A renewable energy company seeking to build one of the nation's longest power lines across a large swath of the Midwest is trying to revive the project.
Former Missouri Gov. Jay Nixon, is to argue Tuesday to the Missouri Supreme Court that utility regulators he appointed wrongly rejected the power line while relying on an incorrect court ruling written by a judge whom Nixon also appointed.
If Nixon prevails in court, it will impact Indiana. The decision could help clear a path for the construction of a 780-mile power line from the wind farms of western Kansas across Missouri and Illinois to Indiana. It would then connect to a power grid serving eastern states.
The power line has come to symbolize one of the largest challenges for renewable energy developers in the U.S. Although converting wind into electricity is increasingly affordable, it can be hard to get the regulatory and legal approval needed to transmit the power from remote areas where it's produced to the places where it's most needed.
Clean Line has been working on its proposed direct-current power line since 2010 but still hasn't been able to begin construction.
The Missouri Public Service Commission rejected the project in July 2015 while determining it had little benefit for Missouri consumers and citing the burden on landowners in its path. Clean Line then agreed to sell power to coalition of Missouri municipal utilities. It won Nixon's endorsement in June 2016 after the Democratic governor said the company agreed to his request to add more landowner protections.
Clean Line reapplied but got denied again by Missouri regulatory commissioners last August. This time they said that while Clean Line's project was worthy, it first needed approval from all counties where it planned to string power lines across roads. The commission cited a western district state appeals court ruling in an unrelated case.
That's when Clean Line turned to Nixon, a former state attorney general whose term as governor ended in January 2017.
Nixon was hired because he had "a strong working knowledge of the project" and the Dowd Bennett law firm where he now works has "extensive appellate experience," Mark Lawlor, Clean Line's vice president of development, said in an email.
Nixon won the first round in court, when an eastern district state appeals court ruled in February that commissioners were wrong about local pre-approval being necessary. The judicial panel transferred the case to the state's highest court for a final determination.
When Nixon steps into the Missouri Supreme Court, he said it will mark his first arguments there in more than 15 years. He's been preparing by holding mock court sessions in front of attorneys who have grilled him with questions. He also enlisted the aid of longtime colleague James Layton, the state's former solicitor general who argued 92 cases before the state Supreme Court over a two-decade career.
Two of Missouri's seven Supreme Court judges were appointed by Nixon, including one who previously worked for him in both the governor's and attorney general's offices. But Nixon said he expects no favoritism and sees no potential conflict of interest.
"I don't think anything says that after you've been governor, if you happen to be there for a while, that you should be limited in your ability to aggressively represent the clients that you so desire," Nixon said.
Attorney Paul Agathan, who will be arguing on behalf of landowners opposed to the power line, also sees no conflict in Nixon appearing before judges he appointed, though Agathan added: "It can't hurt him, obviously."
The case likely will hinge on two paragraphs of state law describing the Public Service Commission's power to grant certificates for construction of electric facilities and franchise rights to serve particular areas. Nixon says the state traditionally treated pre-approval from local counties as necessary only for service-area permits - not electric-line permits as sought by Clean Line.
