Save Our Illinois Land v. Illinois Commerce Comm'n

FILED
2022 IL App (4th) 210008 January 12, 2022
Carla Bender
NO. 4-21-0008 4th District Appellate
Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
SAVE OUR ILLINOIS LAND, SIERRA CLUB, ) Appeal from an Order of the
NATURAL RESOURCES DEFENSE COUNCIL, and ) Illinois Commerce Commission
WILLIAM KLINGELE, )
Plaintiffs-Appellants, )
v. )
THE ILLINOIS COMMERCE COMMISSION; ) Docket No. 19-0673
DAKOTA ACCESS, LLC; ENERGY TRANSFER )
CRUDE OIL COMPANY, LLC; INTERNATIONAL )
)
BROTHERHOOD OF ELECTRICAL WORKERS,
)
LOCAL 702; LABORERS’ INTERNATIONAL )
UNION OF NORTH AMERICA; SOUTHWESTERN )
ILLINOIS LABORERS’ DISTRICT COUNCIL; )
GREAT PLAINS LABORERS’ DISTRICT )
COUNCIL; and SOUTHERN AND CENTRAL )
ILLINOIS LABORERS’ DISTRICT COUNCIL AND )
)
ITS AFFILIATED LOCAL UNIONS 231, 622, 773,
)
AND 1197, )
Defendants-Appellees. )
JUSTICE CAVANAGH delivered the judgment of the court, with opinion.
Justices Harris and Steigmann concurred in the judgment and opinion.
OPINION
¶1 Dakota Access, LLC (Dakota Access), and Energy Transfer Crude Oil Company,
LLC (Energy Transfer), which, collectively, we will call “the carriers,” own a crude-oil pipeline
that runs hundreds of miles through Illinois, from the northwest to the south. Dakota Access owns
the pipeline from Hamilton, Illinois, to Patoka, Illinois, and Energy Transfer owns the rest of the
pipeline, from Patoka to Joppa, Illinois. The carriers petitioned the Illinois Commerce Commission
(Commission) for permission to add more pumping stations to this Illinois pipeline.
¶2 In the administrative proceeding on the carriers’ petition, two groups intervened.
One group opposed the petition: Save Our Illinois Land, Sierra Club, Natural Resources Defense
Council (Natural Resources), and William Klingele. We will call this group “the objectors.” The
second group of intervenors advocated for the carriers’ petition: International Brotherhood of
Electrical Workers, Local 702; Laborers’ International Union of North America; Southwestern
Illinois Laborers’ District Council; Great Plains Laborers’ District Council; and Southern and
Central Illinois Laborers’ District Council and its affiliated Local Unions 231, 622, 773, and 1197.
We will call them collectively, “the unions.”
¶3 After hearing evidence, the Commission granted the carriers’ petition to construct
the additional pumping stations. The objectors petitioned for a rehearing, and the Commission
denied their petition. Now the objectors appeal to the appellate court. In their appeal, they make
seven arguments.
¶4 First, the objectors contend that the Commission erred by failing to apply section
15-401 of the Public Utilities Act (Act) (220 ILCS 5/15-401 (West 2020)) to the petition to
construct the pumping stations. To the extent, however, that section 15-401(a) (id. § 15-401(a))
was applicable, it was satisfied. The carriers already possessed the certificates in good standing
that section 15-401(a) required. Contrary to the objectors’ contention, the carriers did not have to
obtain new or amended certificates in good standing in order to install additional pumping stations
on their completed pipelines. Section 15-401 says nothing about obtaining new or amended
certificates in good standing.
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¶5 Second, the objectors complain that the Commission’s decision fails to provide
sufficient factual findings and reasons to make possible an informed judicial review. We find the
Commission’s single-spaced 80-page decision to be adequate to that purpose.
¶6 Third, the objectors claim that, in its assessment of the public need for the proposed
pumping stations (see id. § 8-503), the Commission misapplied case law and failed to consider
substantial evidence that militated against a finding of public need. The objectors argue, and we
agree, that the Commission misinterpreted a prior decision of ours as equating the “public” with
the world. Under section 8-503, the Commission must consider the public need for the proposed
improvement, but the “public,” in the broadest sense of that word, is the United States, not the
world. We are unconvinced by the objectors’ argument, however, that the Commission failed to
consider the evidence adduced against the claim of public need. Just because the Commission did
not give the opposing evidence the weight that the objectors believe it deserved, it does not follow
that the Commission failed to consider the evidence.
¶7 Fourth, the objectors contend that the Commission erred by regarding itself as
federally preempted from addressing the risk of greater leakage posed by nearly doubling the
throughput of the pipeline. In its decision, the Commission recounted evidence that the carriers’
leak-detection system could not readily detect leaks of less than 1% of throughput flowing past a
given point per hour. But then, at the conclusion of the part of its decision in which the Commission
discussed the leak-detection system, the Commission announced that it would “not rule on this
issue” because (1) “the safety regulation of petroleum pipelines” was “within the jurisdiction of
[Pipeline and Hazardous Materials Safety Administration]” and (2) “inconsistent state
requirements [were] specifically preempted.” The Pipeline Safety Improvement Act of 2002 does
indeed forbid “[a] State authority [to] adopt or continue in force safety standards for interstate
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pipeline facilities or interstate pipeline transportation.” 49 U.S.C. § 60104(c) (2018). If the
Commission had denied permission to construct the proposed pumping stations and if the
Commission had cited, as the reason for the denial, the inability of the leak-detection system to
readily detect leaks of less than 1% of throughput, the Commission thereby would have adopted a
safety standard for this interstate pipeline. The Commission is correct that it is federally preempted
from doing so. See id.¶8 Fifth, the objectors criticize the Commission for ignoring evidence of
discrimination by the carriers in their treatment of shippers (that is, users of their pipeline).
According to the objectors, some of the transportation shipping agreements, or contracts for
transportation of crude oil through the pipeline, have provisions illegally favoring some shippers
over other shippers. Because of these discriminatory provisions, the objectors argue, the
agreements are void and unenforceable as violative of state and federal law, and the increased
throughput that the void agreements purport to require really is unrequired. If the transportation
shipping agreements are void, the reasoning runs, the need for additional pumping stations to fulfill
the agreements is illusory. A weakness of this reasoning is that the invalidity of the agreements as
a whole does not automatically follow from the invalidity of some of their provisions. The
objectors do not show, nor do they even argue, that the contractual provisions in question are
essential and inseverable.
¶9 Sixth, the objectors accuse the Commission of “arbitrarily and capriciously
prohibiting inquiry into the operator’s record.” The “operator,” in this context, is Sunoco Pipeline,
L.P. (Sunoco). The carriers have subcontracted the operation of their Illinois pipeline to Sunoco.
In view of that fact, the objectors offered evidence that, in Pennsylvania, Sunoco repeatedly had
been fined for safety and environmental violations in its operation of pipelines there. The
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Commission sustained the carriers’ irrelevancy objection to this evidence from Pennsylvania. That
ruling, we hold, was an abuse of discretion. Sunoco’s conduct as a pipeline operator in
Pennsylvania is relevant to “the security *** of *** the public” (220 ILCS 5/8-503 (West 2020))
and ought to be taken into consideration.
¶ 10 Seventh, the objectors claim that the Commission “arbitrarily and capriciously
refus[ed] to acknowledge” the evidence they had presented of a steep decline in oil demand as
COVID-19 had spread over the world. But the Commission did acknowledge that evidence. The
objectors presented online documentation that the per-barrel price of oil had declined by 50% in
less than a year and that, because of reduced demand, there was a glut of oil on the market. The
Commission took the objectors’ point. The Commission agreed that the pandemic “certainly
[would] lead to some questions about future need.” At the same time, however, the Commission
could have reasonably assumed that the pandemic would be temporary and that the demand for oil
eventually would return to prepandemic levels.
¶ 11 In sum, we agree with some of the arguments that the objectors make, and we
disagree with their other arguments. We find enough merit in their third and sixth arguments that
a remand is necessary. Therefore, we vacate the Commission’s decision, and we remand this case
to the Commission for further proceedings.
¶ 12 I. BACKGROUND
¶ 13 A. The Certificates in Good Standing
¶ 14 On December 9, 2015, in Energy Transfer Crude Oil Co., Ill. Comm. Comm’n No.
14-0755 (Order-Final Dec. 9, 2015), the Commission issued to Energy Transfer a certificate in
good standing. The certificate provided three authorizations.
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¶ 15 First, citing section 15-401 of the Act (220 ILCS 5/15-401 (West 2014)), the
certificate authorized Energy Transfer “to operate as a common carrier by pipeline” within a 500-
foot-wide corridor of land that was about 128 miles long. The corridor began near Patoka, in
Marion County; extended southeast “to a point of intersection with an existing natural gas
pipeline” near Johnsonville, in adjoining Wayne County; and then followed that existing natural
gas pipeline south to Joppa, in Massac County, on the Ohio River.
¶ 16 The second authorization in the certificate cited both section 8-503 and section 15-
401 of the Act (id. §§ 8-503, 15-401) and gave Energy Transfer authority to “construct, operate[,]
and maintain the Project along such route.” The “Project,” in this context, meant constructing 31
miles of new pipeline from Patoka to Johnsonville and converting the existing 97-mile natural-gas
pipeline, from Johnsonville to Joppa, to a crude-oil pipeline.
¶ 17 The third authorization in Energy Transfers’s certificate in good standing cited
section 8-509 of the Act (id. § 8-509) and gave Energy Transfer permission to “take and condemn”
easements for the project.
¶ 18 On December 16, 2015, in Dakota Access, LLC, Ill. Comm. Comm’n No. 14-0754
(Order-Final Dec. 16, 2015), the Commission likewise issued to Dakota Access a certificate in
good standing. Citing section 15-401 (220 ILCS 5/15-401 (West 2014)), the certificate authorized
Dakota Access to “operate as a common carrier by pipeline” within a 500-foot-wide corridor of
land extending 180 miles southeast across Illinois, from Hamilton, in Hancock County, on the
Iowa border, to Patoka, “where the Pipeline [would] connect with several of the existing tank farms
located near Patoka and with the proposed pipeline of Energy Transfer.” Dakota Access, LLC, Ill.
Comm. Comm’n No. 14-0754, at 53.
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¶ 19 Like the certificate in good standing issued to Energy Transfer, the one issued to
Dakota Access provided two further authorizations. Citing sections 8-503 and section 15-401 of
the Act (220 ILCS 5/8-503, 15-401 (West 2020)), the certificate authorized Dakota Access to
construct, maintain, and operate the proposed pipeline—which would all be new construction.
Finally, pursuant to 8-509 (id. § 8-509), the certificate in good standing authorized Dakota Access
to “take and condemn” the necessary easements for the construction of the new pipeline.
¶ 20 The lands were condemned, and the pipeline was constructed—Dakota Access’s
pipeline joined to Energy Transfer’s pipeline. Since 2017, crude oil has been flowing through this
Illinois pipeline, which is part of an interstate pipeline system that transports crude oil from the
Bakken Formation of North Dakota all the way down to Nederland, Texas, on the Gulf Coast.
¶ 21 B. The Carriers’ Joint Petitions to Install Additional Pumping Stations
¶ 22 On June 14, 2019, the carriers filed a joint petition under section 8-503 (id. § 8-
503) to construct new pumping stations on their pipeline to increase the throughput from 570,000
barrels per day to 1.1 million barrels per day. Specifically, the carriers proposed to (1) construct a
new pump station in Hancock County, along the Dakota Access pipeline; (2) construct two new
pumps and replace two pumps at an existing pump station in Patoka; and (3) construct a new pump
station along the Energy Transfer pipeline in Massac County. No eminent domain would be
necessary for the pumping-station project. The expected cost of the Illinois portion of the project
would be $190 million to $200 million.
¶ 23 To prove the need for these proposed improvements, the carriers cited projections
from the United States Energy Information Administration that oil production from the Bakken
region would continue to increase through 2050. Also, the carriers pointed out that they had entered
into long-term transportation shipping agreements with shippers that committed them—both the
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carriers and the shippers—to sending greater volumes of oil through the Illinois pipeline than the
pipeline could handle without the additional pumping stations.
¶ 24 The objectors countered that the COVID-19 pandemic had greatly reduced the
worldwide demand for oil and that the carriers’ projections of future oil production were, therefore,
overly sanguine. Also, the objectors warned that the additional pumping stations would accelerate
climate change and, by increasing throughput, would worsen the calamity of a pipeline leak should
one ever occur.
¶ 25 On October 14, 2020, after evidentiary hearings, the Commission issued a decision
authorizing the construction of the additional pumping stations. The objectors appeal. We will
delve deeper into the facts of this case as we discuss the issues that the objectors raise.
¶ 26 II. ANALYSIS
¶ 27 A. The Commission’s Request That We Dismiss Natural Resources From This
Appeal Because Natural Resources Did Not Sign the Application for a Rehearing
¶ 28 After the Commission issued its order, Save Our Illinois Land, Sierra Club, and
William Klingele filed with the Commission a verified application for a rehearing. Natural
Resources, though named therein as a supporter of the application for a rehearing, did not sign it.
See 83 Ill. Adm. Code 200.130 (2019). Consequently, on the authority of sections 10-113(a) and
10-201(b) of the Act (220 ILCS 5/10-113(a), 10-201(b) (West 2020)) and on the authority of
People ex rel. Ryan v. Illinois Commerce Comm’n, 298 Ill. App. 3d 483, 488 (1998), the
Commission argues that we should dismiss Natural Resources from this appeal.
¶ 29 Neither of those statutory sections says, however, that the party appealing must be
the same party who filed with the Commission the application for a rehearing. Instead, all the
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legislature insists upon, in those sections, is that a ground be raised in an application for a rehearing
before the ground is raised on appeal. Section 10-113(a) reads as follows:
“No appeal shall be allowed from any *** 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 ***. No person or corporation in any appeal
shall 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 2020).
Thus, the limitation, on appeal, is to the grounds raised in the application for a rehearing. The
limitation is not to the parties who raised the grounds in the application.
¶ 30 Similarly, section 10-201(b) reads as follows: “[N]or shall any person or
corporation in any court urge or rely upon any grounds not set forth in such application for a
hearing before the Commission ***.” Id. § 10-201(b). All this section requires is that the grounds
that the person or corporation raises on appeal be “grounds set forth in such application for a
hearing before the Commission.” Id. We do not see, in the statutory text, any requirement that the
person or corporation raising the grounds on appeal be the same person or corporation that raised
the grounds in the application for a rehearing before the Commission. Section 10-201(b) is satisfied
if the grounds were “set forth” (note the passive voice) “in such application.” Id.
¶ 31 Significantly, in the next subsection of section 10-201, the legislature demonstrates
that it knows how to explicitly exclude parties who omitted to file a required document. Section
10-201(c) reads, “No appellate court [sic] shall permit a party affected by any *** decision of the
Commission to intervene or become a party plaintiff or appellant in such court who has not taken
an appeal from such *** decision in the manner as herein provided.” Id. § 10-201(c). The
legislature similarly could have forbidden the appellate court to permit a party affected by the
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Commission’s decision to be an appellant unless that party had applied to the Commission for a
rehearing. The legislature did not do so. Instead, in section 10-201(b) (id. § 10-201(b)), the
legislature prescribed only that the grounds be raised—by someone—in an application for a
rehearing before the grounds were raised on appeal.
¶ 32 “The purpose of requiring the matters to be raised in the petition for rehearing is to
inform the commission and the opposing parties wherein mistakes of law and fact were made in
the order.” Granite City v. Illinois Commerce Comm’n, 407 Ill. 245, 250 (1950). It is irrelevant to
the accomplishment of that purpose whether the party who raises the grounds in the petition for a
rehearing is the same party who later raises the grounds on appeal.
¶ 33 Granted, in People ex rel. Ryan, 298 Ill. App. 3d at 488, the appellate court said,
“[T]he Act requires that a party must file a petition for rehearing before bringing an appeal ***.”
In that case, however, no valid petition for a rehearing was filed at all because the “petitioners’
applications for rehearing were untimely.” Id. at 485. So, People ex rel. Ryan is not on point.
¶ 34 In short, then, we see no reason, in statutory law or case law, to dismiss Natural
Resources from this appeal. Therefore, we deny the Commission’s request to do so.
¶ 35 B. The Questions the Appellate Court May Consider
in Reviewing a Decision by the Commission
¶ 36 According to case law, judicial review of a decision by the Commission is limited
to four 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 (1994).
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¶ 37 “Substantial evidence” is a term of art. The appellate court has defined it as
“evidence a reasoning mind would accept as sufficient to support the challenged finding; it is more
than a scintilla of evidence but requires something less than a preponderance of the evidence.” Id.
at 479. A question might well be asked: If there is less than a preponderance of evidence that a
proposition is true, say only a 40% chance—which is to say, the proposition is probably untrue—
would any reasonable mind accept the evidence as sufficient to support the proposition? The
answer, of course, is no. What the definition of “substantial evidence” really means to convey,
however, is that if reasonable minds (thinking reasonably) could differ as to where the
preponderance of the evidence lies, the reviewing court should defer to the Commission’s finding
or conclusion of fact. “Substantial evidence” is simply “evidence that a reasonable mind might
accept as adequate to support a conclusion.” (Internal quotation marks omitted.) Welch v. Hoeh,
314 Ill. App. 3d 1027, 1035 (2000). The substantial-evidence standard is the same as the manifest-
weight standard. See Kaloo v. Zoning Board of Appeals, 274 Ill. App. 3d 927, 934 (1995)
(explaining that “[a] finding is against the manifest weight of the evidence if all reasonable persons
would agree that the finding is erroneous and that the opposite conclusion is evident”).
¶ 38 C. Our Standards of Review
¶ 39 “[D]ecisions of the Commission shall be held to be prima facie reasonable, and the
burden of proof upon all issues raised by the appeal shall be upon the person or corporation
appealing from such *** decisions.” 220 ILCS 5/10-201(d) (West 2020). Thus, the default
position, the position from which we begin, is that the Commission’s decision is factually and
legally reasonable. The appellants—in this case, the objectors—have the burden of making
arguments that are persuasive enough to move us from that default position.
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¶ 40 Appellants can challenge the Commission’s decision (1) on the facts, (2) on the
law, or (3) on the Commission’s application of undisputed law to undisputed facts. For each of
those three challenges, the supreme court has prescribed a different standard of review. Cinkus v.
Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 210 (2008).
¶ 41 First, the Commission’s findings and conclusions of fact are deemed to be
prima facie true and correct, and the party challenging the finding or conclusion of fact has the
burden of showing it to be against the manifest weight of the evidence. 220 ILCS 5/10-201(d)
(West 2020); see Cinkus, 228 Ill. 2d at 210. A finding or conclusion of fact is against the manifest
weight of the evidence only if the finding or conclusion is arbitrary, unreasonable, or not based on
the evidence or only if it is clearly evident, from the record, that the trier of fact should have
reached the opposite finding or conclusion. See In re Estate of Michalak, 404 Ill. App. 3d 75, 96
(2010).
¶ 42 Second, we decide questions of law de novo. “[A]n agency’s decision on a question
of law is not binding on a reviewing court. For example, an agency’s interpretation of the meaning
of the language of a statute constitutes a pure question of law. Thus, the court’s review is
independent and not deferential.” Cinkus, 228 Ill. 2d at 210. The same is true of our interpretation
of the Commission’s regulations: it is de novo. See Hartney Fuel Oil Co. v. Hamer, 2013 IL
115130, ¶ 16.
¶ 43 To be sure, as the supreme court observes, “even where review is de novo, [an]
agency’s interpretation of its regulations and enabling statute are relevant given that agencies
make informed judgments on issues based upon their experience and expertise and serve as an
informed source for ascertaining the legislature’s intent.” Valerio v. Moore Landscapes, LLC, 2021
IL 126139, ¶ 32. An agency may well have valuable insights into the meaning of its regulations
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and enabling statute since it reads and applies them every day. No amount of agency expertise,
however, can change the meaning of an unambiguous regulation or statute. If the regulation or
statute is ambiguous, the agency, because of its experience and expertise, may well be able to
defend its interpretation with cogent reasons. Ambiguity or no ambiguity, however, we interpret
statutes and regulations de novo, and that means considering the agency’s interpretation for
whatever inherent merit the interpretation has. In other words, we do not simply defer to the
agency’s interpretation because of the agency’s identity as the agency. Rather, our interpretation
of the regulations and statute is “independent and not deferential.” Cinkus, 228 Ill. 2d at 210. It is
impossible to be “independent and not deferential” while being deferential. Id.¶ 44 Third, if the question calls for the application of undisputed law to undisputed facts,
we decide whether Commission’s resolution of the question is clearly erroneous. See id. at 211.
“Mixed questions of fact and law,” the supreme court explains, “are questions in which the
historical facts are admitted or established, the rule of law is undisputed, and the issue is whether
the facts satisfy the statutory standard, or to put it another way, whether the rule of law as applied
to the established facts is or is not violated.” (Internal quotation marks omitted.) Id. When
reviewing the Commission’s resolution of such hybrid questions of law and fact, we defer to the
Commission’s decision unless we are “left with the definite and firm conviction that a mistake has
been committed.” (Internal quotation marks omitted.) Id.¶ 45 Finally, there is one further standard of review. If a party contends, on review, that
the administrative agency erred in its ruling on the admissibility of evidence, we decide whether
the ruling was an abuse of discretion. Danigeles v. Illinois Department of Financial & Professional
Regulation, 2015 IL App (1st) 142622, ¶ 82. Case law provides several descriptions of a ruling
that is an abuse of discretion. The ruling, for example, shows a failure to use “conscientious
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judgment.” (Internal quotation marks omitted.) Gruwell v. Department of Financial &
Professional Regulation, 406 Ill. App. 3d 283, 295 (2010). Or the ruling is “clearly against logic.”
(Internal quotation marks omitted.) Id. Or the ruling is “arbitrary or capricious,” and “no
reasonable person would agree with” it. (Internal quotation marks omitted.) Sonntag v. Stewart,
2015 IL App (2d) 140445, ¶ 22.
¶ 46 D. Whether the Carriers Need New or Amended Certificates in Good Standing
in Order to Add Pumping Stations to Their Pipeline
¶ 47 The objectors argue that because the proposed pumping stations were neither
repairs nor replacements of the carriers’ existing pipelines, section 15-401(a) of the Act (220 ILCS
5/15-401(a) (West 2020)) required the carriers to obtain new or amended certificates in good
standing before they legally could install the pumping stations.
¶ 48 To address this argument by the objectors, we must interpret section 15-401(a). Our
interpretation is independent, free of deference. See Cinkus, 228 Ill. 2d at 210. Section 15-401(a)
provides as follows:
“(a) No person shall operate as a common carrier by pipeline unless the
person possesses a certificate in good standing authorizing it to operate as a
common carrier by pipeline. No person shall begin or continue construction of a
pipeline or other facility, other than repair or replacement of an existing pipeline
or facility, for use in operations as a common carrier by pipeline unless the person
possesses a certificate in good standing.” (Emphasis added.) 220 ILCS 5/15-401(a)
(West 2020).
¶ 49 Because the construction of the proposed pumping stations would be a construction
“other than repair or replacement of an existing pipeline or facility,” the objectors contend that the
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carriers need new or amended certificates in good standing specifically authorizing the carriers to
construct the pumping stations. Id. By that argument, the objectors read qualifications into the
statutory phrase “a certificate in good standing,” which, in the text of the statute, lacks any
qualification. Id. The phrase does not read “a new or amended certificate in good standing to begin
or complete the proposed construction project.” Rather, the phrase reads simply “a certificate in
good standing.” Id. To quote from the statute again: “No person shall begin or continue
construction of a pipeline or other facility, other than the repair or replacement of an existing
pipeline or facility, for use in operations as a common carrier by pipeline unless the person
possesses a certificate in good standing.” Id. “If a statutory provision is unambiguous, we must
apply it straightforwardly, without reading in exceptions, limitations, or qualifications.” People
ex rel. Webb v. Wortham, 2018 IL App (2d) 170445, ¶ 31. Assuming that pumping stations on a
pipeline are “facilit[ies],” the condition in section 15-401(a) to the construction of the facilities is
fulfilled: the carriers already possess certificates in good standing. 220 ILCS 5/15-401(a) (West
2020).
¶ 50 “Standing” means “position or condition in society or in a profession,” and having
a good standing means having a “good reputation.” Merriam-Webster’s Online Dictionary,
https://www.merriam-webster.com/dictionary/standing (last visited Jan. 7, 2022)
[https://perma.cc/GP5L-2P3A]. In the text of section 15-401 (220 ILCS 5/15-401 (West 2020)),
we see no indication that by proposing to add pumping stations to a pipeline, the possessor of a
certificate in good standing loses standing or reputation with the Commission, making it necessary
for the disrepute to be purged by a new or amended certificate in good standing. A person either
is in good standing with the Commission or is not in good standing with the Commission. Surely,
standing does not wax or wane with project proposals. As the carriers observe in their brief, the
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legislature has demonstrated in section 8-406(b) of the Act (id. § 8-406(b)) that it “[knows] how
to require a certificate for each specific project.” The legislature, the carriers note, “included no
such requirement in [section] 15-401(a).”
¶ 51 It is undisputed that, in addition to possessing certificates in good standing (see id.),
the carriers had to obtain permission under section 8-503 (id. § 8-503) to construct the pumping
stations. (Section 15-101 of the Act (id. § 15-101) makes sections 8-503 applicable to common
carriers by pipeline.) Section 8-503 provides in part as follows:
“Whenever the Commission, after a hearing, shall find that additions *** or
improvements to, or changes in, the existing *** equipment, apparatus, facilities or
other physical property of any public utility or of any 2 or more public utilities are
necessary and ought reasonably to be made or that a new structure or structures is
or are necessary and should be erected, to promote the security or convenience of
its employees or the public *** or in any other way to secure adequate service or
facilities, the Commission shall make and serve an order authorizing or directing
that such additions, *** improvements or changes be made, or such structure or
structures be erected at the location, in the manner and within the time specified in
said order ***.” Id. § 8-503.
A “public utility,” as defined by the Act, includes every corporation that owns, controls, or operates
equipment used for the conveyance of oil by pipeline. Id. § 3-105(a)(3). By adding the proposed
pumping stations to their pipeline, the carriers, as public utilities, would make “additions *** or
improvements to, or changes in,” their “existing *** equipment, apparatus, facilities or other
physical property.” Id. § 8-503. Therefore, pursuant to section 8-503, the carriers petitioned for
authority to construct the pumping stations.
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¶ 52 Insomuch as section 15-401(a) was simultaneously applicable to the pumping-
station project, that section already was satisfied. Assuming that a pumping station is a “facility”
within the meaning of section 15-401(a), the carriers fulfilled that section’s condition to beginning
construction of the pumping stations: they possessed certificates in good standing. Id. § 15-401(a).
¶ 53 The objectors argue that interpreting section 15-401 as not requiring the carriers to
obtain new or amended certificates in good standing before constructing the pumping stations
would be “illogical” and would “create[ ] a dangerous precedent.” The objectors worry that,
“[u]nder this Order [by the Commission], any review of the impact of common carrier projects on
public safety, the environment, property, and the economy [could] simply be avoided by not filing
under [section] 15-401.” Setting to one side the federal preemption in matters of pipeline safety
(see 49 U.S.C. § 60104(c) (2018)), the objectors more or less urge us, on public-policy grounds,
to overlook the plain language of section 15-401(a) (220 ILCS 5/15-401(a) (West 2020)). Case
law warns us against effectively rewriting statutes, in the guise of “interpretation,” so as to make
the statutes conform to our own notions of optimal public policy. See Illinois Landowners Alliance,
NFP v. Illinois Commerce Comm’n, 2017 IL 121302, ¶ 50; Illinois State Treasurer v. Illinois
Workers’ Compensation Comm’n, 2015 IL 117418, ¶ 39; Kozak v. Retirement Board of the
Firemen’s Annuity & Benefit Fund, 95 Ill. 2d 211, 220 (1983).
¶ 54 In sum, we hold that section 15-401(a) of the Act (220 ILCS 5/15-401(a) (West
2020)) does not require the carriers to obtain new or amended certificates in good standing in order
to construct the proposed pumping stations. The certificates in good standing that they already
possess are adequate to that purpose.
¶ 55 E. Whether the Commission’s Decision Contains Findings or Analysis
Sufficient to Allow an Informed Judicial Review of the Decision
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¶ 56 For a court to evaluate the Commission’s decision, the rationale that the
Commission used has to be discernable from its decision. If the rationale is obscure, the court
should send the decision back to the Commission and order the Commission to explain itself better.
As section 10-201(e)(iii) of the Act puts it, “[i]f the court determines that the Commission’s ***
decision does not contain findings or analysis sufficient to allow an informed judicial review
thereof, the court shall remand the *** decision, in whole or in part, with instructions to the
Commission to make the necessary findings or analysis.” Id. § 10-201(e)(iii).
¶ 57 In the objectors’ view, the Commission’s decision in this case lacks sufficient
findings and analysis to make possible an informed judicial review. The objectors make this claim
even though the Commission’s decision is 80 pages long, single-spaced.
¶ 58 Most of the 80 pages, it is true, is taken up by the Commission’s summaries of the
parties’ opposing positions. For example, under the heading “Need for the Proposed Additional
Facilities,” the Commission spends 16 pages describing the carriers’ position, three-quarters of a
page describing the staff’s position, 6 pages describing the objectors’ position, and a page
describing the unions’ position. Then the Commission devotes about a page to its own “Analysis
and Conclusion.” The objectors argue that the findings in the conclusion portions of the
Commission’s orders (what the Commission has to say) are “distinguishable from” the
Commission’s preceding summaries of the party’s positions (what the parties had to say). The
Commission’s extensive presentations of the parties’ opposing positions, the objectors argue, do
not count as the Commission’s rationale—which, by comparison, is sparse.
¶ 59 That argument is not entirely convincing. Meaning arises from context. Surely, it
would be a mistake to view a conclusion in isolation from the discussion leading up to the
conclusion. For an illustration of this point, assume that a trier of fact in a traffic-accident case
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writes her decision as follows: “A relies on a dash cam video, plaintiff’s exhibit No. 1, showing
that while A had a green light, B pulled out in front of him. Also, A notes the excessive speed at
which B was driving, from which A infers that B was trying to beat the light. B, on the other hand,
relies on her own testimony and on the testimony of her passenger that she, B, had a green light. I
find that B negligently ran a red light.” In that illustration, the trier of fact does not explicitly say
why she finds that it was B who ran a red light. It would be natural to infer, however, that if the
trier of fact relied on a reason other than the reasons A gave or that if the trier of fact disagreed
with one of A’s reasons, the trier of fact would have said so. If, instead of relying on A’s reasons,
the trier of fact relied on, say, an external surveillance video from the corner pawn shop, the trier
of fact presumably would have so disclosed. Absent some addition or qualification, the natural
assumption would be that it was for the reasons that A urged that the trier of fact found in A’s
favor. Maybe the decision would have been better written if the trier of fact had spelled out her
rationale. Nevertheless, the context that the trier of fact provided, namely, the summaries of the
parties’ opposing positions, adequately does the explanatory work. Similarly, in this case, the
Commission’s summaries of the parties’ arguments on both the evidence and the law shed
explanatory light on the Commission’s conclusions that follow those summaries. See Ameren
Illinois v. Illinois Commerce Comm’n, 2015 IL App (4th) 140173, ¶ 82 (holding that because the
Commission “diligently summarized the parties’ arguments and chose among the arguments,” its
decision contained findings and analysis making possible an informed judicial review).
¶ 60 The objectors complain that the Commission’s “order fails to accurately and
completely portray [the objectors’] evidence and arguments.” It would not follow, however, that
the Commission’s decision lacked “findings [or] analysis sufficient to allow an informed judicial
review” thereof. (Internal quotation marks omitted.) Id. If the Commission makes a finding on the
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basis of one item of evidence but ignores four other items of evidence, we know why the
Commission made its finding—and in an informed judicial review, the Commission’s finding is
vulnerable to the criticism that it failed to account for the other four items of evidence. Also, if, in
its decision, the Commission fails to fairly and accurately state a party’s argument, the party’s
actual argument might go unanswered below, and an informed judicial review might conclude that
the party’s argument is unanswerable—with reversal as the consequence. If, as the objectors
complain, the Commission gives their arguments short shrift; glosses over Magellan Midstream
Partners, L.P., 161 FERC ¶ 61, 219 (2017), and Standing Rock Sioux Tribe v. U.S. Army Corps of
Engineers, 440 F. Supp. 3d 1 (D.D.C. 2020); and ignores the policies and positions of Illinois on
climate change, those asserted defects in the Commission’s decision are reachable by an informed
judicial review, without a remand. Indeed, the objectors demonstrate as much in their brief by
making their criticisms, which, in the context of the record, are quite intelligible.
¶ 61 We hold, therefore, that the Commission’s decision contains findings and analysis
sufficient to allow an informed judicial review. See 220 ILCS 5/10-201(e)(iii) (West 2020).
¶ 62 F. Necessity, Reasonableness, and the Security and Convenience of the Public
¶ 63 1. The Commission’s Consideration of the Global Need for Crude Oil
¶ 64 In deciding whether to authorize an addition to the physical property of a “public
utility,” which is defined to include the owner of a pipeline (see id. § 3-105(a)(3)), the Commission
must consider whether the addition is “necessary and ought reasonably to be made” and whether
the addition would “promote the security or convenience of its employees or the public.”
(Emphasis added.) Id. § 8-503. In its decision on the carriers’ proposal to add pumping stations to
their pipelines, the Commission deemed itself obligated to consider the needs of the world. The
Commission wrote in its decision:
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“The Commission should look at the larger group of the general public and
determine the regional, national and even the global needs and benefits. Lakehead
Pipeline Co. v. Ill[inois] Commerce Comm’n, 296 Ill. App. 3d [942,] 955 [(1998)].
Illinois reviewing courts have made it clear that the Commission must address this
in considering the need and benefits, as opposed to Illinois-specific needs and
benefits. See Pliura [Intervenors] v. Ill[inois] Commerce Comm’n, 405 Ill. App.
3d [199,] 209 [(2010)].” (Emphases added.)
¶ 65 The objectors do not dispute that “the public,” as that term is used in section 8-503,
is wider than Illinois and includes the rest of the United States. The objectors contend, however,
that it is a misinterpretation of Lakehead and Pliura to define “the public” as the world.
¶ 66 The Commission cited Lakehead, 296 Ill. App. 3d at 955, as direct authority for the
proposition that, in determining “the security or convenience of *** the public” (220 ILCS 5/8-
503 (West 2020)), the Commission “should *** determine the *** global needs and benefits.”
Lakehead, however, did not so hold. Rather, at the cited page of Lakehead, the appellate court held
merely that, in determining public need, the Commission should “look at the larger group of the
general public to see if it requires the service” instead of considering only the needs of “a few
refiners” and “a limited number of market players.” Lakehead, 296 Ill. App. 3d at 955. By saying
that the “general public” was larger than a handful of market players, the appellate court did not
suggest that the “general public” was so large as to be the world.
¶ 67 Pliura, admittedly, presents a closer question. In that case, the Commission had
approved the extension of a pipeline. Pliura, 405 Ill. App. 3d at 206. Relying on the discussion of
“public need” in Lakehead, the Commission had determined as follows: “[T]he pipeline extension
would provide (1) Illinois, as well as our nation, additional oil supplies from a friendly ally
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[(Canada)] and (2) access to a secure and reliable energy supply that assists our nation in achieving
our energy needs, which benefits Illinois citizens either directly or indirectly.” Id. On appeal,
opponents of the pipeline extension argued that the Commission lacked “authority to consider
evidence of regional, national, or global benefits when determining whether the public
convenience and necessity required issuance of the certificate authorizing the pipeline extension.”
Id. at 208. “We disagree,” the appellate court responded. Id. Because the Commission had broad
authority to interpret statutes that it was charged with administering and because Illinois courts
had approved broad interpretations of “the undefined statutory terms ‘public need’ and ‘public
convenience and necessity,’ ” the appellate court was unconvinced that the Commission’s
interpretation was unreasonable or erroneous. Id. at 209.
¶ 68 Judging by the background discussion in Pliura, however, the Commission never
took the position, in that case, that the “public” meant the world. The Commission could be
understood, in Pliura, as taking the position that the “public” meant the United States as a whole.
Even that much is debatable, however, because, according to the Commission’s findings, a benefit
to the nation would result in a benefit to Illinois citizens—suggesting, perhaps, that a benefit to
Illinois citizens was ultimately the germane consideration. Id. at 206 (recounting the Commission’s
determination that “access to a secure and reliable energy supply that assists our nation in
achieving our energy needs *** benefits Illinois citizens directly or indirectly”). So, “public”
meant the people of Illinois or, in the widest possible significance of the word, the people of the
United States.
¶ 69 The appellants in Pliura appear to have subjected the Commission’s decision to
caricature by arguing that the “ ‘Commission [had to] consider the public need of Illinois citizens,
not Midwesterners, [United States c]itizens, or citizens of the world.’ ” (Emphasis added.) Id. at
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209. From the background in Pliura, however, it does not appear that the Commission went so far
as to take into account the needs of the world. See id. at 206. To this apparently caricatural
argument, the appellate court responded, “We disagree”—which, linguistically (it is true),
signified that the Commission had “authority to consider evidence of *** global benefits when
determining whether the public convenience and necessity required issuance of the certificate
authorizing the pipeline extension.” Id. at 207-08.
¶ 70 Even so, “appellate courts must read cases only in light of the issues brought before
the court for determination.” Cates v. Cates, 225 Ill. App. 3d 509, 511 (1992) (citing Nix v. Smith,
32 Ill. 2d 465 (1965)). Or, to put it differently, “ ‘[i]t is a maxim not to be disregarded, that general
expressions, in every opinion, are to be taken in connection with the case in which those
expressions are used. If they go beyond the case, they may be respected, but ought not to control
the judgment in a subsequent suit when the very point is presented for decision.’ ” Schweihs v.
Chase Home Finance, LLC, 2016 IL 120041, ¶ 41 (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.)
264, 399 (1821)). In Pliura, the issue was whether the Commission could take into account the
needs of the United States as a whole when determining the public necessity for a pipeline
extension, not whether the Commission could take into account the needs of the world. See Pliura,
405 Ill. App. 3d at 206. Therefore, Pliura is not authority, any more than Lakehead is, for the
Commission’s present holding that, in determining “the security or convenience of *** the public”
(220 ILCS 5/8-503 (West 2020)), the Commission “must” address “the global needs and benefits.”
¶ 71 The common meaning of the “public” militates against such a holding. When used
with reference to persons, the “public” means either “the people as a whole” or “a group of people
having common interests or characteristics.” Merriam-Webster’s Online Dictionary,
https://www.merriam-webster.com/dictionary/public (last visited Jan. 7, 2022)
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[https://perma.cc/Z7RD-6S7J]. The word “people” in turn means “a group of people who share a
quality, interest, etc.,” such as “the American people.” (Emphasis in original.) Merriam-Webster’s
Online Dictionary, https://www.merriam-webster.com/dictionary/people (last visited Jan. 7, 2022)
[https://perma.cc/BC9V-9NA7]. Human beings the world over do not form a single “people,” a
single group having common interests or characteristics. Instead, the world is made up of many
different peoples, many different publics. We conclude, then, in our de novo interpretation of
section 8-503 (220 ILCS 5/8-503 (West 2020)), that the Commission erred by regarding itself as
obligated, in its evaluation of the carriers’ proposal, to take into account “the global needs and
benefits.” See Price v. Philip Morris, Inc., 219 Ill. 2d 182, 235 (2005) (holding that “[s]tatutory
construction is a question of law, subject to de novo review”).
¶ 72 Why does it matter that the Commission interpreted the “public” in section 8-503
(220 ILCS 5/8-503 (West 2020)) as meaning the world? It matters because serving the needs of
the world does not necessarily serve the needs of the “public,” understood as the people of Illinois
or the people of the United States. If most of the crude oil passing through the carriers’ pipeline is
destined for foreign countries, increasing the throughput of the pipeline by installing additional
pumping stations would serve the needs of the foreign countries, but the benefit to the “public,”
properly understood, might be more tenuous. Assume, for example, that most of the crude oil that
passes through the carriers’ pipelines to the Texas Gulf Coast is, upon arrival, loaded onto tankers
and transported to foreign countries, such as China. Doubling the throughput of the carriers’
pipelines would benefit Chinese motorists and commuters by making available for them more fuel
for their cars, trucks, and buses. In the United States, however, the benefit might be limited mostly
to the oil producers in the Bakken region, the carriers, the shippers that use the carriers’ pipeline,
and the dozens of construction workers who (according to the unions) would be employed in the
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building of the pumping stations: “a limited number of market players,” as Lakehead puts it.
Lakehead, 296 Ill. App. 3d at 955.
¶ 73 Granted, even if most of the crude oil that passed through their pipeline was bound
for foreign countries, the carriers still would have some arguments that increasing the throughput
of their pipelines would benefit the American public. First, the inflammable oil would pass through
the pipeline instead of through populated areas on trains. Second, railroad tracks would be more
available for the transportation of agricultural products. Third, using the pipeline to transport the
oil would be cheaper, and would create fewer carbon emissions, than using diesel locomotives.
The Commission, however, should weigh those arguments on the basis of a correct understanding
of what the “public” is instead of equating the “public” with the world and concluding, perhaps,
that “public” need would be served because global need would be served.
¶ 74 In our de novo interpretation of section 8-503 (220 ILCS 5/8-503 (West 2020)), we
hold that the Commission erred by regarding itself as obligated, in its evaluation of public
necessity, to consider “the global needs and benefits.” In its broadest sense, the term “public” in
section 8-503 means the United States, not the world. “The Commission’s findings of fact
are prima facie correct and will not be overturned by a reviewing court unless they are against
the manifest weight of the evidence, beyond the statutory authority of the Commission, or
violative of constitutional rights.” GlidePath Development LLC v. Illinois Commerce Comm’n,
2019 IL App (1st) 180893, ¶ 23. We hold that it was beyond the statutory authority of the
Commission to treat the world as “the public.”
¶ 75 2. A Lackluster 2019 Open Season and the Durability of the Increased
Demand for Oil Compared to the Long Life of the Pumping Stations
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¶ 76 The objectors represent that, in the 2019 open season, the carriers failed “to secure
capacity commitments even before the pandemic.” Be that as it may, the carriers informed the
Commission that the 2018 season had yielded “long-term contracts,” use-or-pay arrangements,
“that exceeded the [pipelines’] current [capacity of] 570,000 [barrels per day] by tens of thousands
to hundreds of thousands of [barrels per day].” The record does not appear to reveal the duration
of these long-term contracts made in 2018, but contracts with a term of only one year could not be
aptly characterized as “long-term.” It seems reasonable to infer, then, that in 2019, the problem of
oversubscription still existed.
¶ 77 Predicting that that the pumping stations would long outlast the subscriptions, the
objectors questioned whether “economics *** justif[ied] a project with a multi-decade lifespan.”
The carriers countered that the risk of those economics would be borne by them, not by ratepayers:
“[The carriers] *** emphasize that the costs of the additional facilities will not be
paid by captive retail ratepayers; rather, the capital investment to construct and
install the proposed additional pumping stations and equipment will be funded by
[the carriers] and their owners, with the costs to be recovered through charges for
transportation capacity and service to their shipper customers.”
¶ 78 The economics of a project with a multi-decade lifespan seems, in these
circumstances, more of a private concern than a public concern. It is undisputed that the carriers
alone will bear the economic risk that, over the long term, the pumping stations will fail to pay off.
It also is undisputed that the carriers and several of their shippers are contractually locked into use-
or-pay transportation shipping agreements under which, on pain of financial penalties, they are
committed to sending greater volumes of crude oil through the pipeline than the pipeline, without
the installation of additional pumping stations, can handle.
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¶ 79 Therefore, we hold as follows. It would not be a clear error to regard the economics
of the proposed project as implicating private convenience more than “the *** convenience of ***
the public” (220 ILCS 5/8-503 (West 2020)). See Cinkus, 228 Ill. 2d at 211. Also, it would not be
a clear error to conclude that, at least for the parties to the use-or-pay transportation shipping
agreements, “secur[ing] adequate service or facilities” necessitates adding pumping stations to the
Illinois pipeline. 220 ILCS 5/8-503 (West 2020); see Cinkus, 228 Ill. 2d at 211.
¶ 80 3. Preemption and the Leak-Detection Limitations of the Pipelines
¶ 81 The Commission divided its decision into several parts. Part IV was titled “Design,
Engineering, and Operations.” In part IV, the Commission summarized the objectors’ concerns
about leak detection. The objectors pointed out that, by the carriers’ own admission, a leak from
the Illinois pipeline would be detectable by the carriers’ technology only if the leak amounted to
1% of the flow rate past a point in an hour. Because the addition of pumping stations would nearly
double the flow rate in the pipelines from 570,000 barrels per day to 1,100,000 barrels per day,
this limitation in the leak-detection technology was worrisome to the objectors. We quote from
part IV of the Commission’s decision:
“As [the objectors] note, [the carriers] openly acknowledge that they cannot
detect leaks less than 1% of the throughput of the pipelines. [Citation.] This means,
by [the objectors’] own calculation, that at a flow rate of 1,100,000 [barrels per
day], in one hour 458 barrels of crude oil can escape undetected. Even at the current
throughput of 570,000 [barrels per day, the carriers’] witness [Todd] Stamm
acknowledges that 237.5 barrels could escape over one hour without detection.
[Citation.] With regard to Mr. Klingele’s concern with leaks [citation] and his
observation that leaked oil can rise to the surface and contaminate farmland, Mr.
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Stamm responds, ‘Whether leaked crude oil will rise to the surface, and if so within
what time period, in a leak at a particular location, will depend on a number of site-
specific conditions including soil and rock type and condition at the location,
pipeline burial depth, elevation, surface gradient, and other factors.’ [Citation.] In
other words, according to [the objectors], given [the carriers’] admitted inability to
detect ‘small’ leaks (i.e., leaks that can release 457 barrels, or over 19,000 gallons,
in one hour), such a leak could continue for hours or perhaps days undetected by
Sunoco *** or anyone at the site if the crude does not rise to the surface due to the
circumstances at the site of the leak. The [objectors] find no reassurance in Mr.
Stamm’s offer that the probability of detecting a small leak ‘will increase as the
volume imbalances increase.’ [Citation.] They note the [the carriers] have not
indicated how much time needs to pass before a volume imbalance is detectable.
[The objectors] find [the carriers’] lack of concern over these undisputed facts to
be shocking.”
¶ 82 In Standing Rock, the district court took note of the same limitation in Dakota
Access’s leak-detection system. The Army Corps of Engineers tried to assuage this concern by
claiming that “a less-than-1% leak would eventually be detected over an unspecified ‘period of
time’ after building up enough to cause a meter imbalance.” Standing Rock, 440 F. Supp. 3d at 18.
The court found this response to be “less than reassuring given that the amount of undetected
leaking oil could be as much as 6,000 barrels per day” (1% of 600,000 barrels per day equaled
6000 barrels per day). Id. Moreover, “one of the experts noted that Sunoco had experienced a spill
of 8,600 barrels on one of its pipelines when it had not recognized a leak even when there was an
‘imbalance indication[ ]’ because that imbalance did not exceed ‘established normal operating
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tolerances.’ ” Id. Even more disquieting, a study in 2012 by the Pipeline and Hazardous Materials
Safety Administration found that the type of leak-detection system that Dakota Access used, a
computational pipeline monitoring (CPM) leak-detection system, had an 80% failure rate. Id. at
17-18.
¶ 83 The same pipeline that was under discussion in Standing Rock, with the same leak-
detection technology, runs through Illinois. If the district court in Standing Rock had reservations
about the leak-detection system, so should the Commission, the objectors argued.
¶ 84 The carriers responded that when the objectors referred to the carriers’
“ ‘undisputed inability to detect leaks of less than 1% of throughput,’ ” the objectors were “grossly
misstat[ing] the record.” We quote further from the Commission’s summary of the carriers’
response:
“[The carriers’] witness testified that the Computational Pipeline Monitoring
(‘CPM’) system is ‘set to detect leaks of 1% of flow past a point in an hour.’ That
does not mean that the system won’t detect even smaller leaks. To the contrary, ‘the
probability of detection of a very small leak by the leak detection system will
increase as the volume imbalances increase,’ meaning that even the tiniest leaks
will be detected in time. [Citation.] Moreover, the CPM system is only one piece
of a much broader set of leak detection tools. Numerous other components of the
leak detection program, including aerial and ground monitoring and other
measures, would likely detect a small leak even if it was not immediately detected
by the CPM system. [Citation.] The pipelines’ leak detection programs are state of
the art and fully compliant with safety regulations.” (Emphasis in original.)
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¶ 85 If the CPM system is set to detect leaks of 1% of flow past a point in an hour, the
corollary would be that the CPM system is not set to detect leaks of, say, 0.8% of flow past a point
in an hour. For leaks below that threshold, it is necessary to rely on other methods of detecting
leaks. Consequently, the sensitivity, reliability, and promptitude of the other methods are of
interest. The carriers offered the reassurance that the probability of detecting a “very small leak”
would increase as volume imbalances grew and that “even the tiniest leaks [would] be detected in
time.” The objectors, however, were not reassured, considering that a “very small leak,” “the tiniest
leaks,” “volume imbalances,” and “time” were unquantified. Instead of specifying the amount of
“volume imbalances” that would catch their attention, the carriers fell back on their regulatory
compliance: the leak-detection system was “state of the art” and “fully compliant” with federal
regulations.
¶ 86 The Commission represents to us, on appeal, that while the computational pipeline
monitoring system is “set to detect leaks of 1% of flow per hour,” the “Supervisory Control and
Data Acquisition (‘SCADA’) system can alert the control center to even smaller leaks.” (Emphasis
added.) “Can,” however, is a word of possibility, not probability. In the pages of the record that
the Commission cites, the carriers’ witness, Glenn Emery, testified as follows:
“Even if a leak were so small (less than 1% of flow in an hour) that it was not
immediately detected by the CPM leak detection system or other SCADA
monitoring tools, it is highly likely that we would detect the leak well within 30
days by one of several other monitoring means, including hydrocarbon detection
within facilities, aerial patrols (conducted once per week, weather permitting),
observations by [the carriers’] personnel while on or near the right of way, or
observations and calls from the public (an important component of our Public
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Awareness and Outreach Programs). Further the probability of detection of a very
small leak by the leak detection system will increase as the volume imbalances
increase.”
“Small” and “very small” are relative terms, especially if the throughput is 1.1 million barrels per
day. To put the matter in perspective, 0.9% of 1.1 million barrels per day is 9900 barrels per day,
and 9900 barrels per day for 30 days is 297,000 barrels. Thirty days can be a long time, depending
on what happens over the 30-day period.
¶ 87 In part IV of its decision, the part of its decision titled “Design, Engineering, and
Operations,” the Commission first summarized the parties’ positions on the leak-detection system.
(We have recounted the opposing positions.) Then, at the conclusion of part IV, the Commission
set forth the following “Analysis and Conclusion”:
“The Commission notes that the information provided by [the carriers] shows that
in the proposed design or engineering of the pumping stations and the subsequent
operations of the pumping stations and pipelines, they have taken and will continue
to take comprehensive efforts to ensure safe and reliable operation of the pipelines,
including at the higher throughput levels after adding the proposed pumping
equipment. However, the Commission agrees with Staff that the safety regulation
of petroleum pipelines is, as a matter of federal law, within the jurisdiction of the
[Pipeline and Hazardous Materials Safety Administration]. The responsibility for
safety oversight of hazardous materials pipelines has not been delegated to states,
but rather is retained by federal authorities, and inconsistent state requirements are
specifically preempted. 49 U.S.C. §§ 5122, 5125; cf. 49 U.S.C. § 60105. Therefore,
the Commission will not rule on this issue.”
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¶ 88 The Pipeline Safety Act provides that “[a] State authority may not adopt or continue
in force safety standards for interstate pipeline facilities or interstate pipeline transportation.” 49
U.S.C. § 60104(c) (2018). The objectors acknowledge this preemption provision but maintain that
it poses no obstacle to their case. They point out that they are not asking the Commission to impose
safety standards for the carriers’ pipelines “by, for example, requiring thicker pipe walls or lower
operating pressures.” Instead, the objectors argue, they are asking the Commission to enforce
section 15-601 of the Act (220 ILCS 5/15-601 (West 2020)), which, to quote from that Illinois
statute, requires “[e]ach common carrier by pipeline” to “construct, maintain, and operate all of its
pipelines, related facilities, and equipment in this State in a manner that imposes no undue risk to
*** the public.”
¶ 89 Assume, hypothetically, that the Commission denies permission to construct the
proposed pumping stations and that the Commission justifies the denial by citing the inability of
the pipeline’s leak-detection system to readily detect a leak of less than 1% of throughput flowing
past a point in an hour. Assume, further, that the Commission refrains from prescribing any
particular leak-detection system as an alternative. The Commission is convinced, let us say, that
the carriers’ leak-detection system is state-of-the-art, that no better system is technologically
achievable, and that hence it would be meaningless to order the installation of a better system. For
that matter, assume that the Commission does not even prescribe any particular sensitivity to leaks,
such as 0.8% or 0.6% of throughput—it is just that 1% of throughput is, in the Commission’s view,
not safe enough. The Commission thereby would adopt a safety standard for the carriers’ pipeline:
it would be an unspecified leak-detection standard somewhere below 1% of throughput. The
Commission effectively would conduct a pipeline safety inspection and would give the carriers a
failing grade without revealing how they could pass the inspection. If, because of the limitations
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of the leak-detection technology, the Commission denied permission to add the pumping stations,
the Commission would fall into essentially the same error as the Iowa Utilities Board in a case
cited by the carriers, Kinley Corp. v. Iowa Utilities Board, 999 F.2d 354 (8th Cir. 1993). In that
case, the Iowa Utilities Board had a pipeline-inspection program, which the federal court held to
be preempted. Id. at 358.
¶ 90 The United States Supreme Court has held that “[w]hen the [f]ederal [g]overnment
completely occupies a given field or an identifiable portion of it, *** the test of pre-emption is
whether the matter on which the State asserts the right to act is in any way regulated by the [federal
government].” (Internal quotation marks omitted.) Pacific Gas & Electric Co. v. State Energy
Resources Conservation & Development Comm’n, 461 U.S. 190, 212-13 (1983). The federal
government has completely occupied the field of oil-pipeline safety. As the Commission rightly
perceived, therefore, it would be federally preempted from denying the carriers’ petition on the
ground that the pipeline, with the addition of the pumping stations, would not be safe enough. See
49 U.S.C. § 60104(c) (2018); Pacific Gas, 461 U.S. at 212-13.
¶ 91 The objectors disagree. According to them, “[t]he federal Oil Pollution Act, at 33
U.S.C. § 1321(o) and § 2718, makes clear that a state has authority to consider the risk of releases.”
That is not exactly what those sections of the federal statute say. Let us start with section
1321(o)(2):
“(o) Obligation for damages unaffected; local authority not preempted;
existing Federal authority not modified or affected
***
(2) Nothing in this section shall be construed as preempting any
State or political subdivision from imposing any requirement or liability
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with respect to the discharge of oil or hazardous substance into any waters
within such State, or with respect to any removal activities related to such
discharge.” 33 U.S.C. § 1321(o)(2) (2018).
Section 1321(o)(2) makes clear that states are not preempted from acting after oil or any hazardous
substance is discharged into state waters. States may “impos[e] any requirement or liability with
respect to the discharge of oil.” (Emphasis added.) Id. They may impose penalties for oil spills
and may require the spills to be cleaned up. That is not the same as saying, however, that states
may impose pipeline safety standards to prevent the discharge of oil.
¶ 92 The same distinction holds true for section 2718(a)(1). That section provides as
follows:
“(a) Preservation of State authorities; Solid Waste Disposal Act
Nothing in this Act or the Act of March 3, 1851 shall—
(1) affect, or be interpreted as preempting, the authority of any State
or political subdivision thereof from imposing any additional liability or
requirements with respect to—
(A) the discharge of oil or other pollution by oil within such
State; or
(B) any removal activities in connection with such a
discharge ***.” 33 U.S.C. § 2718(a)(1) (2018).
Again, the principle is that states are not preempted from taking corrective action after an oil
discharge. But it does not follow that states may impose pipeline standards to prevent discharges.
Such pipeline-safety standards are the exclusive domain of the Pipeline and Hazardous Materials
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Safety Administration of the United States Department of Transportation. See 49 U.S.C.
§ 60104(c) (2018).
¶ 93 In sum, federal preemption is a question of law, which we decide de novo.
Burgoyne, LLC v. Chicago Terminal R.R. Co., 2020 IL App (1st) 190098, ¶ 19. We decide,
de novo, that the Commission was correct that it was federally preempted from acting on oil-
pipeline safety.
¶ 94 4. Climate Change
¶ 95 The objectors criticize the Commission for failing to “acknowledge and discuss”
Executive Order 2019-6 (Exec. Order No. 2019-6, 43 Ill. Reg. 2192 (Jan. 23, 2019)), in which the
Governor of Illinois stated that climate change “must be addressed by public officials” and that
the Illinois government “must take action immediately to prevent further impacts of climate
change.” The objectors further criticize the Commission for failing to “acknowledge and discuss”
the brief that Illinois, along with other states, filed in Standing Rock Sioux Tribe v. United States
Army Corps of Engineers, No. 20-5197, 2020 WL 5704517, at *2 (D.D.C. Sept. 23, 2020), in
which they argued,
“[T]oday—in the midst of the devastating effects of a changing climate and increasing
awareness that environmental harms are disproportionately borne by our most vulnerable
and historically disenfranchised communities—it is more important than ever to fully
understand, evaluate, and disclose for public dialogue the environmental effects of major
federal actions.”
Finally, the objectors criticize the Commission for “entirely ignor[ing] the testimony of renowned
climatologist Dr. James Hansen.”
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¶ 96 In his testimony, Dr. Hansen warned that the proposed project to install the three
new pumping stations on the carriers’ pipeline would “impact the Earth’s climate if approved.” He
predicted that unless the world phased out fossil fuels and returned the atmospheric concentration
of carbon dioxide to no more than 350 parts per million, there would be devastating consequences
for human civilization. Great ice masses in Greenland and Antarctica were melting, and if the rate
of melting continued to climb exponentially as it was doing now, sea levels would continue to rise,
eventually inundating “much of the U.S. eastern seaboard, as well as low-lying areas of Europe,
the Indian sub-continent, and the Far East.” “[H]undreds of historical coastal cities worldwide”
would be underwater, displacing “hundreds of millions of global warming refugees from highly
populated low-lying areas” and “likely caus[ing] or exacerbat[ing] major international conflicts.”
Continued warming of the climate would “yield substantially increased spring precipitation rates
in Illinois.” Not only that, but Illinois would be overwhelmed by climate-change refugees. Even
now, glaciers all around the world were “in full retreat,” threatening “[i]nland, fresh-water
security.” If carbon emissions continued unabated, the subtropics would advance farther north, and
there would be increasing evaporation, intensifying droughts, and fiercer wildfires. Acidification
of the ocean because of the “uptake of a portion of increased atmospheric [carbon dioxide]” was
killing reefs and was “disrupt[ing] ocean ecosystem health, with potentially devastating impacts
to certain nations and communities.” As climate zones shifted, “the less mobile species [would]
be driven to extinction.” “According to the United National Intergovernmental Panel on Climate
Change ***, with global warming of 1.6°C or more relative to pre-industrial levels, 9-31 percent
of species are anticipated to be driven to extinction, while with global warming of 2.9°C, an
estimated 21-52 percent of species will be driven to extinction.” Children would be hurt most by
these cataclysmic effects of climate change.
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¶ 97 Dr. Hansen’s testimony was sobering—and yet it was as if he were talking past the
carriers. The carriers did not dispute the reality of climate change or the threat it posed to
civilization. They did not cast doubt on Dr. Hansen’s apocalyptic predictions. The carriers’
position, instead, was that refusing approval of the additional pumping stations would increase
global warming. If the Commission denied approval of the proposed pumping stations, the
additional half a million barrels per day of crude oil that the pumping stations otherwise would
have transported through the pipelines would not remain in the ground—the carriers wanted to
disabuse anyone of that assumption. The technology existed to extract the oil from the Bakken
Formation, and the world thirsted for the light sweet crude. Driven by powerful economic
incentives, the oil producers or shippers would get the additional half a million barrels per day to
the Texas Gulf Coast one way or the other: if not by pipeline, then by rail. Diesel locomotives
pulling long trains of oil-filled tanker cars would take the 1500-mile journey from North Dakota
to the Gulf Coast, passing through towns and cities. Then, after emptying their cargo of crude oil
at the Gulf Coast, the locomotives would make the long journey back to North Dakota, pulling the
empty tanker cars. On both legs of the journey, the locomotives would continually emit carbon
dioxide into the atmosphere. It was true that, to the extent that the pumping stations did not draw
their electricity from wind turbines, they would use electricity from coal-fired power plants, which
would emit carbon. But the pumping stations, the carriers argued, would be more energy-efficient
than trains, and powering the pumping stations would require fewer carbon emissions. To be sure,
the burning of the additional half a million barrels per day of throughput would increase global
emissions. The carriers’ point, however, was that the worldwide consumption of those half a
million barrels per day was going to happen anyway, no matter what. Given that inevitability, they
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reasoned, it would be preferable to mitigate the environmental harm by opting for a means of
transporting the oil that minimized emissions.
¶ 98 The Commission decided that “adding the additional pumping stations to increase
the flow [was] more environmentally friendly than adding additional trucks and railcars to
transport the oil.” Our standard of review on this question of fact is deferential toward the
Commission. See Commonwealth Edison Co. v. Illinois Commerce Comm’n, 2016 IL App (1st)
150425, ¶ 17. It is not an implausible argument that (1) the additional half a million barrels per
day of Bakken crude oil will reach the Texas Gulf Coast or some other destination one way or
another, ultimately to be consumed, and (2) transporting the oil by pipeline would be better for the
climate than transporting it by train. We hold that by finding those two propositions to be probably
true, the Commission did not make a finding that was against the manifest weight of the evidence.
See 220 ILCS 5/10-201(d) (West 2020); see Cinkus, 228 Ill. 2d at 210.
¶ 99 5. Discrimination Between Common Carriers
¶ 100 The objectors accused the carriers of violating, or of participating in violating,
sections 8-101 and 15-401(h) of the Act (220 ILCS 5/8-101, 15-401(h) (West 2020)) and the
Interstate Commerce Act (49 U.S.C. § 101 et seq. (2018)) by discriminating between users or
potential users of their pipeline (or “pipelines,” in the plural, if they are thought of as two pipelines
joined together). According to the objectors, the discriminatory conduct was twofold. First, the
carriers allegedly “entered into agreements under which they sold equity interests in their pipelines
contingent upon the equity purchaser also committing to ship crude oil on the pipelines.” (We
quote from the statements of facts of the objectors’ brief.) Second, “if a shipper on [the carriers’]
pipelines lack[ed] an investment grade credit rating, the [carriers] require[d] the shipper to provide
credit enhancement, which [might] take the form of a parent guaranty or other satisfactory form of
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financial assurance.” The carriers’ “ ‘affiliated shippers,” on the other hand, “ha[d] received parent
guarantees from their parent companies (including [the carriers’] parent) to enable the affiliates to
ship on the pipelines.” According to the objectors, this discriminatory treatment of shippers—
providing credit enhancement to some of the shippers and requiring other shippers to provide their
own credit enhancement—violated Magellan. On the authority of New York, New Haven &
Hartford R.R. Co. v. Interstate Commerce Comm’n, 200 U.S. 361, 402 (1906), the objectors argue
that contracts that violate the interstate commerce clause (U.S. Const., art. I § 8) are void and
unenforceable. By the objectors’ reasoning, the allegedly discriminatory provisions in the
transportation shipping agreements “undercut[ ] the validity of [these agreements that the carriers]
rely upon to justify their claim of need.” In other words, if the transportation shipping agreements
are illegal and void because they contain discriminatory provisions, the agreements, being legal
nullities, really do not generate a need for increased throughput.
¶ 101 Let us assume, for the sake of argument, that some of the provisions in the
transportation shipping agreements violate the anti-discrimination policy of state and federal law.
It would not necessarily follow that the transportation shipping agreements are, as the objectors
assert, void. Just because the contracts in New Haven were void, it does not follow that every
contract containing an illegal provision is void. The appellate court has explained:
“[W]hen some portion of a contract is unenforceable as against public policy, a
court may nevertheless enforce the rest of the agreement in favor of a party who
did not engage in serious misconduct if the performance as to which the agreement
is unenforceable is not an essential part of the agreed exchange. [Citations.] The
rationale for this rule is that complex, multipart agreements on which there may
have been significant reliance should not be void as a whole solely because some
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small part is against public policy [citation] because, absent great inequality or
misconduct involving an essential term of the contract, doing so would frustrate the
contractual expectations of the parties. [Citation.] Thus, the initial inquiry as to the
issue of severability is whether the unenforceable term is an essential part of the
contract. [Citation.] If the unenforceable term is an essential part of the contract,
the contract is not severable and the entire contract is void. [Citations.] Whether the
unenforceable term is an essential part of the contract depends on the relative
importance of the term in light of the entire agreement between the parties.
[Citations.]” Kepple & Co. v. Cardiac, Thoracic & Endovascular Therapies, S.C.,
396 Ill. App. 3d 1061, 1066 (2009).
¶ 102 The objectors do not argue that the offending provisions of the transportation
shipping agreements are, to the contracting parties, indispensable and inseverable. See Ill. S. Ct.
R. 341(h)(7) (eff. Oct. 1, 2020) (providing that “[p]oints not argued are forfeited and shall not be
raised in the reply brief, in oral argument, or on petition for rehearing”). To reiterate a crucial
point, our default position, from which we begin, is that the Commission’s decision is reasonable,
and the burden is on the objectors to make arguments that are persuasive enough to move us from
that position. See 220 ILCS 5/10-201(d) (West 2020). Arguably, an inference could be drawn that
because the parties to the transportation shipping agreements were, presumably, sophisticated
players in the oil industry, they were just as aware as the objectors that some of the provisions in
the agreements could be challenged as discriminatory. Nevertheless, these savvy market players
entered into the agreements anyway. It could be that, to them, the questionable provisions, though
desirable, were inessential and that the business relationship would not rise or fall on these
provisions. We are unaware of any evidence that, in light of Magellan, any of the shippers have
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backed out of the transportation shipping agreements or have threatened to do so. As the
Commission notes in its brief, the carriers “could revise the credit policy to provide that parent
guarant[e]es are not acceptable credit support for shippers that do not have investment-grade credit
ratings, and any such shippers must provide credit enhancement from third parties.” The record
before us provides no basis to conclude that such a revision would be, in the view of any of the
contracting parties, fatal to the transportation shipping agreements.
¶ 103 Assuming, then, that some of the provisions of the transportation shipping
agreements are illegally discriminatory as the objectors claim, we hold that the objectors have
failed to show that the provisions are inseverable. Having failed to make that showing, the
objectors have failed to undercut the carriers’ reliance on the transportation shipping agreements
as proof that the additional pumping stations are necessary.
¶ 104 6. Sunoco’s Operation of Pipelines in Pennsylvania
¶ 105 In a motion on August 20, 2019, the objectors argued that, in view of operational
problems with the Mariner East pipelines in Pennsylvania, the Commission should investigate
whether the carriers’ pipeline in Illinois would be prone to the same problems. About a month
before the objectors made that motion, the carriers represented to them, in a discovery answer, that
DAPL-ETCO Operations Management, LLC, was the entity responsible for maintaining and
operating the carriers’ Illinois pipeline. A different entity, Sunoco, an affiliate of the carriers, was
the operator of the Mariner East pipelines in Pennsylvania. The administrative law judge denied
the request for an investigation of the Pennsylvania pipelines.
¶ 106 Afterward, on October 22, 2019, the objectors obtained from the carriers some
operational and safety documents. From those documents, the objectors learned that the operator
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of the carriers’ Illinois pipeline was, actually, Sunoco—the same entity that operated the Mariner
East pipelines in Pennsylvania.
¶ 107 The subject of Sunoco came up in an evidentiary hearing on March 13, 2020, when
counsel for the objectors cross-examined Stamm, the vice president of liquid pipelines operations
for Energy Transfer, L.P., which was Energy Transfer’s primary parent. Counsel for the objectors
posed to Stamm the question of who was the operator of the carriers’ pipeline in Illinois. “Sunoco
Pipeline, L.P., is the operator,” he answered. Counsel then handed Stamm some press releases
from the Commonwealth of Pennsylvania Department of Environmental Protection and asked him,
“Are you aware that *** the Department of Environmental Protection issued in 2018 fines for
$355,000 for Mariner East 2 violations?”
¶ 108 The carriers’ attorney objected, arguing that by declining, earlier, to investigate the
alleged problems with the Pennsylvania pipeline, the Commission already had ruled that this line
of inquiry was irrelevant.
¶ 109 The objectors’ attorney countered that, at the time the Commission declined the
recommended investigation, “we didn’t know who *** that actual operator was of the pipelines.”
Not until afterward, the objectors’ attorney explained, did the objectors learn, through discovery,
that DAPL-ETCO Operations Management, LLC, “had essentially subcontracted the operational
work to Sunoco.”
¶ 110 The carriers’ attorney remarked that this line of inquiry could oblige him to bring
in evidence of how well Sunoco had managed thousands of miles of pipelines in other states.
“[W]e’re going to be here for a month,” he warned.
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¶ 111 The objectors’ attorney responded, “Well, Your Honor, I mean if they want to
recognize that they followed the rules elsewhere, that’s fine. You know, I’m concerned about when
they don’t follow the rules.”
¶ 112 Administrative Law Judge Dolan ruled, “I’m going to sustain the objection because
I really don’t think this is relevant to this actual pipeline.”
¶ 113 Under section 200.520 of the Commission’s rules (83 Ill. Adm. Code 200.520
(2011)), a party could petition the Commission for interlocutory review of a hearing examiner’s
ruling. (Another name for a hearing examiner is an administrative law judge.) The petition was to
include “any offer of proof” and was to be served on the hearing examiner, the staff, and all other
parties. Id. § 200.520(a). The hearing examiner, if he or she wished, could “provide a written
explanation for ruling.” Id. On review of the hearing examiner’s ruling, the Commission could
affirm the ruling or could reverse it in whole or in part. Id. § 200.520(b). Or the Commission could
“take any other just and reasonable action with respect to the ruling, such as declining to act on an
interlocutory basis.” Id.
¶ 114 On March 13, 2020, pursuant to section 200.520, the objectors petitioned to the
Commission to review Administrative Law Judge Dolan’s ruling that Sunoco’s performance as a
pipeline operator in Pennsylvania was irrelevant. The objectors argued that because Sunoco was
the operator of the carriers’ Illinois pipeline, refusing to allow the objectors to inquire into, and to
offer evidence regarding, Sunoco’s past performance as a pipeline operator in Pennsylvania was
prejudicial to them and deprived the Commission of information relevant to an important question:
whether nearly doubling the throughput of the Illinois pipeline would be in the public interest and
would be consistent with the security of the public.
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¶ 115 In their petition for interlocutory review, by way of an offer of proof (see id.
§ 200.520(a)), the objectors cited decisions, orders, and press releases by governmental agencies
in Pennsylvania as well as an article from a business publication, providing hyperlinks or Internet
addresses in footnotes of their petition. According to the petition, these materials showed the
following:
“Publicly available information *** indicates that Sunoco’s activities related to [the
Mariner East 1 and Mariner East 2] pipelines have been plagued with problems,
including many that resulted in fines as well as an order by the [Department of
Environmental Protection] to halt work until ‘egregious and willful violations’ were
corrected. Among other things, Sunoco committed violations based on its repeated
failure to comply with Pennsylvania state law and permit conditions, repeated
discharge of drilling fluids into state waters, adverse impacts on private drinking
water supplies, and repeated failure to report discharges. Individual [Department of
Environmental Protection] fines assessed on Sunoco have been as high as $12.6
million, which certainly denotes the seriousness of Sunoco’s transgressions.
7. Sunoco’s violations in Pennsylvania are not limited to its Mariner East 2
project. In late 2019, the [Department of Environmental Protection] ordered Sunoco
to cover exposed pipelines at over 40 locations within Pennsylvania. None of the
exposed pipelines were located at active construction areas.
8. More recently, in February of this year, the Pennsylvania Public Utility
Commission *** fined Sunoco $200,000 for a leak of propane and ethane on the
Mariner East 1 pipeline caused by corrosion and directed Sunoco to conduct an
independent remaining life study on that pipeline.
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9. In addition, late last year the Associated Press reported that the Federal
Bureau of Investigation *** is investigating the Pennsylvania state government’s
issuance of permits to Sunoco.
10. As we finally discovered from [the objectors’] efforts in discovery, the
Sunoco entity in Pennsylvania is the same entity operating [the carriers’] pipelines
in Illinois.”
¶ 116 In a teleconference on April 1, 2020, the Commission considered the objectors’
petition for interlocutory review. Commissioner Kimbrel pointed out that the pipelines in
Pennsylvania, unlike the Illinois pipeline, were “80 and 90 years old.” Also, he observed that the
carriers in this case had received certificates of fitness and that oil had been flowing through their
Illinois pipeline since 2017. For those reasons, he voted to deny the petition for interlocutory
review. Commissioners Carrigan and Oliva likewise voted to deny the petition. Chairman
Zalewski and Commissioner Bocanegra, on the other hand, voted to grant the petition.
Commissioner Bocanegra had no opinion one way or the other on relevancy. She thought that
evaluating relevancy was premature and that the objectors should have been allowed to cross-
examine Stamm on Sunoco’s performance as a pipeline operator in Pennsylvania and to offer
additional proof to demonstrate the relevancy of their questions. Chairman Zalewski filed a written
dissent, in which she argued that “when the pipeline’s safety is of utmost importance, due diligence
require[d] the Commission to evaluate the entirety of a pipeline operator’s safety record.”
¶ 117 So, the Commission was divided on the admissibility of this evidence of Sunoco’s
regulatory violations in Pennsylvania. On appeal, the carriers defend the ruling by the majority of
the Commission. The carriers argue that, “at the time of the [administrative law judge’s] ruling,
[the objectors] failed to make an offer of proof (as provided for in the [Commission’s] Rules of
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Practice, 83 Ill. Adm. Code 200.690) of the testimony it sought to elicit and the cross exhibits it
sought to offer, thereby waiving appellate review of the ruling.”
¶ 118 Section 200.690 of the Commission’s rules does not say, however, that an offer of
proof must be made at the time of the administrative law judge’s ruling. All section 200.690 says
is that “[a]ny party or staff witness who has had evidence excluded may make an offer of proof.”
It does not specify when the offer of proof must be made.
¶ 119 Another rule, section 200.520(a), says that the offer of proof may be provided later,
in a petition to the Commission for interlocutory review of the administrative law judge’s ruling.
See 83 Ill. Adm. Code 200.520(a) (2011). That section reads as follows: “The petition shall be
filed with the Chief Clerk together with any offer of proof and shall be served upon the Hearing
Examiner and upon staff and all parties to the proceeding.” (Emphasis added.) Id. We interpret
administrative regulations the same way we interpret statutes (Dusthimer v. Board of Trustees of
the University of Illinois, 368 Ill. App. 3d 159, 165 (2006)), without imposing any “exceptions,
limitations, or conditions” unexpressed in the text (In re Marriage of Zamudio, 2019 IL 124676,
¶ 15). Section 200.520(a) (83 Ill. Adm. Code 200.520(a) (2011)) plainly states that the petition for
interlocutory review shall include “any offer of proof.” The regulation does not state that the
petition shall include an offer of proof on condition that the offer of proof first was made to the
administrative law judge. We decline to effectively rewrite the regulation by reading that condition
into it. See Zamudio, 2019 IL 124676, ¶ 15.
¶ 120 The petition for interlocutory review that the carriers filed on March 13, 2020, after
the administrative law judge ruled Sunoco’s performance in Pennsylvania to be irrelevant,
included an offer of proof, with hyperlinks. It is true that the offer of proof did not speculate how
Stamm would have answered the question that was put to him on cross-examination. In their offer
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of proof, however, the objectors presented decisions, orders, and press releases by governmental
agencies in Pennsylvania as well as an article from a business publication. If the administrative
law judge had not ruled Sunoco’s regulatory violations in Pennsylvania to be irrelevant, the
objectors could have requested him to take judicial notice of the governmental records, regardless
of whatever answers Stamm would have given on cross-examination. See City of Chicago v.
Soludczyk, 2017 IL App (1st) 162449, ¶ 3 (holding that judicial notice may be taken of information
on a governmental website). Even the business publication, though hearsay, would have been
admissible if it was evidence “of a type commonly relied on by reasonably prudent [persons] in
the conduct of their affairs.” 5 ILCS 100/10-40(a) (West 2020); 83 Ill. Adm. Code 200.610(b)
(2000). We are unconvinced, then, by the carriers’ and Commission’s assertion that the objectors
failed to make an offer of proof.
¶ 121 Having addressed the procedural question of whether the objectors made an offer
of proof, we turn now to the underlying substantive question: Was the evidence of Sunoco’s
regulatory violations as a pipeline operator in Pennsylvania relevant? Section 200.610(b) of the
Commission’s rules (id. § 200.610(b)) provides that, “[i]n contested cases, *** the rules of
evidence *** applied in civil cases in the circuit courts of the State of Illinois shall be followed.”
The Illinois Rules of Evidence “govern proceedings in the courts of Illinois.” Ill. R. Evid. 101 (eff.
Jan. 1. 2015). Under Illinois Rule of Evidence 402 (eff. Jan. 1, 2011), “[a]ll relevant evidence is
admissible, except as otherwise provided by law,” and all irrelevant evidence is inadmissible.
“ ‘Relevant evidence’ ” is defined as “evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.” (Emphasis added.) Ill. R. Evid. 401 (eff. Jan. 1, 2011). We do
not decide de novo—that is, we do not decide anew—whether Sunoco’s performance as a pipeline
- 47 -
operator in Pennsylvania was relevant. Instead, we decide whether the Commission abused its
discretion by excluding the evidence as irrelevant. See Schachter v. City of Chicago, 2011 IL App
(1st) 103582, ¶ 52. “An abuse of discretion is found when a decision is reached without employing
conscientious judgment or when the decision is clearly against logic.” (Internal quotation marks
omitted.) Gruwell, 406 Ill. App. 3d at 295.
¶ 122 It was clearly against logic to rule that Sunoco’s performance as a pipeline operator
in Pennsylvania had no relevance to the question of public safety. The question facing the
Commission was whether nearly doubling the throughput of the Illinois pipelines by the
construction of additional pumping stations would “promote the security of *** the public.” See
220 ILCS 5/8-503 (West 2020). “Security” means “the state of being protected or safe from harm.”
Merriam-Webster’s Online Dictionary, https://www.merriam-webster.com/dictionary/security
(last visited Jan. 7, 2022) [https://perma.cc/G8Z3-2DP3]. Although the safeness of the pipeline, as
we have discussed, was federally preempted, the safeness of the pipeline operator was not federally
preempted. That Sunoco repeatedly was fined in Pennsylvania for violating public safety rules
pertaining to the operation of pipelines, including rules against discharges, has some tendency to
move the needle of probability on the question of public safety. See Ill. R. Evid. 401 (eff. Jan. 1,
2011). To deny that it has any such tendency is untenable. After all, in its brief, the Commission
cites evidence that Sonoco’s performance as a pipeline operator greatly improved after Sunoco
came under the supervision of Energy Transfer, L.P. While touting the evidence of Sunoco’s good
performance, it is arbitrary to reject, as irrelevant, the evidence of Sunoco’s not so good
performance.
¶ 123 Granted, the pipelines that Sunoco operated in Pennsylvania were older than any
portion of the pipeline in Illinois, and the pipelines in Pennsylvania transported ethane and
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propane, whereas the pipeline in Illinois transported crude oil. And granted, the circumstances in
which Sunoco let the spills happen in Pennsylvania might differ from the circumstances in Illinois.
Maybe such differences would be worth taking into consideration—but they would not make
Sunoco’s violations in Pennsylvania irrelevant or entirely lacking in probative value. If, as the
objectors wanted to prove, Sunoco had a corporate culture that was less than scrupulous about
obeying environmental regulations relating to the operation of pipelines, such evidence, if true,
would have some tendency to lessen confidence in Sunoco as a safe operator of the Illinois pipeline
and, therefore, would have some tendency to lessen the probability that nearly doubling the
throughput of the Illinois pipeline would be consistent with the security and convenience of the
Illinois public. See 220 ILCS 5/8-503 (West 2020); Ill. R. Evid. 401 (eff. Jan. 1, 2011).
¶ 124 On appeal, the Commission represents that “[a]s to Sunoco’s operating record, both
[the objectors] and [the carriers] introduced a significant amount of evidence related to Sunoco’s
operating history.” Be that as it may, the administrative law judge ruled that such evidence was
irrelevant—at least when it came to Sunoco’s performance in Pennsylvania—and apparently, a
majority of the Commission agreed. Ruling evidence to be irrelevant is to reject it or to exclude it
from consideration. Under Illinois Rule of Evidence 402 (eff. Jan. 1, 2011), “[e]vidence which is
not relevant is not admissible.”
¶ 125 Section 10-201(e)(ii) of the Act provides as follows:
“If it appears that the Commission failed to receive evidence properly proffered, on
a hearing or a rehearing, or an application therefor, the court shall remand the case,
in whole or in part, to the Commission with instructions to receive the testimony so
proffered and rejected, and to enter a new order based upon the evidence theretofore
taken, and such new evidence as it is directed to receive, unless it shall appear that
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such new evidence would not be controlling, in which case the court shall so find
in its order.” 220 ILCS 5/10-201(e)(ii) (West 2020).
The Commission argues that, under this section, the objectors “bear[ ] the burden on appeal to
establish that the ‘evidence’ it ‘properly proffered’ was ‘controlling,’ i.e., outcome determinative.”
(Emphases in original.) But that is not an entirely accurate account of section 10-201(e)(ii).
Nowhere does that section say that the proponent of the rejected evidence has the burden of
establishing, on appeal, that the evidence would have been controlling. Instead, section 10-
201(e)(ii) says that if, in a hearing or in an application for a hearing, a party properly proffers
evidence and the Commission fails to receive the evidence, the case is to be remanded with
instructions to enter a new order on the basis of the record augmented by the rejected evidence,
“unless it shall appear that such new evidence would not be controlling, in which case the court
shall so find in its order.” Id. That is far from saying that the proponent of the rejected evidence
bears the burden of proving to us that the evidence was controlling. Rather, unless the record
enables us to make a finding that the rejected evidence was not controlling, i.e., would not have
changed the outcome, section 10-201(e)(ii) requires a remand for a new order by the Commission,
with the rejected evidence taken into account. See id.
¶ 126 Because statutes are to be interpreted reasonably and with a view to avoiding
absurdity (LOMTO Federal Credit Union v. 6500 Western LLC, 2018 IL App (1st) 173106, ¶ 28),
we presume the legislature did not intend us to speculate as to the subjective mental processes of
individual commissioners and try to predict how each would vote when, on remand, the rejected
evidence is added to the mix. More likely, the legislature intended us to use a standard of objective
reasonableness when deciding whether the record justifies a remand-avoiding conclusion. We are
to ask, would all reasonable minds necessarily have reached the same decision as the Commission
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had they considered the rejected evidence in the context of the other evidence? We are unable to
so conclude with respect to Sunoco’s performance as a pipeline operator in Pennsylvania,
especially in the light of the evidence that (1) leaks of less than 1% of the throughput of the
carriers’ Illinois pipeline are not readily detectable and (2) how soon such leaks are detected or
whether they are detected at all depends largely on the vigilance and diligence of the pipeline
operator.
¶ 127 In sum, therefore, we hold that rejecting, as irrelevant, the proffered evidence of
Sunoco’s regulatory violations as a pipeline operator in Pennsylvania was an abuse of discretion
necessitating a remand for consideration of the rejected evidence.
¶ 128 7. The Effect of the COVID-19 Pandemic on the Global Demand for Oil
¶ 129 Section 200.500 of the Commission’s rules (83 Ill. Adm. Code 200.500 (1986))
delineates the authority of the hearing examiner, otherwise known as the administrative law judge.
Section 200.500(e) provides as follows:
“The Hearing Examiner shall have authority over the conduct of a
proceeding and the responsibility for submission of the matter to the Commission
for decision. The Hearing Examiner shall have those duties and powers necessary
to these ends, consistent with applicable statutes and Commission rules and
policies, including the following:
***
(e) At any stage of the hearing or after all parties have completed the
presentation of their evidence to call upon any party or the Staff of the
Commission to produce further evidence which is material and relevant to
any issue.” Id. § 200.500(e).
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¶ 130 On March 5, 6, and 9, 2020, Administrative Law Judge Dolan heard evidence. On
March 26, 2020, before briefs were filed, the objectors moved, pursuant to section 200.500(e), that
the administrative law judge stay the proceedings and take additional evidence, specifically,
evidence on the impact that the COVID-19 pandemic was having on global oil markets. The
objectors reminded the administrative law judge that, not too long ago, to support their own claim
that nearly doubling the throughput of their pipelines was necessary, the carriers cited production
increases in the Williston Basin and petroleum product consumption statistics.
¶ 131 Relying now on similar kinds of data, the objectors noted that the pandemic had
caused the price of crude oil to drop precipitously, indicating a sharp decline in public demand.
On June 14, 2019, when the carriers filed their joint petition to install the additional pumping
stations, the benchmark price of West Texas Intermediate crude oil was $52.51 per barrel. On
March 25, 2020, it was $24.12 per barrel. On June 14, 2019, the price for North Dakota Williston
sweet crude oil was $40.75 per barrel. On March 24, 2020, it was $13 per barrel. (The objectors
represented that they had obtained these prices from “oilprice.com reports.”)
¶ 132 The objectors summarized a recent article by Ellen R. Wald, Russia Will Beat Saudi
Arabia in This Oil Price War, Forbes (Mar. 9, 2020),
https://www.forbes.com/sites/ellenrwald/2020/03/09/russia-will-beat-saudi-arabia-in-this-oil-
price-war/?sh=30393d3314a6 [https://perma.cc/7FC6-WMG4]:
“9. Among the sectors hit hard by the global economic slowdown is the oil
industry. Significantly decreased refined petroleum product consumption has
resulted in much greater supply than demand. During the week of March 2, 2020,
the Organization of the Petroleum Exporting Countries (‘OPEC’) and other non-
member countries, which include Russia, attempted to come to an agreement to cut
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crude oil production in order to prevent further declines in oil markets. This effort
failed. Immediately thereafter, Saudi Arabia reduced the price of its oil in certain
markets and signaled that it may increase production as well. As a result, global
crude oil prices crashed, including the price paid for North Dakota crude oil. Oil
markets have continued an unprecedented decline since these events.”
¶ 133 Also, the objectors attached to their motion an article by Amy Kalt, Strange Brew—
COVID 19 and the Crude Oil Price Crash Puts the Screws on U.S. Refiners, RBN Energy LLC:
Daily Blog (Mar. 23, 2020), https://rbnenergy.com/strange-brew-covid-19-and-the-crude-oil-
price-crash-puts-the-screws-on-us-refiners [https://perma.cc/9NRH-HMV2]. They summarized
Kalt’s article as follows:
“10. Oil industry experts report that refinery utilization is declining due to
decreased demand for refined products, and that refineries in PADD II (the
Midwest) are particularly sensitive to downturns in retail petroleum product
consumption. Reduced demand for refined products translates into reduced refinery
utilization rates, thereby reducing the need for crude oil, and correspondingly
reduced need for crude oil shipments and shipping capacity.”
¶ 134 The objectors observed that the pandemic-related drop in oil prices had “led to a
new North Dakota state record for inactive wells, because continued production [was]
uneconomic.” This lack of demand had put operators in a predicament: they either could abandon
the oil well, “making its transfer to a new operator difficult,” or they could “bring the well into
production,” which hardly would be economic, given the low prices for crude. (Here the objectors
cited Brian Scheid, North Dakota Weighs Plan to Keep Some Bakken Crude Off Market, S&P
Global (Mar. 18, 2020), https://www.spglobal.com/platts/en/market-insights/latest-news/natural-
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gas/031820-north-dakota-weighs-plan-to-keep-some-bakken-crude-off-market
[https://perma.cc/D537-Q7RM].) The objectors pointed out that the situation in North Dakota was
dire enough that on March 24, 2020, the North Dakota Industrial Commission, in an effort to
prevent additional crude oil production, “took steps to discourage” oil producers from bringing
wells into production. (Here the objectors cited Amy R. Sisk, State to Revive Waivers to Extend
Duration of Idled Wells Amid Low Oil Prices, Bismark Tribune (Mar. 25, 2020),
https://bismarcktribune.com/bakken/state-to-revive-waivers-to-extend-duration-of-idled-
wells/article_f5abf5f9-af37-5cbb-acc1-e61022e88625.html [https://perma.cc/EFM9-X267].)
¶ 135 The carriers opposed the objectors’ motion to stay the proceedings and to take
additional evidence. The motion was misguided, the carriers argued, because it was premised on
“a short-term uncertainty in global markets caused by the COVID-19 crisis and an ‘oil price’ war
between Russia and Saudi Arabia.” (Emphasis in original.) The proposed pumping stations, by
contrast, were a “long-term investment being built to satisfy long-term demand.” (Emphasis in
original.)
¶ 136 The carriers reminded the Commission that on June 14, 2019, and again on January
17, 2020, Emery cited forecasts that Bakken oil production was expected to increase by 350,000
to 450,000 barrels per day over the next five years. The sources on which Emery said he had relied
were the United States Energy Information Administration, the North Dakota Industrial
Commission, Enverus, and Wells Fargo.
¶ 137 After those agencies and institutions made their predictions, the pandemic
happened. Even so, the carriers maintained, the grounds of the objectors’ motion were “speculative
and fleeting.” The pandemic, the carriers argued, was only temporary—a transient condition—and
the pumping stations would long outlast the pandemic. The carriers continued:
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“Once the Nation emerges from the COVID-19 restrictions, it will need all
available options, including those related to transportation and refinement of crude
oil, for returning the economy to its pre-pandemic levels as quickly as possible.
Thus, there is no reason to reopen the record in this case to take speculative
evidence on the projected short-term impacts that current events may have on crude
oil demand.”
¶ 138 In fact, the carriers and shippers had been so confident of continuing global demand
for oil over the long term, despite inevitable fluctuations in the market, that they had locked
themselves into long-term transportation shipping agreements. The carriers argued:
“The unrefuted record shows that shippers have entered into long-term contracts
with [the carriers] for transportation contracts and service on the [carriers’]
pipelines that already exceed the pipelines’ current achievable maximum daily
throughput by *** approximately 142,000 [barrels per day], or 25% ***. This is
public demand for service, pursuant to long-term contracts, that the pipelines, as
interstate common carrier pipelines, are unable to serve today. The proposed
additional pump stations and pumping facilities are required to enable the pipelines
to serve this demand, even without any future growth in crude oil production in the
Bakken/Williston region. These same improvements will enable the pipelines to
transport up to 1.1 million [barrels per day] of crude oil, thus enabling the pipelines
to meet additional long term future demand. These facts alone establish that the
proposed improvements will secure adequate service and facilities, promote the
security and convenience of the public, are needful and useful to the public, and
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satisfy the requirements for granting [the carriers] authorization under § 8-503 of
the *** Act to proceed to install the additional facilities.” (Emphases in original.)
¶ 139 As a matter of fact, as if to underline their commitment and their confidence in the
market, the carriers pointed out that, without the additional pumping stations, they would end up
being in breach of contract or incurring contractual penalties. They represented to the Commission:
“[B]ecause these [transportation shipping agreements] are already in place, [the
carriers] are contractually obligated to meet the demand and provide the
transportation capacity the shippers have contracted for in the [transportation
shipping agreements]. Indeed, by citing the ‘take or pay’ provisions in these
[transportation shipping agreements, the objectors] recognize that [the carriers] will
be forced to compensate shippers if [the carriers] cannot perform their contractual
obligations.”
¶ 140 The carriers summed up:
“The Commission must make a determination that is more forward-looking than
contemplated by [the objectors’] motion. The COVID-19 pandemic and current
Russia-Saudi Arabia interactions have caused short-term uncertainty in global oil
markets. In contrast, [the carriers’] proposed $190 to $200 million (in Illinois)
capacity optimization project is a substantial investment intended to ensure that [the
carriers’] pipelines can meet shipping demands many years into the future, not just
for the next few months or even the next couple of years. The current short-term
situations do not alter the factors relevant to these longer-term needs that the
proposed pumping stations help to address.” (Emphases in original.)
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¶ 141 On April 23, 2020, Administrative Law Judge Dolan denied the objectors’ motion
for a stay and for the taking of additional evidence. His order stated, “While the Commission notes
that the current crisis and the oil [sic] certainly will lead to some questions about future needs, at
this point granting a stay in this proceeding would be based on speculation.”
¶ 142 The objectors filed a petition for interlocutory review, providing additional
information on the downturn in production at the Bakken oilfields. On October 14, 2020, the
Commission denied the petition for interlocutory review, without explanation.
¶ 143 The Commission’s decision of October 14, 2020, does not mention the COVID-19
pandemic.
¶ 144 On November 13, 2020, the objectors applied for a rehearing to consider the
Bakken production downturn and its negative implications for public need of additional
transportation capacity on the pipelines. On December 2, 2020, the Commission denied rehearing,
again without explanation.
¶ 145 The supreme court has stated that an “[a]gency action is arbitrary and capricious if
the agency *** entirely fails to consider an important aspect of the problem.” Greer v. Illinois
Housing Development Authority, 122 Ill. 2d 462, 505-06 (1988). The COVID-19 pandemic, the
objectors argue, was important to the question of whether the public needed a nearly doubled
throughput capacity in the carriers’ pipeline, and it was arbitrary and capricious of the Commission
to refuse to consider evidence of how, since the hearings in early March 2020, the pandemic had
sharply reduced the public demand for oil.
¶ 146 Evidently, though, the Commission did consider the evidence that the objectors
proffered in their “Verified Motion to Stay the Proceeding and Take Additional Evidence.” To
quote Administrative Law Judge Dolan again: “While the Commission notes that the current crisis
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and the oil [sic] certainly will lead to some questions about future needs, at this point granting a
stay in the proceeding would be based on speculation.” To arrive at the very conclusion that the
objectors had wanted him to reach—that the pandemic “certainly” put into question “future needs”
for increased oil production—the administrative law judge would have had to consider and
evaluate the evidence that the objectors had cited and hyperlinked in their motion for a stay.
Apparently, Administrative Law Judge Dolan did not reject this evidence. Rather, he weighed it,
acknowledged what it showed, and decided that it did not warrant a stay of the proceedings.
¶ 147 Granting or denying a stay is a discretionary act that is reversible only for an abuse
of discretion. Tirio v. Dalton, 2019 IL App (2d) 181019, ¶ 65. A reasonable person could take the
view that the stay requested by the objectors was unnecessary. After all, the objectors presented,
with their petition for a stay, a variety of evidence on the pandemic-related downturn in the oil
industry. Although much of this evidence was hearsay, it was not objected to. And, besides, under
the Commission’s rules, hearsay was admissible if the evidence was “of a type commonly relied
on by reasonable prudent persons in the conduct of their affairs.” 83 Ill. Adm. Code 200.610(b)
(2000). The evidence that the objectors presented in their motion for a stay seemed to be of that
type, e.g., articles from oil-industry publications and from a reputable newspaper and business
magazine. Evidence could “be received *** in writing” (id.), and the Commission could have
decided that the written evidence the objectors had presented was adequate to make their point and
that a stay, therefore, would be unnecessary. Again, the administrative law judge agreed with the
objectors that the pandemic had put the projected growing need for oil in brackets. The
Commission also could have taken the carriers’ point that pandemics did not last forever and that
the pumping stations, if they were approved, would be in operation long after the pandemic receded
and the global demand for oil rebounded.
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¶ 148 Arguably, then, the competing positions on fluctuation in oil demand were
adequately presented on both sides. “Your points are taken, and a stay is unnecessary” could have
been the Commission’s reasonable response. We find no abuse of discretion in the denial of the
objectors’ motion for a stay.
¶ 149 III. CONCLUSION
¶ 150 For the reasons set forth in this opinion, we vacate the Commission’s decision, and
we remand this case to the Commission for a new decision. We express no view, one way or the
other, whether permission to construct the pumping stations should be granted. That is solely for
the Commission to decide. We direct, however, that, in making its new decision, the Commission
regard the “public” in section 8-503 of the Act (220 ILCS 5/8-503 (West 2020)) as being, at its
broadest, the people of the United States, not the world. Also, we direct that the Commission take
into consideration Sunoco’s regulatory violations in Pennsylvania. On remand, however, in
accordance with section 10-201(e)(ii) of the Act (id. § 10-201(e)(ii)), the Commission shall rely
on the evidence already in the record and shall receive no new evidence beyond that cited in the
objectors’ petition for interlocutory review of March 13, 2020. We deny the objectors’ request
that, on remand, we order the Commission to issue a new decision within 11 months. As the
carriers observe, section 10-201(e)(vi) (id. § 10-201(e)(vi)) imposes a different schedule. Also, we
deny the objectors’ request that, on remand, we restrict the throughput of the pipeline to 570,000
barrels per day.
¶ 151 Vacated and remanded with directions.
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No. 4-21-0008
Cite as: Save Our Illinois Land v. Illinois Commerce Comm’n, 2022 IL
App (4th) 210008Decision Under Review: Petition for review of order of Illinois Commerce Commission,
No. 19-0673.
Attorneys John D. Albers and Williams M. Shay, of Shay Law, Ltd., of
for Peoria, for appellants.
Appellant:
Attorneys Robert W. Funk, Rebecca L. Segal, and Thomas R.
for Stanton, Special Assistant Attorneys General, of Chicago, for
Appellee: appellee Illinois Commerce Commission.
Claire A. Manning and Anthony D. Schuering, of Brown, Hay &
Stephens, LLP, of Springfield, Owen MacBride, Bina Joshi, and
Amy Antoniolli, of Schiff Hardin LLP, of Chicago, and
Bret Dublinske, of Fredrikson & Byron, P.A., of Des Moines,
Iowa, for appellees Dakota Access, LLC, and Energy Transfer
Crude Oil Company, LLC.
Jeff Naville, of Springfield, and Patrick K. Shinners, of Schuchat,
Cook & Werner, of St. Louis, Missouri, for other appellees.
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