Court of Appeals of Illinois, First District, Fourth Division
GLIDEPATH DEVELOPMENT LLC, a Foreign Limited Liability Company, Petitioner-Appellant,
v.
ILLINOIS COMMERCE COMMISSION, Commonwealth Edison Co., People of the State of Illinois, Citizens Utility Board, Illinois Competitive Energy Association, Environmental Law & Policy Center, Retail Energy Supply Association, Environmental Defense Fund, Direct Energy Services, Direct Energy Business, Vote Solar, and Illinois Power Agency, Respondents-Appellees.
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[Copyrighted Material Omitted]
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Petition for Review of Orders of the Illinois Commerce
Commission. Docket No. 17-0331
Eli J.
Kay-Oliphant and Paul J. Berks, of Massey & Gail LLP, of
Chicago, for petitioner.
James
E. Weging, Special Assistant Attorney General, of Chicago,
for respondent Illinois Commerce Commission.
E.
Glenn Rippie, of Jenner & Block LLP, of Chicago, and Matthew
E. Price, of Jenner & Block, LLP, of Washington, D.C., for
respondent Commonwealth Edison Company.
No
briefs filed for other respondents.
OPINION
REYES,
JUSTICE
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[435
Ill.Dec. 444][¶ 1] Commonwealth Edison Co.
(ComEd) filed a petition before the Illinois Commerce
Commission (Commission) pursuant to the Public Utilities Act
(Act) (220 ILCS 5/1-101 et seq. (West 2016)) for
approval to construct a microgrid in the Bronzeville area of
Chicago. GlidePath Development LLC (GlidePath), a vendor of
distributed energy resources, requested leave to intervene in
the matter. The administrative law judge (ALJ) denied the
petition as well as GlidePaths amended petition to
intervene. GlidePath then moved for an interlocutory appeal
before the Commission, which was also denied. After an
extensive evidentiary hearing was conducted, the Commission
entered its final order approving ComEds petition.
Thereafter, GlidePath sought further review of its petitions
to intervene, which the Commission also denied. GlidePath
then filed its notice of appeal with this court naming the
Commission, ComEd, and the other intervening parties, as
respondents.[1]
[¶
2] On appeal, GlidePath maintains that the
Commission applied the incorrect law when it denied the
petitions to intervene, failed to make adequate findings to
support its decisions, and that the decisions were not
supported by substantial evidence. GlidePath requests this
court vacate the Commissions final order approving the
project, reverse each of the orders denying its petitions to
intervene, and remand the matter to the Commission for
rehearing on ComEds petition with GlidePaths full
participation as an intervening party. In response, both the
Commission and ComEd maintain the appeal is moot in light of
events that occurred subsequent to the entry of the
Commissions final order. For the reasons that follow, we
agree with respondents and dismiss the appeal as moot.
[¶
3] BACKGROUND
[¶
4] ComEd is a public electric utility responsible
for delivering electricity to a majority of northern Illinois
through its network of electric distribution power lines
known as a "distribution grid." Traditionally, this
distribution grid was designed to be a one-way delivery
system, essentially taking power from a large central
generating station and supplying it to customers. New
technologies have since been invented that have created new
ways of distributing power and improving reliability against
severe weather disturbances and catastrophic events. One of
these new technologies is known as "distributed energy
resources"— small-scale devices, such as solar
panels or battery storage, that can generate or store power.
By employing the use of distributed energy resources as part
of a microgrid (a small power grid within the larger grid
which can disconnect from the larger grid and operate
independently), these distributed energy resources can be
relied on to supply energy when the larger grid is unable to
do so. GlidePath is a company in the business of developing
distributed energy resources and interconnecting those
facilities to the distribution grid.
[¶
5] As a public utility, ComEd is governed by the Act
and therefore, it must obtain an order from the Commission
when it seeks to develop new technologies and pass the cost
on to the consumer. To this end, on July 28, 2017, ComEd
filed a verified petition with the Commission requesting the
authorization to carry out an "innovative distribution
microgrid demonstration project and study" in the
Bronzeville neighborhood of Chicago (Bronzeville
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[435 Ill.Dec. 445] Microgrid). According to the petition,
ComEd chose the Bronzeville location because the microgrid
could be overlaid on the existing utility grid in an urban
area, was capable of clustering by connecting to an adjacent
microgrid owned by the Illinois Institute of Technology, and
could be operated in tandem with the Illinois Institute of
Technology microgrid. The petition further alleged that the
Bronzeville Microgrid would be the first project of its kind
in the United States and would be funded, in part, by United
States Department of Energy grants. The goal of the
Bronzeville Microgrid was to "generate real world
planning and operational experience with, a range of
learnings about, cutting-edge microgrid technologies, the
interconnection of microgrids, and the planning and operation
of a clustered and/or community microgrid." According to
ComEd, this project would benefit consumers and the public
generally with the increased knowledge it would gain
regarding distribution grid design and operation. ComEd also
alleged in its petition that it intended to enlist third
parties to develop the Bronzeville Microgrids distributed
energy resources either through a lease, operating agreement,
or other economic arrangement, but sought permission from the
Commission to own the distributed energy resources if those
options were unavailable.
[¶
6] ComEd requested the following relief from the
Commission in its petition: (1) a finding that it is
reasonable and prudent for ComEd to proceed with the Project;
(2) that the operating and capital investment costs
associated with the project are distribution costs that are
properly recoverable in distribution rates; (3) the
reasonable and prudent costs of the project are recoverable
from all delivery services customers; and (4) that the
project would not adversely affect the States retail
electric competition.
[¶
7] Numerous entities and organizations were granted
leave to intervene in the proceedings without objection.
Among these were the State of Illinois, Citizens Utility
Board, Environmental Defense Fund, Direct Energy Services and
Direct Energy Business, Environmental Law and Policy Center,
Vote Solar, Illinois ...