                           Illinois Official Reports

                                  Appellate Court



    Commonwealth Edison Co. v. Illinois Commerce Comm’n, 2014 IL App (1st) 130544



Appellate Court       COMMONWEALTH EDISON COMPANY, Petitioner, v. ILLINOIS
Caption               COMMERCE COMMISSION; AMEREN ILLINOIS COMPANY;
                      C3, INC.; COALITION OF ENERGY SUPPLIERS (Interstate Gas
                      Supply, Inc.; MidAmerican Energy Company; and North American
                      Power and Gas, LLC); CONSTELLATION NEWENERGY, INC.;
                      ENVIRONMENTAL LAW AND POLICY CENTER; EXELON
                      GENERATION COMPANY, LLC; FUTUREGEN INDUSTRIAL
                      ALLIANCE, INC.; ILLINOIS COALITION TO ADVANCE
                      RENEWABLE ENERGY (ACCIONA Energy North America
                      Corporation; EDP Renewables North America LLC; Iberdrola
                      Renewables, LLC; Invenergy LLC; and NextEra Energy Resources,
                      LLC); ILLINOIS COMPETITIVE ENERGY ASSOCIATION
                      (Ameren Energy Marketing Company; Champion Energy, LLC;
                      Constellation NewEnergy, Inc.; Direct Energy Services, LLC; Exelon
                      Energy Company; Integrys Energy Services, Inc.; MC Squared
                      Energy Services, LLC; FirstEnergy Solutions Corporation; Nordic
                      Energy Services, LLC; and Reliant); ILLINOIS INDUSTRIAL
                      ENERGY CONSUMERS; ILLINOIS POWER AGENCY;
                      NATIONAL RESOURCES DEFENSE COUNCIL; RETAIL
                      ENERGY SUPPLY ASSOCIATION (Champion Energy Services,
                      LLC; ConEdison Solutions; Constellation NewEnergy, Inc.; Direct
                      Energy Services, LLC; Energetix, Inc.; Energy Plus Holdings, LLC;
                      Exelon Energy Company; GDF Suez Energy Resources NA, Inc.;
                      Green Mountain Energy Company; Hess Corporation; Integrys
                      Energy Services, Inc.; Just Energy; Liberty Power; MC Squared
                      Energy Services, LLC; Mint Energy LLC; NextEra Energy Services;
                      Noble American Energy Solutions LLC; PPL EnergyPlus, LLC;
                      Reliant; Stream Energy; TransCanada Power Marketing Ltd.; and
                      TriEagle Energy, L.P.); WIND ON THE WIRES, Respondents.

District & No.        First District, Second Division
                      Docket Nos. 1-13-0544, 1-13-0632, 1-13-0653, 1-13-1063, 1-13-1120
                      cons.
Filed                        July 22, 2014



Held                         An order of the Illinois Commerce Commission requiring petitioner to
(Note: This syllabus         enter into a sourcing agreement to procure electricity for the retail
constitutes no part of the   customers of alternative retail electric suppliers and recoup the costs
opinion of the court but     through a “competitively neutral” charge, rather than requiring each
has been prepared by the     alternative retail electric supplier to enter into its own sourcing
Reporter of Decisions        agreement, was upheld on appeal over petitioner’s contentions that the
for the convenience of       Commission made the decision without support from the record and
the reader.)                 violated the Rate Relief Law by requiring petitioner to enter into a
                             sourcing agreement to procure electricity for customers other than its
                             own “eligible retail customers,” since the Commission was entitled to
                             substantial deference with respect to its interpretation of the statute it
                             administers and the approach adopted by the Commission in the
                             instant case was within its statutory authority and was a cost-effective
                             alternative to administering the nearly 70 individual sourcing
                             agreements that would result from requiring each alternative retail
                             electric supplier to have its own agreement.

Decision Under               Petition for review of order of Illinois Commerce Commission, No.
Review                       1-13-0544.

Judgment                     Affirmed.


Counsel on                   Rooney Rippie & Ratnaswamy LLP (E. Glenn Rippie, of counsel),
Appeal                       and Jenner & Block LLP (Barry Levenstam and Irina Dmitrieva, of
                             counsel), both of Chicago, and Jenner & Block LLP, of Washington,
                             D.C. (David W. Debruin and Matthew E. Price, of counsel), for
                             petitioner.

                             Shefsky & Froelich Ltd., (John F. Kennedy, Jonathan B. Amarillo,
                             Barton J. O’Brien, Rachel L. Schaller, and Cary E. Donham, of
                             counsel), Quarles & Brady LLP (Christopher J. Townsend,
                             Christopher N. Skey, and Adam T. Margolin, of counsel), Law Offices
                             of Gerald T. Fox (Gerald T. Fox, of counsel), Husch Blackwell LLP
                             (Douglas F. McMeyer, of counsel), Lisa Madigan, Attorney General
                             (Clifford W. Berlow, Assistant Attorney General, of counsel), and
                             Citizens Utility Board (Julie Soderman and Orijit Ghoshal, of
                             counsel), all of Chicago, Lueders Robertson and Konzen LLC, of
                             Granite City (Eric Robertson, Ryan Robertson, and Drew Rankin, of
                             counsel), and Husch Blackwell LLP, of St. Louis, Missouri (Kyle C.
                             Barry and JoAnn T. Sandifer, of counsel), for respondents.


                                                  -2-
     Panel                    PRESIDING JUSTICE HARRIS delivered the judgment of the court,
                              with opinion.
                              Justice Pierce concurred in the judgment and opinion.
                              Justice Pucinski dissented, with opinion.




                                                OPINION


¶1          Petitioner Commonwealth Edison Company (ComEd), Illinois Competitive Energy
       Association (ICEA), and Illinois Industrial Energy Consumers (IIEC) appeal the order of the
       Illinois Commerce Commission (Commission) that requires ComEd to enter into a sourcing
       agreement to procure electricity for the retail customers of alternative retail electric suppliers
       (ARES) and recoup the costs through a “competitively neutral” charge. On appeal, appellants
       contend that the Commission violated section 16-111.5 of the Public Utilities Act (220 ILCS
       5/16-111.5 (West 2012)) when it ordered ComEd to enter into a sourcing agreement to
       procure electricity for customers other than its own “eligible retail customers” and rendered
       its decision without substantial support from the record.

¶2                                             JURISDICTION
¶3          The Commission issued its final order on December 19, 2012. ComEd filed a timely
       application for rehearing on January 22, 2013, and a joint motion for clarification of the final
       order. On January 29, 2013, the Commission denied the application for rehearing but granted
       the motion for clarification and, on the same day, issued an amendatory order. On February
       22, 2013, ComEd filed a notice of appeal. Accordingly, this court has jurisdiction pursuant to
       Illinois Supreme Court Rule 335(a) governing direct review of administrative orders by the
       appellate court. Ill. S. Ct. R. 335(a) (eff. Feb. 1, 1994).

¶4                                           BACKGROUND
¶5         Under the Public Utilities Act, article XVI (titled Electric Service Customer Choice and
       Rate Relief Law of 1997) (Rate Relief Law) sought to restructure the electricity industry in
       order to create competition and introduce customer choice in the supply of electricity. 220
       ILCS 5/16-101A(b) (West 2012). Prior to the passage of this article, electric utilities like
       ComEd both sold electricity to customers and delivered that electricity through its
       distribution network. Article XVI separated the two components so that ARES could now
       compete with one another to sell electricity to consumers. 220 ILCS 5/16-115 (West 2012).
       Before an ARES can serve any retail customer, it must first obtain a certificate of service
       authority from the Commission in accordance with section 16-115. As part of its
       certification, subsection (d)(5) requires an ARES applicant to source some electricity from
       clean coal facilities, and further provides that “the required sourcing of electricity generated




                                                   -3-
     by clean coal facilities, other than the initial clean coal facility, 1 shall be limited to the
     amount of electricity that can be procured or sourced at a price at or below the benchmarks
     *** in accordance with item (1) of subsection (c) and items (1) and (5) of subsection (d) of
     Section 1-75 of the Illinois Power Agency Act.” 220 ILCS 5/16-115(d)(5)(iii) (West 2012).
     ComEd, however, remains responsible for delivering electricity to ARES customers over its
     distribution network. 220 ILCS 5/16-108 (West 2012).
¶6        Article XVI also requires ComEd to continue supplying electricity to residential and
     small commercial customers within their service territory who have not chosen an ARES and
     who purchase power from the utility “under fixed-price bundled service tariffs.” 220 ILCS
     5/16-111.5(a) (West 2012). The statute refers to these customers as “eligible retail
     customers.” Id. To guide ComEd’s procurement of electricity, the General Assembly passed
     the Illinois Power Agency Act (20 ILCS 3855/1-5(1) (West 2012)), which created the Illinois
     Power Agency (IPA). The IPA has the powers and duties enumerated in the Illinois Power
     Agency Act. 20 ILCS 3855/1-15(a) (West 2012).
¶7        The goal of the Illinois Power Agency Act is to protect “[t]he health, welfare, and
     prosperity of all Illinois citizens” in the “provision of adequate, reliable, affordable, efficient,
     and environmentally sustainable electric services at the lowest total cost over time.” 20 ILCS
     3855/1-5(1) (West 2012). To accomplish this goal, the General Assembly declared it
     “necessary to improve the process of procuring electricity to serve Illinois residents, to
     promote investment in energy efficiency ***, and to support development of clean coal
     technologies and renewable resources.” 20 ILCS 3855/1-5(4) (West 2012). The legislature
     established that by January 1, 2025, “25% of the electricity used in the State shall be
     generated by cost-effective clean coal facilities.” 20 ILCS 3855/1-75(d)(1) (West 2012). It
     also determined that “[p]rocuring a diverse electricity supply portfolio will ensure the lowest
     total cost over time for adequate, reliable, efficient, and environmentally sustainable electric
     service.” 20 ILCS 3855/1-5(5) (West 2012).
¶8        Pursuant to the Illinois Power Agency Act, the Illinois Power Agency is tasked with
     procuring electricity for ComEd and Ameren Illinois Company (Ameren).2 To this end, the
     Illinois Power Agency develops annual electricity procurement plans for the utilities and
     submits the plans for final approval by the Commission. 220 ILCS 5/16-111.5(b) (West
     2012) (“[a] procurement plan shall be prepared for each electric utility consistent with the
     applicable requirements of the Illinois Power Agency Act”). Relevant to this appeal, the
     clean coal portfolio standard contained in the Illinois Power Agency Act states that the IPA’s
     “procurement plans shall include electricity generated using clean coal.” 20 ILCS
     3855/1-75(d) (West 2012).
¶9        On September 28, 2013, the Illinois Power Agency filed a proposed procurement plan
     with the Commission. The plan required ComEd and ARES to enter into sourcing
     agreements with FutureGen 2.0, a project of the FutureGen Industrial Alliance, Inc.
     (FutureGen Alliance). The FutureGen Alliance is a nonprofit corporation “formed to create

         1
          The parties agree that an initial clean coal facility has never been established by the legislature and
     therefore the statutory provisions dealing with the initial clean coal facility are not relevant in this
     appeal.

         2
             Ameren is not a party to this consolidated appeal.

                                                       -4-
       the world’s first coal-fueled, near-zero emissions electric power plant.” The FutureGen 2.0
       project consists of the retrofitting of Ameren’s facility in Meredosia, Illinois, to utilize
       clean-coal technology. The Illinois Power Agency determined that the utilities and ARES
       should purchase the facility’s output in an amount consistent with their proportional share, or
       in a “competitively neutral” manner.
¶ 10        The Commission found that, pursuant to section 1-75(d)(5) of the Illinois Power Agency
       Act, it had the authority to compel both the utilities and ARES to enter into sourcing
       agreements with retrofitted clean coal facilities approved by the Commission. However,
       Commission staff expressed concern that, given the number of ARES involved
       (approximately 70), requiring each ARES to enter into a sourcing agreement with FutureGen
       2.0 would present an administrative burden.3 The staff suggested an alternate approach
       whereby FutureGen 2.0 would contract only with ComEd and Ameren, and each utility
       would purchase FutureGen 2.0 power for its own eligible retail customers as well as the retail
       customers of ARES. The utilities would then recover the additional costs through a
       competitively neutral charge assessed to ARES’ customers for their share of the output.
¶ 11        On December 19, 2012, the Commission issued its final order approving the Illinois
       Power Agency’s procurement plan, but modified the plan to reflect the staff’s alternate
       approach regarding sourcing agreements with FutureGen 2.0. It concluded that the staff’s
       proposal was “quite reasonable in light of the administrative burden that would be placed on
       FutureGen, the Commission, Staff and ARES if a separate sourcing agreement were required
       for each and every ARES as well as ComEd and Ameren.” Illinois Power Agency, Ill. Com.
       Comm’n Docket 12-0544, at 236 (Order Dec. 19, 2012). The Commission found that while
       sections 1-75(d)(5) of the Illinois Power Agency Act and 16-115 of the Public Utilities Act
       did not explicitly sanction the alternate approach, “the intent of the Legislature that all
       customers equally bear the costs and benefits of the State’s clean coal portfolio standard is
       consistent with the alternative proposal.” Id. Upon a motion for clarification, the Commission
       entered an amendatory order on January 29, 2013, stating that under the alternate approach,
       ComEd would be able to recover its costs incurred under the FutureGen 2.0 sourcing
       agreement through a competitively neutral charge that is not a delivery services charge.
       Illinois Power Agency, Ill. Com. Comm’n Docket 12-0544 (Amend. Order Jan. 29, 2013).
       After denial of the petitions for rehearing filed on January 29, 2013, ComEd, ICEA, and IIEC
       initiated this action for administrative review. This court consolidated the appeals.

¶ 12                                          ANALYSIS
¶ 13       Initially, we address a preliminary issue raised by the Commission. The Commission
       contends that this court should disregard and strike the brief of Coalition of Energy Suppliers
       (CES), and strike portions of ComEd’s brief in response to ICEA/IIEC’s appellant brief. It
       argues that CES is an appellee, but CES’s brief attacks the Commission’s order. The
       Commission contends that if CES seeks reversal or modification of the order, it must file its
       own appeal or cross-appeal. The Commission also argues that this court should strike the
       portion of ComEd’s response brief raising the dormant commerce clause argument, because
       ComEd did not present the issue as a ground for error in its application for rehearing as

          3
          The majority of customers in ComEd’s service territory receive their electricity from ARES, not
       ComEd.

                                                   -5-
       required, nor did it raise the issue in its main brief. The striking of a brief, in whole or in part,
       is a harsh sanction and is proper only in cases where the alleged violations interfere with or
       preclude our review. In re Detention of Powell, 217 Ill. 2d 123, 132 (2005). This consolidated
       appeal involves numerous parties presenting, and responding to, arguments on complex
       issues regarding the regulation of the electricity industry. The fact that this court ordered a
       specific briefing schedule, pursuant to an agreement by the parties, underscores the unique
       nature of this appeal. The briefs before us sufficiently set forth the issues, and we find that
       the alleged violations identified by the Commission do not preclude meaningful review of the
       merits of this case. Therefore, in the exercise of our discretion, we deny the Commission’s
       request to strike and will address the arguments briefed in this appeal. Id.
¶ 14       On appeal, ComEd and ICEA/IIEC challenge the Commission’s order. Courts give
       substantial deference to the Commission’s decisions for it is an administrative body with
       expertise in the area of public utilities, and thus is qualified to interpret highly technical
       evidence. United Cities Gas Co. v. Illinois Commerce Comm’n, 163 Ill. 2d 1, 12 (1994). The
       Commission’s findings are considered prima facie reasonable and the burden of proof is on
       the appellant on all issues raised in the appeal. 220 ILCS 5/10-201(d) (West 2012). In
       reviewing the Commission’s orders, a court is limited to determining whether (1) the
       Commission acted within its authority; (2) it made adequate findings to support its decision;
       (3) substantial evidence supports its decision; and (4) any constitutional rights were violated.
       Commonwealth Edison Co. v. Illinois Commerce Comm’n, 322 Ill. App. 3d 846, 849 (2001).
¶ 15       ComEd and ICEA/IIEC contend that the Commission’s approval of the procurement
       plan, which compels ComEd to enter into a sourcing agreement with FutureGen 2.0 on behalf
       of ARES, exceeded its statutory authority. The scope of the Commission’s authority is a
       question of law, which we review de novo. City of Chicago v. Illinois Commerce Comm’n,
       294 Ill. App. 3d 129, 134-35 (1997).
¶ 16       An administrative agency derives its authority to act solely from the statute creating the
       agency. Resource Technology Corp. v. Commonwealth Edison Co., 343 Ill. App. 3d 36, 44
       (2003). Therefore, the issue before this court is one involving statutory interpretation. In
       interpreting a statute, a court’s primary objective is to ascertain and give effect to legislative
       intent as indicated by the plain and ordinary meaning of the statutory language.
       Commonwealth Edison Co. v. Illinois Commerce Comm’n, 328 Ill. App. 3d 937, 942 (2002).
       However, courts appreciate an agency’s experience and expertise in a given area and
       therefore will give substantial deference to its interpretation of an ambiguous statute it
       administers and enforces. Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n,
       95 Ill. 2d 142, 152-53 (1983). While not binding on the courts, an agency’s interpretations
       are an informed source for ascertaining the legislature’s intent in enacting the statute. Id. at
       153.
¶ 17       In construing a statute, courts must “ascertain and give effect to the overall intent of the
       drafters.” Knolls Condominium Ass’n v. Harms, 202 Ill. 2d 450, 458 (2002). The Rate Relief
       Law of the Public Utilities Act sought to restructure the electricity industry so as to create
       competition and introduce customer choice in the supply of electricity. 220 ILCS
       5/16-101A(b) (West 2012). Accordingly, section 16-111.5(a) of the Public Utilities Act sets
       forth ComEd’s procurement of electricity for its customers. It states that an electric utility
       “shall procure power and energy for its eligible retail customers in accordance with the
       applicable provisions set forth in Section 1-75 of the Illinois Power Agency Act and this

                                                     -6-
       Section.” 220 ILCS 5/16-111.5(a) (West 2012). “Those customers that are excluded from the
       definition of ‘eligible retail customers’ shall not be included in the procurement plan load
       requirements ***.” Id. The Rate Relief Law further provides that utilities shall procure power
       pursuant to procurement plans approved by the Commission. 220 ILCS 5/16-111.5(b) (West
       2012).
¶ 18        Section 1-75 of the Illinois Power Agency Act grants the Illinois Power Agency authority
       to “develop procurement plans and conduct competitive procurement processes in
       accordance with the requirements of Section 16-111.5 of the Public Utilities Act for the
       eligible retail customers of electric utilities.” 20 ILCS 3855/1-75(a) (West 2012). It also sets
       forth specific provisions relating to the procurement plan requirements. Relevant to this
       appeal, section 1-75(d)(1) provides that such procurement plans “shall include electricity
       generated using clean coal.” 20 ILCS 3855/1-75(d)(1) (West 2012). This section is referred
       to as the clean coal portfolio standard.
¶ 19        Section 1-75(d)(5) provides that the Illinois Power Agency shall also “consider sourcing
       agreements covering electricity generated by power plants” previously owned by Illinois
       utilities “that have been or will be converted into clean coal facilities.” 20 ILCS
       3855/1-75(d)(5) (West 2012). As part of the procurement planning process, owners of these
       retrofitted facilities “may propose to the [Illinois Power] Agency sourcing agreements with
       utilities and alternative retail electric suppliers required to comply with subsection (d) of this
       Section and item (5) of subsection (d) of Section 16-115 of the Public Utilities Act.” Id.
¶ 20        The legislature included a corresponding clean coal electricity requirement in the
       certification of ARES. Before servicing any customer in Illinois, an ARES “must obtain a
       certificate of service authority from the Commission in accordance with this Section.” 220
       ILCS 5/16-115(a) (West 2012). As part of the certification process, an ARES applicant must
       source some of its electricity from clean coal facilities including retrofitted facilities. 220
       ILCS 5/16-115(d)(5)(iii) (West 2012). This section provides:
                    “(d) The Commission shall grant the application for a certificate of service
                authority if it makes the findings set forth in this subsection based on the verified
                application and such other information as the applicant may submit:
                                                             ***
                         (5) That the applicant will procure renewable energy resources in accordance
                    with Section 16-115D of this Act, and will source electricity from clean coal
                    facilities, as defined in Section 1-10 of the Illinois Power Agency Act, in amounts
                    at least equal to the percentages set forth in subsections (c) and (d) of Section 1-75
                    of the Illinois Power Agency Act. For purposes of this Section:
                                                             ***
                              (iii) the required sourcing of electricity generated by clean coal facilities,
                         other than the initial clean coal facility, shall be limited to the amount of
                         electricity that can be procured or sourced at a price at or below the benchmarks
                         approved by the Commission each year in accordance with item (1) of
                         subsection (c) and items (1) and (5) of subsection (d) of Section 1-75 of the
                         Illinois Power Agency Act[.]” 220 ILCS 5/16-115(d)(5)(iii) (West 2012).
¶ 21        Appellants agree that these statutory provisions allow the Illinois Power Agency to
       develop a procurement plan that compels ComEd to enter a sourcing agreement with a
       retrofitted clean coal facility on behalf of ComEd’s eligible retail customers. However, they

                                                     -7-
       argue for a strict reading of the statutory provisions. ComEd and ICEA/IIEC contend that the
       plain words of the procurement plan provisions of the Rate Relief Law and the Illinois Power
       Agency Act refer only to ComEd’s eligible retail customers, which by definition excludes
       ARES customers. Therefore, the IPA has no power to propose, and the Commission has no
       power to approve, procurement plans requiring ComEd to procure electricity for ARES
       customers. At most, the Commission can compel each ARES to enter into a sourcing
       agreement with FutureGen 2.0, but it cannot compel ComEd to enter such agreements on
       behalf of ARES.
¶ 22        We disagree. While the general statutory provisions relating to procurement plans for
       utilities refer only to ComEd’s eligible retail customers, the specific provisions setting forth
       ComEd’s required procurement of electricity from retrofitted clean coal sources make no
       mention of eligible retail customers. We will not place undue emphasis on the statutory
       construction rule that the inclusion of one term necessarily excludes other possible terms. See
       Knolls, 202 Ill. 2d at 459. Instead, courts must construe statutes relating to the same subject
       with reference to one another in order to give effect to all the provisions if possible. Henrich
       v. Libertyville High School, 186 Ill. 2d 381, 392 (1998). If it appears a conflict exists between
       the statutes, courts will try to construe the provisions harmoniously. United Citizens of
       Chicago & Illinois v. Coalition to Let the People Decide in 1989, 125 Ill. 2d 332, 339 (1988).
       The intent of the legislature is most significant. Id. at 338-39.
¶ 23        The legislature clearly found the use of electricity generated by clean coal facilities
       important for both utilities and ARES. Both parties must utilize such electricity in their
       supply to customers, and when the electricity comes from retrofitted clean coal facilities,
       procurement by utilities and ARES must meet the same benchmarks set forth in section
       1-75(d)(5). This legislative intent is reflected in the clean coal portfolio standard which, by
       its terms, grants the Illinois Power Agency and the Commission more authority in the
       procurement of electricity from such sources. See Knolls, 202 Ill. 2d at 459 (where both a
       general statutory provision and a specific statutory provision address the same subject, “the
       specific provision controls and should be applied”).
¶ 24        The question is whether these provisions authorize the Illinois Power Agency to compel
       ARES to enter into a sourcing agreement with FutureGen 2.0. ICEA/IIEC argue that the
       statutes grant no such authority. The statutory procurement planning process, after all, is
       aimed at the utilities and not at ARES. Also, the statutes do not expressly state that ARES
       can be compelled to enter into a sourcing agreement with a retrofitted clean coal facility.
¶ 25        However, as part of the certification process ARES must source electricity from clean
       coal facilities in amounts at least equal to those set forth in section 1-75(c)(1) and (d)(5) of
       the Illinois Power Agency Act. Subsection (d)(5) provides that pursuant to the procurement
       planning process, owners of qualified retrofitted clean coal facilities “may propose to the
       [Illinois Power] Agency sourcing agreements with utilities and alternative retail electric
       suppliers required to comply with” subsection (d) and section 16-115(d)(5) of the Public
       Utilities Act. (Emphasis added.) 20 ILCS 3855/1-75(d)(5) (West 2012). The statute clearly
       contemplates, at the very least, that the Illinois Power Agency can consider such sourcing
       agreements with ARES in the procurement planning process. If the Illinois Power Agency
       can consider such agreements, it is reasonable to presume that the Illinois Power Agency can
       compel ARES to enter into sourcing agreements with such facilities as part of the
       procurement planning process if doing so furthers statutory goals. The Commission contends

                                                   -8-
       that it has such authority where compelling ARES to enter into sourcing agreements with
       retrofitted clean coal facilities furthers the goals of supporting the development of clean coal
       technologies, and providing electricity at the lowest total cost. We acknowledge the
       Commission’s experience and expertise in this area and give substantial deference to its
       interpretation of an ambiguous statute it administers and enforces. Illinois Consolidated
       Telephone Co., 95 Ill. 2d at 152-53.
¶ 26        The Commission, however, adopted the alternate approach suggested by its staff. The
       alternate approach requires only ComEd and Ameren to enter into sourcing agreements with
       FutureGen 2.0 to purchase a pro rata share of the output based on the amount of electricity
       the utilities deliver to its distribution customers (including ARES customers). ComEd and
       Ameren then could recover the costs associated with procurement through a competitively
       neutral charge assessed to all of their retail distribution customers (including ARES
       customers). The Commission reasoned that this approach was a cost-effective alternative to
       the burdensome process of administering and monitoring approximately 70 individual
       sourcing agreements.
¶ 27        We find that the Commission acted within its statutory authority. Pursuant to the Rate
       Relief Law of the Public Utilities Act and the Illinois Power Agency Act, both the utilities
       and ARES must source some of their electricity from clean coal or retrofitted facilities. As
       discussed above, the Commission has the authority to compel both the utilities and ARES to
       enter into sourcing agreements with retrofitted clean coal facilities as part of the procurement
       planning process. Viewed within this framework, the Commission’s order approving a
       procurement plan requiring ComEd to enter a sourcing agreement with FutureGen 2.0 on
       behalf of ARES customers, while not explicitly condoned by statute, is within its “inherent
       authority and wide latitude to adopt regulations or policies reasonably necessary to perform
       the agency’s statutory dut[y].” (Internal quotation marks omitted.) Resource Technology
       Corp. v. Commonwealth Edison Co., 343 Ill. App. 3d 36, 44 (2003).
¶ 28        ComEd argues, however, that even if the Commission has authority to approve the
       alternate approach, it failed to support its finding with substantial evidence that the approach
       was necessary to avoid administrative burdens on the parties. Upon review, courts consider
       the Commission’s factual findings prima facie true and its orders prima facie reasonable.
       United Cities Gas Co., 163 Ill. 2d at 11. Furthermore, the Commission need not provide
       findings on each evidentiary claim; it is sufficient if the findings are specific enough for
       courts to review the order. Commonwealth Edison Co. v. Illinois Commerce Comm’n, 2013 IL
       App (2d) 120334, ¶ 38. Substantial evidence is evidence that a reasoning mind finds
       sufficient to support a finding. Central Illinois Public Service Co. v. Illinois Commerce
       Comm’n, 268 Ill. App. 3d 471, 479 (1994). Substantial evidence is more than a mere
       scintilla, but need not rise to the level of a preponderance of the evidence. Commonwealth
       Edison Co., 2013 IL App (2d) 120334, ¶ 38. A party who argues that the Commission’s
       findings were not supported by substantial evidence must show more than the mere fact that
       the evidence supports a different conclusion. Instead, the party must show that the opposite
       conclusion was clearly evident. Abbott Laboratories, Inc. v. Illinois Commerce Comm’n, 289
       Ill. App. 3d 705, 714 (1997).
¶ 29        The parties agreed to proceed before the Commission without hearings and addressed any
       issues by filing verified responses to comments and objections, and by filing replies. The
       Commission’s staff contended that requiring the Illinois Power Agency to negotiate separate

                                                  -9-
       sourcing agreements with an estimated 70 separate ARES, as well as with ComEd and
       Ameren, would be burdensome. Specifically, the staff determined that the utilities would
       bear the costs of providing FutureGen with billing records for each customer served by
       ARES, ARES and FutureGen would bear costs associated with entering into and managing
       70 additional contracts, and the staff would need to devote extra time to review all of the
       annual reports of compliance with the clean coal portfolio standard by each party and to
       ensure compliance with the standard by each ARES. In support of its position, the staff
       presented affidavits of the following staff members: Diana Hathhorn (accountant in the
       Commission’s financial analysis division), Jennifer L. Hinman (economic analyst in the
       Commission’s policy division), Rochelle Phipps (senior financial analyst in the financial
       analysis division), and Jim Zolnierek (director of the policy division). The affidavits stated
       that the witnesses had personal knowledge of the facts and matters discussed in the response
       and objections, and to the best of their knowledge, information, and belief, the facts and
       nonlegal opinions expressed are accurate and true.
¶ 30        ComEd, however, complains that the Commission did not support its findings with
       substantial evidence because it “did not attempt to quantify or analyze in any systematic way
       the burdens” on the parties, nor did it adequately consider the burdens placed on ComEd.
       ComEd provides no authority for its position that the Commission must provide quantifiable
       findings on each evidentiary claim. It is self-evident that the administration of several
       sourcing agreements is overall less burdensome than the administration and monitoring of
       more than 70 agreements. Affidavits from Commission staff support that conclusion. We find
       the evidence sufficient to support the Commission’s decision. Furthermore, ComEd does not
       show that the opposite conclusion is clearly evident. It argues only that the Commission
       made no finding that the administrative burdens avoided by the alternate approach outweigh
       the administrative burdens the approach imposes on ComEd.
¶ 31        Pursuant to the Public Utilities Act, the Commission “should act to promote the
       development of an effectively competitive electricity market that operates efficiently and is
       equitable to all consumers.” 220 ILCS 5/16-101A(d) (West 2012). By adopting the alternate
       approach, which presented a more streamlined administration of the clean coal portfolio
       standard required of the utilities and ARES, the Commission properly exercised its authority
       to formulate reasonable means of achieving legislative objectives. We find the Commission’s
       order approving the alternate approach lawful and supported by substantial evidence.
¶ 32        ICEA/IIEC make an additional argument that the Commission has no authority to impose
       a competitively neutral charge, that is not a delivery service charge, upon ARES customers.
       ComEd disagrees, arguing that if the Commission has authority to compel utilities to procure
       electricity from retrofitted clean coal facilities for ARES customers, ComEd should recover
       the costs associated with that procurement. As discussed above, the Commission’s authority
       to compel ComEd to enter into a sourcing agreement with FutureGen 2.0 derives from the
       Illinois Power Agency’s authority to develop a procurement plan for utilities that comply
       with the clean coal portfolio standard of the Illinois Power Agency Act. See 20 ILCS
       3855/1-75(d) (West 2012). Subsection (d)(6) states that “[c]osts incurred under this
       subsection (d) or pursuant to a contract entered into under this subsection (d) shall be deemed
       prudently incurred and reasonable in amount and the electric utility shall be entitled to full
       cost recovery pursuant to the tariffs filed with the Commission.” 20 ILCS 3855/1-75(d)(6)
       (West 2012). Allowing ComEd to recover these costs from ARES customers further

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       promotes the legislature’s intent to allocate the costs of supplying utility services “to those
       who cause the costs to be incurred.” 220 ILCS 5/1-102(d)(iii) (West 2012). Therefore,
       according to the plain terms of the statute, ComEd is entitled to recover from ARES
       customers its costs of entering into the sourcing agreement with FutureGen 2.0 on ARES’
       behalf.
¶ 33        ComEd and ICEA/IIEC also argue that the Commission’s order violates the dormant
       commerce clause and is therefore unconstitutional. This negative component of the
       commerce clause prohibits states from enacting regulatory measures designed to benefit
       in-state interests at the expense of out-of-state competitors. New Energy Co. of Indiana v.
       Limbach, 486 U.S. 269, 273-74 (1988). In other words, “state statutes that clearly
       discriminate against interstate commerce are routinely struck down [citations], unless the
       discrimination is demonstrably justified by a valid factor unrelated to economic
       protectionism.” Id. at 274.
¶ 34        Appellants argue that the Commission’s order is unconstitutional because it requires
       ComEd to enter into a sourcing agreement for clean-coal energy with FutureGen 2.0, an
       Illinois facility, effectively excluding from consideration out-of-state clean electric sources.
       They allege that the order also has a discriminatory effect because 70% of the rate cap
       imposed on ComEd for clean coal electricity is devoted to FutureGen 2.0’s output, “leaving
       little room for any [other competitors] to place their clean coal electricity on the Illinois
       market.” The order thus prevents customers from obtaining less costly clean coal electricity
       procured from out-of-state sources, in violation of the dormant commerce clause.
¶ 35        Before addressing these constitutional arguments on the merits, however, we first
       determine whether ICEA/IIEC and ComEd have standing to challenge the constitutionality of
       the statute. The doctrine of standing “ensure[s] that courts are deciding actual, specific
       controversies, and not abstract questions or moot issues.” In re Marriage of Rodriguez, 131
       Ill. 2d 273, 279-80 (1989). Generally, courts will not consider a constitutional challenge to a
       statutory provision unless the party challenging it is directly affected by the provision. In re
       M.I., 2013 IL 113776, ¶ 32. In other words, the party challenging the provision “must be
       directly or materially affected by the attacked provision and must be in immediate danger of
       sustaining a direct injury” from the statute’s enforcement. Id. Without evidence of facts
       showing such injury, a party does not have standing to challenge the statutory provision on
       the ground that it would be unconstitutional if applied to third parties in a hypothetical case.
       Id.
¶ 36        The Commission argues that ICEA/IIEC and ComEd have not shown “any evidence of
       discrimination on any similarly situated clean coal facility.” On the issue of standing to
       challenge this provision, however, the relevant question is whether ICEA/IIEC and/or
       ComEd is “directly or materially affected by the attacked provision” and “in immediate
       danger of sustaining a direct injury” from enforcement of the provision. See In re M.I., 2013
       IL 113776, ¶ 32. In their briefs, both parties acknowledge that the injured parties directly
       affected by the provision are out-of-state facilities that would compete against FutureGen 2.0
       in the production of clean coal electricity. See also Alliance for Clean Coal v. Miller, 44 F.3d
       591, 594 (7th Cir. 1995) (for the purpose of standing to challenge a statute that subsidized the
       use of Illinois coal over the use of western coal, the relevant injury is the inability “to
       compete on an equal footing in interstate commerce”). Neither ICEA/IIEC or ComEd claim
       an interest in producing clean coal electricity. Furthermore, neither party has shown a direct,

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       material injury that would result from enforcement of the provision. In fact, the Commission
       has not had the opportunity to enforce the provision since the FutureGen 2.0 facility is not
       yet operable. Therefore, we find that ICEA/IIEC and ComEd do not have standing to
       challenge the constitutionality of the provision at this time and, accordingly, we decline to
       address the issue here.
¶ 37       For the foregoing reasons, we affirm the order of the Commission.

¶ 38      Affirmed.

¶ 39        JUSTICE PUCINSKI, dissenting.
¶ 40        With great respect, I dissent from the opinion of the majority.
¶ 41        This is a one-word/one-phrase case. Some one-word cases require the court to determine
       what the legislature meant by a word that is undefined. Local Union Nos. 15, 51, & 702 v.
       Illinois Commerce Comm’n, 331 Ill. App. 3d 607 (5th Dist. 2002), is a good example. There
       the court, looking at the Public Utilities Act, had to decide whether the word “if” meant: “ ‘in
       the event that’ ” or on the condition that. Id. at 614-15. Either use led to dramatically
       different results. More recently, and more famously, the court has been required to decide
       what the words “ ‘reside in’ ” mean in the Illinois Municipal Code and the Election Code.
       Maksym v. Board of Election Commissioners, 242 Ill. 2d 303, 324 (2011). Some other
       one-word cases call on us to decide what a missing word means. That is, whether we should
       insert it, as though it was an oversight by the legislature to have left it out, or leave the
       language of the statute as written, and consider that the legislature had a purpose in leaving
       the word out when they passed it.
¶ 42        Here the statute in question is the Illinois Power Agency Act (20 ILCS 3855/1-75(d)(5)
       (West 2012)):
                    “(5) [Sentence 1] Re-powering and retrofitting coal-fired power plants previously
                owned by Illinois utilities to qualify as clean coal facilities. [Sentence 2] During the
                2009 procurement planning process and thereafter, the Agency and the Commission
                shall consider sourcing agreements covering electricity generated by power plants
                that were previously owned by Illinois utilities and that have been or will be
                converted into clean coal facilities, as defined by Section 1-10 of this Act. [Sentence
                3] Pursuant to such procurement planning process, the owners of such facilities may
                propose to the Agency sourcing agreements with utilities and alternative retail
                electric suppliers required to comply with subsection (d) of this Section and item (5)
                of subsection (d) of Section 16-115 of the Public Utilities Act, covering electricity
                generated by such facilities. [Sentence 4] In the case of sourcing agreements that are
                power purchase agreements, the contract price for electricity sales shall be established
                on a cost of service basis. [Sentence 5] In the case of sourcing agreements that are
                contracts for differences, the contract price from which the reference price is
                subtracted shall be established on a cost of service basis. [Sentence 6] The Agency
                and the Commission may approve any such utility sourcing agreements that do not
                exceed cost-based benchmarks developed by the procurement administrator, in
                consultation with the Commission staff, Agency staff and the procurement monitor,
                subject to Commission review and approval.” (Emphases added.)


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¶ 43        Under the plain language of sentence 2 above it is clear that FutureGen 2.0 qualifies
       under this section since it is a retrofitted coal fired power plant previously owned by an
       Illinois utility, in this case Ameren. And, with all the federal money (about $1.5 billion)
       coming into the state to develop FutureGen 2.0’s new technology, along with the dedicated
       property, equipment and plant in Meredosia, Illinois, and the pipeline and
       storage/sequestration facility for the carbon dioxide at the Mt. Sinai formation in Morgan
       County, it is clear that the state’s policy makers have decided that FutureGen 2.0 qualifies–at
       least in theory–as a clean coal facility as defined by section 1-10 of the Illinois Power
       Agency Act. Of course it is not up and running yet and will not be until 2017, and then the
       energy it produces will be more expensive than other clean coal facility energy, because our
       legislature has also decided that “all coal used by a clean coal facility shall have high volatile
       bituminous rank and greater than 1.7 pounds of sulfur per million btu content,” a restriction
       which favors Illinois coal. 20 ILCS 3855/1-10 (West 2012). Further, the record and
       statements at oral argument make it clear that FutureGen 2.0 cannot even continue its
       development without the sourcing agreements at issue in place because without a guaranteed
       revenue stream–these sourcing agreements–it cannot attract future investment in the project.
¶ 44        Sentence 3 mandates the Illinois Power Agency and the Commission “shall” consider
       sourcing agreements from such plants, and since FutureGen 2.0 is the only one like it, it is
       pretty clear that the Illinois Power Agency and the Commission shall at least give sourcing
       agreements with FutureGen 2.0 some consideration, but note the statute does not require that
       the sourcing agreement be accepted, just that it shall be considered, the kind of waffling that
       leaves all the discretion to the Illinois Power Agency and the Commission, and neatly takes
       the legislature off the hook in case someone complains that just maybe this is a restraint of
       trade issue.
¶ 45        Sentence 4 gives the owners of the facilities, in this case FutureGen 2.0, the opportunity
       to propose sourcing agreements to the Illinois Power Agency for both utilities and ARES, but
       only the opportunity to propose the agreements, not any guarantee that the sourcing
       agreements must be accepted.
¶ 46        The rub comes at sentence 6, which says the “Agency and the Commission may approve
       any such utility sourcing agreements” but totally ignores whether the Illinois Power Agency
       and the Commission may also approve such sourcing agreements for ARES. (Emphasis
       added.) 20 ILCS 3855/1-75(d)(5) (West 2012).
¶ 47        The FutureGen 2.0 and Commission briefs want us to insert the phrase: “and alternative
       retail electric suppliers” to sentence 6, so that it would read: the “Agency and the
       Commission may approve such utility and alternative retail electric suppliers sourcing
       agreements.” (Emphasis added.)
¶ 48        Clearly the Illinois Power Agency staff thinks so too, or they would not have proposed
       the FutureGen 2.0 sourcing agreements for ARES, but adding those words has a complicated
       result in that it frustrates the reason the legislature passed another statute, the Rate Relief
       Law, which at section 16-101A(d) calls on the Commission to “act to promote the
       development of an effectively competitive electricity market that operates efficiently and is
       equitable to all consumers” thereby committing this state to a system that is both equitable
       and competitive. 220 ILCS 5/16-101A(d) (West 2012).
¶ 49        While it is true that the plan approved by the Commission is equitable to all customers in
       the sense that every customer of every electricity supplier in Illinois will share in the higher

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       cost of the FutureGen 2.0 electricity, so the burden is spread around, that is because only
       clean coal facilities that burn the kind of coal we have in abundance in Illinois qualify as
       clean coal suppliers to either utilities or ARES. Coincidentally, FutureGen 2.0 is the only one
       in existence anywhere identified in the record that burns that kind of coal.
¶ 50        However, it is also true that the FutureGen 2.0 energy will be more expensive than other
       clean coal facility electricity that is generated without the particular problems associated with
       Illinois coal thus frustrating the competitive purpose of the Customer Choice Act.
¶ 51        All of this is further complicated by the approval by the Commission of the Illinois
       Power Agency’s staff recommendation to require ComEd and Ameren (not a party to this
       appeal) to actually do the sourcing agreements on behalf of all ARES. ComEd reasonably
       wonders under what authority the Commission requires it, a regulated utility, to enter into
       contracts on behalf of private sector ARES, even though the Commission has neatly provided
       a way for ComEd to recoup its costs of doing so.
¶ 52        The Commission says it can do this because it has the authority to do those things
       necessary to implement its mandates. However, the Commission has not provided any statute
       to this court demonstrating that there is a mandate, that it has the authority, or that the state
       has a public policy to guarantee 100% of FutureGen 2.0’s output for the next 20 years in
       noncompetitive contracts, let alone by ComEd for the benefit of ARES customers.
¶ 53        I would reverse the order of the Commission and let the legislature work to make sure
       that all the interrelated, overlapping and conflicting laws and public policies are reconciled.
¶ 54        As an alternative, and as suggested by the Illinois Power Agency, the Commission should
       at the very least engage in its rulemaking process to fully develop the set of rules that would
       permit this level of regulatory agency sleight-of-hand.




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