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08/01/97 CITIZENS UTILITY BOARD AND PEOPLE COOK

August 1, 1997

CITIZENS UTILITY BOARD AND THE PEOPLE OF COOK COUNTY, PETITIONERS-APPELLANTS,
v.
ILLINOIS COMMERCE COMMISSION AND COMMONWEALTH EDISON COMPANY, RESPONDENTS-APPELLEES, THE CITY OF CHICAGO, PETITIONER-APPELLANT, V. ILLINOIS COMMERCE COMMISSION, ILLINOIS COMMERCE COMMISSION STAFF, THE PEOPLE OF THE STATE OF ILLINOIS, THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, BIRMINGHAM STEEL CORPORATION, BUSINESS AND PROFESSIONAL PEOPLE FOR THE PUBLIC INTEREST, CITIZENS UTILITY BOARD, LABOR COALITION ON PUBLIC UTILITIES, THE PEOPLE OF COOK COUNTY, UNITED STATES DEPARTMENT OF ENERGY, CHICAGO AREA INDUSTRIAL CUSTOMER COALITION, ILLINOIS INDUSTRIAL ENERGY CONSUMERS, AND RALPH M. SCHULTZ, RESPONDENTS-APPELLEES, THE PEOPLE OF THE STATE OF ILLINOIS EX REL. JAMES E. RYAN, ATTORNEY GENERAL, PETITIONER-APPELLANT, V. ILLINOIS COMMERCE COMMISSION, COMMONWEALTH EDISON COMPANY, THE CITY OF CHICAGO, THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, BIRMINGHAM STEEL CORPORATION, BUSINESS AND PROFESSIONAL PEOPLE FOR THE PUBLIC INTEREST, CITIZENS UTILITY BOARD, THE LABOR COALITION ON PUBLIC UTILITIES, THE PEOPLE OF COOK COUNTY EX REL. JACK O'MALLEY, COOK COUNTY STATE'S ATTORNEY, UNITED STATES DEPARTMENT OF ENERGY, CHICAGO AREA INDUSTRIAL CUSTOMER COALITION, ILLINOIS INDUSTRIAL ENERGY CONSUMERS, RALPH M. SCHULTZ, AND THE PEOPLE OF THE STATE OF ILLINOIS EX REL. JAMES E. RYAN, ATTORNEY GENERAL, RESPONDENTS-APPELLEES, COMMONWEALTH EDISON COMPANY, PETITIONER-APPELLANT, V. ILLINOIS COMMERCE COMMISSION, THE PEOPLE OF COOK COUNTY EX REL. JACK O'MALLEY, COOK COUNTY STATE'S ATTORNEY, THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, THE PEOPLE OF THE STATE OF ILLINOIS EX REL. JAMES E. RYAN, ATTORNEY GENERAL, CITIZENS UTILITY BOARD, THE CITY OF CHICAGO, LABOR COALITION ON PUBLIC UTILITIES, UNITED STATES DEPARTMENT OF ENERGY, BUSINESS AND PROFESSIONAL PEOPLE FOR THE PUBLIC INTEREST, BIRMINGHAM STEEL CORPORATION, RALPH M. SCHULTZ, ILLINOIS INDUSTRIAL ENERGY CONSUMERS, AND THE CHICAGO AREA INDUSTRIAL CONSUMER COALITION, RESPONDENTS-APPELLEES.



Appeal from an order of the Illinois Commerce Commission.

Released for Publication September 11, 1997.

Presiding Justice Hartman delivered the opinion of the court. Hoffman and South, JJ., concur.

The opinion of the court was delivered by: Hartman

PRESIDING JUSTICE HARTMAN delivered the opinion of the court:

On February 10, 1994, Commonwealth Edison Company (Edison) filed with the Illinois Commerce Commission (Commission) revised tariff schedules, proposing an increase in annual revenues "by about 7.9%." Edison also filed exhibits and testimony in support of the rate increase. The Commission thereafter twice suspended, until January 9, 1995, Edison's filed tariffs.

During these proceedings, appearances or petitions to intervene were filed by the Staff of the Commission (Staff), the State of Illinois by the Attorney General (AG), the City of Chicago (City), the Board of Trustees of the University of Illinois, Birmingham Steel Corporation, Business and Professional People for the Public Interest, Citizens Utility Board (CUB), the Labor Coalition on Public Utilities, the People of Cook County by the Cook County State's Attorney (SA), the United States Department of Energy, the Chicago Area Industrial Customer Coalition, the Illinois Industrial Energy Consumers (IIEC), and an individual, Ralph M. Schultz. The Commission held evidentiary hearings from August 16 through September 2, 1994. Public hearings were also held, following proper notice, in various locations throughout Illinois. The Commission thereafter issued a proposed order and the parties filed exceptions and replies to exceptions. Following oral argument, the Commission issued its final order on January 9, 1995, granting Edison a $303.2 million increase in electric rates. The Commission also found that Edison's nuclear generating plants (Byron 2, Braidwood 1 and 2) are "used and useful," thereby allowing Edison to include the costs of those plants in its rate base.

CUB, the SA, the City, the AG and Edison filed petitions for review which were consolidated by this court. CUB and the SA sought a stay of the Commission's order which this court denied based on Edison's commitment that in the event the Commission's rate order is reversed, Edison "will refund to its customers any amounts collected pursuant" to the Commission's order. CUB, the City and the AG (collectively, intervenors) appeal the Commission's order, raising several issues. Edison also appeals, contesting the Commission's denial of Edison's requests for the recovery of flotation costs associated with stock issuance and the Commission's disallowance of charitable contributions in excess of $2 million.

We need only address two of the issues presented by the intervenors as we find the Commission's order proper in all other respects. Additionally, we reject Edison's contentions on appeal as being without merit.

The Public Utilities Act (Act) (220 ILCS 5/1--101 et seq. (West 1994)) provides, in part, as follows:

"The findings and conclusions of the Commission on questions of fact shall be held prima facie to be true and as found by the Commission; rules, regulations, orders or decisions of the Commission shall be held to be prima facie reasonable, and the burden of proof upon all issues raised by the appeal shall be upon the person or corporation appealing from such rules, regulations, orders or decisions." 220 ILCS 5/10--201(d) (West 1994).

Section 10-201(e)(iii) of the Act provides:

"If the court determines that the Commission's rule, regulation, order or decision does not contain findings or analysis sufficient to allow an informed judicial review thereof, the court shall remand the rule, regulation, order or decision, in whole or in part, with instructions to the Commission to make the necessary findings or analysis." 220 ILCS 5/10--201(e)(iii) (West 1994).

Section 9--201(c) of the Act provides that "the Commission shall establish the rates or other charges *** which it shall find to be just and reasonable." 220 ILCS 5/9--201(c) (West 1994). "The burden of proof to establish the justness and reasonableness of the proposed rates or other charges *** shall be upon the utility." 220 ILCS 5/9--201(c) (West 1994).

The Commission's findings will be reversed only if they "are not supported by substantial evidence based on the record; the Commission acted outside the scope of its statutory authority; the Commission issued findings in violation of the State or Federal Constitution or law; or the proceedings or the manner in which the Commission reached its findings violates the State or Federal Constitution or laws, to the prejudice of the appellant." Citizens Utility Board v. Illinois Commerce Comm'n, 166 Ill. 2d 111, 120-21, 651 N.E.2d 1089, 209 Ill. Dec. 641 (1995), citing 220 ILCS 5/10--201(e)(iv)(A) through (e)(iv)(D) (West 1992); United Cities Gas Co. v. Illinois Commerce Comm'n, 163 Ill. 2d 1, 643 N.E.2d 719, 205 Ill. Dec. 428 (1994). "Substantial evidence consists of more than a mere scintilla but may be something less than a preponderance of evidence and is such evidence as a reasoning mind would accept as sufficient to support a particular conclusion." People ex rel. O'Malley v. Illinois Commerce Comm'n, 239 Ill. App. 3d 368, 376, 606 N.E.2d 1283, 180 Ill. Dec. 206 (1993), citing Illinois Bell Telephone Co v. Illinois Commerce Comm'n, 203 Ill. App. 3d 424, 433, 561 N.E.2d 426, 149 Ill. Dec. 148 (1990); Metro Utility v. Illinois Commerce Comm'n, 193 ...


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