Illinois Supreme Court Affirms Opinion Reversing the Illinois Commerce Commission

The Illinois Farm Bureau, represented by Charles Y. Davis, prevailed at the Illinois Supreme Court after roughly five years of litigation in its unanimous decision issued in Illinois Landowners Alliance, NFP, et al. v. Illinois Commerce Commission et al., 2017 IL 121302 (September 21, 2017).  Through its publication, the Illinois Farm Bureau reported:

Illinois Supreme Court: RICL not a public utility.

Unanimous decision ends lengthy court battle.

By Deana Stroisch

September 21, 2017

The Illinois Supreme Court has agreed with Illinois Farm Bureau and others that the Illinois Commerce Commission (ICC) shouldn’t have issued a 2014 order allowing Rock Island Clean Line (RICL) to construct, operate and maintain a 500-mile, high-voltage transmission line.

In its 20-page opinion issued Thursday, the state Supreme Court unanimously affirmed the Appeals Court decision that the commission erred in determining RICL is a public entity.

“The company does not qualify as a public entity under Illinois law, and was ineligible for a certificate of public convenience and necessity from the commission,” the opinion reads.

The ruling ends a lengthy court battle over RICL’s proposed $2 billion transmission line in Illinois and Iowa.

“It’s been a long battle, but it’s rewarding to get a unanimous, landmark decision, which agrees with what we argued before the commission from the outset of the case,” said Laura Harmon, IFB senior counsel.

Shortly after RICL sought approval of its project from the ICC, IFB and the Illinois Landowners Alliance (ILA) requested the commission dismiss the case because RICL did not qualify as a public utility. It was the first time IFB intervened and opposed a project before the ICC.

Although RICL has never constructed a high-voltage transmission line, it sought and was granted approval by the ICC to build the first merchant-owned, high-voltage DC electric transmission line, which was designed to move wind power from Iowa to connect into the transmission grid in Illinois’ Grundy County for distribution to Eastern States.

In 2014, the ICC voted 5-0 to grant the certificate. IFB, ComEd and ILA asked the Appeals Court to reverse the ICC’s action. The Third District Court of Appeals reversed the ICC’s decision, and RICL, the International Brotherhood of Electrical Workers, the Natural Resources Defense Council and Wind on Wires appealed to the Illinois Supreme Court.

In the state Supreme Court’s opinion, written by Chief Justice Lloyd Karmeier, the court noted Rock Island doesn’t “own, control, manage or operate any plant, equipment, property franchise, etc., in Illinois or elsewhere to be used for or in connection with the production, transmission, or sale of electricity of any of the other commodities or services covered by the Public Utilities Act. It merely holds an option to acquire a parcel of real property. That is insufficient.”

Appellants also expressed concerns that requiring ownership of utility infrastructure would effectively bar new entrants from qualifying as public utilities and obtaining certificates of public convenience and necessity.

The court disagreed.

“Nothing in the Public Utilities Act prohibits new entrants such as Rock Island from commencing development of transmission lines immediately as a purely private project,” according to the opinion. “So long as they do not transact businesses as a public utility, they will not be subject to the Public Utilities Act and will not require commission authority to proceed. Once their projects are further under way and they have obtained the ownership, management or control of utility-related property or equipment required to qualify as public utilities, they may then seek certification….”

IFB has also appealed the ICC’s approval of a project filed by RICL affiliate, Grain Belt Express, and argued that Grain Belt does not qualify as a public utility. This case remains pending before the 5th District Court of Appeals.

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