                                                                         Digitally signed by
                           Illinois Official Reports                     Reporter of Decisions
                                                                         Reason: I attest to the
                                                                         accuracy and integrity
                                                                         of this document
                                  Appellate Court                        Date: 2016.10.06
                                                                         09:31:45 -05'00'




             Illinois Landowners Alliance, NFP v. Illinois Commerce Comm’n,
                                2016 IL App (3d) 150099



Appellate Court       ILLINOIS LANDOWNERS ALLIANCE, NFP, Petitioner, v. THE
Caption               ILLINOIS COMMERCE COMMISSION; COMMONWEALTH
                      EDISON COMPANY; INTERNATIONAL BROTHERHOOD OF
                      ELECTRICAL WORKERS, AFL-CIO LOCAL UNIONS 51, 9, 145
                      AND 196; ILLINOIS AGRICULTURAL ASSOCIATION, a/k/a
                      Illinois Farm Bureau; WIND ON THE WIRES; ENVIRONMENTAL
                      LAW AND POLICY CENTER; NATURAL RESOURCES
                      DEFENSE COUNCIL; BUILDING OWNERS AND MANAGERS
                      ASSOCIATION         OF    CHICAGO;   DYNEGY       MIDWEST
                      GENERATION, LLC; DYNEGY KENDALL ENERGY, LLC;
                      AMEREN TRANSMISSION COMPANY OF ILLINOIS;
                      MIDWEST GENERATION, LLC; JOHN L. CANTLIN; and
                      JOSEPH          H.      CANTLIN,     Respondents.—ILLINOIS
                      AGRICULTURAL ASSOCIATION, a/k/a Illinois Farm Bureau,
                      Petitioner, v. THE ILLINOIS COMMERCE COMMISSION; ROCK
                      ISLAND CLEAN LINE, LLC; COMMONWEALTH EDISON
                      COMPANY;          INTERNATIONAL      BROTHERHOOD       OF
                      ELECTRICAL WORKERS, AFL-CIO LOCAL UNIONS 51, 9, 145
                      AND 196; ILLINOIS LANDOWNERS ALLIANCE, NFP; WIND
                      ON THE WIRES; ENVIRONMENTAL LAW AND POLICY
                      CENTER; NATURAL RESOURCES DEFENSE COUNCIL;
                      BUILDING OWNERS AND MANAGERS ASSOCIATION OF
                      CHICAGO; DYNEGY MIDWEST GENERATION, LLC; DYNEGY
                      KENDALL ENERGY, LLC; AMEREN TRANSMISSION
                      COMPANY OF ILLINOIS; MIDWEST GENERATION, LLC;
                      JOHN L. CANTLIN; JOSEPH H. CANTLIN; TIMOTHY B.
                      CANTLIN; FRIESLAND FARMS, LLC; LARRY GERDES;
                      STEVEN GERDES; JASON D. JAMES; JAMES BEDEKER;
                      SALLY BEDEKER; and FIRST MIDWEST BANK TRUST #6243,
                      Respondents.—COMMONWEALTH           EDISON       COMPANY,
                      Petitioner, v. THE ILLINOIS COMMERCE COMMISSION; ROCK
                      ISLAND         CLEAN      LINE,   LLC;    INTERNATIONAL
                      BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO
                      LOCAL UNIONS 51, 9, 145 AND 196; ILLINOIS
                      AGRICULTURAL ASSOCIATION, a/k/a Illinois Farm Bureau;
                 WIND ON THE WIRES; ENVIRONMENTAL LAW AND POLICY
                 CENTER; NATURAL RESOURCES DEFENSE COUNCIL;
                 BUILDING OWNERS AND MANAGERS ASSOCIATION OF
                 CHICAGO; DYNEGY MIDWEST GENERATION, LLC; DYNEGY
                 KENDALL ENERGY, LLC; AMEREN TRANSMISSION
                 COMPANY OF ILLINOIS; MIDWEST GENERATION, LLC;
                 ILLINOIS LANDOWNERS ALLIANCE, NFP; JOHN L. CANTLIN;
                 JOSEPH H. CANTLIN; TIMOTHY B. CANTLIN; FRIESLAND
                 FARMS, LLC; LARRY GERDES; STEVEN GERDES; JASON D.
                 JAMES; JAMES BEDEKER; SALLY BEDEKER; And FIRST
                 MIDWEST BANK TRUST #6243, Respondents.



District & No.   Third District
                 Docket Nos. 3-15-0099, 3-15-0103, 3-15-0104 cons.


Filed            August 10, 2016


Decision Under   Petitions for review of order of Illinois Commerce Commission,
Review           No. 12-0560.



Judgment         Reversed; cause remanded.



Counsel on       William M. Shay, of Shay Phillips, Ltd., of Peoria, for petitioner
Appeal           Illinois Landowners Alliance, NFP.

                 Claire A. Manning and Charles Y. Davis, both of Brown, Hay &
                 Stephens, LLP, of Springfield, for petitioner Illinois Agricultural
                 Association.

                 E. Glenn Rippie (argued) and Carmen L. Fosco, both of Rooney
                 Rippie & Ratnaswamy LLP, Thomas S. O’Neill, of Commonwealth
                 Edison Company, and Richard G. Bernet and Clark M. Stalker, all of
                 Chicago, for Commonwealth Edison Company.

                 James E. Weging and Matthew L. Harvey (argued), both of Office of
                 General Counsel, for respondent Illinois Commerce Commission.



                                    -2-
                              Rochelle G. Skolnick, of Schuchat, Cook & Werner, of St. Louis,
                              Missouri, for respondent International Brotherhood of Electrical
                              Workers.

                              Sean R. Brady, of Wheaton, for respondent Wind on the Wires.

                              Owen E. MacBride (argued) and Diana Z. Bowman, both of Schiff
                              Hardin LLP, of Chicago, for respondent Rock Island Clean Line,
                              LLC.



     Panel                    JUSTICE LYTTON delivered the judgment of the court, with opinion.
                              Justices Carter and Wright concurred in the judgment and opinion.


                                               OPINION

¶1          Illinois Landowners Alliance, NFP (ILA), Illinois Agricultural Association also known as
       Illinois Farm Bureau (IAA), and Commonwealth Edison Company (Com Ed) petition this
       court for review of an order of the Illinois Commerce Commission (Commission) allowing
       Rock Island Clean Line, LLC (Rock Island) to operate as a public utility under the Public
       Utilities Act (Act) (220 ILCS 5/1-101 et seq. (West 2012)) and granting the company a
       certificate of public convenience and necessity to construct, operate, and maintain a high
       voltage electric transmission line across several counties in Illinois. On appeal, petitioners
       argue that (1) the application should have been dismissed as a matter of law because Rock
       Island is not a public utility and (2) the Commission’s findings in favor of a certificate of
       public convenience and necessity (CPCN) were not supported by substantial evidence. We
       reverse the Commission’s order granting the certificate and remand for further proceedings.

¶2                                             BACKGROUND
¶3         Rock Island is a subsidiary of Clean Line Energy Partners LLC (Clean Line), a
       transmission energy development company, with its principal offices in Houston, Texas. In
       addition to Rock Island, Clean Line owns four other companies that are developing
       long-distance transmission projects across the northern states. Clean Line is owned in part by
       Grid America Holdings, Inc., which is owned by National Grid USA, a business that owns and
       operates more than 8600 miles of high voltage transmission facilities in the United States.
¶4         Rock Island was formed to construct and manage an electric transmission line project that
       would run from O’Brien County in northwest Iowa to Grundy County in northeast Illinois. The
       primary purpose of the project is to connect wind generation facilities in northwest Iowa, South
       Dakota, Nebraska, and Minnesota with electricity markets on the PJM Interconnection grid.
       PJM is a regional transmission organization that coordinates the movement of wholesale
       electricity to markets in Illinois, Indiana, Michigan, Ohio, Kentucky, the District of Columbia,
       and eight other states in the northeast.

                                                  -3-
¶5          The proposed line would span 379 miles through Iowa to the Mississippi River, crossing
       the river in Princeton, Iowa, and entering Illinois near Cordova, Illinois. It would then extend
       approximately 121 miles in Illinois to a Com Ed substation in Grundy County (Collins
       substation).
¶6          In preparation for the project, Rock Island filed an application with the Commission for a
       certificate of public convenience and necessity under section 8-406 of the Act (220 ILCS
       5/8-406(a), (b) (West 2012)) authorizing it to operate as a transmission-only public utility in
       Illinois and to construct, operate, and maintain an electric transmission line for wind energy. In
       its application, Rock Island stated that the development of additional transmission
       infrastructure is critical to our nation’s ability to utilize its wind resources to meet the demand
       for electricity from renewable sources. Rock Island further claimed that although wind energy
       generates an alternating electrical current (AC), it is more cost effective to transmit the energy
       using a direct current (DC) transmission line.
¶7          According to the proposed plan, the Rock Island project would construct a high voltage
       direct current (HVDC) electric transmission line from Iowa to Illinois. The line would convert
       AC wind energy to DC electricity at a converter station in O’Brien County, Iowa. From there,
       the high voltage current would travel 500 miles to a DC-to-AC converter station in Grundy
       County, Illinois. The proposal stated that Rock Island would then run an AC transmission line
       a few miles to the Collins substation, where the electricity would be delivered into the PJM
       grid. The application set forth a proposed route for the line but did not seek the right of eminent
       domain.
¶8          Rock Island stated that the project has a capacity of 3500 megawatts and is able to connect
       up to 4000 megawatts of generating capacity in the resource area in Iowa to northern Illinois.
       At that rate, it will deliver 15 million megawatt-hours of electricity annually, enough to power
       1.4 million homes.
¶9          Rock Island’s application and supporting materials outlined a plan for raising the capital
       necessary to finance construction at an unspecified future date on a “project financing basis.”
       Rock Island emphasized that it was a “merchant developer”—not a traditional utility with
       cost-based rates—and claimed that Illinois residents would not pay for the line through rate
       assessments. It does not plan to seek cost recovery through the electric rates paid by consumers
       in Illinois. Instead, it indicated that its rates will be regulated by the Federal Energy Regulatory
       Commission (FERC) and that the project will pay for itself through the revenues it receives
       from anticipated purchase agreements with wind generators. Rock Island stated that it plans to
       enter into long-term financing agreements with one or more wind generators, or “anchor
       tenants,” in the resource area (northwest Iowa) and then attract lenders using the anchor tenant
       agreements as collateral. The financing plan included in the application did not identify any
       current anchor tenants or lenders.
¶ 10        Numerous parties sought and were granted leave to intervene, including ILA, IAA, Com
       Ed, local unions of the International Brotherhood of Electrical Workers, Wind on the Wires,
       and various private landowners. Commission staff members also participated in the
       application process by presenting evaluations, reports, and recommendations to the
       Commission.
¶ 11        Initially, IAA and ILA filed motions to dismiss, arguing that Rock Island was not a public
       utility under section 3-105 of the Act because it did not own infrastructure for electric
       transmission in Illinois. The intervenors argued that only a public utility may obtain a section

                                                    -4-
       8-406(a) certificate to transact business and only a public utility may obtain a section 8-406(b)
       certificate to construct facilities. They maintained that because Rock Island was not a public
       utility, it could not be granted a certificate of public convenience and necessity under the Act.
¶ 12        The Commission’s administrative law judge (ALJ) denied both motions. The ALJ ruled
       that the application process under section 8-406 of the Act is not limited to entities that are
       already certified public utilities and concluded that Rock Island could apply for public utility
       status and seek certification to construct and manage a transmission facility at the same time.
¶ 13        At the evidentiary hearing on the application, witnesses for Rock Island testified that its
       objective in constructing the project is to provide a direct transmission link for wind generating
       plants that will be built in the Iowa resource area and to transport that output to electricity
       markets in Illinois. According to Rock Island, the demand for electricity from renewable
       resources in Illinois and surrounding states will remain high for years to come due to state
       renewable portfolio standards requirements imposed by recent legislation. These
       state-imposed mandates require utilities to replace energy generated by fossil fuels with
       renewable energy, and at least 75% of that renewable energy must come from wind power.
¶ 14        David Berry, vice president of strategy and finance for Clean Line, characterized the
       proposed transmission line as a “merchant project” because Rock Island is assuming the
       market risk of the project. Rock Island does not have a process to recover its costs from
       ratepayers and therefore must sell capacity through negotiated contracts. Berry testified that
       the FERC approved Rock Island’s proposal to presubscribe up to 75% of its transmission
       capacity to anchor tenants and sell the remaining 25% of the line’s capacity to other generators.
       Rock Island would market its excess capacity using a bidding process, otherwise known as
       “open season” bidding, in which Rock Island would offer services to other wind generator
       customers along the line. According to Berry’s testimony, the FERC order requires Rock
       Island to provide standardized generator interconnection service to any generator that requests
       to connect through the bidding process, subject to an open access transmission tariff
       administered by PJM.
¶ 15        Berry further testified that developers will not invest capital in the construction of
       additional wind generation facilities in the resource area without reasonable assurance of
       adequate transmission capacity and infrastructure to deliver the energy to population centers
       such as northern Illinois. He stated that while it is theoretically possible to move power from
       the resource area to northern Illinois using existing 345-kilovolt lines, it would entail
       substantially higher losses as compared to using the proposed HVDC transmission lines.
¶ 16        Rock Island admitted that the wind generators used in its energy and financial simulation
       models are based on predictions and do not yet exist. Currently, Rock Island does not have any
       transmission customers; the only way it could serve a customer is by building the project.
¶ 17        Rock Island witnesses further testified that the project will cost approximately $1.8 billion
       to construct, operate, and maintain. As of December 2013, shareholders had committed
       approximately $95 million of equity to Clean Line, with approximately $21.6 million
       specifically invested in the Rock Island project. Rock Island currently possesses an option to
       purchase real property in Grundy County, Illinois, upon which it intends to construct a
       converter station next to the Collins substation.
¶ 18        On cross-examination, Michael Skelly, the president of Rock Island and Clean Line,
       testified that on the date the application was filed, Rock Island did not own, control, operate, or


                                                    -5-
       manage any transmission plants, equipment, or property in Illinois. He also stated that as of the
       date of his testimony, Rock Island still did not own property in Illinois.
¶ 19        Paul Marshall, an ILA board member, testified that ILA is a not-for-profit entity composed
       of approximately 300 members who own or have an interest in land impacted by the path of the
       transmission line. According to his testimony, roughly 100,000 acres of land fall on or along
       the proposed project route.
¶ 20        Dr. Jeffrey Gray, a federal electricity regulation and policies expert, performed an
       economic analysis for ILA. He testified that Rock Island “might be able to demonstrate need if
       it could show that the project is adequately subscribed.” He noted that, until then, the demand
       or need for the project is “speculative.” Gray explained that the electric industry has a
       structured wholesale marketing system that uses regional transmission organizations like PJM
       to collect the electricity generated in a region and distribute it to consumers, particularly those
       in need of renewable energy credits. In this case, Rock Island would use the transmission line
       to “ship” renewable energy created by the wind generators to the PJM grid. Gray noted that the
       Rock Island project is not currently included in the PJM regional transmission plan because
       none of the project’s capacity has been contracted and no potential generators have obtained
       rights to buy service on the line.
¶ 21        Gray further testified that the impact of the project is unknown because Rock Island has not
       addressed the costs of negative land use impacts and has assumed traits and characteristics
       about connecting generators that cannot be substantiated because the generators have yet to be
       built. He opined that the financial aspects of the project leave open the possibility of switching
       the project from “merchant” status to “cost-allocation” status and allocating future
       transmission costs of unknown amounts to Illinois electricity customers.
¶ 22        Steven Naumann, another ILA expert, testified that the impact of the project on
       competition was unknown because the project was not sufficiently developed and had too
       many uncertain factors. He noted that while Rock Island stated that it has no current plans to
       request that the project be cost-allocated, the company does not explicitly rule out making such
       a future request.
¶ 23        Commission staff economist, Richard Zuraski, noted that a competitive electricity market
       already exists in Illinois and stated in his report that the proposed project was unnecessary. He
       further noted that the determination of whether the proposed project would promote the
       development of an effectively competitive electricity market was “subject to considerable
       uncertainty.” Zuraski opined that Rock Island failed to demonstrate that the purported benefits
       of the project would outweigh its costs. He reported that, based on his model analysis, the
       economic benefit to Illinois electricity consumers was also subject to “considerable
       uncertainty.” Zuraski stated that he was concerned that if the project failed to be successful in
       the competitive market, Rock Island would look to the Commission to get the project “back on
       its feet,” a request that could end up costing ratepayers more money. He opined that, based on
       the project’s financial uncertainty, it was an overstatement to say that there was no risk to
       Illinois ratepayers. Zuraski’s concerns led Commission staff to conclude that Rock Island had
       not met its burden to show that the proposed project would promote development of an
       effectively competitive market that operates efficiently, is equitable to all customers, and is the
       least cost means of satisfying the objectives.
¶ 24        The staff report also noted that if and when the project becomes subject to a FERC open
       access transmission tariff requiring the provision of nondiscriminatory open access, the

                                                    -6-
       project’s limited capacity will still prevent Rock Island from providing access to all eligible
       customers. Staff concluded that Rock Island “is asking the Commission to *** grant it a CPCN
       so it looks like a ‘public utility’ for purposes of condemning private property to build its line,
       while at the same time it plans to offer only a token percentage of that line’s capacity for
       ‘public use.’ ”
¶ 25       In an attempt to address the financial concerns raised in its report, the Commission staff
       suggested several conditions, including that Rock Island “will not install transmission facilities
       *** on easement property until such time as Rock Island has obtained commitments for funds
       in a total amount equal to or greater than the total project cost.”
¶ 26       The Commission issued a 242-page order granting Rock Island a certificate of public
       convenience and necessity to transact business as a transmission public utility and to construct,
       operate, and maintain the proposed transmission line over the preferred route described in the
       application. In its order, the Commission agreed with the ALJ’s determination that Rock Island
       met the qualifications of a public utility and satisfied the public use requirement under section
       3-105(a) of the Act. The Commission stated that, based on the information in the record, it
       seemed likely that the line would be used primarily, if not entirely, for delivery of wind energy
       from O’Brien County, Iowa, to the Collins substation in Illinois and that it was “reasonable to
       assume” potential users would include transmission customers who purchased capacity for
       delivery of electricity to northern Illinois.
¶ 27       The Commission also determined that the proposed project would promote public
       convenience and necessity under the Act. The Commission found that although Rock Island
       failed to demonstrate that the project was necessary to provide adequate, reliable, and efficient
       service to customers, it had presented sufficient evidence to demonstrate that the proposed line
       “will promote the development of an effectively competitive electricity market that operates
       efficiently, is equitable to all customers, and is the least cost means of satisfying those
       objectives.” See 220 ILCS 5/8-406(b)(1) (West 2012).
¶ 28       In reaching its decision, the Commission noted that Rock Island’s financial resources were
       insufficient to finance the project’s construction but concluded that Rock Island could satisfy
       the financing requirement based on financing conditions proposed by Commission Staff. In
       accordance with those conditions, the order required Rock Island to submit documents to the
       Staff demonstrating that it had obtained the necessary financial commitments and to file
       compliance documents with the Commission before beginning construction on easement
       properties.
¶ 29       ILA, IAA, and Com Ed filed applications for rehearing, and the Commission denied their
       requests. All three parties filed separate petitions with this court, challenging the
       Commission’s decision. We consolidated their petitions for review.

¶ 30                                             ANALYSIS
¶ 31       Petitioners challenge the Commission’s order on two grounds: (1) that the Commission
       lacked authority to grant a certificate of public convenience and necessity because Rock Island
       is not a public utility and (2) that the findings of the Commission are not supported by
       substantial evidence. Our resolution of the first issue is dispositive.




                                                   -7-
¶ 32                                       I. Standard of Review
¶ 33        On appeal, a reviewing court must reverse the Commission’s decision if it finds that (1) the
       findings of the Commission are not supported by substantial evidence, (2) the Commission
       lacked jurisdiction to enter the order or decision, (3) the order or decision is in violation of the
       state or federal constitution or laws, or (4) the proceedings violated the appellant’s
       constitutional rights. 220 ILCS 5/10-201(e)(iv) (West 2012).
¶ 34        The standard of review of the Commission’s findings of fact is deferential. Orders of the
       Commission are deemed prima facie reasonable, and the Commission’s findings of fact are
       deemed prima facie true. 220 ILCS 5/10-201(d) (West 2012). The Commission’s findings of
       fact may only be overturned if they are against the manifest weight of the evidence. Apple
       Canyon Lake Property Owners’ Ass’n v. Illinois Commerce Comm’n, 2013 IL App (3d)
       100832, ¶ 57.
¶ 35        The Commission’s interpretation of statutory standards is also entitled to deference;
       however, reviewing courts are not bound by its interpretation of law. Citizens Utility Board v.
       Illinois Commerce Comm’n, 166 Ill. 2d 111, 121 (1995). The Commission’s interpretation of a
       statute is reviewed de novo. Commonwealth Edison Co. v. Illinois Commerce Comm’n, 398 Ill.
       App. 3d 510, 522 (2009). Where governing statutory language is clear and unambiguous, it
       must be applied as written, and there is no need to resort to extrinsic aids. Illinois Bell
       Telephone Co. v. Illinois Commerce Comm’n, 362 Ill. App. 3d 652, 657 (2005). Courts will not
       defer to an agency’s construction where the statute is clear because “an interpretation placed
       upon a statute by an administrative official cannot alter its plain language.” Burlington
       Northern, Inc. v. Department of Revenue, 32 Ill. App. 3d 166, 174 (1975).

¶ 36                         II. The Commission’s Authority to Grant a CPCN
¶ 37       The Illinois Commerce Commission was statutorily created to exercise general supervision
       over all Illinois public utilities in accordance with the provisions of the Public Utilities Act.
       220 ILCS 5/4-101 (West 2012). Under the Act, a public utility must obtain a certificate of
       public convenience and necessity from the Commission before transacting any business or
       constructing a high-voltage transmission line. 220 ILCS 5/8-406(a), (b) (West 2012). The
       Commission derives its authority to supervise public utilities and issue certificates of public
       convenience and necessity solely from the statute creating it and may not, by its own
       interpretation, extend its jurisdiction. Sheffler v. Commonwealth Edison Co., 399 Ill. App. 3d
       51, 60 (2010). The Commission’s jurisdiction must be found, if at all, in its power to regulate
       public utilities. Peoples Energy Corp. v. Illinois Commerce Comm’n, 142 Ill. App. 3d 917, 924
       (1986).

¶ 38                                        A. Public Utility Status
¶ 39        Public utility status is determined by operation of section 3-105 of the Act and conferred by
       order of the Commission authorizing the utility to transact business and construct and manage
       utility services. See 220 ILCS 5/3-105(a), 8-406(a), (b) (West 2012). Section 3-105 of the Act
       defines a “public utility” as any company that:
                “owns, controls, operates or manages, within this State, directly or indirectly, for public
                use, any plant, equipment or property used or to be used for or in connection with, or
                owns or controls any franchise, license, permit or right to engage in:


                                                    -8-
                           (1) the production, storage, [or] transmission *** of heat, cold, power,
                       electricity, water, or light ***[.]” 220 ILCS 5/3-105(a)(1) (West 2012).
¶ 40        An applicant does not satisfy the statutory qualifications of a public utility simply because
       it sells something ordinarily sold by a public utility, such as heat, power, water, or electricity.
       Mississippi River Fuel Corp. v. Illinois Commerce Comm’n, 1 Ill. 2d 509, 516 (1953). A public
       utility also must provide its product or service “for public use,” carrying with it the duty of the
       producer or manufacturer to serve the public and treat all persons alike, without discrimination.
       Id. “The use must concern the public as distinguished from an individual or any particular
       number of individuals, but the use and enjoyment of the utility need not extend to the whole
       public or political subdivision.” Palmyra Telephone Co. v. Modesto Telephone Co., 336 Ill.
       158, 164 (1929). A private company that provides public utility services according to its own
       terms and conditions does not meet the statutory definition of a public utility. See Highland
       Dairy Farms Co. v. Helvetia Milk Condensing Co., 308 Ill. 294, 301 (1923) (company that
       constructed water plants and furnished water to select members of the community “according
       to [its] own wishes” was not a public utility).
¶ 41        According to these principles, there are essentially two prongs to attaining public utility
       status: (1) a company must own, control, operate, or manage utility assets, directly or
       indirectly, within the State; and (2) it must offer those assets for public use without
       discrimination. See Mississippi River Fuel Corp., 1 Ill. 2d at 516-19. Based on its application
       and the evidence presented to the Commission, Rock Island failed to meet both requirements.

¶ 42                                     1. Assets Within the State
¶ 43       Rock Island does not own, control, operate, or manage assets within the State. In testimony
       before the Commission, Rock Island admitted that the project was in the planning stages and
       that it would only pursue construction if the company determined that it would be profitable in
       light of future market developments and financial support. Rock Island currently does not own
       any transmission assets in Illinois, nor does it have any agreements for service with renewable
       energy generators in this state. While the potential may exist for generators to purchase service
       on the line, no Illinois generators have agreed to use the proposed line.

¶ 44                               2. Public Use Without Discrimination
¶ 45        In addition, the proposed transmission line is not for public use without discrimination. In
       Mississippi River Fuel Corp., a fuel supply company, Mississippi River Fuel, sold natural gas
       in Illinois through individual fuel contracts with 23 private industrial retail customers. It also
       sold natural gas to Illinois Power and Light Company and Union Electric Power Company for
       resale to the general public. Mississippi River Fuel Corp., 1 Ill. 2d at 512. Although
       Mississippi had facilities and customers in Illinois, our supreme court affirmed the circuit
       court’s conclusion that it was not a public utility because Mississippi River Fuel did not devote
       its services to “public use.” Id. at 513. In reaching its decision, the court noted that Mississippi
       River Fuel’s contracts with industrial retail customers were not based on fixed rates, that they
       varied as to terms and conditions, and that they were only offered to select customers. The
       court found that the interest of the general public was in obtaining an adequate supply of gas at
       reasonable prices from the public utility to which the company supplied natural gas for resale,
       not Mississippi River Fuel. Id. at 518-19. It concluded that, under such circumstances, the


                                                    -9-
       company’s act of selling gas to a limited group of industrial customers could not be
       characterized as “public use.” Id. at 519.
¶ 46        Similarly, Rock Island’s plan does not devote assets for public use in Illinois without
       discrimination. The anchor tenants, who will use a majority of Rock Island’s transmission
       capacity, are wind generators in the resource area of northwest Iowa, South Dakota, Nebraska,
       and Minnesota. According to Rock Island, 75% of the project’s capacity will be sold to
       generators in the resource area, who will then use the transmission line to deliver their product
       to the PJM grid. PJM will then distribute the renewable energy electricity to members of its
       multistate regional transmission organization. The remaining 25% will be sold to those seeking
       transmission services through an “open season” bidding process approved by the FERC. The
       FERC order approving the sale of excess capacity does not mandate that an Illinois wind
       generator or other renewable energy generator participate in the bidding process. But if it did,
       there is no way to know whether an Illinois energy generator will submit a successful bid.
       Moreover, the project does not designate any part of the renewable energy transmitted along
       the proposed line for public use in Illinois. Thus, it fails to satisfy the statute’s public use
       requirement.
¶ 47        Based on its application and supporting documentation, Rock Island has not attained public
       utility status within the meaning of the Act. Because Rock Island is not a public utility, the
       Commission lacked authority to issue a certificate of public convenience and necessity under
       section 8-406(b) of the Act. See Peoples Energy Corp., 142 Ill. App. 3d at 924.

¶ 48                        B. Public Utility Status as Applied to Section 8-406
¶ 49       In reaching our conclusion, we acknowledge the Commission’s position that public utility
       status is not a prerequisite to seeking a certificate of public convenience and necessity under
       sections 8-406(a) and (b). The Act does not require an applicant to be a public utility before it
       seeks certification under the appropriate provisions. A plain reading of the statute shows that
       an applicant may seek public utility status while, at the same time, applying for a certificate of
       public convenience and necessity to transact business and construct facilities. See 220 ILCS
       5/8-406(a), (b) (West 2012). In this case, the issue is whether jurisdiction was properly
       conferred based on the Commission’s decision that Rock Island was a public utility. We
       conclude that it was not.

¶ 50                                 III. The Commission’s Findings
¶ 51       The petitioners also claim that the Commission’s decision should be reversed because its
       findings are not supported by substantial evidence. We need not address this issue in light of
       our determination that the Commission lacked authority to issue a certificate of public
       convenience and necessity.

¶ 52                                          CONCLUSION
¶ 53       We reverse the order of the Illinois Commerce Commission, granting a certificate of public
       convenience and necessity, and remand the cause to the Commission with directions to enter
       an order consistent with this decision.

¶ 54      Reversed; cause remanded.


                                                   - 10 -
