Adams County Property Owners and Tenant Farmers v. The Illinois Commerce Commission , 2015 IL App (4th) 130907 ( 2015 )

FILED
July 20, 2015
Carla Bender
2015 IL App (4th) 130907 4th District Appellate
Court, IL
NOS. 4-13-0907, 4-13-0917, 4-14-0218, 4-14-0249 cons.
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
ADAMS COUNTY PROPERTY OWNERS AND ) Direct Administrative Review
TENANT FARMERS, ) of Illinois Commerce
Petitioner, ) Commission
v. (No. 4-13-0907) )
No. 12-0598
THE ILLINOIS COMMERCE COMMISSION; DONNA )
ALLEN; CENTRAL STONE COMPANY; ENBRIDGE )
PIPELINES (ILLINOIS), L.L.C.; PRAIRIE POWER, )
INC.; THE CITY OF CHAMPAIGN; FUTUREGEN )
INDUSTRIAL ALLIANCE, INC.; IBEW LOCAL 51; )
BETH BAUER; NANCY N. MADIGAN; BARBARA )
BERGSCHNEIDER; JOSEPH BERGSCHNEIDER; )
DAVID G. BOCKHOLD; THERESA M. BOCKHOLD; )
MISO; WIND ON THE WIRES; PRAIRIE POWER, )
INC.; GAN PROPERTIES, LLC; SCHUYLER )
COUNTY PROPERTY OWNERS; NIEMANN FOODS, )
INC.; MICHAEL T. CODY; AMEREN )
TRANSMISSION COMPANY OF ILLINOIS; ANNE )
MAE COPELAND; PAMELA J. COPELAND; )
RICHARD T. COPELAND, JR.; THE VILLAGE OF )
SAVOY; AMEREN SERVICES COMPANY; ERBON )
DOAK; MIDWEST INDEPENDENT TRANSMISSION )
SYSTEM OPERATOR, INC.; BARKI/ADAMS )
COUNTY PROPERTY OWNERS; THE VILLAGE OF )
SIDNEY; LYNDA McLAUGHLIN; THE NATURE )
CONSERVANCY; KOHL WHOLESALE; ILLINOIS )
AGRICULTURAL ASSOCIATION; THE VILLAGE )
OF MT. ZION; IBEW LOCAL 702; MICHAEL )
HUTCHINSON; PAMELA P. IRWIN; ENBRIDGE )
ENERGY COMPANY, INC.; MORGAN COUNTY )
PROPERTY OWNERS; CLEAN LINE ENERGY )
PARTNERS, LLC; WESTERN MORGAN COUNTY )
PROPERTY OWNERS; DYNEGY, INC.; MICHAEL E. )
LOCKWOOD; ILLINOIS LABORERS AND )
CONTRACTORS TRAINING TRUST FUND; )
THOMAS McLAUGHLIN; WIESE FARMS; EDNA )
KEPLINGER TRUST; PEGGY MILLS; RURAL )
CLARK AND EDGAR COUNTY CONCERNED )
CITIZENS; THE VILLAGE OF PAWNEE; MATT )
HOLTMEYER CONSTRUCTION, INC.; SHELBY )
COUNTY LANDOWNERS GROUP; GREGORY A. )
PEARCE; THERESA PEARCE; JAMES PHILLIPS; )
TORI PHILLIPS; BARBARA RAGHEB; MAGDI )
RAGHEB; BRIAN RALSTON; SHERRY L. )
RALSTON; JUSTIN RAMEY; ANN RAYNOLDS; )
MOULTRIE COUNTY PROPERTY OWNERS; )
JANEY RONEY; DEBORAH D. ROONEY; DONNA )
RUHOLL; STEVE RUHOLL; RCECCC; CLARK )
COUNTY PRESERVATION COMMITTEE; JDL )
BROADCASTING, INC.; LAURA TE GROTENHUIS; )
PIATT, DOUGLAS, MOULTRIE, AND CHRISTIAN )
COUNTY PROPERTY OWNERS; AND MARK )
LASH, )
Respondents. )
_____________________________________________ )
EDGAR COUNTY CITIZENS, )
Petitioner, )
v. (No. 4-13-0917) )
THE ILLINOIS COMMERCE COMMISSION; )
DONNA ALLEN; CENTRAL STONE COMPANY; )
ENBRIDGE PIPELINES (ILLINOIS), L.L.C.; )
PRAIRIE POWER, INC.; THE CITY OF )
CHAMPAIGN; FUTUREGEN INDUSTRIAL )
ALLIANCE, INC.; IBEW LOCAL 51; BETH BAUER; )
NANCY N. MADIGAN; BARBARA )
BERGSCHNEIDER; JOSEPH BERGSCHNEIDER; )
DAVID G. BOCKHOLD; THERESA M. BOCKHOLD; )
MISO; WIND ON THE WIRES; PRAIRIE POWER, )
INC; GAN PROPERTIES, LLC; SCHUYLER )
COUNTY PROPERTY OWNERS; NIEMANN )
FOODS, INC.; MICHAEL T. CODY; AMEREN )
TRANSMISSION COMPANY OF ILLINOIS; ANNE )
MAE COPELAND; PAMELA J. COPELAND; )
RICHARD T. COPELAND, JR.; THE VILLAGE OF )
SAVOY; AMEREN SERVICES COMPANY; )
ERBON DOAK; MIDWEST INDEPENDENT )
TRANSMISSION SYSTEM OPERATOR, INC.; )
BARKI/ADAMS COUNTY PROPERTY OWNERS; )
THE VILLAGE OF SIDNEY; LYNDA )
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McLAUGHLIN; THE NATURE CONSERVANCY; )
KOHL WHOLESALE; ILLINOIS AGRICULTURAL )
ASSOCIATION; THE VILLAGE OF MT. ZION; )
IBEW LOCAL 702; MICHAEL HUTCHINSON; )
PAMELA P. IRWIN; ENBRIDGE ENERGY )
COMPANY, INC.; MORGAN COUNTY PROPERTY )
OWNERS; CLEAN LINE ENERGY PARTNERS, )
LLC; WESTERN MORGAN COUNTY PROPERTY )
OWNERS; DYNEGY, INC.; MICHAEL E. )
LOCKWOOD; ILLINOIS LABORERS AND )
CONTRACTORS TRAINING TRUST FUND; )
THOMAS McLAUGHLIN; WIESE FARMS; EDNA )
KEPLINGER TRUST; PEGGY MILLS; RURAL )
CLARK AND EDGAR COUNTY CONCERNED )
CITIZENS; THE VILLAGE OF PAWNEE; MATT )
HOLTMEYER CONSTRUCTION, INC.; SHELBY )
COUNTY LANDOWNERS GROUP; GREGORY A. )
PEARCE; THERESA PEARCE; JAMES PHILLIPS; )
TORI PHILLIPS; BARBARA RAGHEB; MAGDI )
RAGHEB; BRIAN RALSTON; SHERRY L. )
RALSTON; JUSTIN RAMEY; ANN RAYNOLDS; )
MOULTRIE COUNTY PROPERTY OWNERS; )
JANEY RONEY; DEBORAH D. ROONEY; DONNA )
RUHOLL; STEVE RUHOLL; RCECCC; CLARK )
COUNTY PRESERVATION COMMITTEE; JDL )
BROADCASTING, INC.; LAURA TE GROTENHUIS; )
PIATT, DOUGLAS, MOULTRIE, AND CHRISTIAN )
COUNTY PROPERTY OWNERS; AND MARK )
LASH, )
Respondents. )
_____________________________________________ )
MORGAN, SANGAMON, and SCOTT COUNTIES )
LAND PRESERVATION GROUP, )
Petitioner, )
v. (No. 4-14-0218) )
THE ILLINOIS COMMERCE COMMISSION; )
DONNA ALLEN; CENTRAL STONE COMPANY; )
ENBRIDGE PIPELINES (ILLINOIS), L.L.C.; )
PRAIRIE POWER, INC.; THE CITY OF )
CHAMPAIGN; FUTUREGEN INDUSTRIAL )
ALLIANCE, INC.; IBEW LOCAL 51; BETH BAUER; )
NANCY N. MADIGAN; BARBARA )
BERGSCHNEIDER; JOSEPH BERGSCHNEIDER; )
DAVID G. BOCKHOLD; THERESA M. BOCKHOLD; )
-3-
MISO; WIND ON THE WIRES; GAN PROPERTIES, )
LLC; SCHUYLER COUNTY PROPERTY OWNERS; )
NIEMANN FOODS, INC.; MICHAEL T. CODY; )
AMEREN TRANSMISSION COMPANY OF )
ILLINOIS; ANNE MAE COPELAND; PAMELA J. )
COPELAND; RICHARD T. COPELAND, JR.; THE )
VILLAGE OF SAVOY; AMEREN SERVICES )
COMPANY; ERBON DOAK; MIDWEST )
INDEPENDENT TRANSMISSION SYSTEM )
OPERATOR, INC.; BARKI/ADAMS COUNTY )
PROPERTY OWNERS; THE VILLAGE OF SIDNEY; )
LYNDA McLAUGHLIN; THE NATURE )
CONSERVANCY; KOHL WHOLESALE; ILLINOIS )
AGRICULTURAL ASSOCIATION; THE VILLAGE )
OF MT. ZION; IBEW LOCAL 702; MICHAEL )
HUTCHINSON; PAMELA P. IRWIN; ENBRIDGE )
ENERGY COMPANY, INC.; MORGAN COUNTY )
PROPERTY OWNERS; CLEAN LINE ENERGY )
PARTNERS, LLC; WESTERN MORGAN COUNTY )
PROPERTY OWNERS; DYNEGY, INC.; MICHAEL )
E. LOCKWOOD; ILLINOIS LABORERS AND )
CONTRACTORS TRAINING TRUST FUND; )
THOMAS McLAUGHLIN; WIESE FARMS; EDNA )
KEPLINGER TRUST; PEGGY MILLS; RURAL )
CLARK AND EDGAR COUNTY CONCERNED )
CITIZENS; THE VILLAGE OF PAWNEE; MATT )
HOLTMEYER CONSTRUCTION, INC.; SHELBY )
COUNTY LANDOWNERS GROUP; GREGORY A. )
PEARCE; THERESA PEARCE; JAMES PHILLIPS; )
TORI PHILLIPS; BARBARA RAGHEB; MAGDI )
RAGHEB; BRIAN RALSTON; SHERRY L. )
RALSTON; JUSTIN RAMEY; ANN RAYNOLDS; )
MOULTRIE COUNTY PROPERTY OWNERS; )
JANEY RONEY; DEBORAH D. ROONEY; DONNA )
RUHOLL; STEVE RUHOLL; RCECCC; CLARK )
COUNTY PRESERVATION COMMITTEE; JDL )
BROADCASTING, INC.; LAURA TE GROTENHUIS; )
PIATT, DOUGLAS, MOULTRIE, AND CHRISTIAN )
COUNTY PROPERTY OWNERS; MARK LASH; )
DEAN L. McWARD; DONALD C. McWARD; )
SHIRLEY McWARD; EDWARD CORLEY TRUST; )
and ERIC SPRAGUE, and LAURA SPRAGUE, )
Respondents. )
_____________________________________________ )
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MACON COUNTY PROPERTY OWNERS, )
Petitioner, )
v. (No. 4-14-0249) )
THE ILLINOIS COMMERCE COMMISSION; )
DONNA ALLEN; CENTRAL STONE COMPANY; )
ENBRIDGE PIPELINES (ILLINOIS), L.L.C.; )
PRAIRIE POWER, INC.; THE CITY OF )
CHAMPAIGN; FUTUREGEN INDUSTRIAL )
ALLIANCE, INC.; IBEW LOCAL 51; BETH BAUER; )
NANCY N. MADIGAN; BARBARA )
BERGSCHNEIDER; JOSEPH BERGSCHNEIDER; )
DAVID G. BOCKHOLD; THERESA M. BOCKHOLD; )
MISO; WIND ON THE WIRES; GAN PROPERTIES, )
LLC; SCHUYLER COUNTY PROPERTY OWNERS; )
NIEMANN FOODS, INC.; MICHAEL T. CODY; )
AMEREN TRANSMISSION COMPANY OF )
ILLINOIS; ANNE MAE COPELAND; PAMELA J. )
COPELAND; RICHARD T. COPELAND, JR.; THE )
VILLAGE OF SAVOY; AMEREN SERVICES )
COMPANY; ERBON DOAK; MIDWEST )
INDEPENDENT TRANSMISSION SYSTEM )
OPERATOR, INC.; BARKI/ADAMS COUNTY )
PROPERTY OWNERS; THE VILLAGE OF SIDNEY; )
LYNDA McLAUGHLIN; THE NATURE )
CONSERVANCY; KOHL WHOLESALE; ILLINOIS )
AGRICULTURAL ASSOCIATION; THE VILLAGE )
OF MT. ZION; IBEW LOCAL 702; MICHAEL )
HUTCHINSON; PAMELA P. IRWIN; ENBRIDGE )
ENERGY COMPANY, INC.; MORGAN COUNTY )
PROPERTY OWNERS; CLEAN LINE ENERGY )
PARTNERS, LLC; WESTERN MORGAN COUNTY )
PROPERTY OWNERS; DYNEGY, INC.; MICHAEL )
E. LOCKWOOD; ILLINOIS LABORERS AND )
CONTRACTORS TRAINING TRUST FUND; )
THOMAS McLAUGHLIN; WIESE FARMS; EDNA )
KEPLINGER TRUST; PEGGY MILLS; RURAL )
CLARK AND EDGAR COUNTY CONCERNED )
CITIZENS; THE VILLAGE OF PAWNEE; MATT )
HOLTMEYER CONSTRUCTION, INC.; SHELBY )
COUNTY LANDOWNERS GROUP; GREGORY A. )
PEARCE; THERESA PEARCE; JAMES PHILLIPS; )
TORI PHILLIPS; BARBARA RAGHEB; MAGDI )
RAGHEB; BRIAN RALSTON; SHERRY L. )
RALSTON; JUSTIN RAMEY; ANN RAYNOLDS; )
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MOULTRIE COUNTY PROPERTY OWNERS; )
JANEY RONEY; DEBORAH D. ROONEY; DONNA )
RUHOLL; STEVE RUHOLL; RCECCC; CLARK )
COUNTY PRESERVATION COMMITTEE; JDL )
BROADCASTING, INC.; LAURA TE GROTENHUIS; )
PIATT, DOUGLAS, MOULTRIE, AND CHRISTIAN )
COUNTY PROPERTY OWNERS; MARK LASH; )
DEAN L. McWARD; DONALD C. McWARD; )
SHIRLEY McWARD; EDWARD CORLEY TRUST; )
and ERIC SPRAGUE, and LAURA SPRAGUE, )
Respondents. )
______________________________________________________________________________
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Turner and Holder White concurred in the judgment and opinion.
OPINION
¶1 These four consolidated appeals involve requests for direct administrative review
of an order of the Illinois Commerce Commission (Commission), which authorized Ameren
Transmission Company of Illinois (ATXI) to construct a high voltage transmission line and
related facilities across several Illinois counties and designated routes and locations for the new
construction. Petitioners—Adams County Property Owners (ACPO); Edgar County Citizens are
Entitled to Due Process (ECCDP); Morgan, Sangamon, and Scott Counties Land Preservation
Group (MSSCLPG); and Macon County Property Owners (MCPO)—are four groups of
individuals and entities that own property affected by the Commission's order. ACPO,
MSSCLPG, and MCPO intervened in the underlying proceedings and, on appeal, challenge
specific portions of the route chosen for the transmission line (challenged by ACPO and
MSSCLPG) and the location selected for a specific substation (challenged by MCPO). ACPO
additionally challenges the expedited procedure under which ATXI's petition was considered.
Further, ECCDP appeals, arguing its members were not properly notified that their properties
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would be affected by the underlying proceedings and, thus, their due process rights were
violated. We affirm.
¶2 I. BACKGROUND
¶3 The Public Utilities Act (Utilities Act) (220 ILCS 5/8-406 (West 2010)) requires
that a public utility obtain a certificate of public convenience and necessity from the Commission
before transacting business or beginning new construction within Illinois. Section 8-406 of the
Utilities Act sets forth requirements for obtaining a certificate. 220 ILCS 5/8-406 (West 2010).
Effective July 28, 2010, the legislature enacted section 8-406.1 of the Utilities Act (220 ILCS
5/8-406.1 (West 2010)), permitting a public utility to apply for a certificate using an expedited
procedure 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"; however, within 30 days after filing, the Commission may extend the deadline by an
additional 75 days if it "finds that good cause exists to extend the 150-day period." 220 ILCS
5/8-406.1(g) (West 2010). Further, a certificate must be issued where the Commission finds 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
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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 2010).
¶4 On November 7, 2012, ATXI elected to file a petition utilizing the expedited
procedure in section 8-406.1. It asked the Commission to issue a certificate of public
convenience and necessity that would authorize it "to construct, operate and maintain a new 345
kV electric transmission line *** and related facilities, including certain new or expanded
substations, within *** Illinois." ATXI's plan for construction was designated the Illinois Rivers
Project (Project) and portions of the Project were to be located within several Illinois counties,
spanning 375 miles across the state, from its Missouri to Indiana borders.
¶5 Due to the magnitude of the Project, the underlying proceedings were complex
and involved multiple parties. The record indicates the Commission sent notices of the
proceeding to approximately 8,436 potentially affected landowners. Numerous entities and
individuals sought, and were granted, leave to intervene. Commission staff members also
participated in the underlying proceedings, presenting arguments and recommendations to the
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Commission. Several status hearings were held before the Commission's administrative law
judges (ALJs) and evidentiary hearings were conducted from March 13 to 17, 2013. Pursuant to
statutory requirements, ATXI submitted both a primary and alternative route for its Project,
while intervening parties also submitted various routes for consideration.
¶6 On August 20, 2013, the Commission issued a 135-page order. To facilitate a
resolution of the matter, it evaluated the Project in segments and set forth the parties' arguments,
the recommendations of Commission staff, and its own conclusions with respect to each
segment. In reaching its decision, the Commission noted that, although virtually all of the
involved parties agreed that some form of the Project was necessary, the issue of where to
construct the transmission lines and related facilities was heavily contested. Ultimately, the
Commission found the requirements of section 8-406.1 had been met; approved specific routes
for the proposed transmission line, as well as locations for new and expanded substations; and
issued a certificate of public convenience and necessity to ATXI with respect to those approved
routes and locations. However, the Commission did not grant all of the approvals sought by
ATXI and specifically declined to approve routes for the transmission line in two segments and
several of the proposed locations for new and expanded substations.
¶7 Various parties sought rehearing in the matter, some of which were granted by the
Commission. Following further evidentiary hearings, the Commission issued a first order on
rehearing on February 5, 2014, and a second order on rehearing on February 20, 2014. Due to
the complexity of the underlying proceedings, we provide a more detailed recitation of the facts
and the issues presented as they relate to the specific parties on appeal.
¶8 A. ACPO—Appeal No. 4-13-0907
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¶9 ACPO is a group of landowners affected by the segment of the Project known as
the Quincy-Meredosia segment. ACPO intervened in the underlying proceedings and submitted
three alternative routes for the proposed transmission line. Before the Commission, ACPO
advocated for a route referred to as its "Alternative Route 1," which largely paralleled an existing
138 kV transmission line that ran through the area. Conversely, ATXI recommended approval of
a "Hybrid Route" (also referred to by ATXI as the "Rebuttal Recommended Route") that had
been developed by Commission staff by combining elements of the primary and alternative
routes ATXI originally submitted to the Commission.
¶ 10 The record reflects ACPO's Alternative Route 1 was the shortest and least costly
route to construct. It was 43.6 miles in length compared to the Hybrid Route, which was 46.3
miles long. Additionally, Alternative Route 1 cost $9.1 million less to construct than the Hybrid
Route. Commission staff expressed a preference for Alternative Route 1 over the Hybrid Route;
however, the Commission ultimately selected the Hybrid Route, finding it presented the "least
cost" as compared with Alternative Route 1. It stated as follows:
"The Commission is persuaded that the Hybrid Route is the best
option for this project because it is cost-effective and should
eliminate concerns raised by almost all of the intervenors who have
submitted testimony regarding this portion of the project. The
Commission is also troubled by the evidence that ACPO
Alternative Route 1 would require extensive tree removal, as well
as the possible displacement of six residences. It appears to the
Commission that any cost savings envisioned by the shorter length
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of ACPO Alternative Route 1 would be eclipsed by the potential
displacement of homes."
¶ 11 On September 19, 2013, ACPO filed an application for rehearing, which the
Commission denied. ACPO's appeal followed. Not all of ACPO's members join in its appeal.
Although ACPO filed a first amended petition for leave to intervene and listed 29 individuals
and entities as its members, only 5 of those 29 members now seek review of the Commission's
decision.
¶ 12 B. ECCDP—Appeal No. 4-13-0917
¶ 13 ECCDP is a group of 21 landowners affected by the Kansas-Indiana State Line
segment of the Project. With respect to that segment, several individuals or groups with affected
property interests were allowed to intervene and five routes were proposed by the parties for
consideration by the Commission. Ultimately, in its August 20, 2013, decision, the Commission
approved a route proposed by one of the intervening parties, Stop the Power Lines Coalition
(Stop Coalition).
¶ 14 ECCDP did not become involved in the underlying proceedings until after the
Commission issued its initial decision in the matter. Specifically, on September 18, 2013,
ECCDP filed a petition for leave to intervene, asserting its members owned real estate that was
directly on, or immediately adjacent to, the alternate route proposed by ATXI. They asserted
they would be affected by the transmission line but did not receive notice of the underlying
proceedings until they received letters from ATXI, which were dated September 6, 2013, and
advised them of the Commission's August 20, 2013, decision.
¶ 15 On September 19, 2013, ECCDP filed a "DUE PROCESS MOTION TO STRIKE
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PROCEEDINGS AS TO THE EDGAR COUNTY SEGMENT AND APPLICATION FOR
REAHEARING." It asserted its members were directly affected by the Commission's August
20, 2013, decision, but they did not receive proper notice of the underlying proceedings.
ECCDP alleged the lack of notice denied its members due process and requested that
proceedings pertaining to the segment of the Project affecting them be stricken so that they could
be afforded the same rights as other property owners who did receive notice. ECCDP attached
the affidavit of one of its members to its motion, wherein the member averred he did not receive
notice of either the proposed transmission line Project or the underlying proceedings until
receiving ATXI's September 6, 2013, letter. On October 1, 2013, ECCDP filed a motion to
supplement its motion to strike and application for rehearing with the affidavits of all but three of
its remaining members. In each affidavit, a member of ECCDP averred he or she received no
notice of the Project or the underlying proceedings until receiving ATXI's September 6, 2013,
letter.
¶ 16 On October 2, 2013, the Commission's ALJs denied ECCDP's petition for leave to
intervene. They also recommend the Commission deny ECCDP's September 19, 2013, filing. In
a memorandum to the Commission, the ALJs stated as follows:
"Whether each of the 21 property owners making up
[ECCDP] own land directly over which the transmission line will
run is not clear from the two [ECCDP] filings. Generally, those
owning land adjacent to or near a proposed transmission line route
would not normally receive notice of such a docket from the
Commission. In the instant proceeding, however, several of the
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[ECCDP] members *** appear on the service list for a January 31,
2013[,] notice informing landowners of this docket and their
opportunity to participate. For some unknown reason, these
landowners chose not to participate. While they are free to
intervene now, they must accept the record as it exists at the time
of their intervention (which they acknowledge in paragraph 4 of
their September 18, 2013[,] petition to intervene and paragraph 5
of their September 19, 2013[,] filing). At this time, the
transmission line route segment from the Kansas substation to the
Indiana state line through Edgar County is resolved and in light of
the reasons given, [ECCDP] can not reasonably expect the
Commission to vacate that part of this proceeding affecting Edgar
County and grant rehearing."
On October 3, 2013, the Commission denied ECCDP's motion to strike and application for
rehearing.
¶ 17 On October 22, 2013, ECCDP filed a notice of appeal, challenging the
Commission's August 20, 2013, order and its denial of ECCDP's request for rehearing. On
October 23, 2013, the ALJs granted ECCDP's petition to intervene for the limited purpose of
accommodating appellate review.
¶ 18 C. MSSCLPG—Appeal No. 4-14-0218
¶ 19 MSSCLPG is a group of over 60 individuals and entities affected by the segment
of the Project referred to as the Meredosia-Pawnee segment. Several parties intervened with
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respect to this segment and various routes were proposed for consideration. ATXI and three
intervening parties recommended approval of ATXI's alternate route, which was also referred to
in the underlying proceedings as the "Rebuttal Recommended Route" and referred to by the
Commission as the "Stipulated Route." One of those three intervening parties, Morgan and
Sangamon County Landowners and Tenant Farmers (MSCLTF), submitted a route referred to as
the "MSCLTF Route," which paralleled an existing transmission line. However, MSCLTF
ultimately withdrew its support for its proposed route in favor of ATXI's Stipulated Route. In
the underlying proceedings, MSSCLPG and one other intervening party advocated for the
MSCLTF Route. Commission staff also supported the MSCLTF Route.
¶ 20 The Commission chose ATXI's Stipulated Route as the least-cost route for the
Meredosia-Pawnee segment. In so holding, it found "that little evidence in support of the
MSCLTF Route ha[d] been presented by any of the parties" and it was "difficult from the
evidence presented to fairly judge whether the MSCLTF Route would be superior to Stipulated
Route."
¶ 21 On September 18, 2013, MSSCLPG filed an application for rehearing, which the
Commission granted on October 2, 2013. In December 2013, further evidentiary hearings were
held in the matter. On February 20, 2014, the Commission issued a second order on rehearing
and addressed the Meredosia-Pawnee segment of the Project. The record shows ATXI asked the
Commission to reapprove its Stipulated Route, while MSSCLPG again sought approval of the
MSCLTF Route. Once more, the Commission chose the Stipulated Route.
¶ 22 MSSCLPG's appeal followed.
¶ 23 D. MCPO—Appeal No. 4-14-0249
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¶ 24 MCPO is a group of 27 individuals and entities affected by the Pana-Kansas
segment of the Project. In connection with that segment, ATXI proposed placing a substation
near the Village of Mt. Zion. In its August 20, 2013, decision, the Commission agreed that a
new substation in the Mt. Zion area was necessary; however, it declined to approve a particular
location for the substation at that time, noting the particular routes for all connecting
transmission lines had not yet been determined. ATXI sought and was granted rehearing with
respect to this issue, and hearings were conducted before the Commission's ALJs.
¶ 25 On rehearing, Commission staff proposed three locations for the substation at
issue. The first two locations—referred to as "Option #1" and "Option #2"—were a few miles
south of Mt. Zion and in close proximity to one another. A third location—referred to as
"Option #3"—was approximately 17 miles southwest of Mt. Zion and near Moweaqua, Illinois.
Both ATXI and an intervening party not at issue on appeal (Moultrie County Property Owners)
agreed that Option #1 and Option #2 were acceptable. Further, ATXI entered into a stipulation
with the Village of Mt. Zion (also an intervening party in the case) to recommend Option #2.
Commission staff expressed a preference for Option #3 and at least one intervening party
recommended that route. The record indicates two intervening parties preferred Option #1.
Ultimately, the Commission's ALJs entered a proposed second order on rehearing in which they
concluded Option #2 was the most appropriate location for the Mt. Zion substation.
¶ 26 On January 29, 2014, MCPO filed a brief addressing its objections to the ALJs'
proposed second order. It objected to the selection of Option #2 and argued Option #1 was the
preferable choice. On February 20, 2014, the Commission issued its second order on rehearing.
It noted the parties' positions, including MCPO's objections to the proposed second order, and
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selected Option #2 as the site for the Mt. Zion substation. On March 24, 2014, MCPO filed an
amended application for rehearing, arguing Option #1 was not given sufficient consideration in
the Commission's decision and was preferable to Option #2. The Commission denied MCPO's
application for rehearing and MCPO appeals.
¶ 27 II. ANALYSIS
¶ 28 A. Standard of Review
¶ 29 "[T]he Commission is entitled to great deference because it is an administrative
body possessing expertise in the field of public utilities." Archer-Daniels-Midland Co. v. Illinois
Commerce Comm'n, 184 Ill. 2d 391, 397, 704 N.E.2d 387, 390 (1998). "We will not reevaluate
the credibility or weight of the evidence, nor substitute our judgment for that of the
Commission." People ex rel. Madigan v. Illinois Commerce Comm'n, 2011 IL App (1st)
100654, ¶ 9, 958 N.E.2d 405.
¶ 30 Pursuant to the Utilities Act, the Commission's findings and conclusions on
questions of fact should be held prima facie true, the Commission's orders must be held prima
facie reasonable, and an appealing party has the burden of proof upon all issues raised by the
appeal. 220 ILCS 5/10-201(d) (West 2010). "Review of a Commission order is limited to the
following questions: (1) whether the Commission acted within the scope of its authority, (2)
whether the Commission made adequate findings in support of its decision, (3) whether the
Commission's decision was supported by substantial evidence in the record, and (4) whether
constitutional rights have been violated." Central Illinois Public Service Co. v. Illinois
Commerce Comm'n, 268 Ill. App. 3d 471, 476, 644 N.E.2d 817, 821 (1994). "Substantial
evidence consists of evidence a reasoning mind would accept as sufficient to support the
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challenged finding; it is more than a scintilla of evidence but requires something less than a
preponderance of the evidence." Ameren Illinois Co. v. Illinois Commerce Comm'n, 2013 IL
App (4th) 121008, ¶ 18, 2 N.E.3d 1087.
¶ 31 On review, the Commission's factual findings "will not be overturned unless they
are against the manifest weight of the evidence." Ameren, 2013 IL App (4th) 121008, ¶ 19, 2
N.E.3d 1087. "[A]n appellant must do more than merely show that the evidence presented
would support a conclusion different from the one reached by the [Commission]; rather, the
appellant must affirmatively demonstrate that the conclusion opposite to that reached by the
[Commission] is clearly evident." Northern Moraine Wastewater Reclamation District v. Illinois
Commerce Comm'n, 392 Ill. App. 3d 542, 556, 912 N.E.2d 204, 219 (2009). "If the record
contains evidence supporting the agency's decision, it should be affirmed." Caterpillar, Inc. v.
Illinois Commerce Comm'n, 348 Ill. App. 3d 823, 828, 808 N.E.2d 32, 36 (2004).
¶ 32 "When the Commission's decision presents a question of mixed law and fact, we
review the Commission's order under the clearly erroneous standard." Ameren, 2013 IL App
(4th) 121008, ¶ 19, 2 N.E.3d 1087.
" 'The clearly erroneous standard of review lies between the
manifest weight of the evidence standard and the de novo standard,
and as such, it grants some deference to the agency's decision.'
[Citation.] In that circumstance, the reviewing court must be left
with a 'definite and firm conviction' that the Commission
committed a mistake." Ameren, 2013 IL App (4th) 121008, ¶ 19, 2
N.E.3d 1087 (quoting People ex rel. Madigan v. Illinois Commerce
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Comm'n, 2011 IL App (1st) 101776, ¶ 9, 964 N.E.2d 510).
¶ 33 Finally, "the Commission's interpretation of a question of law is not binding on a
court of review" (Archer-Daniels-Midland, 184 Ill. 2d at 397, 704 N.E.2d at 390) and such
questions are subject to a de novo standard (People ex rel. Madigan v. Illinois Commerce
Comm'n, 2014 IL 116642, ¶ 8, 21 N.E.3d 418). However, this court has held that "[t]he
Commission's interpretation of a statute it is charged with administering and enforcing is entitled
to substantial weight and deference." Ameren Illinois Co. v. Illinois Commerce Comm'n, 2012
IL App (4th) 100962, ¶ 61, 967 N.E.2d 298 (citing People ex rel. Birkett v. City of Chicago, 202
Ill. 2d 36, 46, 779 N.E.2d 875, 881 (2002)). Further, "[a] court may overturn the Commission's
interpretation of its own rules if its construction is clearly erroneous, arbitrary, or unreasonable."
Ameren, 2012 IL App (4th) 100962, ¶ 61, 967 N.E.2d 298.
¶ 34 B. ACPO—Appeal No. 4-13-0907
¶ 35 On appeal, ACPO's overriding complaint is that the Commission erred by
selecting the Hybrid Route over its proposed Alternative Route 1 in connection with the Quincy-
Meredosia segment of the Project. It contends the Commission's factual findings were against
the manifest weight of the evidence and makes various challenges regarding the expedited
procedure under which ATXI brought its petition
¶ 36 1. Section 8-406.1's Expedited Procedure
¶ 37 We first address ACPO's claims related to the Utilities Act's expedited procedure.
It asserts the Commission acknowledged that it lacked sufficient time to fully analyze ATXI's
petition for a certificate of public convenience and necessity and that, due to the expedited
process, the record was incomplete. ACPO contends the Commission should have required
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further investigation into the matter rather than move forward with the petition and issue ATXI a
certificate. It further argues "the lack of time, length of the proposed transmission line, and the
number of intervenors *** resulted in a violation of property owners' due process."
¶ 38 As stated, section 8-406.1 of the Utilities Act (220 ILCS 5/8-406.1 (West 2010)),
permits a public utility to apply for a certificate using an expedited procedure when seeking to
construct a new high voltage electric service line and related facilities. Under that section, the
Commission must issue a decision granting or denying a request for a certificate "no later than
150 days after the application is filed"; however, within 30 days after filing, the Commission
may extend the deadline by an additional 75 days if it "finds that good cause exists to extend the
150-day period." 220 ILCS 5/8-406.1(g) (West 2010).
¶ 39 ACPO correctly points out that the Commission was critical of AXTI's request
invoking the expedited procedure set forth in section 8-406.1, particularly given the magnitude
of the Project before it. In its August 20, 2013, decision, the Commission included a section
entitled "Propriety of the Petition," wherein it questioned ATXI's decision to utilize the expedited
process and set forth its concerns regarding the possible emergence of future problems or
shortcomings with proposed routes, which were not anticipated or identified under the expedited
process. In short, the Commission was "troubled by the very real possibility that the expedited
schedule for considering such a massive project may result in less than optimal outcomes."
Nevertheless, despite its disapproval, the Commission found it was required "to follow the
directives set forth by the general Assembly" and stated it would "make every effort to weigh the
evidence that [was] before [it] and make the best decisions possible in light of the record." It
then proceeded to address the substantive issues presented by the parties.
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¶ 40 To the extent ACPO argues the Commission should have declined to move
forward with ATXI's petition given its concerns, we disagree. The Utilities Act gives a public
utility discretion to proceed under its expedited procedure for seeking a certificate and sets forth
no limit to that discretion based upon the scope of the utility's proposed project. 220 ILCS 5/8-
406.1(a) (West 2010) (stating "[a] public utility may apply for a certificate of public convenience
and necessity pursuant to" section 8-406.1). Here, ATXI chose to file its petition under section
8-406.1, and the Commission was required to grant or deny the petition within the stated time
frame. The broad concern expressed by the Commission—regarding the potential for less than
optimal outcomes from an expedited procedure when a project is complex and significant in
scope—is a matter for the legislature to address and not a basis upon which the Commission
could deny ATXI's petition.
¶ 41 As the Commission argues, its "general misgivings regarding the propriety of
expediting the proceeding under review are not a basis for challenging its specific findings of
fact and conclusions of law." We agree and find that, contrary to ACPO's contentions, the
Commission's general comments in the "Propriety of the Petition" section of its decision do not
warrant a finding that the evidence presented with respect to the entire Project was insufficient or
incomplete. The Utilities Act sets forth the criteria which must be satisfied by a petitioning
utility before a certificate may be granted. 220 ILCS 5/8-406.1(f) (West 2010). Clearly, where
the evidence is insufficient or the utility fails to meet its burden, its petition should be denied. In
this case, no party on appeal challenges the Commission's finding that the Project at issue was
necessary. Further, the record shows there were specific instances where the Commission found
the evidence lacking and refused to approve routes and locations for particular parts of the
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Project. Specifically, in its August 20, 2013, decision, the Commission declined to approve a
route for the transmission line between Pawnee and Pana and between Pana and Mt. Zion. It
also declined to approve proposed new or expanded substations at six locations.
¶ 42 ACPO cites Citizens United for Responsible Energy Development, Inc. (CURED)
v. Illinois Commerce Comm'n, 285 Ill. App. 3d 82, 673 N.E.2d 1159 (1996), for the proposition
that the Commission commits error when it grants a petition for a certificate of public
convenience and necessity based upon a record that is incomplete with respect to the issue of
least-cost means. In that case, Commission staff inexplicably failed to investigate or consider the
issue of least-cost means when addressing a petition filed pursuant to section 8-406 of the
Utilities Act (220 ILCS 5/8-406 (West 1994)). Citizens United, 285 Ill. App. 3d at 92, 673
N.E.2d at 1166. As a result, the Fifth District found the Commission's determination that the
petitioning party's "proposal constituted the least-cost means of satisfying the service needs of
*** customers *** lacked sufficient foundation." Citizens United, 285 Ill. App. 3d at 92, 673
N.E.2d at 1166. It reversed the Commission's order and remanded with directions that "a
complete investigation" into least-cost means be conducted. (Emphasis in original.) Citizens
United, 285 Ill. App. 3d at 93-94, 673 N.E.2d at 1167.
¶ 43 We do not disagree with the holding in Citizens United but find that case factually
distinguishable from the circumstances presented by this case. Here, neither the Commission nor
its staff ignored the issue of least-cost means. Instead, the record reflects issues related to least-
cost means were investigated, argued, and considered at length. The holding in Citizens United
does not warrant reversal of the Commission's decision here.
¶ 44 Finally, as discussed, ACPO argues the expedited procedure set forth in section
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8-406.1 violated property owners' due process rights as set forth by the state and federal
constitutions. Specifically, it contends that, given the expedited schedule, its members were
unable to meaningfully participate in the underlying proceedings.
¶ 45 Pursuant to the United States and Illinois Constitutions, no person may be
deprived of life, liberty, or property without due process of law. U.S. Const., amend. XIV; see
also Ill. Const. 1970, art. I, § 2. " 'The core of due process is the right to notice and a meaningful
opportunity to be heard'; no person may be deprived of a protected interest by an administrative
adjudication of rights unless these safeguards are provided." World Painting Co. v. Costigan,
2012 IL App (4th) 110869, ¶ 14, 967 N.E.2d 485 (quoting Lachance v. Erickson, 522 U.S. 262,
266 (1998)). Further, in the context of an administrative proceeding, "due process is satisfied
when the party concerned has the 'opportunity to be heard in an orderly proceeding which is
adapted to the nature and circumstances of the dispute.' " WISAM 1, Inc. v. Illinois Liquor
Control Comm'n, 2014 IL 116173, ¶ 26, 18 N.E.3d 1 (quoting Obasi v. Department of
Professional Regulation, 266 Ill. App. 3d 693, 702, 639 N.E.2d 1318, 1325 (1994)). "A fair
hearing includes the right to be heard, the right to cross-examine adverse witnesses, and
impartiality in ruling on the evidence." WISAM 1, 2014 IL 116173, ¶ 26, 18 N.E.3d 1.
¶ 46 "A due process analysis must begin with a determination of whether a protectible
interest in life, liberty, or property exists because if one is not present, no process is due."
Callahan v. Sledge, 2012 IL App (4th) 110819, ¶ 28, 980 N.E.2d 181 (citing Chicago Teachers
Union, Local No. 1 v. Board of Education of the City of Chicago, 2012 IL 112566, ¶ 12, 963
N.E.2d 918). On review, ACPO generally states its members had property rights at risk in the
underlying proceedings but fails to set forth any fully developed argument with respect to that
- 22 -
contention. Conversely, the Commission argues the property rights of ACPO's members were
not affected by the proceedings at issue and, thus, there was no process to which they were due
in the certification proceedings before the Commission. We agree with the Commission and find
relevant case law supports its position.
¶ 47 The Commission relies on this court's decision in Illinois Power Co. v. Lynn, 50
Ill. App. 3d 77, 365 N.E.2d 264 (1977). While procedurally, Lynn is not directly on point, we do
find it instructive. In that case, a utility brought an action to acquire certain tracts of land by
eminent domain pursuant to authority granted to it by the Commission in a certificate of
convenience and necessity and an enabling order. Lynn, 50 Ill. App. 3d at 78, 365 N.E.2d at 265.
The landowners filed a motion to dismiss and traverse, which the trial court denied. Lynn, 50 Ill.
App. 3d at 78, 365 N.E.2d at 265. On review, this court identified the question before it as
whether the "Commission's finding that the needs and plans of the utility constitute a 'public use,'
and that certain properties need be acquired to develop those plans, preempt the courts from
inquiring into these same subject matters, where the property owners fully participated as a
'party' before the Commission." Lynn, 50 Ill. App. 3d at 78, 365 N.E.2d at 265.
¶ 48 Ultimately, we determined courts were not preempted from inquiring into the
same subject matters as the Commission during certification proceedings and found the trial
court erred in dismissing the landowners' motion to dismiss and traverse. Lynn, 50 Ill. App. 3d at
82, 365 N.E.2d at 268. In so holding, we stated as follows:
"The hearing [before the Commission] was on the reasonableness
of the utility's plans and could not confer property rights. Appeal
of the order of the *** Commission to the courts as provided by
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statute would only have been a review of the proposed plan for
development of the project and the extent of the property to be
sought. The appearance of the owners before the *** Commission
to give input into the plans, or object thereto, could not bar them
from later exercising their rights as owners of property being taken
for a public use. There is nothing in the *** Utilities Act
preempting the rights of the property owners in the condemnation
proceedings." (Emphasis in original.) Lynn, 50 Ill. App. 3d at 81-
82, 365 N.E.2d at 267.
¶ 49 Additionally, Lynn relied on two supreme court decisions that are relevant to the
issue presented here. First, in Chicago, Burlington & Quincy R.R. Co. v. Cavanagh, 278 Ill. 609,
614, 116 N.E. 128, 130 (1917), the Public Utilities Commission determined that the public
convenience and safety required a relocation of railroad tracks and ordered that the tracks follow
a certain course. The defendant property owners complained, in part, that they "were neither
notified to be present at the hearing before the commission nor was any certified copy of the
order served on them, so that they might appear before the commission and have a hearing on
evidence as to the reasonableness of the order." Cavanagh, 278 Ill. at 613, 116 N.E. at 130. In
rejecting defendants' argument, the supreme court stated as follows:
"The order of the commission did not amount to an appropriation
of the defendants' property or any interest in it, which could only
be accomplished by the filing of a petition and the ascertainment
and payment of compensation for the property, so that there was no
- 24 -
violation of the due process provision of the constitution. The
defendants were not deprived of their property, nor of any interest
therein, by the mere making of the order, which neither gave the
petitioner any interest in or right to possession of the property."
Cavanagh, 278 Ill. at 617, 116 N.E. at 131.
¶ 50 Second, in Zurn v. City of Chicago, 389 Ill. 114, 115, 59 N.E.2d 18, 19 (1945), a
citizen and taxpayer brought constitutional challenges to an act known as the Neighborhood
Redevelopment Corporation Law (Ill. Rev. Stat. 1943, ch. 32, ¶ 550.1 et seq.), the purpose of
which was to rehabilitate and rebuild urban areas. The act provided for the creation of a
Redevelopment Commission which had the authority to approve proposed development plans by
issuing certificates of convenience and necessity. Zurn, 389 Ill. at 119, 59 N.E.2d at 21.
Relevant to this appeal, one challenge to the act was based on the contention that it did not
provide property owners with proper notice of applications for a certificate of convenience and
necessity. Zurn, 389 Ill. at 129, 59 N.E.2d at 25. Rejecting that argument, the supreme court
stated as follows:
"It is argued that the failure of the act to provide for actual notice
of such hearing to the property owners constitutes a denial of due
process of law. It should be kept in mind that this hearing is
merely an application for a certificate of convenience and
necessity. The act provides only for general notice by publication.
It is argued that when the commission issues its certificate of
convenience and necessity, this authorizes the corporation to
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proceed with the project and to acquire the property located within
the development area by eminent domain. It is obvious, however,
that no property or property interests are to be taken or interfered
with on this hearing. It is simply one of the steps prescribed by the
act in the chain of events authorizing the redevelopment
corporation to proceed with the development and to acquire
property by voluntary conveyance and by eminent domain for that
purpose.
***
*** No property or property rights of the landowners are
taken, nor are such rights affected by anything which occurs in the
hearing before the commission for a certificate of convenience and
necessity. Such property owners are not entitled to notice of such
hearing before the commission. The failure of the act to provide
for such notice does not constitute a denial of due process of law."
Zurn, 389 Ill. 114 at 129-32, 59 N.E.2d at 25-27.
¶ 51 As found in Lynn, Cavanagh, and Zurn, the underlying proceedings before the
Commission neither conferred property rights on ATXI nor deprived landowners of their
protected property interests. As a result, ACPO's members were not entitled to due process
during those proceedings and cannot assert a due process violation. Nevertheless, we note the
record belies ACPO's assertions that its members "effectively" received no notice and no
meaningful opportunity to participate in the underlying proceedings. In fact, ACPO's members
- 26 -
did receive notice of ATXI's petition for a certificate of public convenience and necessity and
intervened and fully participated in each step of the proceedings before the Commission. It
presented evidence, cross-examined witnesses, submitted posthearing briefs, and advocated for
an alternate route proposal, which it continues to assert is the superior routing option. Thus, we
find the record shows ACPO did meaningfully participate in the underlying proceedings and its
contention that its members' due process rights were violated is without merit.
¶ 52 2. Least-Cost Means
¶ 53 ACPO next contends ATXI failed to demonstrate before the Commission that the
Hybrid Route was the "least-cost means" for the Project. It argues the Commission's decision to
approve the Hybrid Route was against the manifest weight of the evidence.
¶ 54 For a public utility to obtain a certificate of public convenience and necessity
under the Utilities Act, its proposed project must be the "least-cost means" of satisfying its
customers' service needs. 220 ILCS 5/8-406.1(f)(1) (West 2010). The Utilities Act does not
define "least-cost" or articulate the manner in which "least-cost means" should be determined by
the Commission. However, in the context of the proceedings before it, the Commission found
that "[r]esolving the question of least-cost involve[d] a comprehensive consideration and
balancing of the overall costs and externalities of each proposed route against the benefits of
each proposed route." It determined "costs and externalities include[d] not only the financial
tally for manpower and equipment, but also the impact on local residents and resources and
present and future land uses."
¶ 55 The Commission also noted that in past certification proceedings, it had utilized
12 criteria for purposes of evaluating proposed routes, including (1) length of the line, (2)
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difficulty and cost of construction, (3) difficulty and cost of operation and maintenance, (4)
environmental impacts, (5) impacts on historical resources, (6) social and land use impacts, (7)
number of affected landowners and other stakeholders, (8) proximity to homes and other
structures, (9) proximity to existing and planned development, (10) community acceptance (11)
visual impact, and (12) presence of existing corridors. It stated its decision would result from
balancing the 12 criteria and any other relevant factors presented by the parties. Finally, the
Commission stated no factor for consideration was inherently more important than another
factor.
¶ 56 On review, ACPO does not challenge the Commission's method for determining
least-cost means. Instead, it contends the weight of the evidence favored its proposed
Alternative Route 1 over the Hybrid Route. ACPO points out that its Alternative Route 1 cost $9
million less to build and was shorter than the Hybrid Route. Further, it maintains Alternative
Route 1 used existing rights-of-way for 50% of the route and satisfied all of the intervenors.
Finally, ACPO challenges the Commission's factual findings as being based on speculation and
not supported by the evidence.
¶ 57 Here, we find the record contains evidence to support the Commission's factual
findings and we cannot say that an opposite conclusion from that reached by the Commission is
clearly evident. In reaching its decision, the Commission first concluded that there did not seem
to be much difference between the proposed routes with respect to most of the 12 factors. (We
note that, in its decision, the Commission sometimes referred to 11 criteria it considered rather
than the 12 criteria for consideration it initially set forth. However, the record reflects this
discrepancy is the result of the Commission combining factors 7 and 8, as set forth above, into a
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single factor.) Ultimately, however, it chose to approve the Hybrid Route favored by ATXI over
ACPO's Alternative Route 1. It found the Hybrid Route was cost-effective and would eliminate
the concerns of almost all intervening parties.
¶ 58 In finding that the Hybrid Route was the least-cost option, the Commission noted
its concern that "Alternat[ive] Route 1 would traverse an existing residential area near Interstate
172, potentially requiring the displacement of at least six assumed residences." It also
considered that "Alternat[ive] Route 1 would require approximately 40 additional acres of tree
removal." The Commission further addressed ACPO's characterization of its route as being on
"a partially acquired unoccupied corridor." It found no advantage in favor of ACPO's route on
that basis, noting that 50% of the corridor had not been acquired and existing easements were too
narrow to accommodate the transmission line at issue. Finally, the Commission noted ATXI's
position that ACPO's proposed route presented reliability, operational, and maintenance concerns
because it extensively paralleled an existing transmission line.
¶ 59 On appeal, ACPO claims there is no credible evidence in the record that its
proposed route would displace six residences. Before the Commission, ATXI witness Donell
Murphy, who assessed the environmental impacts of the Project, testified the Hybrid Route
would be located in close proximity to fewer existing residences than ACPO's Alternative Route
1. She asserted Alternative Route 1 had six residences within 75 feet of its centerline, which
would require displacement of those residences. As ACPO points out on appeal, Murphy
acknowledged on cross-examination that she could not attest to the accuracy of maps which
purported to show the location of proposed and existing transmission lines, nor could she verify
that buildings which appeared to be residences were actually occupied. However, on cross-
- 29 -
examination, Murphy also testified as follows:
"[W]ith reference to ACPO Route 1 which I believe [ACPO] stated
*** would potentially make use of the partially acquired
unoccupied corridor and recognizing where that corridor falls, it
does traverse existing residences. [The route] goes right over
existing residences."
While Murphy could not identify the precise location of the proposed transmission line on maps
submitted to the Commission, it appears undisputed that ACPO's recommended route traversed a
residential area and impacted more residences than the Hybrid Route. Given this evidence, we
cannot say the Commission's finding regarding the "possible displacement" of residences was
against the manifest weight of the evidence.
¶ 60 ACPO also argues the record contains "no evidence of the trees" the Commission
found would have to be removed if ACPO's Alternative Route 1 had been selected. It complains
that no evidence was introduced regarding the types of trees to be removed or that the removal of
40 acres of trees had any negative cost or environmental impact. Despite ACPO's contention of
"no evidence," the record contains support for the Commission's finding. In particular, it shows
Murphy—who the record reflects had "expertise *** in environmental impact assessments"—
testified that one reason the Alternative Route 1 did not present "a viable alternative for th[e]
project" was that it would "require more than 40 additional acres of tree removal." ACPO points
to no evidence refuting Murphy's testimony and we find it sufficient to support both the
Commission's factual finding and its determination that such evidence weighed against ACPO's
proposed route. An opposite conclusion from that of the Commission is not clearly evident.
- 30 -
¶ 61 ACPO further challenges the Commission's finding that Alternative Route 1's
asserted status as a "partially acquired corridor" provided no meaningful advantage over the
Hybrid Route. As stated, Alternative Route 1 paralleled an existing transmission line. Before
the Commission, ACPO maintained that some of the land needed to construct the new
transmission line along ACPO's proposed route had already been acquired by ATXI through
easements. It reasoned that constructing the new transmission line along a route where some of
the land had been acquired (Alternative Route 1) would cost less and be less burdensome to
property owners than constructing the transmission line along a route where none of the land had
yet been acquired (Hybrid Route). The Commission rejected ACPO's argument, stating as
follows:
"While ACPO characterizes the western part of its Alternat[ive]
Route 1 as a 'partially acquired unoccupied corridor,' the
Commission notes that ATXI contends that approximately 50% of
that corridor has not been acquired and any existing easements are
too narrow to accommodate an additional 345 kV transmission
line. Therefore, it does not appear to the Commission that this
corridor will offer any meaningful routing advantage over the
Hybrid Route."
¶ 62 Again, the Commission's findings are supported by the evidence. Murphy
testified that less than 50% of the corridor along Alternative Route 1 had been obtained by
easements. Additionally, she stated that ATXI's proposed transmission line required a right-of-
way of 150 feet and none of the easements that had been obtained were of that width. Although
- 31 -
not referenced by any party on appeal, ATXI witness Jeffrey Hackman, the Director of
Transmission Operations for Ameren Services Company, testified that, while overlapping rights-
of-way slightly reduced the amount of right-of-way that ATXI would need to purchase for the
Project, there were "not any existing rights-of-way with extra width for consideration for th[e]
Project." Thus, the evidence indicates that, even if Alternative Route 1 was the approved route
for the segment of the Project at issue, ATXI would still need to acquire significant amounts of
land to construct its transmission line. We cannot say the Commission's finding that Alternative
Route 1 offered no "meaningful routing advantage" over the Hybrid Route was against the
manifest weight of the evidence.
¶ 63 Finally, ACPO argues the Commission's finding that the use of parallel
transmission lines could present reliability concerns was against the manifest weight of the
evidence. ACPO points to testimony from ATXI witness Murphy that, when determining the
route for a transmission line, it was advantageous to utilize opportunities where there were
existing linear features, such as exiting transmission lines, property lines, and field lines. ACPO
also notes a Commission staff electrical engineer, Greg Rockrohr, testified that he had no
reliability concerns regarding two parallel transmission lines where they were located on
nonoverlapping rights-of-way.
¶ 64 Although ACPO cites evidence to support its position, the record also contains
evidence regarding the reliability concerns with parallel transmission lines noted by the
Commission. In particular, Hackman testified that with either overlapping or adjoining rights-of-
way for transmission lines, "the proximity of the circuits' structures to each other and the
likelihood of local weather and wind-blown debris and other objects is *** a concern." He
- 32 -
denied that paralleling transmission lines reduced the costs associated with ongoing maintenance
and repair, noting both lines might "have to be taken out of service in order to do maintenance."
Further, Hackman testified as follows:
"[I]t is undesirable to construct parallel transmission lines because,
unless there is sufficient separation between the lines, during
construction of the second line, the first line must be taken out of
service. Paralleling is undesirable from an operations perspective
for the similar reason that, while maintenance is being performed
on one line, the other may need to be taken out of service so that
large equipment can access the area. Having two lines down at
any given point risks the reliability of the transmission system at
large. Moreover, from a reliability perspective, common or
adjoining rights-of-way are susceptible to common-mode failures.
In other words, it increases the probability that, if one line fails, it
will cause the adjacent line to fail. Likewise, weather events,
either directly or from debris, can cause both lines to fail. For
these reasons paralleling existing transmission lines is generally
not preferred."
¶ 65 Finally, Hackman acknowledged that ATXI proposed parallel transmission lines
for the Project in "limited circumstances." However, he testified paralleling was not always the
best option and "the fact that ATXI has proposed paralleling in appropriate circumstances d[id]
not mean than [sic] every paralleling opportunity should be used." Hackman asserted that
- 33 -
whether to place a proposed transmission line next to an existing one should be based on several
factors, including reliability, cost of construction, cost of reinforcements required, impact on the
environment, and improvement to system performance. He opined that "[s]ince the Project
provide[d] local area reliability benefits," paralleling on the Project "should only be used in very
limited circumstances in order to mitigate risks of common-mode failures that could lead to
outages for customers." The record further reflects Murphy agreed with Hackman's testimony,
agreeing that parallel transmission lines were not the best option when other options were
available.
¶ 66 Here, the record contains evidence to support the Commission's finding with
respect to parallel line reliability. While the record may be said to contain conflicting evidence
on this point, it was the Commission's function to weigh the evidence and reach a determination.
An opposite conclusion from that of the Commission is not clearly evident.
¶ 67 As a final matter, ACPO contends the Commission failed to consider the negative
impact of the proposed transmission line on ACPO's members. Initially, we note "[t]he
Commission need not make a finding on each evidentiary fact or claim." Central Illinois Public
Service, 268 Ill. App. 3d at 480, 644 N.E.2d at 824. Further, although the record contained
evidence to support ACPO's proposed route, simply showing that evidence in the record could
support a different conclusion from that reached by the Commission is not a sufficient basis upon
which to overturn the Commission's decision. The Commission is entitled to great deference
with respect to its factual findings and it is not the function of this court on review to reweigh the
evidence. With respect to the Quincy-Meredosia segment of the Project challenged by ACPO on
appeal, the record contains sufficient evidence to support the Commission's decision and it was
- 34 -
not against the manifest weight of the evidence.
¶ 68 C. ECCDP—Appeal No. 4-13-0917
¶ 69 On appeal, ECCDP argues its members' due process rights were violated because
they failed to receive notice from the Commission that Stop Coalition, an intervening party in the
underlying proceedings, proposed an alternate route for the transmission line which would
directly affect the property rights of ECCDP's members. ECCDP also contends that the lack of a
clear notice requirement in section 8-406.1 of the Utilities Act renders the statute
unconstitutional.
¶ 70 1. Procedural Issues
¶ 71 Initially, we address two procedural issues presented by ECCDP's appeal. First,
the record fails to reflect that the denial of ECCDP's request to intervene is properly before this
court on review.
¶ 72 On October 2, 2013, the Commission's ALJs denied ECCDP's petition to
intervene. See 83 Ill. Adm. Code 200.200(c), amended at 24 Ill. Reg. 16019 (eff. Oct. 15, 2000)
("Petitions to intervene shall be granted or denied by the Hearing Examiner ***."). The
Commission's rules contain procedures for seeking review of an ALJ's ruling, which include the
filing of a petition for interlocutory review with the Commission within 21 days. 83 Ill. Adm.
Code 200.520(a), amended at 35 Ill. Reg. 6327 (eff. Apr. 1, 2011); see also 83 Ill. Adm. Code
200.200(c), amended at 24 Ill. Reg. 16019 (eff. Oct. 15, 2000) (providing that an ALJ's decision
regarding intervention is subject to the review procedures set forth in section 200.520 of the
Illinois Administrative Code). When reviewing an ALJ's decision, "the Commission may affirm
or reverse the ruling in whole or in part, and may take any other just and reasonable action with
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respect to the ruling, such as declining to act on an interlocutory basis." 83 Ill. Adm. Code
200.520(b), amended at 35 Ill. Reg. 6327 (eff. Apr. 1, 2011). When the Commission's action on
an ALJ's ruling involves the denial of a petition to intervene, the aggrieved party may then file a
petition to rehear or reconsider the Commission's action. 83 Ill. Adm. Code 200.520(b),
amended at 35 Ill. Reg. 6327 (eff. Apr. 1, 2011).
¶ 73 Additionally, pursuant to the Utilities Act, "[n]o appeal shall be allowed from any
rule, regulation, order or decision of the Commission unless and until an application for a
rehearing thereof shall first have been filed with and finally disposed of by the Commission."
220 ILCS 5/10-113(a) (West 2010). Finally, an appealing party is not permitted to "urge or rely
upon any grounds not set forth in such application for a rehearing before the Commission." 220
ILCS 5/10-113(a) (West 2010).
¶ 74 Here, the procedures set forth in the Commission's rules and the Utilities Act for
seeking review of Commission and ALJ decisions were not followed by ECCDP. The record
fails to reflect ECCDP ever sought review of the ALJs' decision to deny it leave to intervene or
that the Commission ever addressed and resolved that particular issue. Further, in its notice of
appeal, seeking administrative review with this court, ECCDP failed to challenge any order
related to the denial of its request for intervention. Instead, it identifies the Commission's August
20, 2013, order, and the Commission's denial of its motion to strike and for rehearing as the
orders from which its appeal was taken. Thus, the denial of ECCDP's petition to intervene is not
properly before this court on administrative review.
¶ 75 Second, the record shows that, while its request to intervene was pending,
ECCDP filed a motion to strike and application for rehearing (September 19, 2013) and, later, a
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motion to supplement its motion to strike and application for rehearing (October 1, 2013).
However, only a party to the underlying proceedings was entitled to apply for a rehearing. See
220 ILCS 5/10-113(a) (West 2010) ("Within 30 days after the service of any rule or regulation,
order or decision of the Commission any party to the action or proceeding may apply for a
rehearing in respect to any matter determined in said action or proceeding and specified in the
application for rehearing." (Emphasis added.)). At the time ECCDP filed its motion to strike and
application for rehearing (as well as its motion to supplement that filing), it was not a party to the
proceedings before the Commission as its petition to intervene was pending and had not been
granted. In fact, the ALJs ultimately denied ECCDP's petition to intervene and it never became
an actual party to the underlying proceedings. As a result, we question whether ECCDP's motion
to strike and application for rehearing were ever properly before the Commission.
¶ 76 Nevertheless, we note the Commission's rules provide that "[w]hile a petition for
leave to intervene is pending, the [ALJ], in his or her discretion, may permit the petitioner to
participate in the proceeding." 83 Ill. Adm. Code 200.200(b), amended at 24 Ill. Reg. 16019(eff. Oct. 15, 2000). Although our review of the record fails to reflect the ALJs ever expressly
permitted ECCDP to participate in the underlying proceedings, they did consider the filings
ECCDP submitted while its petition for leave to intervene was pending. Specifically, the record
shows the ALJs submitted a memorandum to the Commission and recommended denial of
ECCDP's September 19, 2013, filing, i.e., its motion to strike and application for rehearing. On
October 3, 2013, the Commission took the recommended action. Given this consideration of
ECCDP's filings by the ALJs and Commission, we find it appropriate to address the merits of its
appeal.
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¶ 77 2. Due Process Claims
¶ 78 As stated, ECCDP challenges the Commission's decision on the basis that its
members' due process rights were violated because of insufficient notice of the underlying
proceedings. Specifically, ECCDP complains that its members did not receive notice of an
alternate route proposed by an intervening party, which would directly affect land owned by
ECCDP's members.
¶ 79 On review, it appears undisputed that ATXI complied with the notice
requirements of section 8-406.1, which provide for notice by publication of both the public
meetings required under the expedited process and the public utility's application for a certificate.
220 ILCS 5/8-406.1(a)(3), (d) (West 2010). Further, the parties agree that, although not
mandated by the Utilities Act, the ALJs required all intervening parties to identify landowners
affected by proposed alternate routes for the purpose of giving those landowners notice of the
proceedings. ECCDP acknowledges that Stop Coalition complied with the ALJs' requirements;
however, they deny that the Commission actually followed through with the process set forth by
the ALJs by sending them notice of the proposed alternate route.
¶ 80 Although there is much conflict between the parties on appeal regarding whether
notice was actually mailed to ECCDP's members by the Commission, we find it unnecessary to
address this specific argument. As already discussed in relation to ACPO's appeal, relevant case
authority—Lynn, Cavanagh, and Zurn—demonstrates that the underlying proceedings before the
Commission neither conferred property rights on ATXI nor deprived landowners of their
protected property interests. In their reply brief, ECCDP asks this court to "recognize that a
proceeding under [s]ection 8-406.1 does implicate landowners' property rights in a significant
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way." However, they provide no authority upon which we may reject either this court's previous
decision in Lynn or the supreme court's decisions in Cavanagh and Zurn. The due process rights
of ECCDP's members were not violated.
¶ 81 D. MSSCLPG—Appeal No. 4-14-0218
¶ 82 On appeal, MSSCLPG argues the Commission erred in approving the Stipulated
Route (also referred to as the Rebuttal Recommended Route) supported by ATXI for the
Meredosia-Pawnee segment of the Project. It contends the 12 criteria used by the Commission to
evaluate least-cost means clearly favored the MSCLTF Route, which MSSCLPG recommended,
and the Commission's selection of the Stipulated Route over the MSCLTF Route was against the
manifest weight of the evidence.
¶ 83 1. Preservation of Issue for Appellate Review
¶ 84 On appeal, ATXI contends MSSCLPG failed to preserve the issue it raises for
appeal because it did not raise this specific contention in its application for rehearing.
¶ 85 As stated, the Utilities Act requires a party to file a petition for rehearing prior to
seeking appellate review of the Commission's decision. 220 ILCS 5/10-113(a) (West 2010). An
order of the Commission is final and appealable after one rehearing petition filed by a party has
been decided. Harrisonville Telephone Co. v. Illinois Commerce Comm'n, 212 Ill. 2d 237, 246-
47, 817 N.E.2d 479, 485 (2004). However, on review, a party may not "urge or rely upon any
grounds not set forth in [an] application for a rehearing before the Commission." 220 ILCS
5/10-113(a) (West 2010).
¶ 86 Here, MSSCLPG filed an application for rehearing following the Commission's
August 20, 2013, order. The Commission granted its request, considered additional evidence,
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and issued a new order. As ATXI claims, MSSCLPG's application for rehearing primarily
alleged it had insufficient time to present its claims and the record contained insufficient
evidence to reach a route determination with respect to the Meredosia-Pawnee segment of the
Project. However, MSSCLPG also asserted the Commission's decision was "contrary to the
provisions of [section] 8-406.1" and that the Commission authorized "construction of a route that
[was] not the 'least-cost means.' " We find this contention sufficiently similar to the arguments
raised by MSSCLPG on review and choose to address the merits of its appeal.
¶ 87 2. Weight of the Evidence
¶ 88 As discussed, MSSCLPG argues the manifest weight of the evidence favors the
route it desires over the route ultimately selected by the Commission. Although we recognize
the record contained evidence supporting the route MSSCLPG recommends, we cannot say the
Commission erred in selecting a different route. In particular, the record reflects the
Commission relied on appropriate considerations and its factual findings were supported by the
evidence.
¶ 89 Before the Commission can grant a certificate of public convenience and
necessity pursuant to section 8-406.1, certain criteria must be satisfied. In particular, the
Commission must find "[t]hat 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." (Emphasis added.) 220 ILCS 5/8-406.1(f)(1) (West 2010).
¶ 90 In its second order on rehearing, the Commission chose the Stipulated Route,
stating as follows:
"As the criteria are weighed, it is clear to the Commission
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that the deciding factor for this segment is balancing the cost of
each route against potential operational reliability. The
Commission is presented with one route [(the MSCLTF Route)]
which is clearly shorter, cheaper, and involves fewer landowners,
but possibly presents operational issues should a massive storm hit
the area where the parallel lines would exist. The Commission
also has a choice of a longer, more expensive route [(the Stipulated
Route)], which involves more landowners, but avoids the chance
of a large storm taking out two nearby transmission lines. In the
Commission's view, providing utility service at least cost is
important. Even more important is providing safe and reliable
service to utility customers. While the Commission does not make
this choice lightly, it appears that the more reasonable choice, and
the one supported by the law and the evidence, is to approve the
Stipulated Route supported by ATXI. The Commission finds the
testimony of ATXI witness Hackman to be particularly convincing
regarding potential operational difficulties associated with the
MSCLTF Route. The Commission finds that avoiding the
extensive paralleling associated with the MSCLTF Route is in the
best interests of customers and worth the incremental costs
associated with the Stipulated Route."
¶ 91 The Commission's comments show it followed the requirements set forth in
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section 8-406.1 and considered and balanced reliability concerns posed by the recommended
routes, as well as issues related to least-cost means. Further, we note that issues related to least-
cost do not necessarily exclude reliability considerations. Hackman testified that one factor
which should be considered when determining "least cost" is the "cost to customers of reliability
differences that are offered by route selection." Common sense suggests less reliable
transmission lines will likely involve increased costs associated with maintenance and repair.
The Commission's considerations in this instance were appropriate.
¶ 92 Additionally, in reaching its decision, the Commission relied on Hackman's
testimony, which supports its reliability concerns. On rehearing, Hackman testified regarding
AXTI's reasons for not supporting the MSCLTF Route, which paralleled an existing transmission
line. In part, he testified as follows:
"It is important to appreciate that when ATXI constructs parallel
transmission lines, it gives up reliability, operations, and
maintenance benefits, *** and it takes on reliability risks. Putting
transmission lines in close proximity is like putting all of your eggs
in one basket. It is easier for both lines to go out, or to be taken
out, when they are close together. And even in the most
compelling case, paralleling routes now may result in the need for
an additional circuit in the future that would not otherwise be
needed. Therefore, reliability, operations, maintenance, and even
security considerations weigh against paralleling transmission lines
when possible. And it is possible to avoid paralleling lines for the
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Meredosia-Pawnee portion of the Project."
¶ 93 On review, MSSCLPG complains that the Commission relied on Hackman's
testimony while disregarding conflicting evidence. We disagree that the Commission
disregarded any evidence. To the contrary, the record indicates the Commission carefully
weighed and considered the evidence presented. Although the record contains evidence that
conflicted with Hackman's testimony, it was the Commission's responsibility to weigh the
evidence and determine witness credibility. In this instance, the Commission found "Hackman
to be particularly convincing" and the record reflects no error in that determination.
¶ 94 Here, the Commission's decision as to the Meredosia-Pawnee segment of the
Project was supported by the record. An opposite conclusion from that of the Commission is not
clearly evident and its decision was not against the manifest weight of the evidence.
¶ 95 E. MCPO—Appeal No. 4-14-0249
¶ 96 On appeal, MCPO argues the Commission erred in choosing the location of the
Mt. Zion substation. Specifically, it contends the Commission neglected to consider the issue of
least-cost means when choosing Option #2 over Option #1.
¶ 97 First, to the extent MCPO claims that the Commission generally failed to consider
the issue of least-cost means, we disagree. Here, the record reflects the issue of least-cost means
was investigated and considered at length in the underlying proceedings. Although the
Commission may not have expressly set forth findings with respect to whether Option #2 was the
"least-cost means" when compared with Option #1, the lack of express findings does not mean
the Commission failed to consider appropriate factors. Central Illinois Public Service, 268 Ill.
App. 3d at 480, 644 N.E.2d at 824 ("The Commission need not make a finding on each
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evidentiary fact or claim."). Further, the record indicates the main source of contention between
the parties on rehearing was whether Option #2 or Option #3 was the more appropriate location.
Thus, it stands to reason that the Commission would primarily address those options in its
decision.
¶ 98 MCPO cites Citizens United, arguing the Commission commits error when it fails
to consider the issue of least cost. Although we do not disagree with this general proposition, as
discussed earlier in connection with ACPO's appeal, Citizens United is factually distinguishable
from the present case. Specifically, in Citizens United, 285 Ill. App. 3d at 92, 673 N.E.2d at
1166, Commission staff inexplicably failed to investigate or consider the issue of least-cost
means. The same cannot be said of Commission staff in the case at bar. As a result, Citizens
United does not warrant reversal of the Commission's decision.
¶ 99 Second, we find MCPO has forfeited any specific challenge to the Commission's
finding that Option #2 was the appropriate location for the Mt. Zion substation. Pursuant to
Illinois Supreme Court rules, an appellant's brief must contain a statement of facts with "facts
necessary to an understanding of the case, stated accurately and fairly without argument or
comment, and with appropriate reference to the pages of the record on appeal." Ill. S. Ct. R.
341(h)(6) (eff. Feb. 6, 2013). It must also contain an argument section with "the contentions of
the appellant and the reasons therefor, with citation of the authorities and the pages of the record
relied on." Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). The failure to comply with relevant
supreme court rules results in forfeiture of an argument on appeal. People v. Snow, 2012 IL App
(4th) 110415, ¶ 11, 964 N.E.2d 1139.
¶ 100 Here, MCPO argues Option #1 was preferable to Option #2 and the Commission's
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selection of Option #2 is not supported by the record. However, it provides no citations to
evidence in the record that would support its claims. MCPO's statement of facts contains only
two citations to the record—one to the Commission's decision on rehearing and a second to a
map submitted in the underlying proceedings—and the argument section of its brief contains no
citation to the record at all. Given that this was a complex case that involved multiple parties
and a record consisting of thousands of pages, MCPO's failure to properly cite to the record to
support its claims leaves us unable to properly address their merits. On appeal, MCPO has
forfeited the argument that the record failed to support the Commission's decision to choose
Option #2 as the location for the Mt. Zion substation.
¶ 101 III. CONCLUSION
¶ 102 For the reasons stated, we affirm the Commission's judgment.
¶ 103 Affirmed.
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