People ex rel. Hartigan v. Illinois Commerce Commission

573 N.E.2d 858, 214 Ill. App. 3d 222, 158 Ill. Dec. 45, 1991 Ill. App. LEXIS 1038
CourtAppellate Court of Illinois
DecidedJune 12, 1991
DocketNos. 3—90—0492, 3—90—0500, 3—90—0501 cons.
StatusPublished
Cited by5 cases

This text of 573 N.E.2d 858 (People ex rel. Hartigan v. Illinois Commerce Commission) 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.

Bluebook
People ex rel. Hartigan v. Illinois Commerce Commission, 573 N.E.2d 858, 214 Ill. App. 3d 222, 158 Ill. Dec. 45, 1991 Ill. App. LEXIS 1038 (Ill. Ct. App. 1991).

Opinion

PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Appellants, the Illinois Attorney General (No. 3—90—0492), the Office of Public Counsel and the Citizens Utility Board (OPC/CUB) (No. 3—90—0500), and appellant-appellee, the Illinois Power Company (No. 3—90—0501), appeal from an order issued by appellee, the Illinois Commerce Commission (the Commission). The appeals have been consolidated for purposes of our review. In light of our holding in Illinois Power Co. v. Illinois Commerce Comm'n (1991), 208 Ill. App. 3d 779, 566 N.E.2d 1372, we set forth only those facts necessary for disposition of the issues we need resolve in this appeal.

On March 30, 1989, the Commission entered an order (referred to by the parties as the 1989 Rate Order) in which, among other things, the Commission found that Illinois Power’s Clinton Nuclear Power Station (Clinton) was only 27.2% used and useful in supplying electrical service to Illinois Power’s customers. Illinois Power, the Attorney General and OPC/CUB appealed from that order. On July 13, 1989, during the pendency of those appeals, Illinois Power filed a request for the rate increase which is the subject of the instant appeals.

In its request, Illinois Power proposed a 23% ($215.7 million) increase in electric rates. The Commission determined that hearings should be held concerning the propriety and reasonableness of the proposed increase. Numerous parties including the Attorney General and CUB filed petitions to intervene. The OPC filed a notice of intervention.

On June 6, 1990, the Commission entered an order (the 1990 Rate Order) granting Illinois Power a rate increase of $75,163,000. Among other things, the Commission concluded that 60.9% of Clinton was used and useful. The Commission stated that it was making the used and useful determination utilizing a methodology “very similar to the methodology the Commission adopted in the 1989 Rate Order.”

On July 13, 1990, the Commission issued an amended order to correct certain errors in revenue requirement calculations brought to its attention by OPC/CUB’s application for rehearing. As a result of these recalculations, the Commission determined that Clinton was 60.7% used and useful, and that Illinois Power should be granted an annual rate increase of $74,799,000. Subsequently, the parties filed their appeals with this court.

On February 8, 1991, this court filed its opinion in Illinois Power Co. v. Illinois Commerce Comm'n (1991), 208 Ill. App. 3d 779, 566 N.E.2d 1372, reversing and remanding the 1989 Rate Order. We held among other things that the Commission erred in utilizing the needed (reserve margin) and economic benefits tests in determining that only 27.2% of Clinton was used and useful. We directed the Commission on remand to make the used and useful determination based on established pre-1986 standards. We note that all but one of the briefs filed in the instant appeals were filed prior to our decision in Illinois Power.

In this appeal, Illinois Power and the Attorney General raise objections to the Commission’s determination of the used and useful issue. We note that, in reaching its determination in the instant rate case, the Commission utilized the same reserve margin analysis to determine what amount of Clinton capacity was needed as was used in the 1989 Rate Order. However, we also note the 1990 Rate Order does not reflect a consideration of the economic benefits of Clinton as a part of the used and useful determination. Based on our decision in Illinois Power Co. v. Illinois Commerce Comm'n (1991), 208 Ill. App. 3d 779, 566 N.E.2d 1372, we reverse the order of the Commission entered June 6, 1990, as amended. We find the Commission erred in using the needed (reserve margin) test in determining the used and useful portion of Clinton, and remand the cause for further proceedings consistent with our opinion in Illinois Power. We note that petitions for leave to appeal in Illinois Power Co. v. Illinois Commerce Comm'n (1991), 208 Ill. App. 3d 779, 566 N.E.2d 1372, are currently pending before the Illinois Supreme Court.

On appeal, OPC/CUB and the Attorney General contend the Commission erred in its treatment of depreciation expenses and deferred income tax expenses, and their associated reserve accounts. In addition, the Attorney General contends the Commission erred in its treatment of Illinois Power’s Account 186 balance when it allowed an equity return on the non-used-and-useful portion of Clinton. We note that these issues are to some degree dependent on the used and useful question. Since the Commission must redetermine the used and useful issue on remand, we need not address these issues at this time.

OPC/CUB also assert that the Commission engaged in retroactive ratemaking when it allowed Illinois Power to bill customers for the energy consumed prior to the Commission’s rate order at a rate not in effect until after the rate order was issued. We note, however, there is nothing in the 1990 Rate Order regarding this issue. The Commission did not authorize any type of proration of rates in order to implement the rate increase. Therefore, this issue is not properly before this court and we will not address it.

Illinois Power contends the Commission erred in using Illinois Power’s actual capital structure in determining the rate of return. Illinois Power asserts that the Commission’s decision on this issue was not supported by substantial evidence, and that it results in an improper second penalty for the imprudently incurred costs of Clinton.

Under the Public Utilities Act, a reviewing court shall reverse the Commission’s findings if the findings are not supported by substantial evidence. (Ill. Rev. Stat. 1989, ch. 111⅔, par. 10—201(e)(iv)(A).) The credibility of expert witnesses and the weight to be given their testimony are matters for the Commission to decide as the finder of fact. (Lefton Iron & Metal Co. v. Illinois Commerce Comm'n (1988), 174 Ill. App. 3d 1049, 529 N.E.2d 610.) A reviewing court may not substitute its interpretation of the evidence for that of the Commission. People ex rel. Hartigan v. Illinois Commerce Comm'n (1987), 117 Ill. 2d 120, 510 N.E.2d 865.

In the 1989 Rate Order proceedings, the Commission determined that in excess of $665 million in Clinton construction costs were unreasonably incurred. As a result of the Commission’s findings, Illinois Power was required to write off these costs, which reduced the percentage of common equity in Illinois Power’s capital structure. (In Illinois Power Co. v. Illinois Commerce Comm'n (1991), 208 Ill. App. 3d 779, 566 N.E.2d 1372, this court affirmed the Commission’s findings concerning unreasonable costs.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ameropan Oil Corp. v. Illinois Commerce Commission
698 N.E.2d 582 (Appellate Court of Illinois, 1998)
Ameropan Oil Corp. v. Commerce Comm'n
Appellate Court of Illinois, 1998
Ill. Bell Telephone v. Ill. Comm. Com'n
669 N.E.2d 919 (Appellate Court of Illinois, 1996)
Illinois Power Co. v. Illinois Commerce Commission
626 N.E.2d 713 (Appellate Court of Illinois, 1993)
Governor's Office of Consumer Services v. Illinois Commerce Commission
580 N.E.2d 920 (Appellate Court of Illinois, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
573 N.E.2d 858, 214 Ill. App. 3d 222, 158 Ill. Dec. 45, 1991 Ill. App. LEXIS 1038, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-hartigan-v-illinois-commerce-commission-illappct-1991.