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09/11/87 the Peoples Gas Light and v. the Illinois Commerce

September 11, 1987

THE PEOPLES GAS LIGHT AND COKE COMPANY ET AL., PETITIONERS-APPELLANTS

v.

THE ILLINOIS COMMERCE COMMISSION ET AL., RESPONDENTS-APPELLEES

(1) THE ILLINOIS ENERGY ASSISTANCE ACT (ACT) (ILL. RE

v.

STAT. 1985, CH. 111 2/3, PAR. 1301 ET SEQ.); (2) THE ILLINOIS PUBLIC UTILITIES ACT (ILL. REV. STAT. 1985, CH. 111 2/3, PAR. 1-101 ET SEQ.); AND (3) RULES OF THE ILLINOIS ADMINISTRATIVE CODE IMPLEMENTING THE IEAA (83 ILL. ADM. CODE 280, 281 (1985 & 1986)).



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

520 N.E.2d 46, 165 Ill. App. 3d 235, 117 Ill. Dec. 56 1987.IL.1321

Petition for review of order of Illinois Commerce Commission.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. SULLIVAN, P.J., and PINCHAM, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

This is a consolidated review of an order of the Illinois Commerce Commission (Commission) involving a utility program known as the Illinois Residential Affordable Payment Plan and the Illinois Energy Assistance Act. The review came direct to this court from the Commission by reason of section 10-201 of the Illinois Public Utilities Act (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 10-201) and Illinois Supreme Court Rule 335 (107 Ill. 2d R. 335). The petitioners are the Peoples Gas Light and Coke Company (Peoples) and North Shore Gas Company (North Shore), case No. 86-1802 and the Central Illinois Light Company (Central), case No. 86-1826.

Although there were a large number of respondents in the matter before the Commission, only four have filed briefs in this appeal. The four are: the Commerce Commission, South Austin Coalition Community Council, Action Coalition of Englewood, and Northwest Community Organization (the community organizations).

The review involves the following statutes and rules:

The IEAA became effective on November 22, 1985. The intent of the Act as expressed in the Act "is to ensure that (certain) citizens are able to reasonably afford an essential level of heating and electric service without jeopardizing the ability of utilities to receive just compensation therefor." (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 1302.) The Act authorized and directed the Commission to "institute a program designed to ensure the availability and affordability of heating and electric service to low income citizens." Ill. Rev. Stat. 1985, ch. 111 2/3, par. 1304.

The IEAA authorized and directed the Commission to promulgate rules, regulations, and decisions to effectively implement the program. Additionally, the Act also provided for a conservation and weatherization program designed to effectively reach all low income customers within four years. (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 1307.) To implement the above programs, certain administrative rules were proposed and revised. A final version of the rules was adopted by the Commission by order entered April 23, 1986. The Commission denied petitions for rehearing and these appeals by three utility companies, Peoples, North Shore, and Central, followed.

Peoples and North Shore contend that provisions of the rule adopted for the programs provided for by the IEAA violate section 4 of the Act (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 1304(f)) because section 281.30(b) of the promulgated rule (83 Ill. Adm. Code 281 (1986)) does require persons participating in the IRAPP program to pay for energy usage above average residential usage in order to avoid being removed from the IRAPP program and having their service disconnected. They also argue that the provision relating to the IRAPP program concerning the resumption of participation after disconnection and default (83 Ill. Adm. Code 281.70(b) (1986)) is not supported by substantial evidence as required by section 10-201 of the IPUA. (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 10-201(e)(iv).) Section 10-201 requires that a finding of fact of the Commission be supported by "substantial evidence." Finally, they argue that the IRAPP program violates both the IPUA and the IEAA.

Central argues that portions of the Commission's rule implementing the IRAPP program authorized by the IEAA are arbitrary, unreasonable,

By its order of April 23, 1986, the Commission adopted administrative rules (83 Ill. Adm. Code 281 (1986)) (hereinafter referred to as rule) with changes reflected in an appendix of its order and directed that the rule as changed be adopted as a rule under section 5.01(c) of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1985, ch. 127, par. 1005.01). The rule, which is 24 pages in length, parts of which are attacked by Peoples, North Shore, and Central, provides for an IRAPP program. It provides for definitions, applications to participate by those eligible, provisions for payment of utility bills during the winter months (December 1 through April 30), elimination of shortfall, customer default and disconnection, late payment charges, conservation, and weatherization. It even provides for a sunset date of January 1, 1989.

Rather than setting out the provisions of the lengthy rule establishing the IRAPP program, the court in this opinion will merely describe those portions of the rule objected to by Central, North Shore, and Peoples in this appeal. The rule requires a participant in the program to pay 12% of his monthly income during December 1 through April 30 to the Utility that provides the customer's primary source of heat and secondary utility service, with alternative provisions for secondary service. During the period from May 1 through November 30, the customer is required by the rule to pay the greater of that percentage of his/her income required during December 1 through April 30 (12%, etc.) or the current bill, plus one-fifth of any outstanding deposit (the deposit, if required, is payable during the months of May through November). By the terms of the rule, any customer who complies with the payment requirements shall not have his or her public utility heating or electric service terminated. Ill. Adm. Code 281.30(b) (1986).

Peoples and North Shore argue that the Commission rule violates the IEAA because it does not require those who participate in the IRAPP program to pay for energy usage above "average residential usage" to avoid being ousted from the program and having their gas and electrical energy shut off. Average residential usage is determined by the use for the same month in the preceding year adjusted for weather and household size. Peoples and North Shore argue that this shortcoming is contrary to the Governor's veto message, which indicated that the vetoed original IEAA should have required participants in the program to pay for all energy usage above the average residential use to encourage conservation of energy.

The meaning of a statute in the first instance is determined by the statutory language and, where the intent of the legislature can be ascertained from the language of a statute, it will be given effect without resorting to other aids of construction. (People v. Robinson (1982), 89 Ill. 2d 469, 475-76, 433 N.E.2d 674.) The Governor's amendatory veto message accepted by the legislature only required participants in the IRAPP program "to pay for all energy usage above the average residential usage." "This will encourage the conservation of energy," the Governor stated. The final version of the IEAA requires customers participating in the program to pay for all energy ...


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