Appeals Court Reverses Grain Belt Express Permit Approval

Capitol News Illinois

An appeals court last week reversed state regulators’ approval of a permit for the Illinois portion of an 800-mile, high-voltage transmission line, setting up a possible fight at the state’s Supreme Court. 

The Grain Belt Express, or GBX, is owned by Chicago-based Invenergy and is meant to carry renewable electricity generated by wind farms. It would run through parts of Kansas, Missouri and Illinois before terminating just over the Indiana border. 

Its backers say the project is a key piece of infrastructure that’s needed to boost renewable energy in the region as well as deliver billions in savings to electricity customers over 15 years. 

The company received approval for a key permit from the Illinois Commerce Commission in March last year, but the 5th District Appellate Court overruled that decision last week. 

Justice James Moore, writing the unanimous opinion for the three-judge panel, said the issue with the ICC’s permit is primarily a lack of evidence that its owners can actually pay for the development. 

“Ultimately, there was not substantial evidence put forth to support the Commission’s finding that GBX is capable of financing the project,” Moore wrote. “The evidence put forward demonstrated that GBX lacked the funding at the time of the hearing, had no customers, contracts, government or bank commitments.”  

Moore also noted the parties involved in the case “agree on very little” about the underlying law authorizing companies like Invenergy to build these transmission lines. 

That law was approved by the General Assembly in 2021 as part of the Climate and Equitable Jobs Act, a broad legislative package that was meant to decrease the state’s reliance on fossil fuels and eliminate greenhouse gas emissions from electricity generation by 2045. 

Proponents of the Grain Belt Express point to this reading of CEJA as a threat to other renewable energy projects. 

“Today’s ruling completely misinterprets law and threatens billions in energy cost savings for Grain Belt Express consumers,” Invenergy Director of Public Affairs Dia Kuykendall said Friday. “The erroneous ruling has far-reaching implications beyond Grain Belt Express and contradicts the State's efforts to secure a reliable and affordable clean energy future.” 

Kuykendall also said the company will “immediately appeal” the decision to the Illinois Supreme Court. 

The decision was also criticized by representatives of the Illinois Manufacturers’ Association, Laborers’ International Union and Illinois Environmental Council. 

“We need this transmission infrastructure to bring renewable energy online,” IEC Energy Policy Director Samira Hanessian said in an interview. 

In an October 2023 study, the U.S. Department of Energy found that the Midwest will need to more than double its mileage of high-voltage transmission lines by 2040, assuming a moderate increase in electricity needs and high adoption rates of renewable energy. 

A similar appeals court ruling overturning an ICC permitting decision in 2015 nearly killed the development before it was sold to Invenergy. 

The Illinois Farm Bureau, a lobbying and advocacy group representing farmers, has been a driving force in the legal fight against the transmission line. It was joined by several smaller groups of landowners and farmers who organized opposition to the project independently. 

Laura Harmon, associate counsel for the Illinois Farm Bureau, said the organization doesn’t oppose all transmission line projects, noting that many are backed by public utilities and are “vetted based on need, reliability.” 

“This one was different,” she said. “We had a project with no wind farms, no customers.” 

That introduced uncertainty for farmers who may be asked to sign easements to allow the company to build on their property, which could potentially cloud the title for that land.  

“Depending on the language of the easement, it may not be void if that project is never built,” she said.
CEJA does not name Grain Belt but says a project of its magnitude “shall be deemed” a public use line, giving the company the ability to invoke eminent domain if needed – a policy opposed by many farmers and large landowners. 

The law includes voltage and capacity parameters and requires any “qualifying direct current project” to pass through nine counties along the proposed route of the Grain Belt Express project. Those counties are Pike, Scott, Greene, Macoupin, Montgomery, Christian, Shelby, Cumberland and Clark.

The Farm Bureau contends that the provision at issue in the case was added as unconstitutional “special legislation” meant to provide a way to benefit the Grain Belt project specifically. 

In the decision handed down Thursday siding with the Farm Bureau, the justices explicitly declined to rule on that argument, leaving it legally untested.  

Grain Belt and its parent company have 35 days after the appeals court ruling to request the Supreme Court to take up the case. In 2022, the most recent year for which data is available, the Illinois Supreme Court only accepted about 7 percent of petitions to appeal filed.