METC Oneida and Helix Project Minor Modification Requests
The Michigan Public Service Commission (“MPSC”) has issued a certificate for Michigan Electric Transmission Line Company’s (“METC”) Oneida Substation to Nelson Road Substation and Helix to Hiple Projects. It contains interesting language discussing “minor modifications” to the route. Specifically, the Order includes the following language:
It is a condition of the certificates of public convenience and necessity granted by this order that Michigan Electric Transmission Company, LLC, take additional action to consider landowners’ specific requests for minor modifications to the major transmission line routes approved in this order. The Commission directs Michigan Electric Transmission Company, LLC, to file a memorandum in this docket detailing the process by which impacted landowners can submit minor route modification requests to the company and to further file a monthly report in this docket documenting any minor modification requests that the company receives and the reason why the company did or did not accommodate the landowner’s request.
The Order additionally states that the “Commission reserves jurisdiction and may issue further orders as necessary.”
To my knowledge, this is a unique requirement that the Commission preceded with language highly critical of METC. For example, the “Commission…admonishes METC for its efforts in this case to explore the feasibility of routing the Nelson-Oneida Line through public land. In its application, METC relies on a single email response from the MDNR to categorically reject routing the Nelson-Oneida Line through the Maple River State Game Area. The Commission finds this level of engagement to be lacking and completely inadequate.” The Commission also noted “that there were a number of instances in this proceeding where METC’s engagement with landowners was cursory at best” and METC provided “pro forma summaries of comments from individual landowners seeking to explore minor route modifications.”
The Order does not require METC to grant every request for a minor route modification. Yet, it does require that they be considered. This raised a question about the extent to which property owners could challenge eminent domain takings initiated after METC denied such requests. While a certificate “constitutes a prima facie case that the project in furtherance of which the particular parcel would be acquired is required by the public convenience and necessity” and “is binding on the court” MCL 216.56(3), that deference extends to the issues specifically addressed within it. Therefore, while the route has been approved, that is subject to the express condition that METC at least “consider landowners’ specific requests for minor modifications” and explain denial of those requests.
To invoke the jurisdiction of the circuit court to initiate an eminent domain lawsuit, the agency must “strictly comply with the procedural requirements” or face dismissal of the lawsuit. Board of County Road Commissioners for County of Washtenaw v Shankle, 327 Mich App 407, 412 (2019). The relationship between the condition of the certificates and this legal requirement is likely a novel issue under Michigan law (one that I have not yet fully researched given the novelty of this requirement). Given that the consideration of a minor route modification is a condition of the certificate, it would be a reasonable argument failure to do so either divests the court of jurisdiction. Further, the basis for the denial of request may be something that a trial court could consider. METC may not wish to risk adjudication of these issues at the circuit court level and might be more amenable to granting minor route modifications, particularly after being rebuked and literally admonished by the Commission.
I already representing dozens of clients in each of the projects. If you are impacted by these projects, please do not hesitate to contact me.