Gridliance Heartland LLC v. The Illinois Commerce Commission , 2023 IL App (5th) 230073-U ( 2023 )

NOTICE
2023 IL App (5th) 230073-UNOTICE
Decision filed 12/26/23. The
This order was filed under
text of this decision may be NO. 5-23-0073 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
________________________________________________________________________
GRIDLIANCE HEARTLAND LLC, ) Appeal from the
) Illinois Commerce
Petitioner-Appellant, ) Commission
)
)
v. )
)
THE ILLINOIS COMMERCE COMMISSION and ) No. 20-0263
AMEREN ILLINOIS COMPANY, d/b/a )
Ameren Illinois, )
)
Respondents-Appellees. )
________________________________________________________________________
JUSTICE CATES delivered the judgment of the court.
Justices Boie and McHaney concurred in the judgment.
ORDER
¶1 Held: The Illinois Commerce Commission properly found that GridLiance
Heartland LLC was a public utility, and res judicata did not apply. The
Illinois Commerce Commission’s interim order directing GridLiance to
seek a certificate of public convenience and necessity and by reopening the
proceeding after its determination was not in error.
¶2 The petitioner, GridLiance Heartland LLC (GridLiance), appeals directly from an
interim order of the Illinois Commerce Commission (Commission), dated November 17,
2022, and subsequent denial of rehearing, dated January 5, 2023. The Commission found
in its interim order that GridLiance met the definition of a public utility as defined in section
1
3-105 of the Illinois Public Utilities Act (220 ILCS 5/3-105 (West 2022)). Based on this
finding, the Commission directed GridLiance to apply for a certificate of public
convenience and necessity (CPCN) and the Commission reopened the proceeding. We
affirm the Commission’s order.
¶3 I. BACKGROUND
¶4 In August of 2018, GridLiance entered into a purchase agreement with Electric
Energy, Inc. (EEI) for transmission assets which consisted of two substations in Joppa,
Illinois, and six connecting 161 kilovolt transmission lines that extended into Kentucky.
The Illinois portion of the facilities were in Ameren Illinois Company d/b/a Ameren
Illinois’s (Ameren) authorized service territory and connected to Ameren’s electric
transmission and distribution facilities.
¶5 After entering into the purchase agreement and prior to acquiring the EEI facilities,
GridLiance petitioned the Commission in GridLiance Heartland LLC, Ill. Comm. Comm’n
No. 18-1617 (Oct. 12, 2018), for a certificate of public convenience and necessity (CPCN)
under section 8-406(a) of the Public Utilities Act. 220 ILCS 5/8-406(a) (West 2018). The
CPCN would authorize GridLiance to own, control, operate, and manage the EEI facilities
for public use, and to provide public utility electric transmission service over the facilities.
GridLiance had argued that it should qualify as a public utility because, unlike EEI,
GridLiance would offer non-discriminatory service on the EEI transmission facilities to
“eligible customers,” including entities that would supply power to “end users” in Illinois.
¶6 Ameren intervened in GridLiance, Ill. Comm. Comm’n No. 18-1617, and argued
that GridLiance was not a public utility or eligible for a CPCN. Ameren claimed that a
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determination could not be made on whether GridLiance was a public utility prior to the
acquisition of the EEI facilities. On September 6, 2019, GridLiance withdrew its petition.
The Commission subsequently dismissed GridLiance, Ill. Comm. Comm’n No. 18-1617
(Sept. 18, 2019) without determining whether GridLiance was a public utility under section
3-105 of the Public Utilities Act (220 ILCS 5/3-105 (West 2018)).
¶7 GridLiance and EEI had also petitioned the Federal Energy Regulatory Commission
(FERC) for approval of the GridLiance acquisition of the EEI facilities. FERC issued an
order on August 28, 2019, denying, without prejudice, GridLiance’s application. FERC
found that GridLiance and EEI failed to demonstrate that the acquisition was consistent
with the public interest because it would adversely impact customers’ rates. GridLiance
filed a subsequent application. On January 31, 2020, FERC conditionally approved
GridLiance’s acquisition of the EEI facilities subject to rate mitigation measures.
GridLiance accepted the conditions.
¶8 GridLiance acquired the facilities from EEI on February 29, 2020. GridLiance
transferred functional control of four transmission lines and associated facilities to the
Midcontinent Independent System Operator, Inc. (MISO), a non-profit, non-stock
corporation that was a Regional Transmission Organization (RTO).
¶9 MISO managed the region’s power grid which was approximately 65,000 miles of
interconnected high-voltage transmission line. MISO additionally operated an energy and
ancillary service market for approximately 200,000 megawatts of power generating
resources. GridLiance, as an owner of transmission assets, continued to own and maintain
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its assets while MISO coordinated the use of individual assets and offered transmission
services.
¶ 10 GridLiance’s assets were subject to MISO’s open access transmission tariff (MISO
Tariff) because of the transfer of GridLiance’s functional control to MISO. Illinois service
customers in a specified pricing zone paid the aggregate rate of the annual revenue
requirement for all transmission owners in the zone to recoup costs associated with owning
and operating transmission assets. Ameren and its customers pay approximately $6 million
in costs annually regarding GridLiance’s MISO assets.
¶ 11 After GridLiance acquired the facilities, Ameren filed a complaint with the
Commission against GridLiance, in Ameren Illinois Co. v. GridLiance Heartland LLC, Ill.
Comm. Comm’n No. 20-0263 (Mar. 9, 2020). Ameren alleged that GridLiance failed to
comply with multiple requirements under the Public Utilities Act (220 ILCS 5/1-101 et seq.
(West 2018)). Ameren’s claims included that GridLiance was in violation for not lawfully
operating as a public utility; transferring functional control of the EEI facilities to MISO
without Commission approval; not providing the least-cost service and plant to Illinois
customers; and for not possessing a CPCN.
¶ 12 On the same day that Ameren filed its complaint with the Commission, GridLiance
filed a verified petition for declaratory ruling in GridLiance Heartland LLC, Ill. Comm.
Comm’n No. 20-0264. GridLiance requested that the Commission determine whether it
qualified as an Illinois public utility under section 3-105 of the Public Utilities Act (220
ILCS 5/3-105 (West 2018)) based on its acquisition of the EEI facilities and the transfer of
their functional control to MISO.
4
¶ 13 Ameren filed a motion to intervene in GridLiance, Ill. Comm. Comm’n No. 20-
0264, and requested to consolidate the two pending matters. GridLiance then filed a motion
to suspend Ameren, Ill. Comm. Comm’n No. 20-0263, until a determination was made by
the Commission on whether GridLiance was a public utility. The Commission denied
Ameren’s request to consolidate and granted GridLiance’s motion to suspend.
¶ 14 GridLiance then filed a motion to dismiss Ameren’s complaint for want of
jurisdiction. GridLiance argued that the Commission did not have jurisdiction to consider
Ameren’s petition and GridLiance was not subject to the statutory obligations because
GridLiance was not a “public utility” under the Public Utilities Act (220 ILCS 5/3-105
(West 2018)). GridLiance claimed that it did not sell electricity to end-use customers in
Illinois nor did it offer transmission assets for public use in Illinois. GridLiance additionally
argued that res judicata applied where the circuit court previously determined that EEI’s
ownership and operation of the transmission assets did not make EEI a public utility. See
Electric Energy, Inc. v. Illinois Commerce Comm’n, No. 91-MR-175 (Cir. Ct. Sangamon
County, Aug. 28, 1991).
¶ 15 Electric Energy, Inc. found that EEI was formed in 1950 by investor-owned utilities
for the purpose of constructing, owning, and operating a steam-electric generating plant in
Joppa, Illinois. Electric Energy, Inc. v. Illinois Commerce Comm’n, No. 91-MR-175 (Cir.
Ct. Sangamon County, Aug. 28, 1991). At the time of the 1991 decision, Union Electric
Company, Kentucky Utilities Company, Illinois Power Company, and Central Illinois
Public Service Company had ownership shares in EEI. The Joppa plant only provided
power and energy to the Department of Energy Gaseous Diffusion Plant (DOE Plant) in
5
Paduch, Kentucky, the Tennessee Valley Authority, and to EEI’s sponsors for resale. Sales
by EEI were made pursuant to power supply contracts subject to FERC. EEI never sold
electricity at retail to utility consumers in Illinois or held itself out to provide electricity to
the general public in Illinois. The circuit court found that EEI was not a “public utility”
pursuant to section 3-105 of the Public Utilities Act because it did not offer electric service
to the public, or own or operate any plant, equipment or property for public use in Illinois.
Electric Energy, Inc. v. Illinois Commerce Comm’n, No. 91-MR-175 (Cir. Ct. Sangamon
County, Aug. 28, 1991).
¶ 16 GridLiance’s motion to dismiss additionally referred to a September 8, 2016,
Commission decision. The Commission found that EEI’s ownership and use of the
transmission assets did not render EEI a “public utility” under the Public Utilities Act and
cancelled EEI’s CPCN. Ill. Comm. Comm’n, On Its Own Motion No. 16-0429 (Sept. 8,
2016). GridLiance noted in its motion that the only change that it had made after acquiring
the transmission assets from EEI was its transfer of four transmission lines and the
associated facilities to MISO’s functional control.
¶ 17 The administrative law judge denied GridLiance’s motion to dismiss and found that
MISO controlled GridLiance’s transmission assets, and all eligible customers would be
able to access the power flowing through the transmission assets pursuant to the MISO
Tariff. Further, assets under MISO’s control would be used to provide utility service to the
public in Illinois, and GridLiance met the definition of a public utility under section 3-105
of the Public Utilities Act. 220 ILCS 5/3-105 (West 2018). The administrative law judge
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additionally found that the statutory definition did not require that the transmission assets
be used to serve end users.
¶ 18 On August 31, 2021, direct testimony was filed by GridLiance and Ameren. Noman
Williams is senior director of operations for GridLiance and director of operations for
GridLiance Holdco, LLC. Williams testified that GridLiance previously had “advanced the
theory that it should be eligible to serve as a public utility in Illinois.” Williams explained
that the purpose of his testimony was to provide factual support that GridLiance was not
operating as a public utility within Illinois.
¶ 19 According to Williams, EEI was a wholesale supplier and did not provide electric
service to end users. GridLiance’s operation was substantially the same as EEI, and EEI
was not a public utility. GridLiance delivered wholesale electricity on behalf of third
parties. GridLiance’s transfer of functional control of four of the six transmissions lines to
MISO was the only change that GridLiance made when compared to EEI’s operation.
Williams did not believe that GridLiance was a public utility where its rights were identical
to EEI and where GridLiance did not provide service to end users or the public.
¶ 20 Erin Murphy, the director of development for GridLiance, additionally provided
direct testimony. Murphy testified that GridLiance offered its transmission assets to MISO
and MISO used those assets to serve eligible customers. If the transmission assets were
used to provide a service to the Illinois public, MISO would provide the service, not
GridLiance. Murphy testified that GridLiance did not meet the definition of a public utility
because “it does not provide unbundled transmission service to end-user customers in
Illinois.”
7
¶ 21 Jeffrey Hackman, P.E., a senior director for Ameren, testified that Ameren provided
electric transmission and distribution services in and around Joppa, Illinois. GridLiance’s
assets are connected to Ameren’s electric transmission and distribution facilities in Joppa,
Illinois. Hackman testified that “GridLiance does not own or intend to own its assets for
private use.” GridLiance transferred functional control of the assets acquired from EEI to
MISO. MISO’s purpose was to manage a portion of the interstate power grid for the benefit
of the public. Under MISO’s functional control, MISO provided nondiscriminatory open
access to transmission facilities. The MISO Tariff established the terms and conditions for
all eligible customers, and MISO must make transmission service available to any eligible
customer. Hackman provided the definition of eligible customer as defined by the MISO
Tariff as:
“(i) Any electric utility (including the Transmission Owner(s), ITC
Participants(s), and any power marketer), Market Participant, Federal Power
Marketing Agency, or any person generating electric Energy for sale or for
resale is an Eligible Customer under this Tariff. Electric Energy sold or
produced by such entity may be electric Energy produced in the United
States, Canada or Mexico. However, with respect to transmission service that
the Commission is prohibited from ordering by § 212(h) of the Federal
Power Act, such entity is eligible only if the service is provided pursuant to
a state requirement that a Transmission Owner or ITC Participant offer the
unbundled transmission service, or pursuant to a voluntary offer of such
service by a Transmission Owner or ITC Participant; or (ii) Any retail
customer taking unbundled transmission service pursuant to a state
requirement that a Transmission Owner or ITC Participant offer the
transmission service, or pursuant to a voluntary offer of such service by a
Transmission Owner or ITC Participant, that is an Eligible Customer under
this Tariff. Unbundled retail customers that seek to take local distribution
service cannot be Eligible Customers under this Tariff with respect to that
service.”
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Hackman testified that in general, an “eligible customer” was “any credit-worthy entity
may take transmission service.” Ameren was an “eligible customer.” Ameren and its
customers paid for GridLiance’s MISO assets. Hackman additionally testified that FERC
and GridLiance identified GridLiance as a public utility for federal purposes.
¶ 22 The rebuttal testimony of Williams and Hackman was filed on September 21, 2021.
Williams testified that Hackman’s position would render any entity that moved electric
power, from a generator to a distributor of electricity, a public utility. Williams believed
that GridLiance was not a public utility in Illinois because “the material facts are the same
or substantially the same as when EEI operated the Transmission Assets at issue.”
¶ 23 Hackman, in his rebuttal testimony, explained that end-use customers were not
municipal wholesale customers or utility companies, they were individuals who used
energy directly. End-use customers generally did not take service directly from
transmission assets. There, however, was a link between the transmission of electricity and
end-use customers. The energy flowing into MISO over the transmission assets was likely
used in Illinois. He additionally testified that there was a difference between how EEI
operated and how GridLiance’s transmission assets were operated. EEI did not offer
transmission services. GridLiance, on the other hand, separated the Joppa generation from
the transmission lines and transferred four of the lines to MISO. “The transfer renders the
lines available as part of the broader transmission grid to move electricity within MISO’s
footprint, in an open access and nondiscriminatory manner” for public consumption.
¶ 24 On December 7, 2021, the Commission filed the rebuttal testimony of Eric
Lounsberry, the director of the Safey and Reliability Division for the Commission.
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Lounsberry testified that in 1991 EEI operated as a private utility. EEI’s primary purpose
was to transmit electricity from the Joppa generating plant to the DOE Plant, which closed.
EEI was planning to retire the Joppa power plant and the transmission lines were the only
remaining assets.
¶ 25 Lounsberry testified the purpose of a transmission line was to transport power.
Transmission lines typically do not serve individual customers, apart from large customers,
such as the DOE Plant served by EEI’s transmission lines. Lounsberry explained that if a
determination was made that transmission lines under the functional control of a RTO were
not for public use, then the Commission may not have authority over any transmission lines
in Illinois. Lounsberry testified that the transmission lines under GridLiance’s ownership
were for public use and recommended that GridLiance seek a CPCN.
¶ 26 Surrebuttal testimony of Hackman and Williams were submitted on January 28,
2022. Both addressed the rebuttal testimony of Lounsberry. Hackman testified that Ameren
was concerned about the lawful ownership and operation of the GridLiance transmission
assets that were interconnected with Ameren’s public utility facilities and costs to Ameren
and other Illinois customers.
¶ 27 Williams testified that placing GridLiance’s transmission assets under MISO
operational control did not change the type of service or eligible customers along the lines
and jurisdictional status of the lines should not change by changing the transmission
operator from EEI to MISO. Williams testified that the DOE Plant ceased activities in
2013, three years prior to the Commission’s 2016 ruling that EEI was not an Illinois public
utility. Williams disagreed with Lounsberry’s position that the MISO Tariff would render
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GridLiance a public utility where EEI had operated the same transmission assets under a
FERC approved open access transmission tariff, which served the same function as the
MISO Tariff.
¶ 28 On February 15, 2022, the surrebuttal testimony of Lounsberry was filed.
Lounsberry’s position remained the same and he recommended that the Commission direct
GridLiance to seek a CPCN.
¶ 29 Hackman provided additional surrebuttal testimony on February 15, 2022, in
response to GridLiance’s witness, Williams. Hackman testified that the Commission was
not bound by the 2016 order. Hackman testified that GridLiance’s transmission assets were
subject to the MISO Tariff and Illinois customers in MISO’s Ameren zone pay for those
transmission assets. Hackman additionally testified that EEI “expressly disavowed any
intent to serve the public.” On the other hand, GridLiance’s “business purpose is to
optimize the transmission grid for the public use and benefit.”
¶ 30 The evidentiary hearing was held on March 1, 2022, to address the issue of whether
GridLiance was a public utility and subject to the jurisdiction of the Commission. The
parties offered the prefiled testimony and exhibits as evidence without objection and agreed
on a deadline to submit briefs.
¶ 31 Ameren argued in its brief that GridLiance met the definition of a public utility
under section 3-105 of the Public Utilities Act (220 ILCS 5/3-105 (West 2020)).
GridLiance owned two substations and six connecting transmission lines which are used
for the transmission of electricity in Illinois. GridLiance transferred functional control of a
portion of the assets to MISO which cannot be for private use, GridLiance holds itself out
11
to provide a public service, and has not claimed that its assets are for private use.
Additionally, the Illinois public pays for GridLiance’s MISO assets.
¶ 32 Ameren additionally argued that res judicata does not apply because the operative
facts have changed since the entry of the 30-year-old decision that found EEI not to be a
public utility. EEI’s customers were the DOE Plant, the Tennessee Valley Authority, and
EEI’s sponsors. GridLiance’s transmission assets, in comparison, are controlled by MISO
and subject to the MISO Tariff. Additionally, the issue of whether MISO’s functional
control of transmission assets in Illinois renders the assets’ owner a public utility was an
issue of first impression in Illinois; therefore, res judicata could not apply. Ameren also
asserted that res judicata does not apply to Commission orders, including the 2016
Commission decision finding that EEI was not a public utility.
¶ 33 GridLiance argued in its brief that it was not a public utility because it did not sell
electricity or other utility products in Illinois and its transmission assets were not for public
use. GridLiance argued that MISO functioned as a wholesale transmission cooperative and
MISO’s activities are limited and not open to the public.
¶ 34 GridLiance additionally argued that res judicata bars Ameren’s claims where the
Commission was bound by Electric Energy, Inc. v. Commerce Comm’n, No. 91-MR-175
(Cir. Ct. Sangamon County, Aug. 27, 1991), which found that ownership of the
transmission assets did not render the owner a public utility. GridLiance, like EEI, did not
provide electric service to end-use customers in Illinois. Res Judicata applied where the
decision was final, the Commission and Ameren were parties or privies to the Electric
12
Energy, Inc. decision, and the decision arose from the same transaction—the ownership of
the transmission assets.
¶ 35 The Commission entered an interim order on November 17, 2023, to resolve the
issue of whether GridLiance was a public utility and subject to the Public Utilities Act. The
Commission found that GridLiance was a public utility where it owns assets in Illinois that
were used to offer transmission service to the public. GridLiance was directed to seek a
CPCN within 60 days of the interim order and the pending proceeding was reopened.
GridLiance filed a motion to stay the proceeding pending resolution of GridLiance’s filing
of a CPCN; and it filed an application for rehearing. The administrative law judge
submitted a recommendation that the Commission deny the application for rehearing. The
Commission subsequently denied GridLiance’s application for rehearing on January 5,
2023. GridLiance filed a petition for review on February 9, 2023.
¶ 36 II. ANALYSIS
¶ 37 On appeal, GridLiance argues the Commission erred in determining that GridLiance
was a public utility, and erred in its determination that res judicata did not apply.
GridLiance additionally argues that the Commission erred by requiring that GridLiance
seek a CPCN, and by reopening the underlying proceeding to address Ameren’s remaining
claims.
¶ 38 A. Public Utility Determination
¶ 39 Under the Public Utilities Act,
“[t]he findings and conclusions of the Commission on questions of fact shall
be held prima facie to be true and as found by the Commission; rules,
regulations, orders or decisions of the Commission shall be held to be prima
13
facie reasonable, and the burden of proof upon all issues raised by the appeal
shall be upon the person or corporation appealing from such rules,
regulations, orders or decisions.” 220 ILCS 5/10-201(d) (West 2022).
A Commission order shall be reversed, in whole or in part, if: (1) the order’s findings are
not supported by substantial evidence based on the entire record before the Commission;
(2) the order is without the Commission’s jurisdiction; (3) the order violates State or
federal law; or (4) if the proceedings or manner in which the order was decided violated
State or federal law to the prejudice of appellants. 220 ILCS 5/10-201(e)(iv)(A)-(D) (West
2022). The interpretation of a statute by the Commission is reviewed de novo. Illinois
Landowners Alliance, NFP v. Illinois Commerce Comm’n, 2016 IL App (3d) 150099, ¶ 35.
¶ 40 The Commission has general supervision of all public utilities. 220 ILCS 5/4-101
(West 2022). “Entities that are not public utilities are generally not subject to regulation
under the Public Utilities Act or to supervision and control by the Commission.” Illinois
Landowners Alliance, NFP v. Illinois Commerce Comm’n, 2017 IL 121302, ¶ 32.
¶ 41 GridLiance argues that it cannot be a “public utility” because it does not provide
direct utility services to end-use customers. We note that in GridLiance, Ill. Comm.
Comm’n No. 18-1617, GridLiance took the position that it was in the process of acquiring
transmission assets to be used for public use. Although the request was withdrawn,
GridLiance previously did not dispute that it was formed for the purpose of providing
services for the public. GridLiance now interprets “public” to mean retail consumers of
electricity, natural gas, or water. We disagree.
¶ 42 Section 3-105(a) defines “public utility” to mean and include:
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“every corporation, company, limited liability company, association, joint
stock company or association, firm, partnership or individual, their lessees,
trustees, or receivers appointed by any court whatsoever that owns, controls,
operates or manages, within this State, directly or indirectly, for public use,
any plant, equipment or property used or to be used for or in connection with,
or owns or controls any franchise, license, permit or right to engage in:
(1) the production, storage, transmission, sale, delivery or
furnishing of heat, cold, power, electricity, water, or light, except
when used solely for communications purposes[.]” 220 ILCS 5/3-
105(a) (West 2022).
¶ 43 When interpreting a statute, the court’s primary objective is to ascertain and give
effect to the intent of the legislature, and the most reliable indicator of legislative intent is
the language of the statute itself, which must be given its plain and ordinary meaning.
People ex rel. Madigan v. Wildermuth, 2017 IL 120763, ¶ 17. “Words and phrases should
not be construed in isolation but must be interpreted in light of other relevant provisions of
the statute.” Wildermuth, 2017 IL 120763, ¶ 17.
¶ 44 Section 3-105 defines “public utility” to include companies that own property used
or to be used for or in connection with “the production, storage, transmission, sale, delivery
or furnishing of *** electricity.” 220 ILCS 5/3-105(a) (West 2022). The plain language of
section 3-105 does not restrict public utility status to entities that directly serve retail or
end-use customers. The public use test is not whether a company owns assets dedicated to
serving retail or end-use customers. The public use test is whether the company’s assets
are used for or in connection with the provision of a utility to the public. An owner of
transmission assets in Illinois may be considered a public utility under the Public Utilities
Act based on the transmission of electricity.
15
¶ 45 There are two requirements for attaining public utility status: (1) a company must
own, control, operate, or manage, a plant, equipment, or property used or to be used for the
production, transmission, sale, of utilities, directly or indirectly, within the State; and (2) it
must offer those assets for public use. Illinois Landowners Alliance, 2017 IL 121302, ¶ 39.
¶ 46 GridLiance owns two substations in Joppa, Illinois, and six connecting 161 kilovolt
transmission lines. GridLiance meets the first prong of the public utility test as it owns
transmission assets in Illinois used for or in connection with the transmission of electricity.
¶ 47 We turn to the question of whether GridLiance’s Illinois transmission assets are for
public use. “The term ‘public utility’ implies a public use, carrying with it the duty to serve
the public and treat all persons alike, without discrimination, and it precludes the idea of
service which is private in its nature, whether for the benefit and advantage of a few or of
many.” State Public Utilities Comm’n v. Bethany Mutual Telephone Ass’n, 270 Ill. 183,
186 (1915). The benefits do not need to be received by the whole public to make it a public
use, but all persons must have an equal right to the use, and such use must not be confined
to specific privileged persons. State Public Utilities Comm’n v. Okaw Valley Mutual
Telephone Ass’n, 282 Ill. 336, 341 (1918).
¶ 48 GridLiance argues that the Commission’s interim order is contrary to established
Illinois precedent where the issue of whether an RTO’s control over certain transmission
assets rendered the assets’ owner a public utility has already been determined. GridLiance
relies on Illinois Landowners Alliance, NFP, 2016 IL App (3d) 150099, which held that a
proposed transmission line was not for public use although 75% of the project’s capacity
would be distributed by the PJM Interconnection to members of its multistate transmission
16
organization. Illinois Landowners Alliance, 2016 IL App (3d) 150099, ¶ 46. However, in
Illinois Landowners Alliance, 75% of the project’s capacity would be sold to generators in
the resource area of Iowa, South Dakota, Nebraska, and Minnesota. Illinois Landowners
Alliance, 2016 IL App (3d) 150099, ¶ 46. The remaining 25% would be sold through an
open season bidding project. Illinois Landowners Alliance, 2016 IL App (3d) 150099, ¶ 46.
There was no way to know if an Illinois generator would submit a successful bid, and the
project had not designated any part of the energy transmitted for public use in Illinois.
Illinois Landowners Alliance, 2016 IL App (3d) 150099, ¶ 46.
¶ 49 In Mississippi River Fuel Corp. v. Illinois Commerce Comm’n, a natural gas
company sold gas to 23 industrial customers in Illinois. Mississippi River Fuel Corp. v.
Illinois Commerce Comm’n, 1 Ill. 2d 509, 519 (1953). The Illinois Supreme Court
determined that Mississippi River Fuel was not a public utility where it never intended to
assume the status of a public utility and had not established uniform rates. Mississippi River
Fuel Corp., 1 Ill. 2d at 515-16. Similarly, a water supply and distribution facility was not
considered a public utility where it allowed 16 entities to connect and provided services at
varied rates because it did not furnish water without discrimination and without delay.
Highland Dairy Farms Co. v. Helvetia Milk Condensing Co., 308 Ill. 294, 297-98, 301
(1923).
¶ 50 In comparison, in Iowa RCO Ass’n v. Illinois Commerce Comm’n, a pipeline
company was found to be a public utility company where it sought to construct and operate
a 200-mile-long pipeline from Illinois to Minnesota. Iowa RCO Ass’n v. Illinois Commerce
Comm’n, 86 Ill. App. 3d 1116, 1117 (1980). The company was required under federal law
17
to offer nondiscriminatory services to its nonaffiliated users and, therefore, estopped from
denying that it was required to provide nondiscriminatory service under the Public Utilities
Act. Iowa RCO Ass’n, 86 Ill. App. 3d at 1119.
¶ 51 GridLiance directly owns assets in Illinois and MISO offers, under
nondiscriminatory terms, usage pursuant to its MISO Tariff for the transmission of
electricity to customers in Illinois. GridLiance has not held itself out to be a private
company. FERC and GridLiance identified GridLiance as a public utility for federal
purposes. Unlike Mississippi River Fuel and Highland Dairy Farms, GridLiance cannot
choose who may take service over GridLiance’s assets, or change rates, terms, and
conditions. GridLiance is required to offer nondiscriminatory services to eligible customers
in Illinois. Any customer that meets the definition of “eligible customer” receives services
on the same terms, conditions, and rates. GridLiance meets both prongs and is a public
utility under the Public Utilities Act.
¶ 52 B. Res Judicata
¶ 53 GridLiance argues that the prior owner of its transmission assets, EEI, was not found
to be a public utility. See Electric Energy, Inc. v. Illinois Commerce Comm’n, No. 91-MR-
175 (Cir. Ct. Sangamon County, Aug. 28, 1991). GridLiance claims that relitigating this
issue is barred by res judicata.
¶ 54 “Under the doctrine of res judicata, a final judgment on the merits rendered by a
court of competent jurisdiction acts as a bar to a subsequent suit between the parties
involving the same cause of action.” River Park, Inc. v. City of Highland Park, 184 Ill. 2d
290, 302 (1998). The issue of whether res judicata applies is an issue of law and reviewed
18
de novo. Arvia v. Madigan, 209 Ill. 2d 520, 526 (2004). Res judicata does not apply to
subsequent Commission decisions. Commonwealth Edison Co. v. Illinois Commerce
Comm’n, 405 Ill. App. 3d 389, 407 (2010). The Commission has the power to freely
address each situation regardless of whether the prior decision by the Commission was the
same or similar. Commonwealth Edison Co., 405 Ill. App. 3d at 407-08.
¶ 55 “Res judicata bars a subsequent action when three criteria are met: (1) there was a
final judgment on the merits rendered by a court of competent jurisdiction, (2) there is an
identity of cause of action, and (3) there is an identity of parties or their privies.” Downing
v. Chicago Transit Authority, 162 Ill. 2d 70, 73-74 (1994). Matters that could have been
decided in that suit, as well as what was decided in the first action, are barred by
res judicata. River Park, Inc., 184 Ill. 2d at 302.
¶ 56 We first consider whether there was an identity of a cause of action. A transactional
test is used to determine whether there is an identity of cause of action. Village of
Bartonville v. Lopez, 2017 IL 120643, ¶ 50. “Under the transactional test, the assertion of
different theories or kinds of relief still constitute a single cause of action if a single group
of operative facts gives rise to the assertion of relief.” Village of Bartonville, 2017 IL
120643, ¶ 50. “If the same facts are essential to the maintenance of both proceedings or the
same evidence is needed to sustain both, then there is identity between the allegedly
different causes of action asserted and res judicata bars the latter action.” (Internal
quotation marks omitted.) Wilson v. Edward Hospital, 2012 IL 112898, ¶ 10.
¶ 57 The circuit court found in the Electric Energy, Inc. decision that EEI’s transmission
facilities were used solely to transmit power from the Joppa plant to the DOE Plant and to
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the Tennessee Valley Authority at the interconnection point at the DOE Plant, and to
transmit power for EEI’s sponsors. EEI’s sponsors paid costs associated with the
transmission assets.
¶ 58 After GridLiance acquired the transmission assets from EEI, it transferred
functional control to MISO. GridLiance does not solely transmit power from the Joppa
plant to the DOE Plant. According to Hackman’s testimony, “the transfer renders the lines
available as part of the broader transmission grid to move electricity within MISO’s
footprint, in an open access and nondiscriminatory manner” for public consumption.
Because GridLiance transferred functional control of transmission lines and associate
facilities to MISO’s functional control, there has been a material change in relevant facts
and res judicata does not apply.
¶ 59 Moreover, GridLiance has not established that Ameren was a party or their privies
in Electric Energy, Inc. v. Illinois Commerce Comm’n, No. 91-MR-175 (Cir. Ct. Sangamon
County, Aug. 28, 1991). Privity exists between “parties who adequately represent the same
legal interests.” (Internal quotation marks omitted.) People ex rel. Burris v. Progressive
Land Developers, Inc., 151 Ill. 2d 285, 296 (1992). The nominal identity of the parties
does not determine privity; it is the identity of interest that controls the determination.
Progressive Land Developers, Inc., 151 Ill. 2d at 296.
¶ 60 The Electric Energy, Inc. decision described EEI as investor owned. In 1991, Union
Electric Company, Kentucky Utilities Company, Illinois Power Company, and Central
Illinois Public Service Company had ownership shares in EEI. GridLiance argues that
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Ameren was effectively the plaintiff in Electric Energy, Inc. because three Ameren
predecessors owned 80% of EEI at the time of the 1991 decision.
¶ 61 Ameren claims that it now has an interest in the costs that it and its customers pay
after GridLiance acquired transmission assets and transferred functional control to MISO.
Ameren’s Illinois customers pay approximately $6 million a year for the maintenance and
upgrades of the transmission assets. At the time of the 1991 Electric Energy, Inc. decision,
Ameren, its customers, and other members of the public were not required to pay for the
maintenance of the transmission assets. GridLiance has not shown that privity existed
between Ameren and EEI where the interests of Ameren in this matter are not identical to
the prior decision. Res judicata does not apply to the determination of whether GridLiance
is a public utility.
¶ 62 The Commission did not err in its finding that GridLiance was a public utility.
GridLiance is therefore subject to regulation under the Public Utilities Act and control by
the Commission. The Commission, therefore, had the authority to order GridLiance to seek
a CPCN and to reopen the proceeding to address the remaining allegations of Ameren’s
complaint.
¶ 63 III. CONCLUSION
¶ 64 For the foregoing reasons, we affirm the interim order of the Illinois Commerce
Commission.
¶ 65 Affirmed.
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