City of Elgin v. Ill. Commerce Comm'n

52 N.E.3d 631

402 Ill.Dec. 710

The CITY OF ELGIN, Petitioner

v.The ILLINOIS COMMERCE COMMISSION, Commonwealth Edison Company, Michael Thompson, Jennifer Thompson, Wind on the Wires, the County of Kane, Rob Mason, Robert Mason, Diane Mason, Jerry Drexler, Kristin Drexler, Utility Risk Management Corporation, the Village of South Elgin, the Forest Preserve District of Kane County, the Board of Education of School District U–46, Invenergy Wind Development LLC, Wayne Muirhead, Dean Muirhead, Dennis Muirhead, John Cash, Mary Lewis, Lynn Landmeier, Betty Landmeier, Ronald E. Nightingale, Carol J. Nightingale, Mark Secco, Arlene Watermann, William Deutsch, Christine Deutsch, Patrick Deutsch, the Village of Burlington, Denise Hubbard, Ronald Hammes, Linda Hammes, Caterpillar Inc., ExxonMobil Power and Gas Services Inc., Thermal Chicago Corporation, Kenyon Brothers Company, Oak Ridge Farm Homeowners Association, the City of Sycamore, the County of Ogle, Daryl D. Butts, Thomas D. Rhoads, Shelley J. Rhoads, Constance E. Jones, Saddlebrook Unit II Property Owners Association, Michael Petersdorf, and Sarah Petersdorf, Respondents.

No. 2–15–0047.

Appellate Court of Illinois, Second District.

March 31, 2016.

William A. Cogley, Corporation Counsel, Elgin (Christopher J. Beck and Michael R. Gehrman, Assistant Corporation Counsel, of counsel), for petitioner.

James E. Weging and Matthew L. Harvey, both of Illinois Commerce Commission, for respondent Illinois Commerce Commission.

Richard G. Bernet and Anastasia M. O'Brien, both of Exelon Business Services Company, and Conor B. Ward and E. Glenn Rippie, both of Rooney Rippie & Ratnaswamy LLP, Chicago, for respondent Commonwealth Edison Company.

OPINION

Presiding Justice SCHOSTOK delivered the judgment of the court, with opinion.

¶ 1 This appeal involves a request for direct administrative review of an order of the Illinois Commerce Commission (Commission), which authorized Commonwealth Edison Company (ComEd) to construct a high-voltage transmission line and related facilities across several Illinois counties and designated routes and locations for the new construction. Certain property of the petitioner, the City of Elgin (Elgin), would be affected by the Commission's order. On appeal, Elgin argues that the Commission erred in authorizing the construction of the portion of the transmission line that would run through Elgin, because (1) ComEd did not provide “good cause” for failing to identify an alternate route for the line through Elgin; (2) ComEd failed to show that the proposed route was the “least-cost” means to achieve its objectives; and (3) the staff of the Commission (Staff) failed to adequately consider the issues of “good cause” and “least-cost.” We affirm.

¶ 2 I. BACKGROUND

¶ 3 The Public Utilities Act (Act) (220 ILCS 5/8–406 (West 2012) ) requires that a public utility obtain a certificate of public convenience and necessity from the Commission before beginning new construction within Illinois. Section 8–406 of the Act sets forth the requirements for obtaining such a certificate. Id. Effective July 28, 2010, the legislature enacted section 8–406.1 of the Act (220 ILCS 5/8–406.1 (West 2012) ), providing an expedited procedure for a public utility to apply for a certificate when seeking to construct a new high- voltage electric-service line and related facilities. Under the expedited procedure, the Commission is required to issue a decision granting or denying a request for a certificate “no later than 150 days after the application is filed.” 220 ILCS 5/8–406.1(g) (West 2012). The expedited procedure also requires the applicant to provide a primary right-of-way and one or more alternate rights-of-way for the project, as part of the filing. 220 ILCS 5/8–406.1(a)(1)(B)(viii) (West 2012). However, upon a showing of “good cause” in its filing, an applicant may be excused from providing alternate rights-of-way. Id.

¶ 4 Further, a certificate must be issued where the Commission finds that the proposed project will promote the public convenience and necessity and the following criteria are satisfied:

“(1) That the Project is necessary to provide adequate, reliable, and efficient service to the public utility's customers and is the least-cost means of satisfying the service needs of the public utility's customers or that the Project will promote the development of an effectively competitive electricity market that operates efficiently, is equitable to all customers, and is the least cost means of satisfying those objectives.

(2) That the public utility is capable of efficiently managing and supervising the construction process and has taken sufficient action to ensure adequate and efficient construction and supervision of the construction.

(3) That the public utility is capable of financing the proposed construction without significant adverse financial consequences for the utility or its customers.” 220 ILCS 5/8–406.1(f) (West 2012).

¶ 5 On December 2, 2013, ComEd filed a verified petition for a certificate of public convenience and necessity under the expedited procedure set forth in section 8–406.1 of the Act (220 ILCS 5/8–406.1 (West 2012) ). The petition sought authorization to install, operate, and maintain an overhead 345–kilovolt electric-transmission line starting from ComEd's existing substation in the city of Byron, running east through Ogle, De Kalb, Kane, and Du Page Counties, and ending at ComEd's substation in the Village of Wayne. ComEd named the proposed line the Grand Prairie Gateway Transmission Line Project (the Project). The petition provided a primary route for the transmission line that was about 60 miles in length. Additionally, the petition provided an alternate route, about 68 miles in length, for about 80% of the Project. ComEd did not provide an alternate route for the other 20%, namely, the 12 miles of transmission line that would run through Elgin.

¶ 6 Petitions to intervene were filed by numerous individuals and entities that owned property that would be affected by ComEd's petition. Elgin is the only intervenor taking part in this appeal. On December 4, 2013, Elgin adopted a resolution declaring opposition to the proposed routing and design of the Project. In the resolution, Elgin stated that the proposed route through Elgin was adjacent to several existing residential developments and an existing elementary school. Elgin further stated that the proposed routing would have adverse environmental impacts, adverse social and land-use impacts, adverse impacts on numerous landowners, adverse impacts on homes and other structures, adverse impacts on existing and planned developments, and an adverse visual impact on the community. The resolution indicated that the Project should not be approved but that, if it were, ComEd should be required to install the Elgin portion of the transmission line underground.

¶ 7 Numerous transcripts of direct, rebuttal, and surrebuttal testimony, submitted by the parties, were filed as exhibits in this matter. The Commission held evidentiary hearings on the issue on April 15, 16, and 17, 2014. Among the parties participating in the hearings were ComEd and the Staff. Elgin did not participate in the evidentiary hearings, but the prefiled direct testimony of its mayor was admitted into evidence. At the hearings, the participating parties presented testimony by witnesses and/or affidavits. While we do not summarize all the evidence that was set forth before the Commission, we note some of the testimony that is relevant to the issues raised on appeal.

¶ 8 Some intervenors testified that their ability to use their property would be disrupted by the Project's primary route. There were also concerns about the visual impacts and the health effects from the electromagnetic fields. Elgin asserted that the proposed route would have a direct negative impact on its residents and landowners due to its close proximity to residential developments and an elementary school. There were concerns about property values and health. Elgin also asserted that the Project would adversely impact future land use and development in the area and have a deleterious effect on the appearance and aesthetics of the city. While some intervenors proposed alternate routes across their property, Elgin did not propose any alternate routes.

¶ 9 Paul McGlynn testified on behalf of ComEd. McGlynn testified that he was the director of the system planning division of PJM, the regional transmission organization that operates the transmission system in ComEd's service territory. PJM is regulated by the Federal Energy Regulatory Commission and is responsible for the planning, operation, and reliability of the interstate electric-transmission system under its functional control, which spans 13 states and the District of Columbia. PJM identified a congestion problem in Illinois that was resulting in higher energy costs for Illinois consumers, and it was thus required to develop and implement upgrades to the transmission system. PJM evaluated several alternatives to determine which project would effectively resolve the congestion issues. In addition to evaluating the Byron–to–Wayne circuit, PJM evaluated a possible line from Byron to Cherry Valley to Pleasant Valley, or some variation thereof. The different proposals were compared on a number of factors, including reliability, cost, operational performance, right-of-way requirements, and route diversity. PJM concluded that the Project, using the Byron–to–Wayne circuit, was the optimal solution to the congestion issues.

¶ 10 Donnell Murphy also testified on behalf of ComEd. Murphy testified that she was a partner with Environmental Resources Management (ERM), a leading global provider of environmental, health, safety, risk, and social consulting services. ComEd retained ERM to assist in identifying primary and alternate routes from Byron to Wayne for the Project. Murphy testified as to the extensive routing study and public process...