Citizens Utility Board v. Illinois Commerce Commission

2018 IL App (1st) 170527
Nos. 1-17-0527 & 1-17-0561 cons.
Opinion filed September 11, 2018.
Second Division
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
CITIZENS UTILITY BOARD; PRAIRIE FARMS ) Appeal from the
DAIRY, INC.; UNITED STATES STEEL-GRANITE ) Illinois Commerce
CITY WORKS; and THE UNIVERSITY OF ILLINOIS, ) Commission
)
Appellants, )
)
v. ) No. 16-0093
)
THE ILLINOIS COMMERCE COMMISSION and )
ILLINOIS-AMERICAN WATER COMPANY, )
)
Appellees. )
JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and
opinion.
OPINION
¶1 This appeal arises from an order of the Illinois Commerce Commission (Commission)
approving a general increase in the water and sewer service rates of Illinois-American Water
Company (IAWC). More specifically, the Commission approved an increase in IAWC’s
authorized return on equity (ROE). Several intervenors in the proceedings below, Prairie Farms
Dairy, Inc., United States Steel Corporation-Granite City Works, and the University of Illinois,
Nos. 1-17-0527 & 1-17-0561
as well as Citizens Utility Board (collectively, the intervenors), now appeal. On appeal, the
intervenors assert that (1) the ROE approved by the Commission was not supported by
substantial evidence, (2) the Commission failed to articulate a reasoned basis for its
incorporation of size and leverage adjustments, and (3) the authorized ROE exceeded what was
necessary to ensure IAWC’s financial integrity and attract capital. For the following reasons, we
affirm the Commission’s order.
¶2 I. BACKGROUND
¶3 On January 21, 2016, IAWC filed with the Commission revised tariff sheets seeking a
general increase in water and sewer rates. The Commission suspended the tariff sheets from
taking effect and commenced this proceeding to investigate the proposed rate increase. As stated,
several parties intervened. 1
¶4 The purpose of the Public Utilities Act (Act) is to provide “adequate, efficient, reliable,
environmentally safe and least-cost public utility services at prices which accurately reflect the
long-term cost of such services and which are equitable to all citizens.” 220 ILCS 5/1-102 (West
2016). The Commission uses the Act’s rate of return principles to design and set just and
reasonable rates for Illinois’s least-cost public utility services. People ex rel. Madigan v. Illinois
Commerce Comm’n, 2015 IL 116005, ¶ 29. Those principles used to determine the revenue
requirement take into account a recovery of prudent, reasonable costs as well as a return on
2
equity. Id. ¶ 30. In addition, the return should assure confidence in the utility’s financial
integrity in order to maintain its credit, attract capital (Federal Power Comm’n v. Hope Natural
1
Several other entities participated below but are not parties to this appeal.
2
The ratemaking formula is “R (revenue requirement) = C (operating costs) + Ir (invested capital
or rate base times rate of return on capital).” (Internal quotation marks omitted.) People ex rel. Madigan,
2015 IL 116005, ¶ 7.
2
Nos. 1-17-0527 & 1-17-0561
Gas Co., 320 U.S. 591, 603 (1944)), and compensate the utility’s investors (see Ameren Illinois
Co. v. Illinois Commerce Comm’n, 2015 IL App (4th) 140173, ¶ 8).
¶5 During this proceeding, the parties resolved several issues but were unable to agree on an
appropriate authorized ROE for IAWC. While IAWC sought a 10.75% ROE, the intervenors
asserted that 9% was appropriate. The staff of the Commission (Staff) recommended a ROE of
8.12%. The intervenors now challenge the Commission’s ultimate determination that an initial
ROE of 9.87% is appropriate.
¶6 A. Testimony
¶7 Michael Gorman, a public utility regulation consultant, testified on behalf of the
intervenors. Gorman testified that he used the discounted cash flow (DCF) and capital asset
pricing model (CAPM) to measure the current market cost of equity. 3 The DCF model is based
on the assumption that a stock’s price equals the expected value of future dividends, discounted
to present value, multiplied by the investors’ required rate of return. See Id. ¶ 26. Under the
CAPM formula, a utility’s required rate of return equals the sum of the risk-free rate and a risk
premium. Id. ¶ 10. 4
¶8 For DCF, Gorman used models for constant growth, sustainable growth, and multi-stage
growth. Because IAWC is not a publicly traded company, he used water and gas proxy groups of
publicly traded companies to approximate IAWC’s investment risk. See id. ¶ 12 (stating, with
respect to utilities that are not publicly traded, that proxy groups carrying approximately the
same amount of risk are used). As to the water proxy group, DCF analysis produced the
3
Given the experts’ extensive testimony debating the appropriate methods to be used and how to
apply them in determining an appropriate ROE, we present only a limited recitation of the experts’
positions.
4
A risk premium is determined by multiplying the volatility of the utility’s equity by the premium
that investors expect the general market to pay above a risk-free investment. Ameren Illinois Co., 2015 IL
App (4th) 140173, ¶ 11.
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Nos. 1-17-0527 & 1-17-0561
following average ROEs: (1) constant growth of 9.12%, (2) sustainable growth of 8.05%, and
(3) multi-stage growth of 7.09%. DCF analysis for the gas proxy group produced these average
ROEs: (1) constant growth of 9.12%, (2) sustainable growth of 9.48%, and (3) multi-stage
growth of 7.64%. Based on the foregoing, Gorman’s recommended DCF range was from 8.3% to
9.3%. Thus, he found his analysis supported a ROE of 8.8%, the midpoint of the range.
¶9 Gorman’s CAPM analysis resulted in 8.49% for his water proxy group and 9.77% for his
gas proxy group. After modifying those results, the CAPM study suggested a reasonable ROE
between 8.5% and 9.8%, with a midpoint of 9.15%. Gorman rounded the midpoint to 9.2%.
Accordingly, Gorman found these studies indicated that a reasonable ROE would be between
8.8% (DCF) and 9.2% (CAPM), for an estimated ROE of 9%. Gorman further opined that a 9%
ROE would support an overall rate of return that would permit IAWC to have an investment
grade bond rating.
¶ 10 That being said, Paul Moul, IAWC’s expert and a financial and regulatory consultant,
found Gorman’s DCF results were too low, too unrealistic and certain results were “simply not
credible.” Moul also found Gorman’s sustainable growth DCF and multi-stage growth DCF
results were flawed and his CAPM results were incomplete. Furthermore, Moul found Gorman
failed to establish a reasonable basis for comparing IAWC with Gorman’s gas proxy group.
¶ 11 Moul testified on behalf of IAWC that he applied DCF, CAPM, risk premium analysis
and a comparable earnings study to a proxy group of publicly traded water companies. His
constant growth DCF model led to a ROE of 9.72%. He had reduced his DCF results to account
for IAWC having a higher level of debt than the proxy group (leverage adjustment).
Additionally, after adjusting his CAPM outputs to reflect IAWC’s smaller size (size adjustment),
his CAPM results suggested a ROE of 11.03%. Thus, Moul’s combined DCF and CAPM
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Nos. 1-17-0527 & 1-17-0561
analyses indicated a range of 9.72% to 11.03% with a midpoint of 10.38%. Furthermore, Moul’s
risk premium analysis suggested a ROE of 11.25% and his comparable earnings analysis
suggested a ROE of 13.05%.
¶ 12 Moul acknowledged, however, that all methods contain assumptions and constraints that
are incomplete or overly restrictive. For example, he expressed concern for the circular nature of
DCF analysis when used in rate cases. Moul further acknowledged his result did not take into
consideration the possibility that unforeseen events would prevent IAWC from achieving its
authorized rate of return, something that IAWC had not achieved for several years.
¶ 13 Moul determined that based on the foregoing analyses, a ROE of 10.75% represented a
fair, reasonable cost of equity that would permit IAWC to attract capital to replace aging
infrastructure. Moreover, Moul testified that his opinion assumed that the Commission would
also approve a volume-balancing adjustment rider (Rider VBA): Without it, IAWC would have a
higher risk profile than the utility companies in the proxy group. 5
¶ 14 Gorman and Sheena Kight-Garlisch, a senior financial analyst in the Commission’s
Financial Analysis Division, found that Moul’s size and leverage adjustments were inappropriate
and, as a result, Moul’s ROE of 10.75% was too high. They rejected Moul’s suggestion that a
leverage adjustment is required when a firm’s capitalization, as measured by market value, varies
from the book value capitalization. Additionally, had Moul excluded those adjustments, his DCF
analysis would have resulted in a ROE of 9% and his CAPM analysis would have resulted in a
ROE of 8.9%. Moul, however, added a leverage adjustment of 0.89 to both studies and a size
5
A Rider VBA attempts to accurately collect the revenue requirement through a transparent,
symmetrical formula. See People ex rel. Madigan, 2015 IL 116005, ¶ 32. A Rider VBA does not
guarantee net profits or net revenue but ensures the recovery of the revenue requirement determined by
the Commission. Id. A Rider VBA offers a means for a utility to recover no more and no less than the
utility’s revenue requirement. Id.
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Nos. 1-17-0527 & 1-17-0561
adjustment to the CAPM result. Gorman and Kight-Garlisch disagreed with Moul’s opinion that
as a firm’s size decreases, its risk and required return increase or that a size adjustment was
required. Gorman and Kight-Garlisch further testified that the inputs for Moul’s risk premium
analysis inflated the risk premium.
¶ 15 Kight-Garlisch testified on behalf of the Staff that she performed DCF and CAPM
analysis on water and utility proxy groups. With respect to DCF, she used a nonconstant, multi­
stage growth model with three stages of dividend growth, which led to ROE estimates of 7.24%
for her water proxy group and 7.51% for her utility proxy group. Kight-Garlisch declined to use
the constant growth DCF model, finding that the near-term average dividend growth rate for the
companies in her proxy groups were not sustainable long term. With respect to CAPM, she came
to a ROE of 8.8% for the water proxy group and 8.9% for the utility proxy group, after making
certain adjustments. She did not make adjustments based on size and leverage.
¶ 16 Kight-Garlisch testified that the average of her DCF and CAPM results for the water
proxy group was 7.98%, while the average of her DCF and CAPM results for the gas proxy
group was 8.16%. The average of both percentages was 8.07%, although she recommended a
slightly higher ROE of 8.12%. Should the Commission approve IAWC’s proposed Rider VBA,
Kight-Garlisch suggested an additional reduction, to 8.04%. Moul extensively criticized Kight­
Garlisch‘s analysis and found it led her to underestimate IAWC’s return on equity.
¶ 17 We also note that IAWC’s president, Bruce Hauk, testified that the utility had to compete
with other companies and IAWC affiliates for discretionary capital and there was no incentive
for IAWC’s shareholder, American Water Works Company, Inc., to invest in Illinois if it can get
greater returns elsewhere. With a ROE of 8.04%, IAWC would have the lowest authorized ROE
among its shareholder’s various investment entities. Additionally, IAWC would need to
6
Nos. 1-17-0527 & 1-17-0561
reevaluate its investment decisions. Moul further testified that the investment community would
be alarmed. Moreover, Moul opined that it was inappropriate to reduce a utility’s ROE to
account for a Rider VBA. The record further suggests that 8.04% would be the lowest ROE
authorized in Illinois.
¶ 18 B. The Authorized ROE
¶ 19 On October 19, 2016, the administrative law judges (ALJs) recommended that the
Commission authorize a ROE of 8.92%. In reaching that percentage, the ALJs averaged the
results of Gorman’s constant growth DCF analysis, Moul’s unadjusted constant growth DCF
analysis, and Kight-Garlisch’s CAPM analysis. The ALJs observed that the Commission had
consistently rejected size and leverage adjustments. The intervenors, IAWC, and the Staff all
filed briefs on exceptions to the ALJs’ proposed order.
¶ 20 In a 92-page order entered on December 13, 2016, the Commission rejected the ALJs’
recommendation. After acknowledging the difficulty in estimating ROEs, the Commission found
that the ROEs presented by IAWC (10.75%), the intervenors (9%) and the Staff (8.12%) varied
considerably, as did the expert witnesses’ methodology. The Commission found that while the
parties had identified shortcomings in each of the experts’ opinions, Kight-Garlisch’s
determination was simply anomalous and an uncompetitive ROE would deter investment. Thus,
the Commission rejected her suggested ROE of 8.12% (before deduction).
¶ 21 Consequently, the Commission averaged the 10.75% ROE recommended by Moul with
the 9% ROE recommended by Gorman. The Commission found that averaging the ROEs
suggested by IAWC and the intervenors, to 9.87 %, would minimize some of the flaws identified
in the parties’ respective analyses. Additionally, the order stated:
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Nos. 1-17-0527 & 1-17-0561
“The Commission acknowledges that IAWC’s DCF and CAPM results contain
size and leverage adjustments. *** However, the ROE approved by the Commission in
the instant docket is an average of IAWC’s and [the intervenors’] ROE recommendations
and not an endorsement of every input of every aspect of the methodologies performed
by these parties. See Docket No. 14-0419 at 44.”
The Commission then deducted an additional eight points from the ROE based on its approval of
the IAWC’s Rider VBA, in order to reflect IAWC’s reduced operating risk. 6 The Commission
determined that a ROE of 9.79% “was reasonable, supported by the record, and consistent with
the governing legal standard.” The intervenors now appeal.
¶ 22 II. ANALYSIS
¶ 23 A. The Act, the Commission’s Role, and the Reviewing Court’s Role
¶ 24 Under section 9-101 of the Act, “[a]ll rates or other charges made, demanded or received
*** shall be just and reasonable.” 220 ILCS 5/9-101 (West 2016). Section 9-201(c) further states
that “[i]f the Commission enters upon a hearing concerning the propriety of any proposed rate or
other charge ***, the Commission shall establish the rates or other charges *** proposed, in
whole or in part, or others in lieu thereof, which it shall find to be just and reasonable.” Id. § 9­
201(c). Moreover, the utility has the burden of demonstrating that the proposed rate is just and
reasonable. Id.
¶ 25 “The Commission is not merely an arbitrator between the utility and parties opposing a
rate change[;] it is an investigator and regulator of utilities[,] responsible for the setting of just
rates for all affected by the rates.” Citizens Utility Board v. Illinois Commerce Comm’n, 276 Ill.
App. 3d 730, 740 (1995). Its ratemaking function is legislative in nature. Business &
Professional People for the Public Interest v. Illinois Commerce Comm’n, 146 Ill. 2d 175, 243
6
The rider and adjustment are not the subjects of this appeal.
8
Nos. 1-17-0527 & 1-17-0561
(1991). In addition, it is well settled that when it comes to “matters relating to services and rates
of utilities technical data and expert opinion, as well as complex technological and scientific
data, *** it [is] essential that the matter be considered by a tribunal that is itself capable of
passing upon complex data.” Village of Apple River v. Illinois Commerce Comm’n, 18 Ill. 2d
518, 523 (1960). Moreover, the Commission has the authority to address each situation before it
despite how the Commission may have previously addressed a similar situation. Citizens Utility
Board v. Illinois Commerce Comm’n, 291 Ill. App. 3d 300, 307 (1997).
¶ 26 While the Act gives the Commission broad discretion, the Act also requires it to set forth
analysis and findings sufficient to permit informed review by the appellate court. Id. at 304
(citing 220 ILCS 5/10-201(e)(iii) (West 1994)). Consequently, the Commission must provide
more analysis and reasoning than what is required of a circuit court. Id. That being said, the
Commission need not make specific findings on each claim or evidentiary fact. Commonwealth
Edison Co. v. Illinois Commerce Comm’n, 405 Ill. App. 3d 389, 398 (2010). The Commission’s
findings are sufficient if they enable the reviewing court to engage in an intelligent, informed
review of the Commission’s order. Id.
¶ 27 Upon review, the Commission’s factual findings and conclusions are prima facie true and
its decisions are prima facie reasonable. 220 ILCS 5/10-201(d) (West 2016). In addition, “[t]he
burden of proof upon all issues raised by the appeal shall be upon the person or corporation
appealing from such *** decisions.” Id. Moreover, the Commission is particularly entitled to
deference in with respect to fixing rates because determining rates is a matter of sound business
judgment, which the legislature has entrusted to the Commission. People ex rel. Madigan, 2015
IL 116005, ¶ 23. This is because the Commission’s members are highly qualified to interpret
evidence provided by specialists and technicians. People ex rel. Madigan v. Illinois Commerce
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Nos. 1-17-0527 & 1-17-0561
Comm’n, 2011 IL App (1st) 100654, ¶ 70; cf. Thompson v. Illinois Commerce Comm’n, 1 Ill. 2d
350, 356 (1953) (finding that because the case involved no technical questions or questions of
rate where the Commission would be better situated to assess the evidence, the supreme court
was not required to reach the same conclusion of the Commission). In contrast, judges are not
utility regulators (People ex rel. Madigan, 2015 IL 116005, ¶ 22), and the wisdom of the
Commission is not subject to inquiry (Village of Apple River, 18 Ill. 2d at 523). It follows that we
must not reevaluate the credibility or weight of the evidence or substitute the Commission’s
judgment with our own unless that judgment was clearly against the manifest weight of the
evidence. People ex rel. Madigan, 2011 IL App (1st) 100654, ¶ 70.
¶ 28 Consequently, a reviewing court will reverse the Commission’s findings only if the
record does not show they are supported by substantial evidence, the Commission exceeded the
scope of statutory authority, the Commission’s findings were unconstitutional, or the
Commission reached its decision in a manner, or through proceedings, that were unconstitutional
and prejudiced the appellant. 220 ILCS 5/10-201(e)(iv)A (West 2016); see also Monarch Gas
Co. v. Illinois Commerce Comm’n, 261 Ill. App. 3d 94, 101 (1994) (stating that a reviewing court
can set aside the Commission’s decision if it is clearly unreasonable).
¶ 29 B. Substantial Evidence and Sufficient Findings
¶ 30 The intervenors assert that the Commission’s decision was not supported by substantial
evidence and sufficient findings. Before addressing their specific contentions, however, we find
it inappropriate at this juncture for the intervenors to rely on the expert opinion of Kight-
Garlisch, the expert for the Staff. A party must assert his own legal interests and rights, not those
of third parties. Powell v. Dean Foods Co., 2012 IL 111714, ¶ 36. The intervenors have not
developed a cohesive argument explaining why they should be permitted to rely on another
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Nos. 1-17-0527 & 1-17-0561
party’s evidence. See Enbridge Pipeline (Illinois), LLC v. Monarch Farms, LLC, 2017 IL App
(4th) 150807, ¶¶ 79-80 (finding that failure to develop a cohesive argument results in forfeiture).
More importantly, we find the Commission’s order was supported by substantial evidence and
sufficient findings.
¶ 31 Essentially, the intervenors suggest that in order for substantial evidence to have
supported the ROE approved by the Commission, the record would need to show that (1) a
witness recommended a 9.87% ROE, (2) that witness supported his testimony with additional
evidence showing a ROE of 9.87% was appropriate, and/or (3) a witness testified that a ROE
falling outside the range suggested by the witnesses would be proper. The intervenors contend
that the varying expert opinions did not permit the Commission “to cobble together” an
authorized ROE. Contrary to the intervenors’ position, that is precisely what the Act permits the
Commission to do.
¶ 32 To the extent that the Commission’s decisions are neither arbitrary nor capricious and are
based on credibility determinations, the Commission has wide latitude to exercise its business
judgment to implement pragmatic solutions by “filling gaps in the record.” Commonwealth
Edison Co., 405 Ill. App. 3d at 402. Establishing a just and reasonable rate presents a question of
sound business judgment, rather than the application of a legal formula, and must often be a
tentative determination given that one cannot predict exact results. Iowa-Illinois Gas & Electric
Co. v. Illinois Commerce Comm’n, 19 Ill. 2d 436, 442 (1960). The intervenors fundamentally
misunderstand the Commission’s role.
¶ 33 Here, the Commission did not pull a number out of the air. Instead, the Commission filled
in the gaps left by the parties. The Commission observed that all three experts were subject to
meaningful criticism, Kight-Garlisch more than the others. Stated differently, the Commission
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Nos. 1-17-0527 & 1-17-0561
clearly found that the experts’ criticisms of each other were credible. Yet, the Commission
determined that the opinions of Gorman were not entirely unfounded, notwithstanding that the
flaws of one expert apparently led to an overstated ROE and the flaws of the other apparently led
to an understated ROE.
¶ 34 The intervenors challenge as conclusory the Commission’s statements that the parties
pointed out flaws in each other’s analyses and that averaging the results would minimize such
shortcomings. While the Commission did not explicitly state that any particular flaws precluded
adopting one recommendation over another, context made the Commission’s position clear in
that regard. The Commission must make sufficient findings to permit review but this does not
mean that a reviewing court must ignore context or the Commission’s unmistakable meaning.
Moreover, in context, the Commission’s order makes clear that, as the testimony of Moul and
Hauk showed, a ROE of 8.12% was far too low to allow IAWC to compete for capital
investment. The Commission had also been presented data showing how very low a ROE of
8.12% would be when compared to other utilities’ ROEs. See Continental Mobile Telephone Co.
v. Illinois Commerce Comm’n, 269 Ill. App. 3d 161, 171 (1994) (stating that the challenger must
show that the opposite conclusion is clearly evident, not merely that the evidence could support a
different conclusion); Metro Utility Co. v. Illinois Commerce Comm’n, 262 Ill. App. 3d 266, 278
(1994) (stating that the presentation of contradictory evidence is not sufficient to reverse the
Commission’s order).
¶ 35 Ideally, one expert would have presented flawless analysis suggesting impeccable
accuracy in determining what ROE is appropriate in this instance, thereby allowing the
Commission to categorically adopt the conclusion of one witness. Unfortunately, this is not the
nature of ratemaking. See Amax Zinc Co. v. Illinois Commerce Comm’n, 124 Ill. App. 3d 4, 11
12
Nos. 1-17-0527 & 1-17-0561
(1984) (stating that ratemaking is not an exact science and lacks precision). Indeed, the
Commission was within its authority to find that neither Gorman nor Moul provided a nonpareil
opinion.
¶ 36 The Act requires “substantial evidence,” not conclusive evidence. Substantial evidence
requires more than a mere scintilla but less than a preponderance of evidence and requires
evidence that a reasoning mind would find to be sufficient support for a particular conclusion.
Commonwealth Edison Co. v. Illinois Commerce Comm’n, 398 Ill. App. 3d 510, 514 (2009); cf.
5 ILCS 100/10-15 (West 2016) (stating under the Illinois Administrative Procedure Act that
“[u]nless otherwise provided by law or stated in the agency’s rules, the standard of proof in any
contested case hearing conducted under this Act by an agency shall be the preponderance of the
evidence”). Substantial evidence can support multiple possible findings. Central Illinois Public
Service Co. v. Illinois Commerce Comm’n, 268 Ill. App. 3d 471, 479 (1994).
¶ 37 Presented with the insightful, albeit imperfect, calculations of Gorman and Moul, i.e.,
substantial evidence, the Commission used its expertise to determine that an average would be
reasonable. The Commission’s order clearly shows how the figure of 9.87% was arrived at. Cf.
Citizens Utility Board, 291 Ill. App. 3d at 305-06 (finding that while evidence might have
supported the Commission’s decision, the Commission’s order lacked the specificity required by
the Public Utility Act because the order failed to specify what “distortions” could occur if the
entire marginal cost study distinguished between new and existing customers); Emera Maine v.
Federal Energy Regulatory Comm’n, 854 F.3d 9, 23, 27-30 (D.C. Cir. 2017) (finding that the
agency administering the Federal Power Act (16 U.S.C. §§ 824d(a), 824e(a) (2012)) failed to
explain why the rate chosen was just and reasonable where the agency, among other things,
(1) did not identify the unusual capital market conditions warranting a change from the usual
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Nos. 1-17-0527 & 1-17-0561
practice of setting the rate at the midpoint of the zone of reasonableness, (2) acknowledged that
the alternative methods used did not lead to the specific rate chosen, (3) did not find that said rate
would attract capital, and (4) identified inapposite cases supporting that rate).
¶ 38 We also find the Commission’s citation, “See Docket No. 14-0419 at 44,” is neither
vague nor confusing. In that case, on the page cited, the Commission stated that their decision to
average the experts’ results was not an endorsement of one expert’s use of a leverage and size
adjustment, and that averaging results would reduce “the effects of perceived shortcomings and
biases described in the competing positions of the parties.” See Aqua Illinois, Inc., Ill. Comm.
Comm’n No. 14-0419, at 43 (Order-Final Mar. 25, 2015); cf. Citizens Utility Board, 291 Ill.
App. 3d at 306 (rejecting the Commission’s reliance on an earlier order whether the present order
involved no similar analysis or reasoning). Given that the citation was provided after stating that
the Commission was not endorsing every input used by the experts, the purpose of the citation is
entirely clear. The Commission in both the present and prior case was declining to endorse the
questionable adjustments. Only willful blindness could leave one in doubt of the Commission’s
reason for citing the prior order.
¶ 39 The intervenors further argue that substantial evidence did not support the Commission’s
inclusion of size and leverage adjustments in the approved ROE. They add, “[t]here are no
findings of fact that explain why the Commission has determined size and leverage adjustments
are acceptable, after decades of declining to do so.” The simple answer, once again, is that the
Commission did not make such a determination, as the intervenors well know. As the intervenors
acknowledge, the Commission specifically stated that it was not endorsing the entirety of the
parties’ ROE analyses. Instead, the Commission’s order shows it was averaging the two ROE’s
to offset the flaws in both experts’ opinions.
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Nos. 1-17-0527 & 1-17-0561
¶ 40 Moreover, contrary to the intervenors’ contention, the Commission’s decision to average
the parties’ ROEs, does not conflict with that representation. Had the Commission actually
endorsed Moul’s size and leverage adjustments, it may very well have found that the credibility
of his opinion was markedly superior to Gorman’s opinion and authorized a ROE closer to
10.75%. Moreover, the intervenors ignore that if the Commission’s practice of averaging results
endorsed the flaws in IAWC’s position, the Commission likewise endorsed the flaws in the
intervenors’ position. The intervenors have developed no argument showing that the
Commission incorrectly found flaws in Gorman’s analysis.
¶ 41 In short, we find that despite the intervenors’ characterization of its contentions, they
essentially ask this court to reweigh the evidence and override the Commission’s sound business
judgment. We decline to do so.
¶ 42 We further reject the intervenors’ contention that the Commission’s decision is entitled to
less deference here because it departed from past practice. See People ex rel. Madigan, 2015 IL
116005, ¶ 25 (stating that the Commission’s decision will be entitled to less deference on review
only when it departs from the Commission’s usual rules to obtain a different unexplained result
in a single case); Citizens Utility Board v. Illinois Commerce Comm’n, 166 Ill. 2d 111, 131-32
(1995) (stating that the Commission’s decisions are entitled to less deference when they
drastically depart from the Commission’s past practices). The Commission has repeatedly
7
averaged imperfect analyses. See People ex rel. Madigan, 2011 IL App (1st) 100654, ¶ 74
7
There are numerous examples of the Commission averaging an imperfect analysis. See Ameren
Illinois Co., Ill. Comm. Comm’n No. 11-0282, at 126-27 (Order-Final Jan. 10, 2012) (After finding that
no party’s ROE position stood out as being particularly superior to any other party’s position, the
Commission decided to average the parties’ positions, according them equal weight.); Liberty Utilities
(Midstates Natural Gas) Corp., Ill. Comm. Comm’n No. 14-0371, at 66 (Order-Final Feb. 11, 2015)
(finding that “blending the Parties’ proposals in this manner results in an average return that significantly
diminishes any perceived upward or downward bias”); North Shore Gas Co., Ill. Comm. Comm’n Nos.
11-0280 & 11-0281 (cons.), at 138-40 (Order-Final Jan. 10, 2012) (finding that one expert’s size
15
Nos. 1-17-0527 & 1-17-0561
(observing that the Commission averaged two experts’ opinions as to the rate of return on equity
before making two downward adjustments). This is entirely within the Commission’s function of
devising pragmatic solutions. We find the intervenors’ contention to be disingenuous.
¶ 43 C. Bluefield and Hope
¶ 44 Finally, the intervenors contend that the Commission’s order does not satisfy the criteria
set forth by the United States Supreme Court in Bluefield Water Works & Improvement Co. v.
Public Service Comm’n of West Virginia., 262 U.S. 679, 692-93 (1923), and Hope Natural Gas
Co., 320 U.S. at 603.8 Specifically, they argue that the ROE authorized by the Commission was
“significantly higher than necessary to maintain the IAWC’s financial integrity and attract capital
at reasonable terms.”
¶ 45 A utility’s return should be reasonably sufficient to permit confidence in the utility’s
financial soundness and, with economical and efficient management, to support the utility’s
credit and raise funds necessary to properly discharge the utility’s public duties. Bluefield
Waterworks & Improvement Co., 262 U.S. at 693. Additionally, “the return to the equity owner
should be commensurate with returns on investments in other enterprises having corresponding
risks.” Hope Natural Gas Co., 320 U.S. at 603. An investor has a legitimate concern with the
utility’s financial integrity, which requires that it have enough revenue for operating expenses
adjustment was unwarranted but that all parties’ expert opinions were flawed, and averaging the experts’
determinations); Du Page Utility Co. v. Illinois Commerce Comm’n, 47 Ill. 2d 550, 560-61 (1971) (where
the utility claimed $31,680 in salaries paid as operating expense and the intervening homeowners
associations instead suggested $0 was appropriate, the reviewing court found the Commission properly
allowed the utility to claim $15,840, half of its original claim); North Shore Gas Co., Ill. Comm. Comm’n
Nos. 12-0511 & 12-0512 (cons.), at 205-08 (Order-Final June 18, 2013) (finding that averaging the
analyses used by the Staff and the utilities was an appropriate basis to determine the ROE and that doing
so did not endorse every aspect of their analyses); Ameren Illinois Co., Ill. Comm. Comm’n No.13-0192,
at 166 (Order-Final Dec. 18, 2013) (finding that averaging the DCF and CAPM results would minimize
the effects of the shortcomings of the parties’ positions), aff’d by Ameren Illinois Co., 2015 IL App (4th)
140173, ¶¶ 20, 56 (suggesting that the practice of averaging could depend on whether there were
defective inputs and what the defective inputs were).
8
Bluefield involved a Virginia statute, whereas Hope involved the federal Natural Gas Act of
1938.
16
Nos. 1-17-0527 & 1-17-0561
and capital costs. Id. Thus, Bluefield and Hope address the need for minimum returns, not the
intervenors’ concern with maximum returns.
¶ 46 In any event, the Commission expressly acknowledged in its order that Bluefield and
Hope required the Commission to “consider whether the authorized return will allow a return
that is sufficient to maintain the utility’s financial integrity and to attract capital at reasonable
terms, while ensuring that customers do not pay an excessive or reasonable return on those
rates.” The Commission subsequently determined that a ROE of 9.79% “was reasonable,
supported by the record, and consistent with the governing legal standard.” The Commission’s
determination finds support in the record. See also id. at 602 (stating that “[i]f the total effect of
the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the [federal
Natural Gas Act of 1938 (15 U.S.C. § 717 et seq. (1940))] is at an end”).
¶ 47 Notably, the intervenors argue that Gorman testified that a ROE of 9% would maintain
IAWC’s financial integrity but ignore that Moul criticized Gorman’s analysis. As the
Commission observes on appeal, Gorman admitted that his analysis was not as comprehensive as
Standard & Poor’s financial review. In addition, the intervenors ignore that Moul recommended
a ROE of 10.75% to assure confidence in IAWC’s financial integrity. Moul also testified that
investors would view a significant reduction in IAWC’s ROE as being unhelpful to the utility’s
financial health. Furthermore, Hauk testified that the utility had to compete with other companies
and IAWC affiliates for discretionary capital and it would not make sense for IAWC’s
shareholder to invest in IAWC if the shareholder could achieve greater returns elsewhere.
IAWC, however, had the lowest authorized ROE of its shareholder’s various investment entities.
See Hope Natural Gas Co., 320 U.S. at 602 (stating that the Federal Power Commission was not
required to use any particular formula and that ratemaking requires pragmatic adjustments).
17
Nos. 1-17-0527 & 1-17-0561
Finally, the intervenors’ contention that IAWC failed to identify any specific capital investment
that could not be made at a ROE below 9% is misleading, as the record essentially shows that
IAWC’s capital investments would need to be reevaluated with a lower ROE. Id. at 603 (stating
that establishing a just and reasonable rate under the federal Natural Gas Act of 1938 involves
balancing the interests of the consumer with those of the investor).
¶ 48 III. CONCLUSION
¶ 49 Here, the Commission’s order was supported by sufficient findings and substantial
evidence. Having considered the parties’ contentions, the record, and the Commission’s decision,
we find no basis to reverse that decision or remand for further proceedings. See 220 ILCS 5/10­
201(e)(iv)A (West 2016).
¶ 50 For the foregoing reasons, we affirm the Commission’s decision.
¶ 51 Affirmed.
18