The case involves a new 94-mile Wolf Creek to Blackberry 345kV Electric Transmission Line proposed and bid by the Southwest Power Pool (SPP) and needing approval from the Kansas Corporation Commission (KCC) to proceed. NextEra Energy Transmission Southwest (NEET Southwest) won the bid to construct the line—which requires a Certificate of Public Convenience and Necessity (CCN), granted by the KCC. A dispute arose over whether the KCC properly considered Kansas-specific benefits, as required by Kansas statutes (K.S.A. 66-131), for a new transmission line that would require the exercise of eminent domain over the Kansas land.

The Kansas Industrial Consumers (KIC) group retained Dr. Jeff D. Makholm. He recommended that the KCC not issue a CCN to NEET Southwest. He based his opinion on two points: (1) “regulatory common law” and (2) Kansas’ evident difficulties in exporting its abundant wind energy without placing undue burdens on Kansas ratepayers.

Dr. Makholm gave evidence that granting a CCN for the new transmission line exposes a serious gap in the application of prudence in failing to balance Kansas-specific benefits against Kansas-specific costs to be recovered from Kansas ratepayers. He also provided evidence on Kansas’ “predicament” of being rich in wind resources but “seemingly incapable yet of transmitting the benefit of such resources to other states.” He stated that denying a CCN for the SPP-defined line would be an important move by the KCC with national significance. That is, the KCC would essentially say to its regional transmission organization (RTO) that Kansas is looking for other, preferable administrative methods to support the competitive entry for new transmission investment—rather than the RTO planning—for the export of wind-generated electricity to far-away load centers.

The KCC approved the CNN in a split decision—with the dissenting Commissioner writing “an SPP transmission line evaluation and selection process that is acknowledged to be flawed should not proceed to fruition without reconsideration and redress.”

The KIC appealed to the Eleventh Judicial District Court in Kansas for review, concluding its appeal of the KCC order as follows:

The evidence was nothing but speculation based on unidentifiable data and untested assumptions relating to period of time that is utterly beyond prediction in a rapidly changing energy market. As Dr. Makholm testified, this project has not been tested for prudence and it may be an impediment to a real solution for transporting energy to more distant markets where prices are higher instead of lower than Kansas.

The case remains under appeal in Kansas.