FERC has dismissed Ameren’s bid to gain exclusive rights to build nearly $2 billion of MISO regional transmission projects in the state free of competitors.
The commission in a Nov. 24 order refused to interpret Illinois’ “first-in-the-field” doctrine as Ameren Illinois asked (EL25-105). It said the matter is best left to the state.
Ameren argued in a July petition that Illinois’ first-in-the-field doctrine is the functional equivalent of a right-of-first-refusal law and gives it license to develop the Illinois portions of the lines in MISO’s second, $22 billion long-range transmission plan. (See Ameren Argues Exclusive Rights to MISO Illinois Competitive Tx Projects.)
“We believe that the interpretation of Illinois’ first-in-the-field doctrine is a matter of state law,” FERC agreed. “We are concerned that issuance of a merits order on the petition at this time could conflict with subsequent Illinois court decisions or inappropriately interfere with the Illinois courts’ consideration of Ameren’s arguments.”
FERC said its “declaratory orders to terminate a controversy or remove uncertainty are discretionary” and that it exercised its discretion not to take up the petition.
MISO has put two Illinois projects up for bid from the second long-rang portfolio: the $717.6 million portion of the $984.6 million Woodford County–Illinois/Indiana State Line 765-kV project; and the $940.1 million Sub T–Iowa/Illinois State Line–Woodford County 765-kV project. Ameren argued it should build both.
Among others, the Illinois Commerce Commission (ICC) asked FERC to reject Ameren’s petition and let the state deal with the issue.
FERC pointed out that Ameren already has asked an Illinois court to declare the first-in-the-field doctrine the functional equivalent of a right-of-first-refusal law and allow it to bypass MISO’s competitive bidding.
FERC said it believed Ameren was asking it to construe the law for not only the two long-range transmission projects, but all future transmission projects in Ameren’s Illinois service territory that “otherwise would be eligible to be included in MISO’s competitive developer selection process.”
“In this sense, Ameren appears to request a categorical finding from the commission that the first-in-the-field doctrine will always result in a finding that the doctrine applies. But in each of the cases cited by Ameren in setting forth the doctrine, first-in-the-field determinations appear to have been made on the basis of a contemporaneous record,” FERC wrote.
Ameren argued that Illinois had “broadly” applied the doctrine in bus service, telephone and pager service, for moving companies and for water and sewer service.
FERC concluded Ameren could not cite any case law where the ICC or Illinois courts applied the doctrine “in this manner.”
“[W]e believe that Ameren’s request implicates a question of first impression under Illinois law, and we are not the correct forum for such a novel application of state law,” FERC wrote.
Ameren claimed it wasn’t seeking an interpretation of Illinois law, just FERC’s confirmation that the doctrine is an applicable law MISO should recognize. The ICC accused Ameren of “forum shopping,” with FERC on its list as a means to crush transmission competition.
MISO disagreed with Ameren’s claim that it was wrong to put the projects up for solicitation. The RTO said there wasn’t a “binding determination from an Illinois court or other competent tribunal” to clearly show the doctrine is applicable to the projects.
