                                       2016 IL 118129



                                          IN THE
                                 SUPREME COURT
                                              OF
                           THE STATE OF ILLINOIS



                                     (Docket No. 118129)

        COMMONWEALTH EDISON COMPANY et al., Appellees, v. ILLINOIS
           COMMERCE COMMISSION et al. (Illinois Competitive Energy
                     Association et al., Appellants).


                                 Opinion filed May 19, 2016.



        JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

        Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and
     Theis concurred in the judgment and opinion.



                                          OPINION

¶1       The subject of this case is the FutureGen 2.0 “clean coal” project in Illinois. The
     issue brought before this court is whether the Illinois Commerce Commission (the
     Commission) has the authority to require Commonwealth Edison and Ameren, the
     two largest utility companies in Illinois, to negotiate energy procurement from the
     FutureGen 2.0 power plant on behalf of themselves as well as the state’s smaller
     Area Retail Electric Suppliers (ARES). After we allowed the petition for leave to
     appeal, federal funding for the FutureGen 2.0 project was suspended, project
     development efforts were ceased, and the sourcing agreements that are the subject
     of this appeal were terminated. We dismiss this appeal as moot and vacate the
     judgment of the appellate court without expressing an opinion on the merits of the
     appellate court opinion.



¶2                                     BACKGROUND

¶3       FutureGen Industrial Alliance, Inc. (FutureGen Alliance) was created to
     research and develop near-zero emissions coal technology and sought to use carbon
     capture and storage to develop the world’s first near-zero emissions coal power
     plant. The proposed retrofitted “clean coal” electric energy generating facility,
     known as “FutureGen 2.0,” was to be located in Meredosia, Illinois, and scheduled
     to begin operating in 2017.

¶4       In an effort to secure private investment for FutureGen 2.0, the Commission
     issued an order finding that it has the authority to force public utility companies and
     privately owned and competitively operated ARES to purchase all of FutureGen
     2.0’s electrical output over a 20-year term. The Illinois Competitive Energy
     Association and Illinois Industrial Energy Consumers challenged the
     Commission’s authority to force ARES to enter into sourcing agreements. On
     appeal, the appellate court affirmed the order of the Commission. 2014 IL App (1st)
     130544. This court allowed the petition for leave to appeal of the Illinois
     Competitive Energy Association and Illinois Industrial Energy Consumers
     pursuant to Illinois Supreme Court Rule 315 (eff. July 1, 2013).

¶5       In February 2015, while the appeal was pending before this court, the United
     States Department of Energy suspended funding for the FutureGen 2.0 project.
     This court then issued an order directing the parties to file additional briefs
     addressing the issue of mootness and, later, issued an order that the parties file
     reports concerning the status of the FutureGen 2.0 project.

¶6       FutureGen Alliance filed a supplemental brief informing this court that it had
     exhausted all administrative and legislative remedies available for restoring federal
     funding for the FutureGen 2.0 project. Consequently, the FutureGen Alliance board
     of directors approved a resolution in January 2016 ceasing all FutureGen 2.0
     project development efforts. FutureGen Alliance’s supplemental brief also
     indicated its intention to terminate the sourcing agreements that are the subject of
     this appeal.


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¶7         The Commission, FutureGen Alliance, and Commonwealth Edison filed a joint
       status report. The joint status report informed the court that the sourcing
       agreements that are the subject of this appeal were terminated and the appeal is now
       moot.

¶8        Appellants, Illinois Competitive Energy Association and Illinois Industrial
       Energy Consumers, filed their status report, agreeing that this appeal is now moot.
       However, appellants ask this court to address the substantive issues under the
       public interest exception to the mootness doctrine.



¶9                                         ANALYSIS

¶ 10       An appeal is moot if no actual controversy exists or when events have occurred
       that make it impossible for the reviewing court to render effectual relief. In re
       Marriage of Peters-Farrell, 216 Ill. 2d 287, 291 (2005). “As a general rule, courts
       of review in Illinois do not decide moot questions, render advisory opinions, or
       consider issues where the result will not be affected regardless of how those issues
       are decided.” In re Barbara H., 183 Ill. 2d 482, 491 (1998). “This court will not
       review cases merely to establish a precedent or guide future litigation.” Madison
       Park Bank v. Zagel, 91 Ill. 2d 231, 235 (1982). When a decision on the merits
       would not result in appropriate relief, such a decision would essentially be an
       advisory opinion. Berlin v. Sarah Bush Lincoln Health Center, 179 Ill. 2d 1, 8
       (1997).

¶ 11      Here, after federal funding of the FutureGen 2.0 project was suspended,
       FutureGen Alliance ceased all FutureGen 2.0 project development efforts, and the
       sourcing agreements that are the subject of this appeal were terminated. Thus,
       events have occurred that make it impossible for this court to grant effectual relief,
       rendering this appeal moot.

¶ 12       Despite agreeing that this appeal is now moot, appellants argue that this court
       should consider the issues raised in this appeal pursuant to the public interest
       exception to the mootness doctrine. The public interest exception to the mootness
       doctrine permits review of an otherwise moot question when the magnitude or
       immediacy of the interests involved warrants action by the court. See In re Shelby
       R., 2013 IL 114994, ¶ 16. The public interest exception to the mootness doctrine
       applies only when “(1) the question presented is of a public nature; (2) an

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       authoritative determination of the question is desirable for the future guidance of
       public officers; and (3) the question is likely to recur.” In re Shelby R., 2013 IL
       114994, ¶ 16.

¶ 13      The public interest exception is narrowly construed and requires a clear
       showing of each of its criteria. Felzak v. Hruby, 226 Ill. 2d 382, 393 (2007). If any
       one of the criteria is not established, the exception may not be invoked. In re
       Commitment of Hernandez, 239 Ill. 2d 195, 202 (2010). Indeed, the public interest
       exception is invoked only on “rare occasions” when there is an extraordinary
       degree of public interest and concern. People ex rel. Partee v. Murphy, 133 Ill. 2d
       402, 410 (1990) (citing People ex rel. Cairo Turf Club, Inc. v. Taylor, 2 Ill. 2d 160,
       164 (1954), and La Salle National Bank v. City of Chicago, 3 Ill. 2d 375, 380
       (1954)). In this case, none of the criteria was established.

¶ 14       We begin by considering the first requirement for the public interest exception
       to the mootness doctrine to apply, whether “the question presented is of a public
       nature.” In re Shelby R., 2013 IL 114994, ¶ 16. The question presented in this
       appeal would have incidentally affected Illinois electric energy consumers who
       would ultimately have paid higher utility rates as a result of the sourcing
       agreements. Undoubtedly, Illinois electric energy consumers have an interest in
       affordable utility rates. Nevertheless, the issue in this case uniquely applies only to
       a specific group of regulated entities for a specific project. FutureGen 2.0, if it had
       succeeded, would have been the world’s first near-zero emissions coal power plant.
       Development of the FutureGen 2.0 project, however, has ceased. The sourcing
       agreements relating to the FutureGen 2.0 project were terminated. Because of the
       unique character of this project, any public nature of the question presented in this
       appeal ceased to exist with the termination of the FutureGen 2.0 project. We
       therefore determine that this case does not present a question of a public nature.
       Accordingly, the first criterion is not met for application of the public interest
       exception to the mootness doctrine.

¶ 15        The second requirement for the public interest exception to the mootness
       doctrine to apply is that “an authoritative determination of the question is desirable
       for the future guidance of public officers.” In re Shelby R., 2013 IL 114994, ¶ 16.
       This court “does not review cases merely to set precedent or guide future
       litigation.” Berlin v. Sarah Bush Lincoln Health Center, 179 Ill. 2d 1, 8 (1997). As
       this court recognized in In re Alfred H.H.:


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          “If all that was required under this factor was that the opinion could be of value
          to future litigants, the factor would be so broad as to virtually eliminate the
          notion of mootness. Instead, the factor requires that the party asserting
          [justiciability] show that there is a ‘need to make an authorative determination
          for future guidance of public officers.’ ” In re Alfred H.H., 233 Ill. 2d 345,
          357-58 (2009) (quoting In re Adoption of Walgreen, 186 Ill. 2d 362, 365
          (1999)).

¶ 16       In deciding the need for an authoritative determination, this court looks to
       whether the law is in disarray or conflicting precedent exists. See In re Commitment
       of Hernandez, 239 Ill. 2d at 202. When a case presents an issue of first impression,
       no conflict or disarray in the law exists. In re Commitment of Hernandez, 239 Ill. 2d
       at 203.

¶ 17        This case involves the Commission’s first application of section 1-75(d)(5) of
       the Illinois Power Agency Act (Act) (20 ILCS 3855/1-75(d)(5) (West 2008)).
       Section 1-75(d)(5) specifically addresses sourcing agreements for retrofitted clean
       coal electric energy facilities. The parties agree that this case presents an issue of
       first impression. Because this appeal involves an issue of first impression, there is
       no conflicting precedent regarding the Commission’s authority to implement the
       retrofitted clean coal facility provisions of section 1-75(d)(5) of the Act, and the
       law is not in disarray. We conclude that the second criterion for application of the
       public interest exception, that an authoritative determination of the question is
       desirable for the future guidance of public officers, is not met in this case.

¶ 18       The third requirement for the public interest exception to the mootness doctrine
       to apply is that “the question is likely to recur.” In re Shelby R., 2013 IL 114994,
       ¶ 16. Appellants’ argument on this factor consists of a bare claim that there is
       “nothing that prevents another retrofitted clean coal facility from invoking [the
       statute at issue] and proposing sourcing agreements to be included in a procurement
       plan.”

¶ 19        As we have noted, this case involves the Commission’s first application of
       section 1-75(d)(5). Section 1-75(d)(5) specifically addressed sourcing agreements
       for retrofitted clean coal electric energy facilities, and FutureGen 2.0 was to be the
       first such facility. According to the Commission’s supplemental brief on the issue
       of mootness, no retrofitted clean coal facility invoked section 1-75(d)(5) before
       FutureGen 2.0, and none has invoked it since. Moreover, section 1-75(d)(5) is

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       limited in its application to retrofitted clean coal facilities. 20 ILCS
       3855/1-75(d)(5) (West 2008).

¶ 20       Appellants have made no showing of any probability or “substantial likelihood”
       that the issue will ever recur. See In re Alfred H.H., 233 Ill. 2d at 358 (finding
       “there is no substantial likelihood that the material facts that give rise to
       respondent’s *** claim are likely to recur either as to him or anyone else”).
       Appellants merely speculate that the question might recur. Due to the uniqueness of
       the FutureGen 2.0 project and the limited application of section 1-75(d)(5) to
       retrofitted clean coal facilities, we cannot say that this issue is likely, if ever, to
       recur. We determine that the third criteria for application of the public interest
       exception to the mootness doctrine is not met.

¶ 21       For the above reasons, we conclude that this case does not meet any of the
       criteria for review under the public interest exception to the mootness doctrine.
       Accordingly, this appeal must be dismissed as moot. Felzak, 226 Ill. 2d at 393 (the
       public interest exception requires a clear showing of each of its criteria).

¶ 22       Appellants alternatively ask this court to exercise its supervisory authority to
       vacate the appellate court opinion. Because this appeal is now moot, this court will
       not reach the merits of the issue presented. As such, this court is unable to pass on
       the correctness of the appellate court’s opinion affirming the Commission’s orders.
       Accordingly, we vacate the judgment of the appellate court without expressing any
       view on the merits of its opinion. See Bartlow v. Costigan, 2014 IL 115152, ¶ 54;
       Felzak, 226 Ill. 2d at 394; George W. Kennedy Construction Co. v. City of Chicago,
       112 Ill. 2d 70, 77-78 (1986); First National Bank of Waukegan v. Kusper, 98 Ill. 2d
       226, 236 (1983).

¶ 23       Appellants also ask this court to vacate portions of the Commission’s orders
       declaring that the agency has authority to force ARES into sourcing agreements
       with third parties, for the same reasons advanced in its argument for vacatur of the
       appellate court opinion. Appellants acknowledge that the Commission’s orders are
       nonprecedential. Appellants submit, however, that the Commission’s orders may
       have the same practical effect as legal precedent. According to appellants, “[i]t is at
       least reasonable to assume that in the next instance where the Commission seeks to
       expand its regulatory power over ARES, it will point to its orders in this case as
       authority for such ultra vires power.”


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¶ 24        This court has long recognized that the Commission “is not a judicial body, and
       its orders are not res judicata in later proceedings before it.” Mississippi River Fuel
       Corp. v. Illinois Commerce Comm’n, 1 Ill. 2d 509, 513 (1953). The Commission, as
       a regulatory body, has the “power to deal freely with each situation as it comes
       before it, regardless of how it may have dealt with a similar or even the same
       situation in a previous proceeding.” Mississippi River Fuel Corp. v. Illinois
       Commerce Comm’n, 1 Ill. 2d at 513; see also Citizens Utility Board v. Illinois
       Commerce Comm’n, 166 Ill. 2d 111, 125 (1995) (holding the Commission’s past
       precedent of allowing full recovery of statutorily imposed operating expenses “is
       not controlling, because the Commission is a legislative and not a judicial body,
       and generally its decisions are not res judicata in later proceedings before it”);
       United Cities Gas Co. v. Illinois Commerce Comm’n, 163 Ill. 2d 1, 22-23 (1994)
       (rejecting argument that the Commission is bound by its prior orders under the
       doctrine of res judicata).

¶ 25        Given the uniqueness of this case, it is uncertain whether the issues involved
       will ever recur. Even if they do recur, the Commission may deal with each situation
       as it comes before it, “regardless of how it may have dealt with a similar or even the
       same situation in a previous proceeding.” Mississippi River Fuel Corp., 1 Ill. 2d at
       513. Accordingly, the Commission’s orders are not preclusive, and it is
       unnecessary to vacate any portion of the Commission’s orders.



¶ 26                                      CONCLUSION

¶ 27       For the reasons stated, we dismiss this appeal as moot. We vacate the judgment
       of the appellate court without expressing an opinion on its merits.



¶ 28      Appeal dismissed.

¶ 29      Appellate court judgment vacated.




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