Concerned Citizens & Property Owners Illinois Agricultural Ass'n v. Illinois Commerce Comm'n

2024 IL App (5th) 230271-U
CourtAppellate Court of Illinois
DecidedAugust 8, 2024
Docket5-23-0271
StatusUnpublished

This text of 2024 IL App (5th) 230271-U (Concerned Citizens & Property Owners Illinois Agricultural Ass'n v. Illinois Commerce Comm'n) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Concerned Citizens & Property Owners Illinois Agricultural Ass'n v. Illinois Commerce Comm'n, 2024 IL App (5th) 230271-U (Ill. Ct. App. 2024).

Opinion

2024 IL App (5th) 230271-U NOTICE NOTICE Decision filed 08/08/24. The This order was filed under text of this decision may be NO. 5-23-0271 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

CONCERNED CITIZENS & PROPERTY OWNERS; ) Appeal from the ILLINOIS AGRICULTURAL ASSOCIATION, a/k/a ) Illinois Commerce Illinois Farm Bureau; CONCERNED PEOPLE ) Commission. ALLIANCE; NAFSICA ZOTOS; and YORK ) TOWNSHIP IRRIGATORS, ) ) Petitioners-Appellants, ) ) v. ) ICC Docket No. 22-0499 ) ILLINOIS COMMERCE COMMISSION; GRAIN ) BELT EXPRESS CLEAN LINE LLC; CLEAN GRID ) ALLIANCE; HANSON AGGREGATES MIDWEST, ) INC.; GREYROCK, LLC; CITIZENS UTILITY ) BOARD; LEONARD BRAD DAUGHERTY, as ) Trustee of the Leonard Daughtery Trust Dated ) July 9, 2010; REX ENCORE FARMS LLC; and ) ILLINOIS MANUFACTURERS ASSOCIATION, ) ) Respondents-Appellees. ) ______________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court. Justices Barberis and McHaney concurred in the judgment.

ORDER

¶1 Held: The Illinois Commerce Commission’s granting of a CPCN to a company seeking to build an interstate high voltage direct current transmission line was against the manifest weight of the evidence where the company failed to prove the required criteria that it is capable of financing the project.

¶2 The petitioners, Concerned Citizens & Property Owners, et al., are appealing the Illinois

Commerce Commission’s (Commission) granting of Grain Belt Express, L.L.C. (GBX) a

1 certificate of public convenience and necessity (CPCN) pursuant to sections 8-406(b-5), 8-406.1,

and 8-503 of the Public Utilities Act (Act) (220 ILCS 5/8-406(b-5), 8-406.1, 8-503 (West 2022))

(Final Order) on March 8, 2023. It is the contention of the petitioners on appeal that, inter alia, the

Commission improperly found that GBX proved the elements necessary for issuance of a CPCN,

that the Commission misinterpreted the newly enacted section 8-406(b-5), and that section 8-

406(b-5) is unconstitutional. For the following reasons, we reverse the Commission’s Final Order

granting GBX a CPCN.

¶3 I. BACKGROUND

¶4 This is not GBX’s first time seeking a CPCN in Illinois. On April 10, 2015, GBX, then

known as Grain Belt Express Clean Line, LLC, filed an application with the Commission pursuant

to section 8-406.1 for a CPCN to construct, operate, and maintain a high voltage direct current

(HVDC) transmission line and to operate a transmission public utility business, and to construct

the transmission line pursuant to section 8-503. At the time of that application, GBX was owned

by a different parent company. The transmission line proposed in the 2015 application was

substantially similar to that for which GBX seeks a CPCN in this matter.

¶5 On November 12, 2015, after the review of evidence and a hearing, the Commission

granted GBX the CPCN for the proposed transmission line. Subsequently, the intervenors in that

matter, many of which are the same here, sought review of the 2015 order through an appeal filed

with this court. On April 17, 2018, in Concerned Citizens & Property Owners v. Illinois Commerce

Comm’n, 2018 IL App (5th) 150551, we reversed the 2015 order (and the CPCN granted

thereunder) on the basis that GBX was not a “public utility,” which we deemed a prerequisite to

obtaining a CPCN under the Act. Specifically, we relied on the supreme court decision in Illinois

Landowners Alliance, NFP v. Illinois Commerce Comm’n, 2017 IL 121302, which had addressed

2 a similarly proposed HVDC transmission line project in another part of the state, which was being

operated by GBX’s sister company, Rock Island Clean Line, LLC. We found that because GBX

did not own, control, operate, or manage, within this state, directly or indirectly, for “public use,”

any plant, equipment or property to be used for or in connection with the transmission of electricity

at the time of its application, it could not meet the definition of “public utility” under section 3-

105(a) of the Act.

¶6 After the Illinois Supreme Court and this court rejected the proposed projects for Rock

Island and GBX, the parent organization of GBX sold the company to Invenergy Transmission, a

company based in Chicago, Illinois, via a membership interest purchase agreement dated

November 9, 2018. Rather than change its business plan or proposed project to comply with the

Act, GBX set out to change the law and have new legislation enacted which would allow it to

benefit from the Act in the same way a traditional “public utility” would benefit. GBX lobbied the

Illinois legislature for the changes to the Act set forth in section 8-406(b-5). In response to the

previously noted court decisions and after being lobbied by GBX and its parent company,

Invenergy, in 2021, the Illinois General Assembly enacted Public Act 102-0662, the Climate and

Equitable Jobs Act (CEJA), which became effective September 15, 2021. The CEJA amended 17

separate acts. Relevant to this appeal is section 8-406(b-5), which modified the Act. In short,

section 8-406(b-5), inter alia, created a new category of applicant eligible for a CPCN. Section 8-

406(b-5) authorized a “qualifying direct current applicant” (QDCA) to file for and obtain a CPCN

to construct, operate and maintain a “qualifying direct current project” (QDCP) without owning,

controlling, operating, or managing any plant, equipment or property in Illinois at the time of the

application filing or the issuance of the Commission order.

3 ¶7 On July 26, 2022, GBX filed an application with the Commission seeking a CPCN pursuant

to sections 8-406(b-5) and 8-406.1 of the Act. In its application, GBX sought to construct, operate,

and maintain the Illinois portion of a HVDC transmission line and related facilities and to conduct

a transmission public utility business in connection therewith. GBX also sought pursuant to

sections 8-503 and 8-406.1(i) an order authorizing it to construct the transmission line and related

facilities. GBX filed the application as a QDCA and the project as a QDCP under the newly enacted

section 8-406(b-5). The application was accompanied by the prepared direct testimony and

exhibits of 11 witnesses on behalf of GBX.

¶8 No parties to this appeal contend that the GBX or its project do not meet the definition of

a QDCA or QDCP as outlined in section 8-406(b-5). The project is an interstate project which will

originate in Ford County, Kansas, then traverse the remainder of Kansas into Missouri, cross

Missouri into Illinois, travel approximately 207 miles through Pike, Scott, Greene, Macoupin,

Montogomery, Christian, Shelby, Cumberland, and Clark Counties, where it will ultimately, cross

into Indiana. The transmission line’s approximate length is expected to be 800 miles and

interconnect multiple regional electric grids including Southwest Power Pool (SPP), Midcontinent

Independent System Operator (MISO), Associated Electrical Cooperative, Inc. (AECI), and PJM

Interconnection, LLC (PJM). The origination point in Kansas is a planned, but not yet constructed,

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Related

Concerned Citizens & Property Owners v. Illinois Commerce Comm'n
2026 IL 131026 (Illinois Supreme Court, 2026)

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2024 IL App (5th) 230271-U, Counsel Stack Legal Research, https://law.counselstack.com/opinion/concerned-citizens-property-owners-illinois-agricultural-assn-v-illappct-2024.