In an almost unprecedented move, the Kansas Corporation Commission limited the ability of a consumer interest group to intervene on behalf of retail electric ratepayers in a case involving a power transmission project that involves eminent domain and would see Kansas consumers’ rates increase — again — while benefiting another state.

The Southwest Power Pool, the regional federal electricity transmission organization that covers Kansas and other states, has asked the Kansas Corporation Commission to declare NextEra Energy, Inc. a “public utility,” giving the developer the power of eminent domain — the right to condemn private property from landowners who might not want to sell. NextEra would then build an 89-mile, high-voltage transmission line from Wolf Creek Nuclear Power Plant, crossing farms and ranches in Coffee, Anderson, Allen, Bourbon, and Crawford counties before stretching to a substation in Jasper County, Missouri. The project would send electricity originally intended to serve the Wichita and Kansas City metro areas to customers in Missouri — with Kansas customers footing the bill.

The Kansas Industrial Consumers Group and Kansans for Lower Electric Rates filed a routine motion to intervene — as they have done many times in the last ten years — disputing whether the new transmission line was “necessary” for Kansas.

KIC noted — among other things — that, while the KCC commissioners are also members of the SPP, their first responsibility is to Kansas its ratepayers. 

KIC also argued that the KCC must determine if the project is necessary for the state of Kansas independent of consideration for the SPP.  They also say the way SPP is determining necessity is not reasonable under Kansas statute and that Kansas ratepayers bear a disproportionate percentage of the costs compared to ratepayers in other states.

Only one group’s ability to intervene limited

However, at a recent business meeting, the KCC — while allowing KIC to intervene, limited its ability to do so.

“KIC’s filings make wide-ranging allegations about the necessity of the proposed project and how Kansas retail electric customers will be impacted by the subject transmission project, focusing primarily on retail rate impacts,” the decision reads, “While such issues will be relevant, rate impacts are only one aspect of determining ‘necessity.’ Further, any rates charged to Kansas utilities for transmission facilities are set by the Federal Energy Regulatory Commission. Neither federal jurisdictional transmission rates nor state-jurisdictional retail electric rates are directly at issue in this proceeding.

“This Commission is statutorily tasked with examining the necessity of both NEET Southwest’s requested certificate and the transmission facilities it proposes to develop. All parties agree Kansas retail ratepayers, including KIC’s members, may ultimately be asked to pay some portion costs of the subject transmission facilities. Therefore, the Commission finds KIC has an interest in understanding the need for NEET Southwest’s certificate and how its proposed transmission development activities may impact Kansas retail rates.

“In its Petition and other filings, KIC describes its members and their interests in this proceeding as retail ratepayers. KIC is granted limited intervention on that basis and within that scope. While KIC has made broad statements about other interests that should be protected or evaluated, it has not identified how it, a collection of private commercial and industrial utility customers, has standing to represent those interests.”

KCC order appears crafted to prevent discussion of eminent domain necessity

The statement in the decision, which was adopted almost without discussion by the KCC, was so egregious that KCC chair Dwight Keen found it necessary — for the first time in four years on the commission — to file a dissenting opinion.

“I’ve been on the commission for just a little over four years now,” he said in the meeting. “During that time period, I haven’t … had a concurring or dissenting opinion. Unfortunately, I believed it was necessary in this order.”

In a scathing response, Keen noted that every other intervenor in the case was granted intervention without limitation.  Indeed in the last ten years, KIC has been granted the right to intervene in at least 20 cases without such limitation, but in this case, only KIC was singled out.

“Paragraph 13 of the order acknowledges that ‘KIC has an interest in understanding the need for NEET Southwest’s certificate and how its proposed transmission development activities may impact Kansas retail rates,'” Keen wrote in his dissent. “Furthermore, paragraph 12 concedes that KIC’s contentions about the necessity of the proposed project and how Kansas retail electric customers will be impacted by the subject transmission project, including rates, are a relevant aspect of determining ‘necessity.’ However, paragraph 12 then inconsistently concludes that state-jurisdictional retail electric rates are not directly at issue in this proceeding.” 

Indeed seven utilities were granted intervention without limitation, and none contest the project’s necessity or oppose Nextera’s request for eminent domain status.

The effect is that the order is likely to sideline the parties most likely to enter evidence on the record, citing evidence that the project is not a necessity for Kansas and objecting to the rate increases.

Keen further notes that the order does not “provide with specificity any rationale, explanation or statutory authority for so limiting KIC’s intervention” and that, “In my opinion, this ‘standard’ by which the majority seeks to limit KIC intervention is, at best, overbroad, vague and ambiguous and, accordingly ineffectual and virtually unenforceable.”

Keen was appointed to the KCC by former Republican Governor Jeff Colyer in 2018 and is the only member who was not previously a KCC staffer.

Commissioners Susan K. Duffy and Andrew J. French were appointed by Governor Laura Kelly in 2019 and 2020, respectively, and both were previously on the KCC staff.

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