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December 24, 2015

MSC to review the constitutionality of the Electric Transmission Line Certification Act

The Michigan Supreme Court has granted leave to appeal in In re Application of Michigan Electric Transmission Co. for Transmission Line, No. 150695, to determine whether the Electric Transmission Line Certification Act (Act 30) constitutes an unconstitutional delegation of power.
 
Act 30 provides that if an electric utility with 50,000 or more residential customers plans to construct a major transmission line, the utility must submit a plan to the Michigan Public Service Commission (PSC) and may not begin construction on the line until the PSC has issued a certificate of public convenience and necessity (CPCN).  The Michigan Electric Transmission Co. (METC) filed an application with PSC to obtain a CPCN for two transmission lines, one in a township in Kalamazoo County and another in Van Buren County.  The Township in Kalamazoo County amended its utility control ordinance requiring METC to prove the necessity of the proposed line and receive Township approval prior to construction.  METC asserted that the issuance of a CPCN would take precedence over any conflicting local ordinance, and PSC granted METC a CPCN for both transmission lines.  The PSC found that the grant of a CPCN preempted the Township’s ordinance.
 
On appeal, the Township argued that the PSC did not follow the requirements of Act 30, and therefore, erred in granting a CPCN to METC without requiring METC to prove the new transmission line was needed.  The Court of Appeals held that Act 30 does not specifically state that an applicant for a proposed transmission line must prove that the line is needed.  Additionally, the Court of Appeals concluded that the PCN was not required to make its judgment based solely on cost because an application for a CPCN requires the PSC to consider multiple factors.  Therefore, the Court of Appeals affirmed the lower court’s determination.  The Michigan Supreme Court granted to leave to appeal for both parties to address, among other issues, whether Act 30 is constitutional.

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