for landowners would not apply.[109]  Farmers are protesting the TCL, even though GBE has promised to pay the higher compensation rate that was passed in HB 2005, which required compensation at 150% of the land value.[110]  Farmers fear GBE is trying to undermine the compromise legislation, and the Missouri Farm Bureau is urging GBE to file a new application, which would show farmers that GBE is fully committed to following the provisions passed in HB 2005.[111]

IV.   Discussion

Missouri’s post-Kelo eminent domain ensured that owners of agricultural land are not taken advantage of,[112] and other legislatures could take a similar approach.

A.   Impact of Compromise Legislation

Missouri’s post-Kelo eminent domain reform showed that both the state and legislature highly value landowner rights and want to ensure owners of agricultural land are not taken advantage of.[113]  In drafting HB 2005, the legislature considered many of the same concerns that were brought up by the Missouri Farm Bureau during the 2007 legislative session.  When determining what additional protective measures to add to eminent domain for utility purposes, the needs of farmers and ranchers were at the forefront of the decision.[114]  Essentially, HB 2005 implemented a sort of heritage value provision for utility easements.  Ultimately, this provision is for the benefit of Missouri farmers and ranchers.  Farmland is particularly vulnerable to eminent domain power because the land’s location makes it easier to accumulate the land necessary for projects, and its underdeveloped state makes the dislocation of residents less likely.[115]  From one perspective, it may seem beneficial to sacrifice farmland for utility projects that advance the greater good of the environment.  But it is important to consider that this may not be true for all transmission projects, [116] and some interstate transmission projects may provide fewer benefits for the residents of the states that they pass through.

Legislatures should follow the Missouri approach and read the public use requirement narrowly to ensure the residents of the state are the primary beneficiaries of the takings.  This was essentially what the Missouri Legislature did when enacting the revised eminent domain utility statutes and adding a provision requiring that the transmission line supply power to the state that is proportional to the length of line that runs across the state.[117]  Ultimately, this statute will help ensure that the public good is not undermined in future energy infrastructure projects and will protect landowners that might be particularly vulnerable to the use of eminent domain.

But, even with statutory reform, it is likely that landowners will always find a reason to oppose eminent domain because no one wants their land taken from them.  Landowners in Missouri are currently upset over the addition of the TCL even though GBE has already said that it will be compensating landowners for 150 percent of the land’s value.[118]  Ultimately, GBE and other electric utilities have the power through state and federal law to use eminent domain.  If landowners still have concerns about the way that that power is being exercised, then they need to convince the legislature to enact further reforms.  However, enacting further reforms for landowners should not be the legislative priority, because the legislature should instead focus on creating incentives for clean energy.

B.   The Need for Additional Statutory Eminent Domain Reform for Utilities

Missouri’s energy infrastructure will need to continue to evolve and incorporate more clean energy initiatives to meet renewable energy goals.[119]  Climate policies and renewable energy standards have the power to shift energy production away from fossil fuel-based energy projects, but incorporating property-based laws would add immense support for clean energy policies and projects.  Through additional legislative eminent domain reform, Missouri can create incentives for clean energy projects and make them easier to build.

In the future, the Missouri Legislature should consider viewing the public use requirement through a broader lens for clean energy projects that have a particular need for eminent domain authority, such as interstate electric transmission lines.  Current legislation requires electric transmission lines to supply power to the state that is proportional to the length of the line that runs across the state.[120]  This provision was added to ensure the transmission line was proving benefits for in-state residents.[121]  However, by modifying this provision in the future, the legislature could still ensure the public purpose was being met through other means such as the economic benefits that come with construction and job creation.  The PSC already considers the economic benefits, among other factors, when determining whether to grant a CCN.[122]  In the future, having stringent statutory requirements like this one may ultimately hinder essential energy infrastructure projects. As the U.S. energy infrastructure evolves, the Missouri legislature will have to decide if they want Missouri to help or hinder its evolution.

V.   Conclusion

The new legislation addressing eminent domain for utilities adequately satisfies landowners’ concerns, and the overall benefit to the public good outweighs the detriment to landowners.  However, considering the future energy needs of Missouri and the country, the Missouri legislature should consider evolving its approach to eminent domain for utilities and take steps to ensure the state is helping to advance the U.S. electric infrastructure.

Footnotes

* B.J., B.A., University of Missouri, 2019; J.D. Candidate, University of Missouri School of Law, 2024; Note and Comment Editor, 2023–2024, Associate Member, Missouri Law Review, 2022–2023. I am thankful to Professor Wilson Freyermuth for his feedback and support while writing this note, and I am grateful for the Missouri Law Review staff for their assistance in the editing process of this note. I am also grateful to James Owen for sharing his all of his knowledge on the GBE and its history with me.

[1] See Renewable Energy Explained, U.S. Energy Info. Admin., http://www.eia.gov/energyexplained/index.cfm?page=electricity-delivery (last visited Nov 01, 2022) (illustrating the U.S. energy consumption by energy source in 2021).

[2] Id.

[3] Grain Belt Express, https://grainbeltexpress.com/ (last visited Oct. 16, 2022).

[4] Id.

[5] Frequently Asked Questions, Grain Belt Express, https://grainbeltexpress.com/wp-content/uploads/2022/12/FAQ-12132022.pdf (last visited Oct. 16, 2022). A complex network of electric generation, transmission, and distribution is necessary to supply electricity to homes and businesses, and our energy infrastructure needs to evolve to keep up with the development of renewables. See generally United States Electricity Industry Primer, U.S. Dep’t of Energy: Off. Elec. Delivery & Energy Reliability 1, 13 (2015).

[6] Grain Belt Express, supra note 5.

[7] Image of Grain Belt Express Route Across Missouri, in Grain Belt in Missouri, Grain Belt Express, https://grainbeltexpress.com/missouri.html (last visited Nov. 10, 2022).

[8] Image of Structure/Easement Visualization, in Landowner Resources, Grain Belt Express, https://grainbeltexpress.com/landowners.html (last visited Nov. 18, 2022).

[9] Allison Kite, Grain Belt Transmission Line Forges Ahead Amid Landowner, Lawmaker Pushback, Missouri Independent (April 19, 2021), https://missouriindependent.com/2021/04/19/grain-belt-transmission-line-forges-ahead-amid-landowner-lawmaker-pushback/.

[10] Id.

[11] Mo. Rev. Stat. Ann. § 523.039 (2022); see also Allison Kite, Missouri Senate Approves Eminent Domain Reform that Wouldn’t Kill Grain Belt Express, Missouri Independent (May 5, 2022), https://missouriindependent.com/2022/05/05/missouri-senate-approves-eminent-domain-reform-that-wouldnt-kill-grain-belt-express/.

[12] U.S. Const. amend. V; U.S. Const. amend. XIV.

[13] James W. Coleman & Alexandra B. Klass, Energy and Eminent Domain, 104 Minn. L. Rev. 659, 666 (2019).

[14] Micah Elazar, “Public Use” and the Justification of Takings, 7 Univ. Pa. J. Const. L. 249, 249 (2004).

[15] U.S. Const. amend. XIV.

[16] See Kelo v. City of New London, 545 U.S. 469, 489 (2005) (stating that “[N]othing in the opinion precludes any State from placing further restrictions on its exercise of the takings power.” And noting that many states already have “public use” requirements that are stricter than federal law).

[17] State ex rel. Jackson v. Dolan, 398 S.W.3d 472, 476 (Mo. 2013) (en banc).

[18] Id.

[19] MO. Const. art. I, § 26.

[20] MO. Const. art. I, § 28.

[21] Dolan, 398 S.W.3d, at 476.

[22] Mo. Rev. Stat. 523.262.2 (2006) (“A private utility company, public utility, rural electric cooperative, municipally owned utility, pipeline, railroad or common carrier shall have the power of eminent domain as may be granted.”).

[23] Mo. Rev. Stat. § 393.170.1 (2018) (“No gas corporation, electrical corporation, water corporation or sewer corporation shall begin construction of a gas plant, electric plant, water system or sewer system without first having obtained the permission and approval of the commission.”).  The PSC is the administrative agency that oversees the regulation of investor-owned electric, natural gas, steam, water, and sewer utilities in Missouri. See generally Mo. Rev. Stat. Tit. 25, §§386, 393 (2020); Missouri Public Service Commission, About the PSC, https://psc.mo.gov/General/About_The_PSC (last visited Oct. 15, 2022).

[24] Mo. Rev. Stat. § 523.256 (2022).

[25] James W. Coleman & Alexandra B. Klass, Energy and Eminent Domain, 104 Minn. L. Rev. 659, 704 (2019).

[26] Id.

[27] See Kelo v. City of New London, 545 U.S. 469, 497 (2005) (O’Connor, J., dissenting) (“[T]he Takings Clause presupposes that government can take private property without the owner’s consent ….”).

[28] Coleman & Bass, supra note 25, at 669.

[29] Coleman & Bass, supra note 25, at 670.

[30] Kelo, 545 U.S., at 484.

[31] Id. at 473–475.

[32] Id.

[33] Id.

[34] Id. at 477.

[35] Id. at 479.

[36] Id.

[37] Id. at 473-74, 479, 482-85.

[38] T.R. Reid, Missouri Condemnation No Longer So Imminent; Supreme Court Ruling Ignites Political Backlash, Wash. Post (Sept. 6, 2005), http://www.washingtonpost.com/wp-dyn/content/article/2005/09/05/AR2005090501087.html.

[39] Dale A. Whitman, Eminent Domain Reform in Missouri: A Legislative Memoir, 71 Mo. L. Rev. 721, 729 (2006).

[40] Id.

[41] Id.

[42] Id.

[43] Id. at 730.

[44] Id. at 730 n. 52 (as of 2005 Missouri had about 158,000 farm operators out of 3.6 million adults, which was about 4.4% of the population, but “farm interests and the impact of the Missouri Farm Bureau weigh exceptionally heavily in the state’s political calculus,” according to Professor Whitman).

[45] Id. at 731 (This was when Professor Dale Whitman, who was serving as a consultant for Burlington Northern-Santa Fe Railroad (“BNSF”), became involved in the legislative process. As a representative for BNSF Professor Whitman tracked and analyzed the legislation and met with legislators as the bill progressed. However, as a condition of his involvement, he had the freedom to express his views, rather than being directed by the railroad’s goals. Over a weekend in late April, the Senate rehabilitated the bill and Professor Whitman sat in on their working session. By Tuesday morning the Senate had passed the bill with only a few minor floor amendments. Then, the House passed the bill).

[46] Id. at 743.

[47] Id.

[48] Id.

[49] Id. at 744.

[50] Id. at 745.

[51] Id.; see also Mo. Rev. Stat. § 523.001.2 (2006).

[52] Mo. Rev. Stat. § 523.001.3.

[53] Whitman, supra note 39, at 745.

[54] Whitman, supra note 39, at 745; see also Mo. Rev. Stat. 523.001.3.

[55] Mo. Rev. Stat. 523.001.3 (“[A]ny taking of a dwelling owned by the property owner and functioning as the owner’s primary place of residence or any taking of the owner’s property within three hundred feet of the owner’s primary place of residence that prevents the owner from utilizing the property in substantially the same manner as it is currently being utilized.”).

[56] Mo. Rev. Stat. 523.001.2 (2006).

[57] Whitman, supra note 39, at 747.

[58] Mo. Rev. Stat. § 393.170.3 (2018) (“The commission shall have the power to grant the permission and approval herein specified whenever it shall after due hearing determine that such construction or such exercise of the right, privilege, or franchise is necessary or convenient for the public service. The commission may by its order impose such conditions as it may deem reasonable and necessary. Unless exercised within a period of two years from the grant thereof, the authority conferred by such certificate of convenience and necessity issued by the commission shall be null and void.”).

[59] State ex rel. Beaufort Transfer Co. v. Clark, 504 S.W.2d 216, 219 (Mo. Ct. App. 1973) (citing State ex rel. Transport Delivery Co. v. Burton, 317 S.W.2d 661, 663–64) (Mo. Ct. App. 1958)).

[60] Report & Order, Tartan Energy Company, L.C. dba Southern Missouri Gas Company, No. GA-94-127 (1994).

[61] Intercon Gas, Inc., 30 Mo P.S.C. (N.S.) 554, 561 (1991).

[62] Application of Grain Belt Express Clean Line LLC for a Certificate of Convenience, Report & Order, 1, Mo. P.S.C. No. EA-2014-0207 (Aug. 12, 2015).

[63] Id.

[64] Id.

[65] Id.

[66]Application of Grain Belt Express Clean Line LLC for a Certificate of Convenience and Necessity, 2017 WL 3620018 at *1 (Mo.P.S.C. Aug. 16, 2017).

[67] Id. at *6.

[68] Id.

[69] Grain Belt Express Clean Line, LLC v. Pub. Serv. Comm’n., 2018 WL 1055858, at *5 (Mo. Ct. App. 2018).

[70]Id.  RSMo. § 393.170 provides: 1. No gas corporation, electrical corporation, water corporation or sewer corporation shall begin construction of a gas plant, electric plant, water system, or sewer system, other than an energy generation unit that has a capacity of one megawatt or less, without first having obtained the permission and approval of the commission. 2. No such corporation shall exercise any right or privilege under any franchise hereafter granted, or under any franchise formerly granted but not formerly actually exercised, or the exercise of which shall have been suspended for more than one year, without first having obtained the permission and approval of the commission.  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. 3. The commission shall have the power to grant the permission and approval here specified whenever it shall after due hearing determine that such construction or such exercise of the right, privilege, or franchise is necessary or convenient for the public service.  The commission may by its order impose such conditions as it may deem reasonable and necessary. Unless exercised within a period of two years from the grant thereof, the authority conferred by such certificate of convenience and necessity issued by the commission shall be null and void. Mo. Rev. Stat. § 393.170.

[71] Grain Belt Express Clean Line, LLC, 2018 WL 1055858 at *5.

[72] Id.  “A case disposed of by an opinion, memorandum decision, written order, or order of dismissal in the court of appeals may be transferred to this Court by order of a majority of the participating judges, regular and special, on their own motion or on application of a party. Transfer may be ordered because of the general interest or importance of a question involved in the case or for the purpose of reexamining existing law.” Mo. Sup. CT. R. 83.02.

[73] Grain Belt Express Clean Line, LLC v. Pub. Serv. Comm’n., 555 S.W.3d 469. 470 (Mo. 2018).

[74] Id. at 474.

[75] Id. at 471–72 (explaining that RSMo. § 393.170 provides two types of CCNs that the PSC may grant to a utility. These types are typically referred to as “line certificates” and “area certificates.” The PSC’s grant of a line CCN does not require prior consent from the counties it will impact, however, the grant of an area CCN does require prior consent from the counties it will impact).

[76] Id. at 474.

[77] Report & Order on Remand, In the Matter of the Application of Grain Belt Express Clean Line LLC for a Certificate of Convenience and Necessity, No. EA-2016-0358, 2019 WL 1354055, at *31 (Mo.P.S.C., 2019).

[78] Id.

[79] Id. at *26.

[80] Id.

[81] Application of Grain Belt Express Clean Line LLC for a Certificate of Convenience and Necessity, Report and Order, 26 Mo. P.S.C No. EA-2016-0358, 2019 WL 1354055 (March 20, 2019).

[82] Id. at *9.

[83] Id. at *27.

[84] Id. at *11.

[85] Joint Application of Invenergy Transmission LLC, Invenergy Investment Company LLC, Grain Belt Express Clean Line LLC and Grain Belt Express Holding LLC, File No. EM-2019-0150, 2019 WL 4467444, at *1 (Sept. 11, 2019).

[86] Id. at *10.

[87] Application of Grain Belt Express Clean Line LLC for a Certificate of Convenience and Necessity, 2019 WL 1354055, at *27.

[88] Id.

[89] Id.

[90] Id. at *28.

[91] Id.

[92] Id. at *29.

[93] Id.

[94] Kite, supra note 11.

[95] Kite, supra note 11.

[96] Allison Kite, Missouri Governor to Sign Compromise Legislation After Efforts to Stymie Grain Belt Express, Missouri Independent (June 8, 2022), https://missouriindependent.com/2022/06/08/missouri-governor-to-sign-compromise-legislation-after-efforts-to-stymie-grain-belt-express/.  

[97] Id.

[98] Id.

[99] Mo. Rev. Stat. § 393.170.2 (2022); Grain Belt Express Clean Line, LLC v. Pub. Serv. Comm’n., 555 S.W.3d 469. 471–72 (Mo. 2018) (en banc).

[100] Kite, supra note 11.

[101] Mo. Rev. Stat. § 523.010 (2022). The GBE route across Missouri is approximately 200 miles long, so the GBE will need to drop off at least 20 MW of power for Missouri customers. Route Overview, Grain Belt Express, https://grainbeltexpress.com/overview.html#:~:text=The%20Missouri%20portion%20of%20the,%2C%20stakeholders%2C%20and%20public%20agencies (last visited Nov. 16, 2022).

[102] Mo. Rev. Stat. § 523.039 (2022); see also Kite, supra note 11.  

[103] Mo. Rev. Stat. § 523.040 (2022); see also Kite, supra note 11.

[104] Mo. Rev. Stat. § 523.025 (2022); see also Kite, supra note 11.

[105] Mo. Rev. Stat. § 523.039.

[106] Allison Kite, Missouri Agriculture Groups Renew Criticism of Grain Belt Express Over New Extension, Missouri Independent (Oct. 4, 2022), https://missouriindependent.com/2022/10/04/missouri-agriculture-groups-renew-criticism-of-grain-belt-express-over-new-extension/.  

[107] Id.

[108] Id.

[109] Id.

[110] Jackson Valenti, Farmers Hold Protest Against Proposed Grain Belt Express Transmission Line, KOMU (Aug. 30, 2022), https://www.komu.com/news/midmissourinews/farmers-hold-protest-against-proposed-grain-belt-express-transmission-line/article_defef4fc-2896-11ed-b547-b3f26e9838cd.html.

[111] Kite, supra note 107.

[112] Whitman, supra note 39, at 745; see also Mo. Rev. Stat. 523.001.2–3 (2006).

[113] Whitman, supra note 39, at 745; see also Mo. Rev. Stat. 523.001.2–3 (2006).

[114] Kite, supra note 9.   

[115] Kristin J. Hazelwood, Pipelines, Electrical Lines, and Little Pink Houses: Do Any Limits on “Public Use” Remain in Eminent Domain Law?, 25 Geo. Mason L. Rev. 711, 717 (2018).

[116] See generally id.

[117] Mo. Rev. Stat. § 523.010 (2022).

[118] Valenti, supra note 111.

[119] See generally State Renewable Portfolio Standards and Goals, Nat’l Conf. of State Legislatures, http://www.ncsl.org/research/energy/renewable-portfolio-standards.aspx#ca (last updated Aug. 13, 2021).

[120] Mo. Rev. Stat. § 523.010 (2022).

[121] Kite, supra note 11.

[122] Intercon Gas, Inc., 30 Mo P.S.C. (N.S.) 554, 561 (1991).