MISSOURI PUBLIC SERVICE COMMISSION

Case No. EO-2002-351

POST-HEARING BRIEF OF UNION ELECTRIC COMPANY 
D/B/A AMERENUE

							James B. Lowery, #40503
							Smith Lewis, LLP
							Suite 200, City Centre Building
							111 South 9th St.
							P.O. Box 918
							Columbia, MO 65205-0918
							Phone (573) 443-3141
							Fax (573) 442-6686

							Joseph H. Raybuck, #31241
							Managing Assistant General Counsel
							Ameren Services Company
							P.O. Box 66149
							St. Louis, MO 63166-6149
							Phone (314) 554-2976
							Fax (314) 554-4014

Attorneys for Union Electric Company
					
TABLE OF CONTENTS
ISSUES
PRELIMINARY STATEMENT
STATEMENT OF FACTS
APPLICABLE LEGAL STANDARDS
ARGUMENT
I.	UE’s Application, and the Callaway-Franks Line proposed thereby, is both necessary and convenient for the public service.
A.	UE’s obligations as a regulated public utility support the granting of UE’s Application.
B.	Substantial and competent evidence demonstrates that the Callaway-Franks Line is needed and provides benefits to the public, including customers of UE and AECI.
C.	The Intervenors simply desire to stop this line regardless of its merits.
D.	UE’s Application and the reasons therefor are consistent with existing Commission practice and precedent.
E.	UE’s proposal is reasonable and sound.
II.	The Scope of These Proceedings
A.	The Commission’s jurisdiction does not allow it to create legislative policy.
B.	Collateral issues should not be considered herein.
III.	The Relevant Public Interest
A.	The public interest as a whole, and in particular, the interests of rate payers is the relevant public interest.
B.	The larger public interest as a whole is also served by the proposed line.
IV.	Regulatory Requirements Dictate that Additional Transmission be Built.
A.	Federal requirements dictate that new transmission be built.
B.	State requirements dictate that new transmission be built.
V.	The Scope of the Permission Needed With Respect to the Callaway-Franks Line.

VI.	Other Considerations
A.	The route of the line cannot, and should not, be more specifically fixed or defined at this time.
B.	UE has provided substantial information that sufficiently allows interested parties to understand the proposed route of the line and its impacts.
C.	The project proposed by UE’s Application is an honest, straightforward attempt to correct deficiencies in UE’s electric transmission system.
CONCLUSION

TABLE OF AUTHORITIES
Cases
Gaines v. Gibbs, 709 S.W.2d 541 (Mo. App. S.D. 1986)	29
Harline v. Pub. Serv. Comm’n, 343 S.W.2d 177 (Mo. App. K.C. 1960)	18, 39, 40
Hennick v. Kansas City Southern Railway Co., 269 S.W.2d 646 (Mo. 1954)	30
Huttig v. City of Richmond Heights, 372 S.W.2d 833 (Mo. 1963)	33
In re: Application of Empire District Electric Co., 21 Mo. P.S.C. (N.S.) 351, 1977 WL 37552 (February 25, 1977)	11
In re: Application of Missouri Power & Light Co., 18 Mo. P.S.C. (N.S.) 116, 1973 WL 29307 (July 27, 1973)	11, 22, 26, 27, 28, 40, 46
In re: Application of Union Electric Co., 23 Mo. P.S.C. (N.S.) 336, 1979 WL 44488 (December 19, 1979) (the “Callaway-Bland Case”)	11, 12, 18, 19, 23, 28, 36
In re: Union Electric Company (Linn Creek), 1991 WL 441890 (Mo. P.S.C.) (December 13, 1991),	21
In re: Union Electric Company (Rush Island-St. Francois), 2002 WL 1403291 (Mo. P.S.C. Feb. 5, 2002)	20, 28
In the Matter of Applications of:  Churchill Truck Lines, Inc. et al., 27 Mo. P.S.C. (N.S.) 430 (June 20, 1985).	11
Kansas City Area Transportation Authority v. Ashley, 485 S.W.2d 641 (Mo. App. K.C. 1972)	30
Lenette Realty Inv. Co. v. City of Chesterfield, 35 S.W.3d 399 (Mo. App. E.D. 2000).	33
Lillian Harline, et al. v. Public Serv. Comm’n, 7 Mo. P.S.C. (N.S) (Feb. 6, 1958)	18, 39
May Department Stores Co. v. Union Electric Light & Power Co., 107 S.W.2d 41 (Mo. 1937).	29
Order No. 888, 61 FR 21540 (May 10, 1996)	36, 37
Public Serv. Comm’n v. St. Louis-San Francisco Railway Co., 256 S.W. 226 (Mo. Banc 1923)	29
State ex rel. Beaufort Transfer Co. v. Clark, 504 S.W.2d 216 (Mo. App. K.C. 1973).	11
State ex rel. Capital City Water Co. v. Public Serv. Comm’n, 850 S.W.2d 903 
   (Mo. App. W.D. 1993)	32
State ex rel. City of St. Joseph v. Public Serv. Comm’n, 30 S.W.2d 8 (Mo. Banc 1930)	28
State ex rel. City of St. Louis v. Public Serv. Comm’n, 73 S.W.2d 393 (Mo. Banc 1934)	29, 32
State ex rel. Coffman v. Crain, 308 S.W.2d 451 (Mo. App. Spr. 1958)	28
State ex rel. Fee Fee Trunk Sewer, Inc. v. Litz,  596 S.W.2d 466 (Mo. App. E.D. 1980)	29
State ex rel. Missouri, Kansas & Oklahoma Coach Lines, Inc. et al. v. Public Serv. Comm’n, 
   179 S.W.2d 132 (Mo. App. K.C. 1944)	11
State ex rel. N.W. Electric Power Coop. v. Waggoner, 319 S.W.2d 930 
   (Mo. App. K.C. 1959)	27, 40
State ex rel. Public Water Supply Dist. No. 8 of Jefferson City. v. Public Serv. Comm’n, 600 S.W.2d 147 (Mo. App. W.D. 1980).	32
State ex rel. Springfield Warehouse & Transfer Co., et al. v. Public Serv. Comm’n, 225 S.W.2d 792 (Mo. App. K.C. 1949)	29
State ex rel. Washington Univ. v. Public Serv. Comm'n, 272 S.W. 971 (Mo. banc 1925).	13
Straube v. Bowling Green Gas Co., 227 S.W.2d 666 (Mo. 1950).	29
Wilshire Construction Co. v. Union Electric Co., 463 S.W. 2d 903 (Mo. 1971)	29
Statutes
§ 386.610, RSMo.	12
§ 393.130, RSMo.	12
§ 393.170, RSMo.	10, 18, 20, 21, 22, 28, 32, 46
§ 394.160, RSMo.	34
§ 442.390, RSMo.	27
§ 536.070, RSMo.	21
Regulations
18 CFR § 35.28.	36

BEFORE THE PUBLIC SERVICE COMMISSION
STATE OF MISSOURI

Application of Union Electric Company		)
for Permission and Authority to Construct, 	)
Operate, Own and Maintain a 345 kilovolt	)	Case No. EO-2002-351
Transmission Line in Maries, Osage, and 		)
Pulaski Counties, Missouri (“Callaway-Franks	)
Line”) 						)

POST HEARING BRIEF OF UNION ELECTRIC COMPANY
COMES NOW Applicant, Union Electric Company, d/b/a AmerenUE (“the Company” or “UE”) to respectfully submit this Post-Hearing Brief.
ISSUES
At the conclusion of the hearings before the Commission, the Commission requested that the parties brief several issues, including (a) the appropriate standard of review or legal standards applicable to the requested approval of UE’s Application (see Applicable Legal Standards section); (b) whether the Commission needs to give its approval for the entire line versus only that portion of the line that lies outside of UE’s existing certificated service area (see Argument, Section V);(c) the nature and extent, if any, of the Commission’s jurisdiction with regard to easements for the line (see Argument, Section II); and (d) relevant requirements of the Federal Energy Regulatory Commission (“FERC”) (see Argument, Section IV).  
PRELIMINARY STATEMENT
	 There is little argument in this case about the need for the proposed Callaway-Franks Line, and while there is some argument about its benefits, the evidence (as contrasted with the arguments of counsel) presented and discussed herein is clear:  UE’s customers and cooperative customers both need, and both benefit, from the proposed Callaway-Franks Line.  
To summarize, the basic, overriding facts established by the evidence presented in this case are as follows: UE’s Bland-Franks Line is overloaded and that problem must be solved; UE cannot make the overloads go away, regardless of why the overloads exist, unless new 345 kV transmission is built; the Callaway-Franks Line does the best job of solving that problem; in addition to valid electrical and engineering reasons for building the Callaway-Franks Line, UE’s choice of that route is lawful, reasonable and sound and when considering the public interest as a whole, is the best available route; and UE and cooperative customers, including the Intervenors, will benefit from the Callaway-Franks Line and the substation improvements and connections made possible thereby.
STATEMENT OF FACTS
	Starting in 1997, UE began noticing overloading conditions on its Bland-Franks 345 kV transmission line (the “Bland-Franks Line”). Overloaded lines, meaning lines carrying loads above the rated electrical capacity of the lines, create an increased risk of failure of those lines and neighboring lines, and increase line maintenance and replacement costs.  Such overloadings negatively affect customers and, if not relieved, will create safety concerns because overloaded lines tend to sag thereby reducing ground clearances below clearances considered safe under the National Electric Safety Code.  
Heavy loading on the Bland-Franks line is expected to continue and worsen.  The Bland-Franks Line carries power originating from several sources, including flows that tend to come from power displaced from UE’s Callaway nuclear plant that moves south via UE’s Callaway-Bland 345 kV line and through the Bland-Franks Line to the Franks substation.  The Bland-Franks Line is one of the few connections between the northern and southern part of the 345 kV system in Missouri. 
These overloading conditions resulted in transmission line loading relief (“TLRs”) being called on the Bland-Franks Line.  TLRs are procedures that are implemented to relieve overloads on a transmission line, for example, by curtailing the flows on the line, relying on more expensive generation, and ultimately, if necessary, interrupting non-firm and then firm customers.
UE’s 345 kV system, including the Bland-Franks Line, is connected to Associated Electric Cooperative, Inc.’s (“AECI”) 345 kV system.  AECI was also experiencing heavy loading on its transmission facilities in the area.  UE and AECI therefore decided to engage in a joint study to determine the best overall solution to the overloading problems.  By June 2000, UE and AECI had agreed to use the base, powerflow projections supplied by Mid-American Interconnected Network, Inc. (MAIN) for calendar year 2004 as the basis for studying the expected power flows on their respective systems.  UE and AECI chose calendar year 2004 because 2004 was the most likely point in time by which a solution could be implemented, and they wanted to design a solution that addressed conditions that one would expect to exist at the time of implementation and beyond. As a result, in its Application, UE requested an Order from the Commission granting its approval for the line by June 1, 2002 to allow for a June 2004 in-service date.  
Power flow simulations were conducted, and the initial studies examined seven options for solving the problem, including adding a second 345 kV line from Bland to Franks.  Options that were eliminated after the initial evaluations included two options that would have involved building a new 345 kV line from Callaway to a new substation near Jefferson City and then on to either Huben or Franks.  The two options that would have routed a new line from Callaway through Jefferson City could not be justified because the loads (customer demand) in the Jefferson City area did not justify building a longer transmission line that would cost more, and that would be less efficient electrically (due to line losses) due to its greater length.  Another option that was eliminated was the use of “reactors” (inductors) to restrict flow on the existing Bland-Franks Line.  That option was eliminated because the power flow studies demonstrated that while the inductors relieved the overloads on the Bland-Franks Line, the use of the inductors simply “pushed” that power to other facilities and created overloads on those other facilities thereby solving one problem, but creating another.  Because inductors would not work, UE and AECI at this point determined that a new transmission line(s) would have to be built.  
As the study progressed, in approximately October 2000, AECI advised UE that it owned easements that it had acquired for a previously planned 345 kV line running generally along a route from its Chamois power plant in Osage County to its Franks Substation in Pulaski County.  UE and AECI then proceeded to study whether such a line would be the best solution to the overloading problem.  The easements held by AECI were acquired in the late 1970’s for a similar 345 kV project that AECI had planned to build, but which was deferred because AECI was able to acquire an interest in an existing UE line at that time.  
Because the easements were available, UE and AECI decided to study a possible Callaway-Franks Line and concluded that the Callaway-Franks Line (together with a new Rush Island –St. Francois Line) relieved the overloading problems the most, and was the best electrical solution to the problem. The Callaway-Franks Line was similar, in terms of electrical performance and properties, to the two options that had been considered and eliminated for building a line from Callaway to Jefferson City and then on to Huben or Franks, but was superior to the eliminated routes because the Callaway-Franks Line was shorter and exhibited superior performance.  The Callaway-Franks Line also had four distinct advantages over a second Bland-Franks Line, which had also been considered.    
First, because the power to be carried would flow from Callaway to Bland to Franks on a second Bland-Franks Line, or from Callaway to Franks if the Callaway-Franks Line is built, the distance the electricity would flow was relevant to determining the electrical performance of the line.  The Callaway-Franks route is 16 miles shorter than a Callaway to Bland to Franks route, and therefore it performs better electrically because its line losses are less.  Second, because one of the reasons new transmission was needed in the first place was to provide another 345 kV path in the event the Bland-Franks Line was out of service, using a second route – Callaway-Franks versus an abutting, second, Bland-Franks Line – meant that it was unlikely that both the existing Bland-Franks Line and the new Callaway-Franks Line would both be outaged at the same time.  It was very unlikely that one thunderstorm, tornado, or ice storm would take out both the Callaway-Franks Line and the Bland-Franks Line at the same time, but if there existed two Bland-Franks Lines one such event likely could outage both lines.  Third, the existence of easements covering approximately 80% of the route of the Callaway-Franks Line meant that it was likely a Callaway-Franks Line could be put into service more quickly and at some reduced cost, and it also meant that far fewer landowners who had not (or whose predecessors in title had not) already granted an easement would now have to grant new easements.  Finally, a new line from Callaway-Franks delivered benefits to AECI that would not exist if a second Bland-Franks Line were built.  AECI owns a substation site near Rich Fountain (in Osage County -- west of Linn, Missouri), that is located along the path of the Callaway-Franks Line.  AECI owns that site because they have a near-term need to serve increasing cooperative customer loads in Mid-Missouri, and the Rich Fountain site is the best location for AECI to serve those increasing loads. To best utilize the Rich Fountain substation, AECI needs a 345 kV supply into it, and the Callaway-Franks Line would provide it.  If a second Bland-Franks Line were built, AECI would have to acquire right-of-way for and build an additional 345 kV line from that second line to get the power AECI needs to Rich Fountain.  
Because of the mutual benefits a new Callaway-Franks Line provided to UE and its customers and to AECI and its customers, UE and AECI entered into a Letter of Intent dated May 25, 2001, which, in summary, provided that AECI would assign its existing easements along the Callaway-Franks route to UE in consideration of UE building and operating the line and providing a connection to AECI at AECI’s Rich Fountain Substation.  At the time the Letter of Intent was signed, UE was still considering installing a new substation near Chamois.  A substation at Chamois was UE’s original plan and a Loose Creek substation had not been considered a part of the Bland-Franks solution.  If UE had built a Chamois substation, AECI would have tapped the new Callaway-Franks Line near AECI’s Rich Fountain substation site directly.  At the time the Letter of Intent was signed, UE had just begun considering possibly locating the substation at Loose Creek instead of Chamois and later decided to build the substation at Loose Creek because UE was indifferent to the Chamois versus Loose Creek location, and AECI preferred the Loose Creek location which gave AECI a breaker in the UE Loose Creek substation versus a tap into the new line.  
The Callaway-Franks Line, with or without the Loose Creek substation, solves the Bland-Franks overloading problem.  The choice of the Callaway-Franks Line as the best solution to the Bland-Franks overloading problem was not driven by the new Loose Creek substation.  
The Loose Creek substation was added because it was preferred by AECI, as noted above, and because it provides benefits to UE’s system as a whole, apart from relieving the overloading conditions on the Bland-Franks Line.  Those other existing problems on UE’s system that the Loose Creek substation solves are described below.  
Existing loads in the Jefferson City area are served via transmission that itself has experienced overload problems, including overloads on UE’s Overton transformer and on a transmission line from Montgomery to Guthrie.  From Guthrie, another line transmits power to the Moreau Substation on the east side of Jefferson City and is the principal source of power to the Jefferson City area.  Past overloading problems on the Montgomery to Guthrie Line and on the Overton transformer have resulted in TLRs and have required the uneconomic dispatch of power from combustion turbine generators.  The new Loose Creek substation, coupled with a future line from that substation to Jefferson City, solves these problems because it unloads the Overton transformer and the Montgomery to Guthrie Line by providing two paths to get power to the Jefferson City area. 
The Callaway-Franks Line will parallel an existing Central Electric Power Cooperative  (CEPC) 161 kV line for approximately 43 of the 54 miles of the route.  CEPC is one of AECI’s six Generation and Transmission (“G & T”) members, and many local distribution cooperatives who supply power to retail customers (including many or most of the Intervenors) are members of CEPC.  The easements to be used for the new line have a width of 150 feet, 75 feet on each side of the centerline of the line as built, but only 125 feet will need to be cleared of brush along most of the route because UE can share 25 feet of right-of-way with CEPC.  
Each of the 105 right-of-way files pertaining to the 105 easements assigned by AECI to UE contain an aerial photo depicting the route planned for the original AECI 345 kV line planned in the late 1970s.  UE intends, unless a landowner over whose land an easement already exists were to agree otherwise, to honor the route shown to the landowners when the easements were acquired.  UE had initially considered deviating from the depicted route on several properties near the southern end of the line to accommodate a request from one landowner (Mr. Redel) that the depicted route not be followed on his property, but feedback from members of the public at UE’s public workshops held in November 2001 indicated that many landowners felt that the original route should be honored because landowners have planned their property uses around that route since the easements were originally granted in the late 1970’s.  
The Commission’s Staff has recommended approval of UE’s Application, and is proposing no conditions on that approval.  In its Recommendation, Staff initially asked UE to address four issues, all of which were addressed in a Response filed by UE shortly after Staff’s Recommendation was filed, and in the Direct Testimony filed on behalf of UE in this case.    All four issues have been addressed to Staff’s satisfaction.  The Commission’s Staff agrees that the Callaway-Franks Line is the best electrical and engineering solution to the problem, is the best overall choice of the possible solutions examined by UE, including a possible second Bland-Franks Line, is in the public interest, and that UE’s Application should be granted.  
APPLICABLE LEGAL STANDARDS
UE seeks permission and authority for the proposed Callaway-Franks Line under § 393.170, RSMo.  The permission sought by UE is to be granted if the proposed construction is “necessary or convenient for the public service.”  § 393.170.3, RSMo.  Necessity, as used in the Public Service Commission Law, means the improvement is “highly important to the public convenience and desirable for the public welfare. . . .”  State ex rel. Missouri, Kansas & Oklahoma Coach Lines, Inc. et al. v. Public Serv. Comm’n, 179 S.W.2d 132, 136 (Mo. App. K.C. 1944).  Necessity does not require that the improvement be “essential or absolutely indispensable.”  Id.  “Inconvenience may be so great as to amount to necessity.”  Id.   “If the granting of the authorization subserves a genuine and reasonable public interest in promptness and economy of service, then the public ‘convenience and necessity’ or ‘public need’ is served.”  In the Matter of Applications of:  Churchill Truck Lines, Inc. et al., 27 Mo. P.S.C. (N.S.) 430 (June 20, 1985), (citing  State ex rel. Beaufort Transfer Co. v. Clark, 504 S.W.2d 216, 219 (Mo. App. K.C. 1973).  “If it [here, the proposed transmission line] is of sufficient importance to warrant the expense of making [building] it, it is a public necessity” (emphasis added).  State ex rel. Missouri, Kansas & Oklahoma Coach Lines, 179 S.W.2d at 136.  
This Commission has, among other reasons, granted certificates (either for new electric generation or transmission lines) on the basis of:   the savings the new facilities may generate in terms of lower power supply costs for the utility and ultimately for its customers (In re: Application of Missouri Power & Light Co., 18 Mo. P.S.C. (N.S.) 116, 1973 WL 29307 (July 27, 1973); to provide back-up power during peak loading conditions and emergencies (In re: Application of Empire District Electric Co., 21 Mo. P.S.C. (N.S.) 351, 1977 WL 37552 (February 25, 1977)); to provide an outlet for power to be generated that will be used both to serve Missouri ratepayers and that will be sold on the interstate interexchange (wholesale) power markets (In re: Application of Union Electric Co., 23 Mo. P.S.C. (N.S.) 336, 1979 WL 44488 (December 19, 1979) (the “Callaway-Bland Case”)); and to strengthen the Mid-Missouri transmission grid, including to provide redundancy in the system if a line is outaged due to a storm or for other reasons.  Id.

ARGUMENT
I.	UE’s Application, and the Callaway-Franks Line proposed thereby, is both necessary and convenient for the public service.

A.	UE’s obligations as a regulated public utility support the granting of UE’s Application.

	UE is charged with a statutory duty to provide service--here, electric service--and to provide such instrumentalities and facilities as are needed to ensure that such service is “safe and adequate and in all respects just and reasonable.”  § 393.130.1, RSMo.  Service is not adequate if the transmission system that gets the power from where it is generated to where it is consumed is overloaded and thus stressed beyond its capability, particularly where the loss of one line would overload numerous components of a large part of the transmission grid thereby jeopardizing service to UE’s customers in that entire area.   UE’s rates must also be just and reasonable, and this Commission and its Staff have recognized that the ability of a utility to access cheaper generation at appropriate times, or sell excess power at other times, ultimately has benefits for UE’s ratepayers.  Callaway-Bland Case, 1979 WL 44488 at 4-5.  Reliable transmission is needed to realize both such benefits.  
The Commission essentially shares the above duties, as evidenced by its enabling statute which provides that the Public Service Commission Law is to be “liberally construed with a view to the public welfare, efficient facilities and substantial justice between patrons and public utilities.”  § 386.610, RSMo.  The foregoing charge, given to the Commission by the Legislature, demonstrates that the Commission’s primary duty is to protect the interest of the customers of the public utilities under its jurisdiction, while also properly taking into account fair treatment of, and return to, the utilities. State ex rel. Washington Univ. v. Public Serv. Comm'n, 272 S.W. 971, 973 (Mo. banc 1925).
	Had UE not proposed the Callaway-Franks Line it would have not have been fulfilling its statutory duty to ensure that its service and the facilities needed to provide that service are adequate, safe and just and reasonable in all respects.
B.	Substantial and competent evidence demonstrates that the Callaway-Franks Line is needed and provides benefits to the public, including customers of UE and AECI.

The evidence of the need for the proposed Callaway-Franks Line, the effectiveness and efficiency of the chosen solution, and the benefits to UE’s customers and others, including others living and working in Mid-Missouri, is compelling.  Mr. Charles E. Mitchell testified that the current Bland-Franks Line has been, continues to be, and will continue to be, overloaded, meaning that more power flows on it or “wants” to flow on it, according to the laws of physics, than it is designed to safely and reliably carry.  Mr. Mitchell testified that UE cannot control how the electricity flows (save to restrict flows, as discussed below), and cannot separate UE purchases or sales, power generated by UE, AECI movements, or movements for others.  Mr. Mitchell testified that when the overloads occur, UE has had to reduce the flows on the Bland-Franks Line, and when that occurs, other facilities on UE’s Mid-Missouri system and on neighboring systems, such as AECI’s system, themselves become overloaded.  He testified that UE cannot allow the overloads to persist because a failure to relieve the overloads will compromise safety and damage equipment.  As discussed above, to avoid such issues, UE has to cut back flows on the Bland-Franks Line which either overloads other lines or which may require UE to engage in uneconomic dispatch (cut-backs) of generation or, ultimately, to interrupt customers.  And, if UE were to lose the Bland-Franks Line due to a storm or required maintenance, these entirely unacceptable conditions become critical.  The foregoing testimony alone demonstrates a real, presently existing, serious need to build the proposed Callaway-Franks Line so that UE and this Commission can ensure that electricity is safely and adequately (i.e. reliably) provided, and that it is so provided at just and reasonable rates.
While the foregoing evidence is enough to sustain UE’s burden to support its Application, there is more.  The testimony of Mr. James L. Ketter, the Staff’s engineer who has been working on these very issues for the Commission for the past 26 years, was unequivocal.   Mr. Ketter testified that the proposed Callaway-Franks Line provides the best electrical remedy to the problem, which is to say that it is the best engineering alternative.  Mr. Ketter specifically stated that while other transmission additions could alleviate the loading, of the alternatives that were modeled, this (the Callaway-Franks Line) “provides the best alternative.”  And recall that a second, parallel Bland-Franks Line was modeled in the studies reviewed by Mr. Ketter; nevertheless, Mr. Ketter concluded that it was inferior to the Callaway-Franks Line, as noted above.  Thus, the suggestion made by the Intervenors that a second Bland-Franks Line was not considered or is “just as good,” is incorrect.  As Mr. Ketter also testified, the analyses “showed the [alternative] Bland-Franks Line and other alternatives  . . .  made this Callaway to Franks Line the better electrical solution” (emphasis added).  Mr. Ketter testified that while the Callaway-Franks Line may benefit non-Missouri customers, it will also benefit Missouri customers, and specifically, it will improve reliability for UE customers.  In summary, in response to Mr. Coffman’s question regarding whether the proposed Callaway-Franks Line was the best alternative from an “overall public interest perspective,” Mr. Ketter stated that the proposed Callaway-Franks Line is the best electrical solution and also the best solution overall. “Putting the – the whole project together, the application as filed by Ameren, it’s my opinion that it’s in the public interest to – to provide this certificate to meet the transmission needs for Ameren’s system.”  Mr. Ketter’s written recommendation to this Commission provides a good summary of Staff’s position:
It is the opinion of the Staff that the proposed 345 kV line is necessary for reasons of public convenience and necessity.  The UE transmission system is connected to other utility systems and NERC guidelines are set to ensure the stability of the transmission system.  Relief from heavy loading on the line could require UE to alter its normal operation to protect the transmission facilities, either by interrupting customers or engage [sic]  in the uneconomic dispatch of power plants, to alleviate the overloading condition.  Reliability of the transmission system will be enhanced with the addition of a 345 kV connection between Callaway and Franks. 

Mr. Gary L. Fulks, who is also an engineer with 30 years of experience in transmission planning, also testified that the Bland-Franks alternative the Intervenors suggest is not as good an engineering solution, both because it has higher line losses, and because it does not provide the connection that AECI needs at its Rich Fountain substation.  
To be sure, the Intervenors raised questions about why the overloading conditions exist.  The Intervenors in particular attempted to attribute all kinds of sinister motives to UE in proposing the Callaway-Franks Line, but at bottom, they presented no evidence that rebutted the mountain of substantial and competent evidence presented by UE, and reviewed and accepted by Staff, demonstrating that the overloadings do exist.  They presented no evidence to rebut the fact that those overloads must be relieved to ensure safe, adequate, and reliable service to UE’s customers, and that therefore the need and benefits of the new line are real – not “cooked up,” as improperly suggested by Counsel for Intervenors. 
C.	The Intervenors simply desire to stop this line regardless of its merits.

The real attack on UE’s Application has nothing to do with whether there is a need, or a benefit, or whether UE has “cooked up” a project to “make money,” as has been alleged.  It has nothing to do with making persons living near other UE lines (e.g. the Bland-Franks Line) safer.  It has nothing to do with whether more “study” or different studies (e.g. a “social impact study”) were done or should have been done.  Rather, we believe it is clear that the attack on UE’s Application has only the following purposes:  to stop the building of this particular line by arguing that UE should be second-guessed in its route selection; or, if the line cannot be stopped, to delay the line; or if the line is not stopped or delayed, to condition its building and operation with all kinds of conditions that, as we discuss below, effectively get the Commission into the business of creating new legislative policies and laws that are beyond the Commission’s jurisdiction and authority to create. 
D.	UE’s Application and the reasons therefor are consistent with existing Commission practice and precedent.

The Intervenors’ first line of attack is to exaggerate what UE is proposing by suggesting that it is highly unusual (and therefore they imply, suspect or illegitimate). In their opening statements, counsel for the OPC and for the Intervenors both suggested that UE’s present Application is unusual because it seeks permission to build a line through (in part) territory not within UE’s certificated service area, which of course means that the landowners over whose land the line is built are not UE customers.   In this regard, Counsel for the OPC said that this case is “somewhat unprecedented . . . in that it is proposed to benefit customers within the AmerenUE system by impacting those who are not within the system.”  Similarly, Counsel for Intervenors suggested that this case is “unique,” and that it “may also be just simply the start of a trend.”  Aside from the fact – supported by substantial and competent evidence – that the line does benefit the cooperative customers over whose land it will be built, Counsel’s statements -- and in fact one of the main themes of the case in opposition to UE’s Application -- are simply incorrect.  They are incorrect because, as discussed below, UE’s Application is not unlike numerous other applications that this Commission has in the past considered, and approved.
It is obvious that every “line certificate” case where a public utility seeks this Commission’s authority to build a new transmission line involves permission to build a line over properties of those who are not the utility’s customers.  Otherwise, the public utility would proceed to build the new line under its area certificate and would not need to seek a line certificate in the first place.  Lillian Harline, et al. v. Public Serv. Comm’n, 7 Mo. P.S.C. (N.S) (Feb. 6, 1958); Harline v. Pub. Serv. Comm’n, 343 S.W.2d 177 (Mo. App. K.C. 1960). 
UE’s application is not materially different from numerous other applications submitted and approved by this Commission under § 393.170.  It is not the “start of a trend.”  It is a routine request for permission to build a needed transmission line.  The Commission has dealt with such applications before, a few of which we will discuss below.
One such case is the Callaway-Bland Case, discussed supra. The facts in the Callaway-Bland Case, and the Commission’s decision thereon, are instructive.  As the Commission’s decision in the Callaway-Bland Case indicates, UE built the Callaway-Bland Line (also a 345 kV line) for several reasons, to-wit:  to provide an outlet for power from the Callaway nuclear plant for delivery of power to UE customers, to facilitate out-of-state wholesale power sales, and to strengthen the Mid-Missouri transmission grid.  Callaway-Bland Case, 1979 WL 44488 at 5. (“The Commission finds that the proposed line and substation facilities are needed to reliably carry the power generated at the Callaway Plant to the Company’s primary load center and to facilitate interchange sales from the Callaway Plant.  The Commission further finds that the proposed construction increases reliability of the Company’s system and is in the public interest.”).
When the Callaway-Bland Line was proposed, there already existed another outlet from the Callaway nuclear plant – from Callaway-Montgomery and on to St. Louis.  A relatively large group of landowners along the proposed path of the line intervened and suggested, as they do in the present case, that UE simply build a second Callaway-Montgomery Line, then connect near St. Louis and ultimately get back to Bland and on to Oklahoma by paralleling existing lines.  The Commission agreed with UE that its proposed route was in the public interest for several reasons. 
First, UE’s route was “a more direct route with less line loss and greater efficiency.”  Id.  As mentioned above, Messrs. Mitchell and Ketter testified that the exact same benefit exists with regard to the proposed Callaway-Franks Line because the distance the electricity will flow to the Franks substation is shorter on the proposed Callaway-Franks route than on the alternative proposed by the Intervenors.  As they also explained, a shorter route reduces line losses and is more efficient – a fact that is uncontroverted in this case and by the laws of physics.
The Commission also emphasized that having a separate Callaway-Bland Line was beneficial because it helped prevent simultaneous outages from thunderstorms, ice storms, etc.  Id. at 4.  The evidence recounted in this Brief above confirms that one of the reasons that the Callaway-Franks Line is superior to a second Bland-Franks Line is for that very reason – while a single incident, whether it be a tree falling, ice, wind, etc., may take out one or the other line, it is unlikely it would take out both the current Bland-Franks Line and a separate Callaway-Franks Line. 
There are other relevant similarities between the Callaway-Bland Case and the present  case as well.  The Commission noted that the Callaway-Bland Line would parallel an existing 161 kV line for more than one-half of its route, and that “the marginal damage done by the [new] line to the aesthetics of the area is minimal.”  Id.  at 5.  Those same considerations apply here, but with even more force, given that about 80% of the proposed Callaway-Franks Line parallels an existing 161 kV line.  When the proposed Callaway-Franks Line is completed, most of the landowners along its route will have much the same situation as they have today – a transmission line corridor will cross their properties.  It is true that the corridor will be 125 feet (about 40 yards) wider, and there will be a second set of structures, but in the vast majority of cases the line will not change the character or configuration of the farm it crosses or the use to be made of the land under or near the line.   Thus, the reasons recognized by this Commission as justifying the Callaway-Bland Line – reduced line losses and greater efficiency, sharing a corridor with an existing 161 kV line, and eliminating or very nearly eliminating the risk of a simultaneous outage on both lines from one event --  apply with equal force here.  Further, when you add the fact that the evidence is uncontroverted that the Callaway-Franks Line is an electrically superior route, then the propriety of UE’s Application is clear, as it was in the Callaway-Bland Case.
More recently, this Commission granted UE permission to construct another new 345 kV line from UE’s Rush Island Plant to St. Francois, which is also a new line that will be a part of the interstate grid that is being built, in part, outside of UE’s service territory.  In re: Union Electric Company (Rush Island-St. Francois), 2002 WL 1403291 (Mo. P.S.C. Feb. 5, 2002).  It, like every other transmission line involved in a § 393.170 case, does not directly serve the cooperative customers that no-doubt are located along its route.  It, like every other transmission line on all high voltage transmission systems in Missouri and elsewhere will carry power UE uses to serve its customers, whether generated by UE or bought elsewhere, will carry power UE buys or sells on the wholesale market, and will carry power wheeled for others, including cooperatives such as AECI, as part of the open-access requirements on the interstate grid.  As Mr. Mitchell testified, it will also carry power that UE neither scheduled nor even knew about because the laws of physics do not allow UE to fully control all such flows or to separate flows that are strictly related to UE or AECI business from movements for others.  There would therefore be no rational reason for the Commission to have concluded that the Rush Island to St. Francois Line and the other lines discussed above were necessary or convenient for the public service while reaching a contrary conclusion herein.
Another relatively recent example of a § 393.170 case involving transmission in part located outside of the utility’s service territory is In re: Union Electric Company (Linn Creek), 1991 WL 441890 (Mo. P.S.C.) (December 13, 1991), where this Commission granted UE a certificate for a 161 kV line in Osage County.  The Commission can also take official notice of its other numerous cases for UE and other utilities throughout the state that involve electric, gas, or water lines that cross the land of persons not served by the utility that is building the line.  § 536.070(6), RSMo.
There is therefore clearly nothing particularly unique about this case, and the reasons UE’s Application was filed, and the need for and benefits of the line are consistent with past practices and precedents of this Commission.  It is not the “start of a trend.”  The Commission’s decision on UE’s Application should be based upon one issue alone:  Is the public convenience or necessity, as defined above, served by the proposed line?  At bottom that means is the proposed line needed to provide adequate service on just and reasonable terms to UE’s customers?  We respectfully submit that it is, and whether the line is or is not located within UE’s previously certificated service territory is irrelevant to that inquiry. 
E.	UE’s proposal is reasonable and sound.

If there exists no legitimate dispute with regard to whether the proposed Callaway-Franks Line provides the best electrical solution to a real need and provides benefits to UE customers, what then are the Intervenors asking this Commission to do?  At bottom, they are asking this Commission to declare that UE’s decision to build a line from Callaway to Franks is so unreasonable, so arbitrary, so unsound, that the Commission ought to step in and force UE to make a different management decision, the result of which will mean that others will have a line built across their land instead.  The Callaway-Franks Line will then become someone else’s problem.  In addition to previously deciding similar cases in favor of the utility, the Commission has also previously stated the principles that guide its decisions in a § 393.170 certificate of authority case involving the construction of electric facilities:
In reaching this decision [to grant a certificate for a new peak generation plant] we have kept in mind that the management of Missouri Power & Light Company has the responsibility to provide adequate, dependable power to the area it serves . . . .  We do not feel we should interfere with such a management decision unless there is a clear showing that such decision is unreasonable and unsound.  Based upon the evidence in this case, we cannot make such a finding unless we succumb to speculative statements by residents.  We cannot subscribe to the contention that because some citizens object to it being located near them this is sufficient evidence to find management acted unreasonably.

In re: Application of Missouri Power & Light Co., 1973 WL 29307 at 4 (emphasis added).
	While UE agrees that it bears the burden to show by substantial and competent evidence that the public convenience or necessity (as such terms are defined above) is served by granting its Application, that does not mean that the Intervenors can render UE’s evidence insubstantial simply by asserting that there might be some other way to solve the problem. There has been no showing – and certainly no “clear showing” – that UE’s decision is unreasonable or unsound.  There is, however, substantial and competent evidence – in fact overwhelming evidence -- of the need, the benefits, and the reasonableness and soundness of the solution UE has developed.  
The only “showing” the Intervenors make consists of pure speculation.  The Intervenors speculate that landowners owning similar properties along the Bland-Franks route will be more than happy to put their signature on an easement just because UE asks them to.  The Intervenors speculate that their properties will be rendered “unsaleable,” despite uncontroverted evidence to the contrary.  The Intervenors speculate that UE will stop talking to them, will condemn them the minute this Commission grants a certificate, and will abuse the power of eminent domain the Legislature has seen fit to give UE, despite the sworn testimony of Mr. Douglass by which he told this Commission – in writing, and in person -- that in fact UE has not and will not abuse that power. There are other speculative assertions made by the Intervenors that are too numerous to recount here, from the alleged, but entirely unsubstantiated horrors of EMFs, to the alleged, but again unsubstantiated, destruction of all wildlife in Osage, Maries, and Pulaski counties if this line is built.  While we will not lengthen this Brief by recounting the specifics of the substantial, direct evidence that refutes every one of these other assertions, we respectfully direct the Commission’s attention to the testimony of Dr. Gajda, Mr. Beerman,  and Mr. DeWeese, who, under oath and based upon facts,  real experiences,  and real science, address and refute these allegations.  
Perhaps realizing that there is no competent evidence showing any real shortcoming in UE’s Application, the Intervenors create a “straw man” that they can easily knock over by arguing that a certificate should not be granted until after the Commission requires nothing short of a detailed, scientific study by a rural sociologist that “demonstrates” that the Callaway-Franks route is superior (presumably solely on sociological grounds) to their preferred route – from Bland to Franks.    
The starting point in evaluating such a far-reaching suggestion ought to begin with one’s common sense.  Such an evaluation ought to consider why the proponent of such a suggestion might make it and his perspective in making it.  The principal proponent of what we will call the “Bland-Franks alternative” is Mr. McDaniel, who tells us that he flew the Bland-Franks and Callaway-Franks routes in a small airplane and came up with some numbers.  If he saw a structure of any kind, if it was “standing,” and if, in his judgment, it was within 100 feet of the existing Callaway-Franks corridor, he counted that structure as one impacted by the Callaway-Franks Line.  A similar survey by Mr. McDaniel indicates that he believes there are 10 similar structures along the Bland-Franks alternative.  Mr. McDaniel then takes his data and concludes, in his opinion, that the Bland-Franks alternative is better and, on that basis alone, suggests that the Commission ought to deny UE’s Application.
In considering the results of Mr. McDaniel’s “survey,” we respectfully submit that the Commission ought to keep firmly in mind another statement made by Mr. McDaniel:  “Unless AmerenUE can provide a study that will show the benefits of living under a power line, I am opposed to this line” (emphasis added).  The evidence reflects that even Mr. McDaniel will realize benefits insofar as he is a cooperative customer and the cooperative system is also improved by this line.  But clearly, that does not change Mr. McDaniel’s stance – that he is opposed to the line regardless of any benefits -- because he simply wants it to be built somewhere else.  Other statements are equally noteworthy:  “Every reason and purpose that my neighbors and I own property here for is drastically impaired or practically destroyed by the presence of this high voltage power line . . .” and “[t]he power line will make the property virtually unsaleable . . . .” Of course, there is no evidence to support either of these contentions, save the statements themselves which appear virtually word-for-word in each of the 38 Intervenors’ Rebuttal Testimony.  The fact that 68 of the approximately 175 properties along the proposed Callaway-Franks Line have changed hands since the AECI easements were granted in the late-1970s, and have changed hands during that time with an existing 161 kV line constructed thereon, all without apparent problem, is ignored by those who claim that extending the corridor 125 feet will utterly destroy their entire property.  
We are not suggesting that Mr. McDaniel did not observe the structures he counted or that his numbers, using his methodology and estimates from the air, are incorrect.  His statements, however, prove little, and they certainly do not constitute clear evidence that UE’s decision is unreasonable or unsound.  In re: Application of Missouri Power & Light Co., supra.  Mr. Douglass testified that there are approximately 160 property owners from whom, if a second Bland-Franks line were built, easements will have to be acquired.  It is true, UE has not gone out and made precise counts of structures to be impacted on that route, but UE has examined that route (and has a good understanding of it from having operated a line there for many years), and UE knows that rural residential properties and family farms – properties similar to those to be crossed by the proposed Callaway-Franks Line – will be impacted in the same way that the Intervenors will be impacted, with one key difference--less than one-half (approximately 70) landowners on the Callaway-Franks route versus approximately 160 landowners on the Bland-Franks route) will have their expectations disturbed by acquisition of a new easement.  Some of the Intervenors are the very people who granted the original AECI easement about 20 years ago, but they now argue that UE ought to just go get easements from 160 new folks.  Every single one of the other landowners whose land has been, as a matter of public record, encumbered by an easement since the late 1970s either knew of that fact or, if they did not personally realize it, the law deems them to have known it.  § 442.390, RSMo.
If one carries the Intervenors’ argument to its logical extreme, this Commission would routinely reject applications to construct new lines and would find itself in the business of planning transmission systems throughout the state and, in effect, playing one group of property owners against another.  The Commission would be subscribing to the contention that because some citizens object to a line being located near them, the utility’s management should be found to have acted unreasonably – which is something the Commission has said it should not do.  In re: Application of Missouri Power & Light Co., 1973 WL 29307 at 4.  In fact, this Commission would be doing something that not even the courts of this state are empowered to do -- dictating the location of transmission lines.  See, e.g. State ex rel. N.W. Electric Power Coop. v. Waggoner, 319 S.W.2d 930, 934 (Mo. App. K.C. 1959) (Judicial review a public utility’s selection of the route of a transmission line is not allowed under Missouri law).  In Waggoner, the owner of the land over which an easement for a transmission line was to be condemned attempted to introduce evidence that the cooperative could have put the line somewhere else.  In rejecting the landowner's attempt, the court stated:  “Where the power and authority to take exists . . . it is the general rule that, in the absence of legislative restriction, the condemnor may determine the location and route of the improvement and of the land or easement to be taken for it (emphasis added)); see also State ex rel. Coffman v. Crain, 308 S.W.2d 451, 455-56 (Mo. App. Spr. 1958) ("[t]he location [of a highway] were matters resting within the sound discretion of the [state highway] Commission").
We know that the Commission has, quite properly, never viewed its statutorily prescribed authority and jurisdiction under the Public Service Commission Law to include taking over a utility’s management and reversing utility decisions absent “a clear showing that such decision is unreasonable or unsound” because cases not materially different from this one have so held.  In re: Application of Missouri Power & Light Co., 1973 WL 29307; The Callaway-Bland Case, supra.  In re: Application of Empire District Electric Company, 1977 WL 37552; In the Matter of Union Electric Company (Rush Island-St. Francois), 2002 WL 1403291 (Where UE was able to acquire 61 of 64 properties, including a negotiated move of a home, a church, and two cabins without filing a condemnation and was able to settle two of the three condemnations filed before any formal condemnation hearing was necessary); State ex rel. City of St. Joseph v. Public Serv. Comm’n, 30 S.W.2d 8, 14 (Mo. Banc 1930) (The Commission is not to take over the management of the utilities it regulates).  
II.	The Scope of These Proceedings

A.	The Commission’s jurisdiction does not allow it to create legislative policy.

The Commission’s well-settled and consistent handling of § 393.170 cases is in keeping with the power and authority given the Commission by the Legislature.  The Commission is a creature of the Legislature and has only such powers as are expressly conferred upon it by statute and those powers reasonably incident thereto.  It has no power to determine damages, award pecuniary relief, or declare or enforce any principle of law or equity.  State ex rel. Fee Fee Trunk Sewer, Inc. v. Litz,  596 S.W.2d 466, 468 (Mo. App. E.D. 1980); Straube v. Bowling Green Gas Co., 227 S.W.2d 666 (Mo. 1950).  Further, the Commission cannot enforce, construe, or annul contracts, nor can it enter a money judgment.  Wilshire Construction Co. v. Union Electric Co., 463 S.W. 2d 903, 905 (Mo. 1971); May Department Stores Co. v. Union Electric Light & Power Co., 107 S.W.2d 41 (Mo. 1937).  The Commission cannot, for example, determine the validity of an easement, construe an easement, or enforce it.  See Gaines v. Gibbs, 709 S.W.2d 541, 544 (Mo. App. S.D. 1986) (Where the court states that the Commission had no authority to determine the validity of, construe, or enforce a restrictive covenant).  The Commission had no such authority because it cannot construe or enforce interests or encumbrances in real property, and the precise same logic therefore applies to easements, which themselves are an interest in real property.  The Commission cannot effectively change the law (i.e. legislate) regarding any matter, including matters relating to property rights or damages. State ex rel. City of St. Louis v. Public Serv. Comm’n, 73 S.W.2d 393, 399 (Mo. Banc 1934) (quoting Public Serv. Comm’n v. St. Louis-San Francisco Railway Co., 256 S.W. 226, 227 (Mo. Banc 1923)) (“In conducting [its] hearings, the Commission does not sit as a legislative committee for the purpose of formulating a ‘public policy’ and putting it into effect by the issuance of general rules ‘legislative in * * * nature’”).  See also State ex rel. Springfield Warehouse & Transfer Co., et al. v. Public Serv. Comm’n, 225 S.W.2d 792, 794 (Mo. App. K.C. 1949) (“The Legislature has declared the public policy of this state . . . .  Respondent [the Commission] is merely the instrumentality of the Legislature, created for the purpose of carrying out that policy” (emphasis added)). 
These principles and others noted below establish that the Commission’s determination to be made in the present case is limited to whether the public convenience or necessity is served by the proposed line.  And, as discussed above, if UE has presented substantial and competent evidence establishing that the public convenience or necessity is served, absent a clear showing that UE’s decision as to how to serve the public is entirely unreasonable or unsound, UE is entitled to issuance of the certificate.
B.	Collateral issues should not be considered herein.

Intervenors, and perhaps the OPC, would steer the Commission away from that one issue and into collateral areas that, respectfully, are beyond the Commission’s jurisdiction.
For example, the Intervenors have presented testimony and argument that amounts to an attack on AECI’s decision to assign, in consideration of UE’s agreement to spend time and money to build and operate the line, the easements AECI acquired for its own 345 kV project in the late 1970s.   Implicit in their attacks is the idea that they object to Missouri law governing the creation, scope, and assignment of easements, and that they would like the Commission to do something about it. The law, however, is clear – AECI could, and did, lawfully assign those easements to UE, and UE holds lawful title thereto.  Hennick v. Kansas City Southern Railway Co., 269 S.W.2d 646, 651-52 (Mo. 1954); Kansas City Area Transportation Authority v. Ashley, 485 S.W.2d 641, 645 (Mo. App. K.C. 1972).  
	There has been testimony and argument regarding what AECI was going to do with those easements initially, and the evidence is overwhelming that what AECI was going to do with them is basically what UE will do with them today.  But that entire debate misses the mark and is, again, a bald-face attempt to get the Commission embroiled in formulating legislative policies with regard to the law governing easements.  Under the law, the easements allow UE to build a 345 kV transmission line.  And while not required, Mr. Douglass has stated, under oath, that UE will, unless a property owner otherwise agrees, honor the location depicted on the aerial photos shown to the grantor of the easement even though the location of the easement, in most cases, could be established elsewhere on the property.  
Mr. Douglass was likewise questioned at length regarding condemnation rights, what compensation is due, and related issues.  Counsel for Intervenors all but directly accused Mr. Douglass of lying to the Commission by suggesting that the minute the Commission grants a certificate Mr. Douglass will direct UE’s attorneys to file a flood of condemnations and will stop meaningful negotiations.  The evidence, of course, fails to bear out Counsel’s allegations, as Mr. Douglass repeatedly reaffirmed, under oath, that the certificate does not change how UE does or does not deal with landowners.  
The point is that the law governing the creation, scope, and assignment of easements, and the law governing condemnation, has been set by the Missouri Legislature.  Respectfully, the Commission has no jurisdiction or authority to change the law or to deny or condition applications based upon arguments to the effect that utilities ought not be able to acquire an easement by assignment or condemn property, or ought to have to do so in some other way.  Such actions would turn this Commission into a legislative committee that formulates public policy – legislative policy.  That is something the Commission simply cannot do.  State ex rel. City of St. Louis v. Public Serv. Comm’n 73 S.W.2d at 399.
III.	The Relevant Public Interest

A.	The public interest as a whole, and in particular, the interests of rate payers is the relevant public interest.

As we suggested to the Commission during the evidentiary hearings, the public interest at issue is not that of just those landowners over whose land the line will cross – i.e., the Intervenors. In the context of a Public Service Commission proceeding involving a request for permission and authority under § 393.170, it is the “interest of the public as a whole” that is at issue.  See, e.g. State ex rel. Public Water Supply Dist. No. 8 of Jefferson City. v. Public Serv. Comm’n, 600 S.W.2d 147, 156 (Mo. App. W.D. 1980).  While we do not argue that the Commission should ignore the Intervenors’ interests entirely, given that the Intervenors certainly are members of the public, it is clear that the public interest – the public interest as a whole – with which public utility regulation and the Commission’s jurisdiction is primarily concerned, is directed at a much broader segment of the public.  Within that segment, the Commission’s interest and duty is primarily directed to the interests of regulated utility ratepayers.  State ex rel. Capital City Water Co. v. Public Serv. Comm’n, 850 S.W.2d 903, 911 (Mo. App. W.D. 1993) (“The Commission’s principal interest is to serve and protect ratepayers”).  
Cases involving the Commission have not further amplified the definition of  the “public interest” at issue in Commission cases, but analogous law arising in cases involving rezoning of property and the impact that it has on other property owners has.  Under Missouri law, the identity of the public as a whole goes beyond landowners in the immediate vicinity of a parcel to be rezoned.  See, e.g., Lenette Realty Inv. Co. v. City of Chesterfield, 35 S.W.3d 399, 407 (Mo. App. E.D. 2000).  In Lenette, the Eastern District, citing the Missouri Supreme Court’s decision in Huttig v. City of Richmond Heights, 372 S.W.2d 833 (Mo. 1963), stated as follows:  
Missouri case law is clear that the interests of a few neighboring homeowners do not constitute the public interest as a whole * * * They, alone, do not constitute the public, and their collective interests are not that “public interest” which must be weighed in any such zoning problem (court’s emphasis).

Id.

UE has over one million electric ratepayers in Missouri.  Some of those ratepayers live near the route of the proposed line.  Others depend on the entire UE electric transmission grid, and certainly the grid in outstate Missouri, including the Bland-Franks Line and the proposed Callaway-Franks Line.  While the proposed Loose Creek substation, to be built as part of the Callaway-Franks Line, is not part of the solution to relieve the Bland-Franks overloading problem, it provides benefits to UE’s system, and consequently its customers, including specifically by providing a solution to several other similar overloading problems on other portions of UE’s Mid-Missouri transmission system. Countless other UE customers are served, directly or indirectly, by the Overton transformer and Montgomery to Bland Lines that have been overloaded and which will receive relief from overloading by the new Loose Creek substation. 
B.	The larger public interest as a whole is also served by the proposed line.

While certainly not as important from the Commission’s standpoint because they are not ratepayers, another large segment of the public, consisting of cooperative customers in Missouri that depend on AECI’s system, also benefit from the Callaway-Franks Line.  They will not realize those benefits if a second Bland-Franks Line were built, because it fails to give the cooperatives the substation connection they need, where they need it.  That means that if the Callaway-Franks Line were not built, AECI would have to build yet another line to get the power to where it needs it – at its Rich Fountain substation site – which would mean that still more landowners (who are also members of the public) would be impacted by the AECI line, in addition to the 160 or so landowners along the Bland-Franks route that UE would impact if forced to put a line there.  
The public interest ought to be served by another consideration that is present in this case as well.  It makes absolutely no sense for utility A and utility B to decline to work together to solve problems on the interconnected transmission system when such cooperation is beneficial to the customers of both.  A policy that discourages such cooperation will start a trend – there may end up being more, not fewer lines; more, not fewer utility corridors.  And if the Commission discourages the cooperatives in this state from working with their regulated utility colleagues, the result could be that cooperatives just build their own lines, which except for matters of safety are not subject to this Commission’s authority, increasing costs for the customers of both UE and AECI and increasing the amount of property required for right-of-way for what might be duplicative projects.  Had it not been for a willingness to cooperate approximately 20 years ago, AECI would have built a 345 kV line along the route UE proposes to use today, and these landowners would have long ago had that line, plus the existing 161 kV line, on their properties.  UE and AECI cooperated then, and it left the Intervenors’ properties undisturbed within the additional 125 feet to be cleared for the present project, and it saved UE’s customers and cooperative customers' money.  Today, UE and AECI propose to cooperate again by building essentially the same line on the same land with the same impact while benefiting the customers of both.  We respectfully submit that such cooperation is itself in the relevant public interest and ought to be encouraged.    
IV.	Regulatory Requirements Dictate that Additional Transmission be Built.

A.	Federal requirements dictate that new transmission be built.

The Commission is well aware, and there has been much evidence in this case, that demonstrates that UE’s transmission system, like that of every other utility (state regulated or non-state regulated, such as cooperatives) is a part of a large, interstate electric transmission grid.  In UE’s case, it is a part of the eastern interconnected transmission grid which encompasses nearly all of the eastern United States from a line running from Wyoming down to New Mexico and to the East Coast.  As such, UE’s system wheels power in interstate commerce and is subject to the jurisdiction of the FERC, as discussed below.  UE cannot separate these interstate flows from its own intrastate flows.  As Mr. Ketter put it, electrons do not recognize state lines, and power flows where it wants to flow.  UE cannot separate power that was scheduled to flow on UE’s lines, from power scheduled on other lines but that nevertheless flows on UE’s lines. UE cannot change the fact that certainly a significant reason the Bland-Franks Line is overloaded is because of the open access transmission UE must provide to others who desire to use its system.   Of course, the wholesale power market also benefits UE and its customers, as Mr. Ketter also observed.  The Commission has observed the same thing, as it recognized in the Callaway-Bland Case, supra, where the line certificate was approved in part for a line that allowed UE to sell power out-of state thereby allowing UE to realize revenues from those sales which helps keep rates down for ratepayers.  UE can also buy power on the wholesale market for delivery to UE customers if it is more economic to do so than to use UE-generated power, or if UE needs to supplement its power needs.  All of the above-described uses of the transmission system are intertwined, and they all have a hand in the overloading and congestion that exists on the Bland-Franks Line.  
UE’s duties with regard to expanding its system and allowing open access are grounded in the May 1996 issuance of the FERC’s Order No. 888, 61 FR 21540 (May 10, 1996) in which it required all transmission-owning public utilities, including UE, to file an open access transmission tariff (“OATT”) under which transmission service would be provided to all eligible customers on a non-discriminatory basis.  The FERC regulations issued pursuant to Order No. 888 required UE to file a pro forma open access transmission tariff.  18 CFR § 35.28.  
Under the OATT, UE or any other transmission provider subject to Order No. 888 must, if sufficient transmission capability is not available to accommodate a request for transmission, prepare a System Impact Study and thereafter, a Facilities Study, for the purpose, among other things, of identifying modifications and additions that need to be made to its transmission system to accommodate the desired transmission.  OATT § 19.1 et seq.  Assuming that the customer is willing to pay the costs of such additional transmission (to the extent that the FERC’s policies would impose the same on the customer), the transmission provider, including UE, must use due diligence to add the necessary facilities within a reasonable time.  OATT §§ 27; 15.4, 17.6  In short, generators, power marketers, or others desiring to use UE’s system can require UE to build the necessary transmission if building the same is needed to accommodate their requests, and UE is subject to the filing of a complaint before the FERC if UE fails to cooperate with such requests. 
The Commission has previously considered Order No. 888 in proceedings involving UE, including UE’s merger with CIPSCO Incorporated, approved by Report and Order dated February 21, 1997, Mo. P.S.C. Case No. EM-96-149.  In fact, one of the affirmative requirements imposed on UE as a condition of the Commission’s approval of the CIPSCO merger was the requirement that UE participate in a regional Independent System Operator (“ISO”) (the rough equivalent of what today are called Regional Transmission Operators, or RTOs) that is consistent with the ISO guidelines set out in FERC Order No. 888.  Report and Order, Case No. EM-96-149 at p. 16.  The FERC ISO guidelines in Order No. 888 are directed at “mitigating potential vertical market power” (i.e. the market power a vertically integrated public utility that owns the generation, transmission, and distribution might have) by ensuring open access.  Order No. 888, 61 FR at 21595-21597; Report and Order, Case No. EM-96-149 at p. 15.  In requiring that UE participate in an ISO, for the purpose of ensuring that UE’s transmission system would be fairly open to all transmission system users despite any vertical market power UE might have, the Commission made particular note of the fact that the FERC had identified expansion of the transfer capability of a system, such as UE’s, by enlarging transmission capacity as a mitigation measure for vertical market power.  Report and Order, Case No. EM-96-149 at p. 15.  
In short, current FERC Orders and regulations and UE’s mandated participation in an ISO require that if expansion of the transmission system is needed to relieve congestion that is preventing requested transmission for parties other than UE, UE must use diligence to solve that problem or be faced with a claim of unjust discrimination under the Federal Power Act. 
B.	State requirements dictate that new transmission be built.

Even if we ignore the effect of FERC’s open-access requirements on UE’s duty to fix the Bland-Franks problem, UE’s duties as a regulated, investor-owned utility and the Commission’s statutory duties as well require that UE provide safe and adequate and efficient facilities as necessary to reliably serve its customers at just and reasonable rates.  The evidence in this case shows without question that regardless of the cause of the overloads, those overloads jeopardize system reliability, and will lead to unsafe conditions if UE does not continue to cut-back power flows on the Bland-Franks Line.  The evidence shows that continued cut-backs themselves do not, however, solve the problem, because the power will still try to flow and this will overload yet more facilities on the system.  In summary, the overloads exist and they negatively impact UE’s customers and must be fixed.  In addition, there exist other UE transmission system problems that the proposed Loose Creek substation solves independent of the solution to the Bland-Franks problem, again demonstrating the benefit of the project and to the fact that building it discharges UE’s obligation to properly serve its customers.
V.	The Scope of the Permission Needed With Respect to the Callaway-Franks Line.

	The Commission has asked us to address whether the Commission needs to approve the entire Callaway-Franks Line, or only the approximately 20 miles (out of approximately 54 miles) that is outside of UE’s certificated service area.  The short answer is that the law requires that UE seek permission only for the 20 miles that is outside UE’s service territory.  Lillian Harline, 7 Mo. P.S.C. (N.S.) at 512; Harline, 343 S.W.2d at 180-81.  However, in most cases, for practical reasons, UE, and it is our belief other utilities, typically seek a certificate for the entire line that is to be built as part of the project that encompasses a stretch of line that is outside the utility’s service territory.  The reason this practice typically exists is rooted in the nature of a transmission line, as discussed in this case.
	Transmission lines are built so that power can be moved from point A to point B.  If the utility needs to get the power to point B (here, to relieve the Bland-Franks Line but to still make sure power gets to Franks, where it needs and wants to go), then it will do UE little good to build 34 miles of line inside its service territory without having proper permission to build the other 20 miles it needs to complete the route.  In most cases it simply makes more sense to bring the entire line being built as part of a single project to the Commission “for approval” so that the Commission can see the entire picture and understand the entire point A to point B need.

VI.	Other Considerations

A.	The route of the line cannot, and should not, be more specifically fixed or defined at this time.

	Because some members of the Commission raised questions regarding the degree to which the precise route of the line is or can be fixed, we thought it appropriate to address those questions herein.
UE’s Application provides a legal description of the route of the proposed line.  Application, ¶ 3, Exh. 1.  That description does not fix a precise centerline, however.  The Commission has already ruled, twice, that UE’s Application complies with the Commission’s Rules, and we know that the Commission has granted certificates in the other cases we cite in this Brief above without requiring a more specific description.  That past practice is entitled to great weight.  Harline, 343 S.W.2d at 182-83 (Practices and constructions of statutes by the PSC, particularly where they are longstanding, are entitled to great weight).   
	The Commission’s Rules and longstanding practice are rooted in common sense and practicality.   If UE, or any utility, were required to seek a certificate that authorizes a line only within a precise, fixed 125- or 150-foot-wide corridor, then every time the utility and a landowner desired to agree that the line ought to be moved over 10 feet or 100 feet or 1,000 feet this Commission would have to examine and approve the change.  Such a process would exceed the Commission’s authority and jurisdiction, as it would amount to dictating the location of a line under circumstances where the evidence shows that UE’s decision is reasonable and sound, and where there is certainly no clear showing to the contrary.  Waggoner, 319 S.W.2d at 934, In re: Application of Missouri Power & Light Co., 1973 WL 29307 at 4.  Even if such a requirement did not exceed the Commission’s authority, it would create an impractical and unworkable situation for the utility, the Commission, and the landowners because it would remove any and all practical flexibility they have to try to make adjustments to the route as the easements are finalized.    
	UE’s witnesses have testified, under oath and under the penalty of perjury, that with regard to 80% of the easement miles on this particular project, UE will honor the location shown the original grantor when the easement was granted unless that grantor or the person(s) owning that property today agree otherwise. UE may ask someone to agree otherwise, or a neighbor may ask a neighbor to agree otherwise – all so that concerns perhaps can be accommodated, but such agreements will not be forced or required by UE.  It would simply be unwise to remove that flexibility by imposing a condition that harms the public interest, and the interests of both the utility and the landowners, rather than helping it.
	On the other hand, UE has no objection to providing this Commission with an as-built survey of the entire route after it is built.  Nor would UE object to a requirement as part of its certificate that UE not move any of the line that is outside its certificated service area from the location shown on such an as-built survey without prior Commission approval.  Such a requirement would alleviate a concern some of the Intervenors have expressed that UE may just add more lines later or perhaps could just move the line around at will.  
B.	UE has provided substantial information that sufficiently allows interested parties to understand the proposed route of the line and its impacts.

	We would also point out that the impression we believe the Intervenors have tried to create – that is, that they have no idea where the line would be built and that we have not been forthcoming with that information – is incorrect.  At the Public Workshops, attended by a total of 117 people, UE presented large aerial photos that showed the line across each property.  Any landowner familiar with his or her own land could recognize the land and see where the line would go.   As noted above, aerial photos depicting the line on 105 of the approximately 175 properties to be crossed were shown to the grantors of the existing easements at the time they were granted to AECI.  While those aerial photos were not recorded in the real property records, any subsequent owner who bought the land from the easement grantor only need have picked up the phone and called AECI to inquire once the easement appeared in that owner’s abstract of title or title commitment.  Also, while we were not 100% successful in notifying every single owner along the route about the Public Workshops, we obtained current information from the county assessors’ offices and sent letters to all those we believed were affected, and followed up with others if we learned we had missed them.  We attended, and did not oppose, the Commission’s Public Hearing in Linn, and we traveled to Linn again for a July 1 meeting specifically to answer further questions and address further concerns raised by the Intervenors.  We have met with the Drennans, Ms. Kramer, and others.  Even Mr. McDaniel attended a workshop and the Public Hearing in Linn and the July 1 meeting.  Every single property owner, whether we have an easement on their land or not, will be contacted personally.     
	We believe we have provided not only the information the Commission’s Rules require, but far more information, and there has not been a shred of evidence presented that indicates that any Intervenor has in any way been prejudiced by any alleged lack of information.
C.	The project proposed by UE’s Application is an honest, straightforward attempt to correct deficiencies in UE’s electric transmission system.

	Throughout this case, UE has endeavored to provide the Commission and its Staff with information grounded in fact in order to assist the Commission and its Staff in evaluating whether the proposed Callaway-Franks Line is necessary or convenient for the public service.  The Osage County Commission sought a local public hearing, and UE participated in the same without opposition.  Staff asked UE to address a few issues raised in Staff’s Recommendation, and UE did so, both in a written response and via substantial testimony on all such issues that has addressed all those issues to Staff’s satisfaction.  UE did not oppose the late interventions of Ms. Kramer and the Concerned Citizens.  Further, UE held the workshops and meetings described above in an attempt to gain a better understanding of the Intervenors’ concerns, and in an attempt to address those concerns if possible.  
It is, however, quite apparent from the 38 sets of testimony filed by the Intervenors and the pleadings filed by their Counsel that there is no action short of putting this line on the property of others that would ever satisfy their concerns and objections.  The fact that the Intervenors care little about the merits of the Application and the need it addresses is evident by their entire approach to this case, as outlined by their Counsel in his Statement of Position and Opening Statement.
For example, Counsel for the Intervenors promised this Commission in his Opening Statement that the evidence in this case would show that this case is really about the Loose Creek substation, and told this Commission that UE had failed to advise the Commission and its Staff that we were going to build it.  That statement, and similar statements made in his Statement of Position, are incorrect.  Most of his clients were advised that a new substation would be built near Linn Creek when Mr. Douglass sent them a letter in October 2001, advising them of the project and of the Public Workshops to be held in November.  The evidence (recounted above) presented in this case is uncontroverted:  The Loose Creek substation, while it certainly has benefits related to correcting overloads on the Overton transformer and Montgomery to Guthrie Lines, was not even contemplated when the decision to correct the Bland-Franks overloading problem was first made.  Once it became apparent that the Callaway-Franks Line provided the best solution – electrically and from a public interest standpoint – to the Bland-Franks problem, and once AECI expressed a preference for a substation at Loose Creek so that AECI could gain a better supply source to its Rich Fountain substation site, UE then looked at additional electrical benefits a substation at Loose Creek could deliver for its Mid-Missouri system and found that a Loose Creek substation delivered those benefits.  If this entire project were nothing more than a scheme that, to use Counsel’s words, was “cooked up” by UE to serve territory that may or may not ever be annexed by Jefferson City, then one would expect UE to have chosen the Callaway to Jefferson City to Huben or Franks route for the line, as was considered in the Joint Study.  However, as Mr. Mitchell testified, the loads in Jefferson City did not support building such a line and in any event such line did not perform as well electrically in solving the Bland-Franks problem.    
What UE has done here is identify a real and presently existing problem and found the best overall solution to that problem.  UE found that solution by working together with AECI, whose system is connected to UE’s system all over Missouri.  That solution solves the Bland-Franks problem, solves other transmission problems on other UE lines and equipment in Mid-Missouri, and on AECI’s system, all to the benefit of both UE and AECI customers.  UE’s Application is not, and never was, a “phony,” as Counsel for the Intervenors alleged.  Counsel for the Intervenors wants this Commission to believe that this case is unique, a start of a trend, and is all about policies and big (and therefore evil) utilities against everyone else.
Does the Commission really believe that about 160 other landowners in rural, outstate Missouri who also own family farms and rural residential properties would  be all too happy to grant easements for a new line to parallel the existing Bland-Franks Line if UE would just go ask them?  Have the Intervenors presented any evidence to rebut the fact that the Bland-Franks Line is overloaded?  Is there any evidence to rebut the fact the proposed Callaway-Franks Line best solves the overloading problem?  Is there any evidence that shows that UE’s decision to build the line from Callaway-Franks is clearly unreasonable or unsound?  Have they presented any evidence whatsoever that UE’s witnesses did anything other than do their level best to tell the Commission the truth and answer the Commission’s questions to the best of their ability?  We respectfully submit that the answer to each of those questions is “no.”
In short, this Commission is being asked to subscribe to the contention that UE’s Application ought to be denied “because some citizens object to it being located near them . …”  In Re: Application of Missouri Power & Light Co., 1973 WL 29307 at 4.  UE has presented substantial and competent evidence that the project proposed by the Application serves a genuine and reasonable public interest, that it is necessary or convenient for the public service, and at bottom, that it is reasonable and sound.  
CONCLUSION
Based upon the substantial and competent evidence presented in this case, as discussed in this Brief, UE respectfully requests this Commission to grant its permission and authority under § 393.170, RSMo. for the construction, operation, ownership, and maintenance by UE of the Callaway-Franks Line, as described in UE’s Application filed January 18, 2002.  
Respectfully Submitted,    
SMITH LEWIS, LLP
                                                                                                             
/s/James B. Lowery__________________
James B. Lowery, #40503	Joseph H. Raybuck, #31241
Suite 200, City Centre Building	Managing Assistant General Counsel
111 South Ninth Street	Ameren Services Company
P.O. Box 918	P.O. Box 66149
Columbia, MO 65205-0918	St. Louis, MO 63166-6149
Phone (573) 443-3141
Facsimile (573) 442-6686

Attorneys Union Electric Company d/b/a AmerenUE

CERTIFICATE OF SERVICE

	I hereby certify that a copy of the foregoing was mailed first-class, U.S. mail, postage prepaid, to the following parties on the 14th day of November, 2002.

Mr. Bruce Bates					Mr. John Coffman
Missouri Public Service Commission			Office of the General Counsel
Governor Office Building				Governor Office Building
200 Madison Street, Suite 100			200 Madison Street, Suite 650
Jefferson City, MO 65101				Jefferson City, MO 65101

Mr. James B. Deutsch
Blitz, Bardgett & Deutsch, L.C.
308 East High Street, Suite 301
Jefferson City, MO 65101-3237

							/s/James B. Lowery___________________
							James B. Lowery, #40503
							SMITH LEWIS, LLP
							Suite 200, City Centre Building
							111 South 9th St.
							P.O. Box 918
							Columbia, MO 65205-0918