                             2019 IL App (2d) 180504
                                  No. 2-18-0504
                            Opinion filed May 2, 2019
______________________________________________________________________________

                                     IN THE

                         APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

COMMONWEALTH EDISON COMPANY,               )   Petition for Review of Orders of the
                                           )   Illinois Commerce Commission.
      Petitioner,                          )
                                           )
v.                                         )   Docket No. 17-0838
                                           )
THE ILLINOIS COMMERCE COMMISION;           )
AMEREN ILLINOIS COMPANY,                   )
d/b/a Ameren Illinois; ASSOCIATION OF      )
ILLINOIS ELECTRIC COOPERATIVES;            )
BLUE DELTA ENERGY, LLC; CARBON             )
SOLUTIONS GROUP; CITIZENS UTILITY          )
BOARD; COALITION FOR COMMUNITY             )
SOLAR ACCESS; ELEVATE ENERGY;              )
ENSYNC, INC.; ENVIRONMENTAL                )
DEFENSE FUND; ENVIRONMENTAL                )
LAW & POLICY CENTER; GRID                  )
ALTERNATIVES, INC.; THE ILLINOIS           )
CHAMBER OF COMMERCE; ILLINOIS              )
MUNICIPAL ELECTRIC AGENCY; THE             )
ILLINOIS POWER AGENCY; ILLINOIS            )
SOLAR ENERGY ASSOCIATION; LITTLE           )
VILLAGE ENVIRONMENTAL JUSTICE              )
ORGANIZATION; NATURAL RESOURCES            )
DEFENSE COUNCIL; NORTHSTAR PV              )
LLC, d/b/a Summitt Ridge Energy;           )
AVANGRID RENEWABLES LLC; EDP               )
RENEWABLES NORTH AMERICA LLC;              )
INVENERGY LLC; NEXTERA ENERGY              )
RESOURCES, LLC; ROBERT BOSCH               )
START-UP PLATFORM NORTH AMERICA            )
LLC; SERIES 2, d/b/a Bosch Building Grid   )
Technologies; SOLAR BUSINESS               )
COALITION; SOLAR DEVELOPMENT               )
2019 IL App (2d) 180504


ASSOCIATES, LLC; SOLAR ENERGY           )
INDUSTRIES ASSOCIATION; COALITION )
FOR COMMUNITY SOLAR ACCESS;             )
ILLINOIS SOLAR ENERGY ASSOCIATION; )
THE PEOPLE OF THE STATE OF              )
ILLINOIS ex rel. LISA MADIGAN, Attorney )
General; WABASH VALLEY POWER            )
ASSOCIATION, INC.; and WIND ON THE )
WIRES,                                  )
                                        )
      Respondents.                      )
______________________________________________________________________________

       JUSTICE BURKE delivered the judgment of the court, with opinion.
       Justices Schostok and Hudson concurred in the judgment and opinion.

                                            OPINION

¶1     Under recently-enacted legislation, the Illinois Power Agency (IPA) developed a long-

term renewable resources procurement plan (plan) to promote renewable energy, including the

implementation of three programs that provide financial support to small renewable energy

generation facilities (generation facilities) that might not be economically viable otherwise.

Under the plan, the generation facilities memorialize their energy production through renewable

energy credits (credits) that the IPA then procures on behalf of three large electric utilities:

petitioner, Commonwealth Edison Company (ComEd), Ameren Illinois Company (Ameren), and

MidAmerican Energy Company (MidAmerican) (collectively, Electric Utilities). The generation

facilities sell credits to the Electric Utilities, which then pass along certain costs to their

customers.

¶2     Some generation facilities operate in the service areas of (1) electric utilities operated by

municipalities, (2) rural electric cooperatives, and (3) the Mount Carmel Public Utility

(collectively, Local Utilities), which are not subject to the plan. 1 The plan as approved compels

       1
           The Mount Carmel Public Utility is a public utility regulated by the Illinois Commerce



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the Electric Utilities to buy credits from generation facilities operating in the service areas of the

Local Utilities, but the Local Utilities are statutorily exempt from purchasing credits.

¶3      On April 3, 2018, the Illinois Commerce Commission (Commission) approved the plan.

The Commission concluded that the generation facilities eligible for the programs are statutorily

defined to include those within the service areas of the Local Utilities. On appeal, ComEd

argues that the legislature intended to exclude the generation facilities operating in the service

areas of the Local Utilities from participating in the programs.

¶4      We acknowledge that terms like “electric utility” and “utility” are not deployed with

precision, rendering the statutory scheme ambiguous. However, deferring to the Commission’s

expertise, we agree with the Commission’s interpretation in favor of the stated legislative intent

of promoting the programs. We affirm.

¶5                                      I. BACKGROUND

¶6                    A. Large Electric Utilities Versus Small Local Utilities

¶7      The Electric Utilities provide electric service to retail customers on their low-voltage

local distribution networks within their service territories. ComEd has a service territory in the

northern part of the state. Ameren has a service territory in the southern part of the state.

MidAmerican has a service territory in and around the Quad Cities.               The Local Utilities,

meanwhile, have service territories akin to islands within the service territories of the Electric

Utilities.




Commission, but its small customer base exempts it from the plan’s credit procurement

requirements, and the parties treat Mount Carmel as a municipal utility for purposes of the

programs.



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¶8     On December 7, 2016, the legislature enacted Public Act 99-906, commonly known as

the Illinois Future Energy Jobs Act, with provisions to increase the state’s commitment to

renewable energy. Pub. Act 99-906, § 5 (eff. June 1, 2017). Public Act 99-906 modernized the

Illinois renewable portfolio standard, creating new programs to encourage the deployment of

solar photovoltaics and other renewable energy technologies throughout the state.

¶9     To achieve the broad new goals of the renewable portfolio standard, the legislation

directed the IPA to develop plans subject to review and approval by the Commission. 220 ILCS

5/16-111.5(b) (West 2016). Under the plan at issue, the Electric Utilities must purchase a certain

number of credits each year. 20 ILCS 3855/1-75(a), (c) (West 2016). The Local Utilities are not

part of the plan and have no obligation to purchase credits, because the Illinois Power Agency

Act and the Public Utilities Act regulate only “public utilities” (20 ILCS 3855/1-75(c)(1)(N)

(West 2016); 220 ILCS 5/1-102 (West 2016)), which are expressly defined to exclude entities

owned or operated by municipalities or rural electric cooperatives. 220 ILCS 5/3-105(b)(1), (3)

(West 2016). In contrast, an “electric utility” is a “public utility” that “has a franchise, license,

permit or right to furnish or sell electricity to retail customers within a service area.” 220 ILCS

5/16-102 (West 2016); see 20 ILCS 3855/1-10 (West 2016).                   ComEd, Ameren, and

MidAmerican are “electric utilities” under the Illinois Power Agency Act and the Public Utilities

Act. A “municipal utility” is defined separately as a “public utility owned and operated by any

subdivision or municipal corporation of this State.” 20 ILCS 3855/1-10 (West 2016).

¶ 10                               B. Renewable Energy Credits

¶ 11   The credits memorialize the production of renewable energy by the generation facilities,

and the IPA specifies the quantity of credits that the Electric Utilities must procure each year.

Under the IPA’s direction, the Electric Utilities enter into contracts with eligible generation



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facilities to purchase the credits. The Electric Utilities recover certain expenses associated with

the credits from their retail customers through a rate charge, subject to a statutory cap. 20 ILCS

3855/1-75(c)(1)(B), (c)(1)(E), (c)(6) (West 2016).

¶ 12   The Illinois Power Agency Act requires that 75% of the credits derive from wind and

solar resources. 20 ILCS 3855/1-75(c)(1)(C) (West 2016). Many wind and solar projects are

large-scale wind farms or solar arrays that interconnect with the interstate high-voltage

transmission system. To be eligible for procurement, these large-scale projects must be located

in Illinois or in adjacent states, provided that an adjacent state’s facility demonstrates that the

operation of the facility will help promote this state’s interest in the “health, safety, and welfare

of its residents.” 20 ILCS 3855/1-75(c)(1)(G)(v), (c)(1)(I) (West 2016).

¶ 13   The parties agree that large-scale generation facilities located in the service territories of

the Local Utilities are eligible to sell credits to the Electric Utilities. Accordingly, the plan

directs the Electric Utilities to procure credits from those large-scale generation facilities, while

the Local Utilities have no obligation to do so.

¶ 14                                     C. The Programs

¶ 15   To promote the small-scale, community-level generation facilities that interconnect with

low-voltage distribution networks, the legislature directed the IPA to set aside a certain number

of credits to be purchased by the Electric Utilities through the three specialized programs at issue

in this case: the Adjustable Block Program (20 ILCS 3855/1-75(c)(1)(K) (West 2016)), the

Community Renewable Generation Program (20 ILCS 3855/1-75(c)(1)(N) (West 2016)), and the

Illinois Solar for All Program (20 ILCS 3855/1-56(b) (West 2016)) (collectively, programs).

The Electric Utilities must procure a certain portion of their credits through the programs.




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¶ 16    As outlined below, the statutes prescribing the programs refer to “electric utilities” and

“utility,” which ComEd argues exclude small generation facilities that operate in the Local

Utilities’ service territories.

¶ 17                              1. The Adjustable Block Program

¶ 18    “The credits from solar facilities must be procured using the Adjustable Block Program”

from statutorily defined facilities: at least 50% from “distributed renewable energy generation

devices” (distributed generation) and at least 25% from “community renewable generation

projects” (community generation). 20 ILCS 3855/1-75(c)(1)(K)(i-iii) (West 2016). Distributed

generation and community generation are defined in part by their interconnection with the

distribution system level of (1) an “electric utility,” such as ComEd, “as defined in [section 1-10]

of the Illinois Power Agency Act”; (2) a “municipal utility as defined in [section 1-10] that owns

or operates electric distribution facilities”; or (3) “a rural electric cooperative as defined in

section 3-119 of the Public Utilities Act.” 20 ILCS 3855/1-10 (West 2016).

¶ 19    The IPA, to ensure balanced market development throughout the state, must design the

Adjustable Block Program to ensure that projects are developed “in diverse locations and are not

concentrated in a few geographic areas.” 20 ILCS 3855/1-75(c)(1)(K) (West 2016). The IPA

must design the Adjustable Block Program to “provide a transparent schedule of prices and

quantities to enable the photovoltaic market to scale up and for renewable energy credit prices to

adjust at a predictable rate over time.” 20 ILCS 3855/1-75(c)(1)(K) (West 2016).

¶ 20    The contracts for credits under the Adjustable Block Program must have at least 15-year

terms (20 ILCS 3855/1-75(c)(1)(L)(i) (West 2016)), and either 100% or 20% of the credit

purchase price, depending on the size of the generation facility, “shall be paid in full by the

contracting utilities at the time that the facility producing the credits is interconnected at the



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distribution system level of the utility and energized. The electric utility shall receive and retire

all credits generated by the project for the first 15 years of operation.” (Emphases added.) 20

ILCS 3855/1-75(c)(1)(L)(ii), (iii) (West 2016).

¶ 21                   2. The Community Renewable Generation Program

¶ 22   The Community Renewable Generation Program (20 ILCS 3855/1-75(c)(1)(N) (West

2016)) was created for consumers to participate in renewable energy generation and share the

benefits regardless of where the system is installed. To accomplish that goal, consumers may

“subscribe” to community generation projects. 20 ILCS 3855/1-75(c)(1)(N) (West 2016). For

instance, a subscriber may purchase or lease solar panels in an off-site installation and receive a

credit on his monthly electric bill for the energy produced by his share of the installation. This

way, a consumer without a roof suitable for a solar installation can attain access to solar energy.

¶ 23   A “[s]ubscriber” means “a person who (i) takes delivery service from an electric utility,

and (ii) has a subscription of no less than 200 watts to a community renewable generation project

that is located in the electric utility’s service area.” (Emphases added.) 20 ILCS 3855/1-10

(West 2016).

¶ 24   The program allows subscriptions to be “portable” and “transferable” such that

“subscriptions may be retained by the subscriber even if the subscriber relocates or changes its

address within the same utility service territory,” and “a subscriber may assign or sell

subscriptions to another person within the same utility service territory.” (Emphases added.) 20

ILCS 3855/1-75(c)(1)(N) (West 2016).

¶ 25                           3. The Illinois Solar for All Program

¶ 26   The Illinois Solar for All Program extends renewable energy concepts to low-income

communities and communities striving for environmental justice. 20 ILCS 3855/1-56(b)(2)



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2019 IL App (2d) 180504


(West 2016). The IPA is directed to reallocate funds from the renewable energy resources fund

to provide “incentives for low-income distributed generation and community solar projects.” 20

ILCS 3855/1-56(b)(2) (West 2016). The plan disburses these funds through four different

programs: (1) the low-income distributed generation incentive, (2) the low-income community

solar project initiative, (3) incentives for distributed generation serving non-profit and public

sector customers, and (4) low-income community solar pilot projects. The legislative objectives

“are to bring photovoltaics to low-income communities in this State in a manner that maximizes

the development of new photovoltaic generating facilities, to create a long-term, low-income

solar marketplace throughout this State, to integrate, through interaction with stakeholders, with

existing energy efficiency initiatives, and to minimize administrative costs.” 20 ILCS 3855/1-

56(b)(2) (West 2016).

¶ 27   Under the Solar for All Program, the credits may be purchased through an upfront

payment “once the device is interconnected at the distribution level system of the utility and is

energized.” (Emphasis added.) 20 ILCS 3855/1-56(b)(3) (West 2016). The credits produced by

the facility count toward the obligation for “the electric utility” with which the project is

interconnected. (Emphasis added.) 20 ILCS 3855/1-56(b)(3) (West 2016).

¶ 28                              D. The Commission’s Order

¶ 29   On December 4, 2017, the IPA filed with the Commission a petition requesting approval

of the plan. The administrative law judge granted ComEd and many other entities leave to

intervene. The Illinois Attorney General (AG) and the Staff of the Commission (Staff) also

participated in the proceeding.




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¶ 30   On April 3, 2018, the Commission issued the final order approving the plan. The order

walked through each of the contested issues in the docket, explaining the parties’ positions and

the Commission’s analysis and conclusion.

¶ 31   The Commission explained that the renewable portfolio standard does not apply to the

Local Utilities and that those entities do not have renewable energy procurement obligations

under Illinois law. The Commission found the arrangement consistent with the Public Utilities

Act’s exclusion of municipally-owned utilities and rural electric cooperatives from the definition

of “public utility.” 220 ILCS 5/3-105 (West 2016). Thus, the customers of the Local Utilities do

not pay to support the programs. Yet, the plan proposed to allow certain generation facilities in

the service territories of Local Utilities to participate in the programs.

¶ 32   ComEd’s objection was that the Illinois Power Agency Act did not authorize the IPA to

require retail customers of the Electric Utilities to subsidize the small generation facilities within

the service territories of entities that are not otherwise subject to the renewable portfolio standard

and whose customers are not paying for the benefits. The IPA, the AG, and nine other parties—

the Environmental Law & Policy Center; the Natural Resources Defense Council; the Citizens

Utility Board; the Carbon Solutions Group; the Solar Business Coalition; Solar Development

Associates, LLC; Elevate Energy; GRID Alternatives; and the Joint Solar Parties (consisting of

the Solar Energy Industries Association, the Coalition for Community Solar Access, and the

Illinois Solar Energy Association)—filed briefs in opposition to ComEd’s position. Several

entities filed objections to the plan on various grounds, but ComEd is the only entity that

challenges the narrow ruling at issue in this appeal.




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¶ 33   The Commission framed the issue as whether to allow customers and generation facilities

located in the Local Utilities’ service territories to participate in the programs. The Commission

answered that question in the affirmative.

¶ 34   The Commission noted that the plain language of the Illinois Power Agency Act defines

“community renewable generation project” and “distributed renewable energy generation

device” to expressly include projects “interconnected at the distribution system level of either an

electric utility ***, a municipal utility ***, or a rural electric cooperative as defined in Section 3-

119 of the Public Utilities Act.” 20 ILCS 3855/1-10 (West 2016). Citing the rules of statutory

interpretation, the Commission ruled that, when these terms are used within section 1-56(b) in

describing the Illinois Solar for All Program and section 1-75(c) in describing the Adjustable

Block Program and the Community Renewable Generation Program, the legislature intended that

they be used as defined in section 1-10 of the Illinois Power Agency Act.

¶ 35   Therefore, the Commission concluded, a “community renewable generation project” or a

“distributed renewable energy generation device” interconnected with a municipal utility or a

rural electric cooperative is eligible to participate in the programs.

¶ 36   Noting that the legislature limited the type of projects that may participate in the

Adjustable Block Program to new photovoltaic projects (20 ILCS 3855/1-75(c)(1)(K) (West

2016)), the Commission held that the legislature did not intend to limit what service territories

could participate, only what type of projects could participate in the programs.

¶ 37   Further, the Commission found an established precedent of participation by generation

facilities outside the service territory of the contracting utility in renewable resource procurement

programs under Illinois law. The IPA pointed out that Illinois law has never required that

generation facilities that produce credits actually be in the utilities’ service territories to meet the



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utilities’ compliance obligations under the renewable portfolio standard. Moreover, qualifying

facilities in adjacent states are eligible to contribute to renewable portfolio standard compliance

by selling credits to contracting utilities in Illinois.

¶ 38    The Commission determined that the legislature did not intend to incentivize out-of-state

renewable development while disqualifying a large portion of Illinois from participating in the

programs, especially when the programs ostensibly are designed for “diverse locations and are

not concentrated in a few geographic areas.” 20 ILCS 3855/1-75(c)(1)(K) (West 2016).

¶ 39    Given the precedent and clear language, the Commission expressed sympathy for

developers of renewable energy projects and Illinois citizens who have invested in new

generation facilities outside the investor-owned utility territories expecting incentives from the

Future Energy Jobs Act. A sudden reversal of expectations would cause harm that should not be

ignored.

¶ 40    In arguing against this approach, ComEd cited the program provisions that use the terms

“utility,” “electric utility,” and “contracting utility” and argued that the statutes exclude

generation facilities located in the Local Utilities’ service territories. ComEd pointed out that

“electric utility” has a definition distinct from “municipal utility” and that “rural electric

cooperative” does not even have “utility” in its name.

¶ 41    The Commission responded that these instances of defining “utility” do not supplant the

more direct and unambiguous definitions found in section 1-10 of the Illinois Power Agency Act,

which clearly state that distributed generation or community generation may be interconnected

with a municipal utility or rural electric cooperative. The Commission concluded that, had the

legislature sought to further narrow those definitions in applying these terms to the Adjustable




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Block Program and the Illinois Solar for All Program, it could have easily done so through an

express statement that such projects are excluded.

¶ 42     The Commission reconciled the conflicting interpretations by concluding that the

legislature simply used the term “electric utility” more “colloquially” in certain parts of the

Illinois Power Agency Act and intended to refer to whatever entity serves as the interconnecting

utility—even if it is a municipal utility or rural electric cooperative—as the “electric utility,”

which is how the utility’s customer would likely understand it.

¶ 43     ComEd also alleged practical difficulties potentially resulting from allowing participation

in the programs by projects in the Local Utilities’ service territories. The Commission expressed

sensitivity to operational challenges and sought smooth implementation of the programs, but it

found that the plan adequately addresses any operational challenges that ComEd alleged could

occur.

¶ 44     Most notably, the plan’s requirements that the Local Utilities adopt net metering policies

equivalent to those of the Electric Utilities will ensure that customers of the Local Utilities

receive bill crediting commensurate with state-regulated electric utility customers.              The

Commission adopted the plan as written to include in the programs the small generation facilities

in the service territories of municipal electric utilities and rural electric cooperatives.

¶ 45     ComEd filed a petition for rehearing on May 3, 2018, that the Commission denied in

conference on May 17, 2018. ComEd filed a timely notice of appeal to this court within 35 days,

on June 19, 2018. See 735 ILCS 5/3-103 (West 2016).

¶ 46                                        II. ANALYSIS

¶ 47     ComEd argues that the legislature did not intend to allow small generation facilities

located in the service territories of municipal utilities and rural electric cooperatives to qualify to



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sell credits under the programs, because the municipal utilities and rural electric cooperatives do

not contract to obtain any credits under the programs, and their customers are not paying the

costs. Instead, ComEd argues, the legislature intended to limit participation in the programs to

generation facilities located in the service territories of the Electric Utilities, whose customers are

bearing the programs’ costs. For the following reasons, we agree with the Commission that

generation facilities located in the service territories of municipal utilities and rural electric

cooperatives are eligible to participate in the programs.

¶ 48                                   A. Standard of Review

¶ 49   Section 16-111.5(b)(5) of the Public Utilities Act, adopted as part of Public Act 99-906,

sets forth various provisions relating to the procurement of long-term renewable resources. 220

ILCS 5/16-111.5(b)(5) (West 2016). Section 16-111.5(b)(5)(ii)(C) sets forth the procedure for

the review and approval of long-term renewable procurement plans by the IPA. 220 ILCS 5/16-

111.5(b)(5)(ii)(C) (West 2016).

¶ 50   Section 16-111.5(b)(5)(ii)(D) of the Public Utilities Act provides the standard by which

the Commission must assess a plan:

       “The Commission shall approve the initial long-term renewable resources procurement

       plan and any subsequent revisions, including expressly the forecast used in the plan and

       taking into account that funding will be limited to the amount of revenues actually

       collected by the utilities, if the Commission determines that the plan will reasonably and

       prudently accomplish the requirements of Section 1-56 and subsection (c) of Section 1-75

       of the Illinois Power Agency Act.” 220 ILCS 5/16-111.5(b)(5)(ii)(D) (West 2016).

¶ 51   Review of final decisions of the Commission involves the exercise of special statutory

jurisdiction and is constrained by the provisions of the Public Utilities Act. Illinois Landowners



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Alliance, NFP v. Illinois Commerce Comm’n, 2017 IL 121302, ¶ 29. Section 10-201(d) of the

Public Utilities Act provides that “[t]he findings and conclusions of the Commission on

questions of fact shall be held prima facie to be true and as found by the Commission” and that

“rules, regulations, orders or decisions of the Commission shall be held to be prima facie

reasonable.” 220 ILCS 5/10-201(d) (West 2016). ComEd, as the entity appealing from the final

order, bears the burden of proof upon all issues raised by the appeal. See 220 ILCS 5/10-201(d)

(West 2016).

¶ 52   The Public Utilities Act further provides, however, that a “court shall reverse a

Commission *** order or decision, in whole or in part, if it finds,” inter alia, that the “findings

of the Commission are not supported by substantial evidence based on the entire record of

evidence” or that the “order or decision is without the jurisdiction of the Commission” or “is in

violation of the State or federal constitution or laws.” 220 ILCS 5/10-201(e)(iv) (West 2016).

¶ 53   Here, there is no dispute that the IPA and the Commission have jurisdiction over the

Electric Utilities but not over the Local Utilities. 220 ILCS 5/3-105 (West 2016) (“public

utilities” are not utilities operated by any political subdivision or municipal corporation of this

state or electric cooperatives). Therefore, the Local Utilities have no obligation to financially

support the generation facilities by purchasing credits under the plan.

¶ 54   ComEd contends that the programs are not open to generation facilities within the service

territories of the Local Utilities and, therefore, the Commission’s order contradicts the plain

language of the statute. ComEd’s argument is one of statutory interpretation.

¶ 55   The primary objective in interpreting a statute is to ascertain and give effect to the intent

of the legislature. Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d 433, 440 (2010). The

best evidence of the legislature’s intent is the language of the statute itself. Bruso v. Alexian



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Brothers Hospital, 178 Ill. 2d 445, 451-52 (1997). Statutes must not be read in isolation, but as a

whole; all relevant parts of the statute must be considered when courts attempt to define the

legislative intent underlying the statute. People v. NL Industries, 152 Ill. 2d 82, 98 (1992).

Moreover, when an act defines its terms, those terms must be construed according to the

definitions contained in the act. Robbins v. Carbondale Police Pension Board, 177 Ill. 2d 533,

540 (1997).

¶ 56   Courts are not bound by the Commission’s rulings on questions of law, which we review

de novo. Illinois Landowners Alliance, NFP, 2017 IL 121302, ¶ 29. However, courts have

consistently afforded “substantial weight and deference” to the Commission’s interpretation of a

statute that it is charged with administering and enforcing. Illinois Consolidated Telephone Co.

v. Illinois Commerce Comm’n, 95 Ill. 2d 142, 152 (1983); Commonwealth Edison Co. v. Illinois

Commerce Comm’n, 398 Ill. App. 3d 510, 514 (2009). “A significant reason for this deference is

that courts appreciate that agencies can make informed judgments upon the issues, based upon

their experience and expertise.” Illinois Consolidated Telephone Co., 95 Ill. 2d at 153. We

agree with the Environmental Law & Policy Center that this case involves precisely the type of

complex statute where the Commission and the IPA’s collective experience and expertise is

valuable. Thus, we afford “substantial weight and deference” to their interpretation of the

Illinois Power Agency Act when considering whether ComEd has met its burden of proof.

¶ 57                            B. Generation Facility Eligibility

¶ 58   Program eligibility is determined, in part, by the way the generation facility interconnects

with the distribution network. The Illinois Power Agency Act makes small-scale generation

facilities that are interconnected with the Local Utilities eligible for the programs. The credits

from solar facilities must be procured using the Adjustable Block Program from statutorily



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defined facilities: distributed generation and community generation.             20 ILCS 3855/1-

75(c)(1)(K)(i-iii) (West 2016). Section 1-10 of the Illinois Power Agency Act defines distributed

generation and community generation to include projects interconnected with the distribution

system level of an electric utility, a municipal utility, or a rural electric cooperative. 20 ILCS

3855/1-10 (West 2016). We agree with the Commission that, when these terms are used in

section 1-56(b) in describing the Illinois Solar for All Program and section 1-75(c) in describing

the Adjustable Block Program and the Community Renewable Generation Program, the

legislature intended that they be used as defined in section 1-10 of the Illinois Power Agency

Act, as distributed generation and community generation are not defined anywhere else. The

legislature unambiguously contemplated that generation facilities subject to the plan might be

interconnected with the Local Utilities.         Therefore, assuming that the other statutory

requirements are met, a distributed generation device or community generation project

interconnected with a municipal utility or a rural electric cooperative is eligible to participate in

the programs.

¶ 59   ComEd responds that, although section 1-10 of the Illinois Power Agency Act defines

distributed generation and community generation broadly to permit interconnection with an

electric utility, municipal utility, or rural electric cooperative, these definitions (like all of the

definitions in section 1-10) are subject to additional qualifications or restrictions that the

legislature might apply to them in the context of a given statute.

¶ 60   For example, section 1-10 of the Illinois Power Agency Act defines distributed

generation and community generation to include a project or device “powered by wind, solar

thermal energy, photovoltaic cells or panels, biodiesel, crops and untreated and unadulterated

organic waste biomass, tree waste, and hydropower that does not involve new construction or



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significant expansion of hydropower dams.” 20 ILCS 3855/1-10 (West 2016). Yet, when the

legislature created the Adjustable Block Program in section 1-75(c)(1)(K) of the Illinois Power

Agency Act, it more narrowly defined these terms by restricting the eligible projects and devices

to “new photovoltaic projects.” 20 ILCS 3855/1-75(c)(1)(K) (West 2016). As a result, ComEd

argues, the definitions in section 1-10 do not apply to the Adjustable Block Program.

¶ 61   ComEd argues that we should look to the Public Utilities Act to discern the scope of the

programs prescribed by the Illinois Power Agency Act. The Illinois Power Agency Act (20

ILCS 3855/1-10 (West 2016)) and the Public Utilities Act (220 ILCS 5/16-102 (West 2016))

each define “electric utility” as a type of “public utility.” In turn, the Public Utility Act’s

definition of “public utility” explicitly excludes municipal utilities and rural electric

cooperatives. 220 ILCS 5/3-105 (West 2016). ComEd concludes that the legislature expressed

its intent to exclude municipal utilities and rural electric cooperatives from the programs by

using the terms “electric utility” and “utility” in the statutes that codify the programs.

¶ 62   First, ComEd points out that section 1-75(c)(1)(L) of the Illinois Power Agency Act ties

the payment requirement for credits purchased under the Adjustable Block Program to the time

that the project is interconnected with the distribution system of the “contracting electric utility.”

20 ILCS 3855/1-75(c)(1)(L)(ii)-(iii) (West 2016). Second, payment for credits under the Illinois

Solar for All Program corresponds to the time that the device is interconnected with the

distribution system level of the “utility” and is energized. 20 ILCS 3855/1-56(b)(3) (West 2016).

Third, the Community Renewable Generation Program requires that “subscriber[s]” to

community generation “take[ ] delivery service from an electric utility” (20 ILCS 3855/1-10

(West 2016) (defining subscriber)), which as defined in the Illinois Power Agency Act does not

include the Local Utilities. Generation facilities interconnected with the systems of the Local



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Utilities are not interconnected with the Electric Utilities, and the Local Utilities bear no

obligation to purchase credits for these systems.

¶ 63   ComEd argues that these interconnection requirements must be given full effect, citing

the axiom that qualifying provisions control and supersede more general provisions. See Knolls

Condominium Ass’n v. Harms, 202 Ill. 2d 450, 459 (2002) (“It is also a fundamental rule of

statutory construction that where there exists a general statutory provision and a specific

statutory provision, either in the same or in another act, both relating to the same subject, the

specific provision controls and should be applied.”).            ComEd concludes that a narrower

definition of “contracting electric utility,” i.e., the Electric Utilities, should control and exclude

generation facilities interconnected with the Local Utilities.

¶ 64   Despite its superficial appeal, ComEd’s position is essentially that the provisions linking

payment for credits to the timing of interconnection are a better indication of legislative intent

than the actual definitions of distributed generation and community generation, which mention

municipal utilities and rural electric cooperatives by name, in section 1-10 of the Illinois Power

Agency Act. In contrast to sections 1-56 and 1-75, which appear to use “electric utility” and

“utility” interchangeably, section 1-10’s definitions of distributed generation and community

generation explicitly cite the statutory definitions of “municipal utility” and “rural electric

cooperative,” thus avoiding the other sections’ textual imprecision. 20 ILCS 3855/1-10 (West

2016). Specifically, distributed generation and community generation can be interconnected

with “a municipal utility as defined in [section 1-10 of the Illinois Power Agency Act] that owns

or operates electric distribution facilities” or “a rural electric cooperative as defined in [s]ection

3-119 of the Public Utilities Act.” 20 ILCS 3855/1-10 (West 2016).




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¶ 65   ComEd also raises concerns about whether the Community Renewable Generation

Program can ensure that subscribers can take advantage of the new net metering available to

community generation projects. The program requires the kinds of net metering, billing, and

crediting services required of the Electric Utilities, but the plan acknowledges that the Local

Utilities are not regulated by the IPA or the Commission and are free to decline to take these

actions. The plan proposes that the approved vendor obtain a certification confirming that the

Local Utilities comply with these requirements, but ComEd argues that it is unclear how the IPA

or the Commission will ensure that they continue to comply.

¶ 66   Regarding the Illinois Solar for All Program, the plan states that the law is silent on how

to allocate credits from generation facilities that service the territories of the Local Utilities, so

the plan allocates to a utility’s renewable portfolio standard goals only those credits procured

through contracts with that utility. As a result, credits procured through contracts with the IPA

would not be applied to the utility’s renewable portfolio standard goals as the law requires.

¶ 67   ComEd argues that (1) this approach is inconsistent with section 1-56(b)(3), which

expressly requires that all credits purchased under the Illinois Solar for All Program—regardless

of whether the contract is executed by the utility or the IPA—be applied and counted toward the

utilities’ obligations under section 1-75(c) (20 ILCS 3855/1-56(b)(3) (West 2016)); (2) the

Adjustable Block Program counts all credits from generation facilities in the service territories of

the Local Utilities; and (3) neither the Illinois Power Agency Act nor the Public Utilities Act

supports using money collected for the achievement of the state’s renewable portfolio standard

goals to purchase credits that do not contribute to those goals.

¶ 68   ComEd argues that including generation facilities located in the service territories of the

Local Utilities would lead to an absurd result: funds collected from customers are spent on



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credits that never count toward achievement of the renewable portfolio standard goals. See

Du Page County Election Comm’n v. State Board of Elections, 345 Ill. App. 3d 200, 208 (2003)

(“[A] court should avoid statutory interpretations that lead to absurd results.”).

¶ 69   Given that the IPA and others argued that projects within the Local Utilities’ service

territories should be included because they provide benefits throughout the state, ComEd argues

that it is unclear why credits associated with the statewide benefits should go unrecognized

toward achievement of the renewable portfolio standard goals.

¶ 70   ComEd accurately points out that “electric utility” has a definition distinct from

“municipal utility” and that “rural electric cooperative” does not even have “utility” in its name.

We further acknowledge, as did the Commission, that several program provisions use the terms

“utility” and “electric utility” in ways that are inconsistent with the definitional provisions of

section 1-10 of the Illinois Power Agency Act. However, this ambiguity does not compel

reversal of the order approving the plan.

¶ 71   Even when, as here, review is de novo, an agency’s construction of the law may be

afforded substantial weight and deference if the meaning of the terms used in a statute is

uncertain, because agencies make informed judgments based upon their experience and expertise

and serve as an informed source for ascertaining the legislature’s intent. Provena Covenant

Medical Center v. Department of Revenue, 236 Ill. 2d 368, 387 n.9 (2010). We defer to the

Commission as the agency with expertise over the interpretation of the statutes governing the

programs. Only ComEd takes a position contrary to the plan.

¶ 72   Thus, we defer to the Commission’s interpretation that these instances of the use of

“utility” and “electric utility” do not supplant the more direct and unambiguous definitions found

in section 1-10 of the Illinois Power Agency Act, which clearly state that distributed generation



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and community generation may be interconnected with a municipal utility or rural electric

cooperative, as those facilities are statutorily defined. If the legislature had intended to further

narrow those definitions in applying these terms to the programs, it could have easily done so

through an express statement that such projects are excluded from certain geographic areas.

¶ 73   The Commission reconciled the conflicting interpretations by concluding that the

legislature simply used “electric utility” and “utility” more “colloquially” in certain parts of the

Illinois Power Agency Act, intending to refer to whatever entity serves as the interconnecting

utility, including a municipal utility or rural electric cooperative. In fact, ComEd acknowledges

that “ ‘utility’ and ‘electric utility’ are used interchangeably throughout the [Illinois Power

Agency] Act,” which tends to undermine its assertion that the legislature intended to deploy the

terms with precision to define the scope of program eligibility. If the legislature had intended

“electric utility” to refer only to ComEd, Ameren, and MidAmerican, it would have used that

term throughout the Illinois Power Agency Act and not resorted to “utility” as shorthand. The

legislature could have taken a much simpler route to articulate specific geographic restrictions

for the programs than by defining terms differently in various statutes. Using cryptic references

to “electric utility” and “utility” to place restrictions on the programs would be unnecessarily

convoluted.

¶ 74   Moreover, including the projects in the service territories of municipal utilities and rural

electric cooperatives is more consistent with the stated legislative intent to operate the programs

throughout the state:

       “The [IPA] shall design its [plan] to maximize the State’s interest in the health, safety,

       and welfare of its residents, including but not limited to minimizing sulfur dioxide,

       nitrogen oxide, particulate matter and other pollution that adversely affects public health



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        in this State, increasing fuel and resource diversity in this State, enhancing the reliability

        and resiliency of the electricity distribution system in this State, meeting goals to limit

        carbon dioxide emissions under federal or State law, and contributing to a cleaner and

        healthier environment for the citizens of this State. In order to further these legislative

        purposes, renewable energy credits shall be eligible to be counted toward the renewable

        energy requirements of this subsection (c) if they are generated from facilities located in

        this State. The [IPA] may qualify renewable energy credits from facilities located in

        states adjacent to Illinois if the generator demonstrates and the [IPA] determines that the

        operation of such facility or facilities will help promote the State’s interest in the health,

        safety, and welfare of its residents based on the public interest criteria described above.

        To ensure that the public interest criteria are applied to the procurement and given full

        effect, the [IPA’s] long-term procurement plan shall describe in detail how each public

        interest factor shall be considered and weighted for facilities located in states adjacent to

        Illinois.” (Emphasis added.) 20 ILCS 3855/1-75(c)(1)(I) (West 2016).

¶ 75    The legislative goal was to create programs that were available to “all citizens of the

State,” but according to the Environmental Law & Policy Center, the Natural Resources Defense

Council, and the Solar Business Coalition, adopting ComEd’s statutory interpretation would

effectively exclude approximately 570,000 citizen and business customers in areas served by

municipal utilities and rural electric cooperatives. ComEd’s position would deny access to the

economic and environmental benefits of these programs to customers in towns and rural areas

across the state.

¶ 76    Furthermore, section 1-75(c)(1)(I) distinguishes between in-state and out-of-state

generation facilities, thereby placing geographical restrictions on eligibility for the programs.



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The legislature thus contemplated geographical restrictions and made them explicit in the statute,

avoiding a convoluted interpretation. This refutes the notion that the legislature used the terms

“electric utility” and “utility” to express its intent to geographically exclude generation facilities

that operate within the service territories of the Local Utilities.

¶ 77    Under these circumstances, we agree with the Commission’s determination that the plan

will reasonably and prudently fulfill the requirements of section 1-56 and section 1-75(c) of the

Illinois Power Agency Act. See 220 ILCS 5/16-111.5(b)(5)(ii)(D) (West 2016).

¶ 78                                     III. CONCLUSION

¶ 79    We hold that the Commission did not err in approving the IPA’s plan to allow renewable

energy generation facilities located in the service territories of municipal electric utilities and

rural electric cooperatives to participate in new renewable energy support programs. Thus, for

the reasons stated, the order of the Commission is affirmed.

¶ 80    Affirmed.




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