GlidePath Development LLC v. Illinois Commerce Commission

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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 GlidePath’s 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 ComEd’s 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 Commission’s 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 ComEd’s petition with GlidePath’s 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 Commission’s 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 Microgrid’s 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 State’s 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 ...