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Concerned Citizens and Property Owners v. Illinois Commerce Commission

Court of Appeals of Illinois, Fifth District

April 17, 2018

CONCERNED CITIZENS AND PROPERTY OWNERS; ILLINOIS AGRICULTURAL ASSOCIATION, a/k/a Illinois Farm Bureau; MARY ELLEN ZOTOS; and LANDOWNERS ALLIANCE OF CENTRAL ILLINOIS, NFP, Petitioners,
v.
THE ILLINOIS COMMERCE COMMISSION; GRAIN BELT EXPRESS CLEAN LINE LLC; BROWN BRANCH LLC; JAR BRANCH LLC; INFINITY WIND POWER; CITIZENS UTILITY BOARD; ILLINOIS CENTRAL RAILROAD COMPANY; ROCKIES EXPRESS PIPELINE LLC; REX ENCORE FARMS LLC; REX ENCORE PROPERTIES LLC; WIND ON THE WIRES; ENVIRONMENTAL LAW AND POLICY CENTER; BNSF RAILWAY COMPANY; LOCAL UNIONS 51 AND 702 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO; and BUILDING OWNERS AND MANAGERS ASSOCIATION OF CHICAGO, Respondents.

          Rule 23 Order Filed: March 13, 2018

          Appeal from the Illinois Commerce Commission. No. 15-0277

          Attorneys for Appellants Edward D. McNamara, Jr., Joseph H. O'Brien, McNamara & Evans, (attorneys for Concerned Citizens and Property Owners); Charles Y. Davis, Claire A. Manning, Brown, Hay & Stephens LLP, (attorneys for Illinois Agricultural Ass'n); Elizabeth E. Nohren, Dustin L. Probst, Dove & Dove, Jonathan L. Phillips, William M. Shay, Shay Phillips, Ltd., (attorneys for Landowners Alliance of Central Illinois, NFP); Paul G. Neilan, Law Offices of Paul G. Neilan, P.C., (attorney for Mary Ellen Zotos, by Nafsica Zotos)

          Attorneys for Appellees James A. Hansen, Schmiedeskamp, Robertson, Neu & Mitchell LLP, (attorney for Brown Branch, LLC, and JAR Branch LLC); Michael A. Munson, Building Owners and Managers Ass'n of Chicago, (attorney for Building Owners and Managers Ass'n of Chicago); Justin M. Vickers, Environmental Law and Policy Center, (attorney for Environmental Law and Policy Center); Diana Z. Bowman, Owen E. MacBride, Schiff Hardin LLP, (attorneys for Grain Belt Express Clean Line LLC); Thomas R. Stanton, James E. Weging, Douglas P. Harvath, Office of General Counsel, Illinois Commerce Comm'n, (attorneys for Illinois Commerce Comm'n); David D. Streicker, Paula S. Kim, Polsinelli PC, (attorneys for Infinity Wind Power); Patrick K. Shinners, Rochelle G. Skolnick, Schuchat, Cook & Werner, (attorneys for International Brotherhood of Electrical Workers); E. Glenn Rippie, Rooney, Rippie & Ratnaswamy LLP, (attorney for Rex Encore Farms LLC, Rex Encore Properties LLC, and Rockies Express Pipeline LLC); Sean R. Brady, Wind on the Wires, (attorney for Wind on the Wires)

          PRESIDING JUSTICE BARBERIS delivered the judgment of the court, with opinion. Justices Goldenhersh and Chapman concurred in the judgment and opinion.

          OPINION

          BARBERIS, PRESIDING JUSTICE

         ¶ 1 Concerned citizens, landowners, and intervening parties (appellants) sought judicial review of a decision by the Illinois Commerce Commission (Commission) granting a certificate of public convenience and necessity to Grain Belt Express Clean Line LLC (GBX), an Indiana company formed to construct and manage a high voltage electric service transmission line to connect wind generation facilities. For reasons that follow, we reverse.

         ¶ 2 BACKGROUND

         ¶ 3 On April 10, 2015, GBX filed an application with the Commission seeking a certificate of public convenience and necessity for the construction of a new high voltage transmission line under the expedited procedure set forth in section 8-406.1 of the Public Utilities Act (Act) (220 ILCS 5/8-406.1 (West 2012)). GBX sought a certificate of public convenience and necessity to conduct a transmission public utility business to construct, operate, and maintain a 202.7-mile-long electric transmission line to traverse central Illinois from Pike County to a converter station in Clark County.

         ¶ 4 According to the application filed with the Commission, GBX planned to construct and manage a high voltage direct current (DC) electric transmission line that would run from an alternating current (AC)-to-DC current converter station in Ford County, Kansas, across Kansas and Missouri. The transmission line would then continue as a double AC line for approximately 5.2 miles from the converter station to an interconnection with the PJM Interconnection LLC (PJM) transmission network at the Sullivan/Breed substation of American Electric Power Company in Indiana and a DC-to-AC converter station and delivery point into the Midcontinent Independent Systems Operator (MISO) transmission network in northeast Missouri. From western Kansas and through Missouri, the transmission line would enter Illinois west of New Canton in Pike County, Illinois. The Illinois portion of the transmission line would travel 202.7 miles in a general southeasterly direction through Pike, Scott, Greene, Macoupin, Montgomery, Christian, Shelby, Cumberland, and Clark Counties to a DC-to-AC converter station to be located near West Union, Clark County, Illinois.

         ¶ 5 GBX included in its April 10, 2015, application that it "will own, control, operate, and manage within the State of Illinois, for public use, facilities for the transmission of electricity and therefore will be a 'public utility, ' " but it did not state that it was a public utility. GBX had an option to purchase property that would serve as the site to place equipment for the proposed project. The purpose of the project was to transport clean, low-cost electricity from wind generation plants in western Kansas to electricity markets in Illinois and other PJM and MISO states. The proposed project was to "deliver approximately 2.6 million megawatt-hours ('MWh') of clean energy per year into the MISO market, and up to 18 million MWh of clean energy per year into the PJM market." The project was expected to produce additional wind generation accessible to the Illinois market to meet demands for clean energy and electricity.

         ¶ 6 On May 18, 2015, the appellants, a group of various landowners and residents owning property in the geographical area subject to this proceeding, filed a motion to dismiss (motion), which questioned the Commission's authority to grant a certificate of public convenience and necessity to a nonpublic utility. The appellant's motion was based on the premise that only a public utility may file an application for a certificate of public convenience and necessity under section 8-406.1 of the Act. Subsequently, several additional motions to dismiss were filed by the following intervening parties: Illinois Agricultural Association, Landowners Alliance of Central Illinois, NFP, Rex Encore, and Rockies Express Pipeline, LLC. Shortly thereafter, the staff of the Commission filed a response to the appellant's motion agreeing that the motion should be granted.

         ¶ 7 On June 12, 2015, the assigned administrative law judge submitted a memorandum to the Commission recommending that the motions be granted in favor of the appellants. On June 16, 2015, however, the Commission voted 3-2 to deny the motions. The Commission entered its final order in favor of GBX on November 12, 2015. The majority opinion stated:

"The question of whether an entity which is not yet a public utility may file for a CPCN for a new high voltage electric transmission line under Section 8-406.1 has been extensively addressed, in the motions to dismiss and in this Order. The Commission notes that the process is available only for CPCNs for the purpose of constructing a new high voltage electric service line and related facilities. It notes the numerous additional requirements for applicants under Section 8-406.1. These requirements include significant pre-filing activities, public notice provisions, substantial, specifically identified engineering data, and fees, which are not required under Section 8-406. The Commission finds that these considerable prerequisites ...

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