Does METC Enjoy Public Use and Necessity for the Dorrance Interconnection Project?

Michigan Electric Transmission Company is filing new condemnation lawsuits that may be legally deficient to support a solar farm.

There is a lot of attention being paid to METC’s Helix Substation to Hipple Substation and Oneida Substation to Nelson Road Substation Projects, but that is not the only project underway in that area.  METC is filing lawsuits in Branch County for the Dorrance Interconnection Project.  I have reviewed one of these complaints.  There may be some problems with it.

METC’s complaint does not reference it obtaining a certificate from the Michigan Public Service Commission.  A certificate is important.  This is the standard for a necessity challenge pursuant to MCL 213.56:

Except as otherwise provided in this section, with respect to an acquisition by a private agency, the court at the hearing shall determine the public necessity of the acquisition of the particular parcel. The granting of a permanent or temporary certificate by the public service commission or by a federal agency authorized by federal law to make determinations of public convenience and necessity as to condemnation 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. The granting of a certificate of public convenience and necessity by the public service commission pursuant to the electric transmission line certification act, Act No. 30 of the Public Acts of 1995, being sections 460.561 to 460.575 of the Michigan Compiled Laws, is binding on the court.

Based on METC’s pleading, the deference to a certificate is not available.  METC has pled that the project is “subject to approval of permits by the Michigan Department of Environment, Great Lakes, and Energy.”  If those permits have not been obtained yet, then there may be an argument that METC has not established necessity for the project.  In  City of Troy v Barnard, the Michigan Court of Appeals held “that the words ‘public necessity’ and ‘necessity’ in the UCPA mean a necessity now existing or which will exist in the near future, not an indefinite, remote or speculative future necessity.”  The question would be whether a project that is not yet permitted and may not be built at all or along the planned route if those permits are not issued is indefinite, remote or speculative.  Further, a trial court would have a greater ability to scrutinize a filing by a private agency like METC that has not obtained a certificate than was afforded in City of Troy v Barnard because of the applicable standard found in MCL 213.56 for a public versus a private agency.

Additionally, there may be a public use issue.  The Complaint alleges that the project “originates from a generator interconnection request from Branch Solar, LLC.”  As summarized by City of Novi v Robert Adell Children's Funded Tr., “under the Michigan Constitution, private property shall not be taken for public use without just compensation….  This provision precludes condemnation of private property for private use, even though some ‘public interest’ may be said to be served by such private use.”  There may be a question of whether a utility line constructed to benefit a specific solar company’s project is a private or a public use.  Novi v Adell allowed construction of a spur road to the private property of an industrial company, where the owner “was expected to contribute to the funding of the road.”  The Michigan Supreme Court deemed it a public use because “ownership, control, and maintenance will remain with that public body. The public will be free to use and occupy the spur, and although Wisne may be the primary user of the spur, ‘[i]t is the right of travel by all the world, and not the exercise of the right, which constitutes a way a public highway.’”  This situation seems analogous to a spur road that is benefitting one, for-profit private owner, where the public does not maintain control and is not allowed to drive on it.

The post does not offer an opinion about the propriety of the taking in either direction.  That would require further legal research and factual inquiry.  But it is interesting to comtemplate.

Please feel free to contact me if you have any questions about this post or are being subjected to a taking by METC or any other entity.