                      ILLINOIS OFFICIAL REPORTS
                                   Appellate Court




       Ameren Illinois Co. v. Illinois Commerce Comm’n, 2013 IL App (4th) 121008




Appellate Court        AMEREN ILLINOIS COMPANY, Petitioner, v. ILLINOIS
Caption                COMMERCE COMMISSION; THE CITIZENS UTILITY BOARD;
                       AARP; THE COMMERCIAL GROUP (Best Buy Company Inc., J.C.
                       Penney Corporation, Inc., Macy’s, Inc., Sam’s West, Inc., and Wal-Mart
                       Stores, Inc.); THE INDUSTRIAL ENERGY CONSUMERS (Air
                       Products and Chemicals Company, Archer-Daniels-Midland Company,
                       Caterpillar, Inc., CCPS Transportation, LLC, GBC Metals, LLC,
                       Keystone Consolidated Industries, Inc., Marathon Petroleum Company,
                       LP, Olin Corporation, Tate and Lyle Ingredients Americas, Inc.,
                       University of Illinois, Viscofan USA, Inc., and Washington Mills
                       Hennepin, Inc.); THE OFFICE OF THE ATTORNEY GENERAL; and
                       THE PEOPLE OF THE STATE OF ILLINOIS, Respondents.–AMEREN
                       ILLINOIS COMPANY, Petitioner, v. ILLINOIS COMMERCE
                       COMMISSION, THE CITIZENS UTILITY BOARD, AARP, THE
                       OFFICE OF THE ATTORNEY GENERAL, and THE PEOPLE OF THE
                       STATE OF ILLINOIS, Respondents.



District & No.         Fourth District
                       Docket Nos. 4-12-1008, 4-13-0029 cons.


Filed                  December 11, 2013
Modified upon
denial of rehearing    January 28, 2014
Held                       In proceedings on petitioner’s application to establish a performance-
(Note: This syllabus       based rate tariff under section 16-108.5 of the Public Utilities Act,
constitutes no part of     commonly known as the Energy Infrastructure Modernization Act, the
the opinion of the court   Illinois Commerce Commission properly reduced petitioner’s proposed
but has been prepared      rate of common equity to make it more consistent with the common
by the Reporter of         equity of petitioner’s holding company, considered petitioner’s
Decisions for the          accumulated deferred income taxes for projected plant additions in
convenience of the         calculating petitioner’s rate base, and decreased petitioner’s rate base by
reader.)
                           unused vacation pay accrued by its employees.


Decision Under             Petition for review of orders of Illinois Commerce Commission, Nos. 12-
Review                     0001, 12-0293.


Judgment                   Affirmed.


Counsel on                 Albert D. Sturtevant, of Whitt Sturtevant LLP, of Chicago, Edward C.
Appeal                     Fitzhenry, of Ameren Services Company, of St. Louis, Missouri, and
                           Mark A. Whitt (argued) and Andrew J. Campbell, both of Whitt
                           Sturtevant LLP, of Columbus, Ohio, for petitioner.

                           John P. Kelliher and James E. Weging (argued), Special Assistant
                           Attorneys General, of Chicago, for respondent Illinois Commerce
                           Commission.

                           Julie L. Soderna, Kristin Munsch, Christie Redd Hicks, and Orijit
                           Ghoshal, all of Citizens Utility Board, of Chicago, for respondent
                           Citizens Utility Board.

                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                           Solicitor General, and Jane Elinor Notz, Janice A. Dale, Karen L. Lusson,
                           Susan L. Satter, Timothy O’Brien, and Brian F. Barov, Assistant
                           Attorneys General, of counsel), for respondents Office of the Attorney
                           General and the People.


                           Eric Robertson and Andrew Rankin, both of Lueders, Robertson &
                           Konzen, LLC, of Granite City, and Conrad R. Reddick, of Wheaton, for
                           other respondents.



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Panel                      JUSTICE HOLDER WHITE delivered the judgment of the court, with
                           opinion.
                           Justices Appleton and Pope concurred in the judgment and opinion.




                                              OPINION

¶1           In January 2012, Ameren Illinois Company (Ameren) filed its initial application with the
        Illinois Commerce Commission (Commission) to establish a performance-based rate tariff
        under the authority of section 16-108.5 of the Public Utilities Act (Utilities Act), commonly
        referred to as the Energy Infrastructure Modernization Act (Modernization Act) (220 ILCS
        5/16-108.5 (West 2012)), enacted by Public Act 97-616 (Pub. Act 97-616, § 10 (eff. Oct. 26,
        2011)). Following a September 2012 evidentiary hearing, the Commission issued a written
        decision in which, among other things, it (1) rejected and subsequently reduced Ameren’s
        proposed rate of common equity so that it was more consistent with the common equity of
        Ameren’s holding company, Ameren Company (holding company); (2) considered Ameren’s
        accumulated deferred income taxes (ADIT) for projected plant additions in calculating
        Ameren’s rate base; and (3) decreased Ameren’s rate base by unused vacation pay accrued
        by Ameren employees.
¶2           In April 2012, Ameren filed its first annual update with the Commission. In December
        2012, the Commission reaffirmed the aforementioned findings.
¶3           On appeal, Ameren asserts the Commission made three reversible errors in reaching its
        decision, including (1) considering the capital structure of Ameren’s holding company rather
        than the actual capital structure of Ameren when determining rate base; (2) reducing
        Ameren’s rate base by ADIT for projected plant additions; and (3) decreasing Ameren’s rate
        base by unused vacation pay accrued by Ameren employees.
¶4           We affirm.

¶5                                       I. BACKGROUND
¶6          Ameren is a public utility that distributes electricity and gas to customers in Illinois. As
        a public utility, Ameren’s rates are subject to regulation by the State of Illinois pursuant to
        the Utilities Act (220 ILCS 5/9-101 to 22-503 (West 2012)), through which the General
        Assembly has delegated to the Commission the authority to review the rates suggested by
        public utilities to determine whether those rates are “just and reasonable.” 220 ILCS 5/9-
        201(c) (West 2012).

¶7                                     A. Modernization Act
¶8         In 2011, the General Assembly passed the Modernization Act (220 ILCS 5/16-108.5
        (West 2012)) as a provision of the Utilities Act (220 ILCS 5/1-101 to 22-503 (West 2012)).

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       The Modernization Act applies to electric utilities or combination gas and electric utilities
       serving more than 1 million customers in Illinois that voluntarily undertake to create
       customer assistance programs and invest in an infrastructure program that creates Illinois
       jobs. 220 ILCS 5/16-108.5(b) (West 2012). To participate, a utility company must commit
       to one of the following investment plans. The first option requires the utility company, within
       5 years, to invest $1.3 billion “in electric system upgrades, modernization projects, and
       training facilities” and, within 10 years, to invest $1.3 billion “to upgrade and modernize its
       transmission and distribution infrastructure.” 220 ILCS 5/16-108.5(b)(1)(A), (b)(1)(B) (West
       2012). The second option requires the utility company, over a 10-year period, to invest $265
       million “in electric system upgrades, modernization projects, and training facilities” and to
       invest $360 million “to upgrade and modernize its transmission and distribution
       infrastructure.” 220 ILCS 5/16-108.5(b)(2)(A), (b)(2)(B) (West 2012). The incentive for
       utility companies to participate in this program is that the statute allows the company to
       recover its expenditures through the ratemaking process. 220 ILCS 5/16-108.5(b) (West
       2012).

¶9                 B. Ameren’s Initial Application Under the Modernization Act
¶ 10        In January 2012, Ameren filed with the Commission a petition for approval of its
       “Modernization Action Plan-Pricing Tariff” pursuant to the Modernization Act (Illinois
       Commerce Commission case No. 12-0001 (No. 12-0001)). Several parties intervened,
       including (1) the Attorney General on behalf of the People of the State of Illinois, (2) the
       Citizens Utility Board, (3) the American Association of Retired Persons (AARP), (4) the
       Illinois Industrial Energy Consumers, and (5) the Commercial Group. In September 2012,
       following an evidentiary hearing and briefing by all parties, including Commission staff, the
       Commission approved Ameren’s application with several modifications, including (1)
       rejecting and subsequently reducing Ameren’s proposed rate of common equity so that it was
       more consistent with the common equity of Ameren’s holding company, Ameren Company;
       (2) considering ADIT on projected plant additions in calculating Ameren’s rate base; and (3)
       decreasing Ameren’s rate base by unused vacation pay accrued by Ameren employees.
       Ameren filed an application for rehearing, which the Commission denied in October 2012.
       Ameren then filed a timely notice of appeal challenging, among other issues, the
       Commission’s findings with regard to Ameren’s (1) rate of common equity in calculating
       actual capital structure and (2) ADIT on projected plant additions. This court docketed
       Ameren’s appeal as No. 4-12-1008.

¶ 11                            C. Ameren’s Annual Update Filing
¶ 12        In April 2012, while Ameren’s application in No. 12-0001 was still pending, Ameren
       filed its first annual update with the Commission as required by the Modernization Act
       (Illinois Commerce Commission case No. 12-0293 (No. 12-0293)). In December 2012, the
       Commission issued its written findings consistent with No. 12-0001. The Commission then
       denied Ameren’s January 2013 motion requesting a rehearing. Ameren filed a timely notice
       of appeal challenging, among others issues, the Commission’s decisions with regard to (1)


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       reducing Ameren’s common equity as more consistent with Ameren’s holding company, (2)
       considering ADIT on projected plant additions in calculating rate base, and (3) decreasing
       Ameren’s rate base by unused vacation pay accrued by Ameren employees. Ameren then
       filed a timely notice of appeal, which this court docketed as No. 4-13-0029. We have
       consolidated both cases for review.

¶ 13                   D. May 2013 Amendment to the Modernization Act
¶ 14       In May 2013, Public Act 98-15 (Pub. Act 98-15, § 5 (eff. May 22, 2013)) amended the
       Modernization Act, and those amendments applied retroactively to the proceedings at issue
       in the present cases. 220 ILCS 5/16-108.5 (West 2012) (enacted by Public Act 98-15 (Pub.
       Act 98-15, § 5 (eff. May 22, 2013))). Ameren subsequently filed motions in both cases to
       have several issues declared moot, and the appellees did not object. Thus, this court will
       address only the remaining issues.

¶ 15                                     II. ANALYSIS
¶ 16       On appeal, Ameren asserts the Commission erred by (1) considering the capital structure
       of Ameren’s holding company rather than the actual capital structure of Ameren when
       determining rate base; (2) reducing Ameren’s rate base by ADIT for projected plant
       additions; and (3) decreasing Ameren’s rate base by unused vacation pay accrued by Ameren
       employees. We address each of these contentions in turn.

¶ 17                                    A. Standard of Review
¶ 18       This is a case of first impression, requiring this court to review and interpret the statutory
       provisions of the Modernization Act in the context of the Utilities Act. Issues of statutory
       interpretation are reviewed de novo. People ex rel. Madigan v. Illinois Commerce Comm’n,
       231 Ill. 2d 370, 380, 899 N.E.2d 227, 232 (2008). However, the Utilities Act provides that
       the Commission’s findings of fact are considered prima facie reasonable and the burden of
       proof on all issues raised upon appeal is on the challenging party. 220 ILCS 5/10-201(d)
       (West 2012). Review of the Commission’s factual findings is generally limited to whether
       (1) the Commission acted within its authority, (2) the Commission made adequate findings
       to support its position, (3) the decision is supported by substantial evidence, and (4)
       constitutional rights have been violated. People ex rel. Madigan v. Illinois Commerce
       Comm’n, 2011 IL App (1st) 100654, ¶ 9, 958 N.E.2d 405. Substantial evidence consists of
       evidence a reasoning mind would accept as sufficient to support the challenged finding; it
       is more than a scintilla of evidence but requires something less than a preponderance of the
       evidence. Central Illinois Public Service Co. v. Illinois Commerce Comm’n, 268 Ill. App.
       3d 471, 479, 644 N.E.2d 817, 823 (1994).
¶ 19       Given the highly technical nature of calculating the costs incurred by a public utility,
       judicial deference is “especially appropriate in the area of fixing rates.” Iowa-Illinois Gas &
       Electric Co. v. Illinois Commerce Comm’n, 19 Ill. 2d 436, 442, 167 N.E.2d 414, 417 (1960).
       The Commission’s findings of fact will not be overturned unless they are against the


                                                  -5-
       manifest weight of the evidence. Commonwealth Edison Co. v. Illinois Commerce Comm’n,
       405 Ill. App. 3d 389, 409, 937 N.E.2d 685, 706 (2010). When the Commission’s decision
       presents a question of mixed law and fact, we review the Commission’s order under the
       clearly erroneous standard. People ex rel. Madigan v. Illinois Commerce Comm’n, 2011 IL
       App (1st) 101776, ¶ 8, 964 N.E.2d 510. “The clearly erroneous standard of review lies
       between the manifest weight of the evidence standard and the de novo standard, and as such,
       it grants some deference to the agency’s decision.” People ex rel. Madigan v. Illinois
       Commerce Comm’n, 2011 IL App (1st) 101776, ¶ 9, 964 N.E.2d 510. In that circumstance,
       the reviewing court must be left with a “definite and firm conviction” that the Commission
       committed a mistake. (Internal quotation marks omitted.) People ex rel. Madigan v. Illinois
       Commerce Comm’n, 2011 IL App (1st) 101776, ¶ 9, 964 N.E.2d 510.

¶ 20                               B. Issues Raised by Ameren
¶ 21                                1. Actual Capital Structure
¶ 22       Ameren argues the Commission erred by imputing to Ameren the actual capital structure
       of Ameren’s holding company. Actual capital structure consists of (1) short-term debt, (2)
       long-term debt, and (3) common equity. See, e.g., People ex rel. Madigan v. Illinois
       Commerce Comm’n, 2011 IL App (1st) 100654, ¶ 5, 958 N.E.2d 405. The parties’ chief
       contention on appeal is the rate of common equity adopted by the Commission.
¶ 23       In No. 12-0001, in determining its actual capital structure, Ameren estimated its common
       equity at 54.30%, while its holding company had common equity in the amount of 52.24%.
       Commission staff estimated Ameren’s common equity at 51.49%, a figure adopted by the
       Commission after an extensive hearing. In No. 12-0293, Ameren estimated its common
       equity at 54.85%, while its holding company had common equity in the amount of 51.05%.
       Commission staff estimated Ameren’s common equity at 51%, a figure adopted by the
       Commission. In both instances, the Commission adopted for Ameren a common equity
       figure below that of the holding company.
¶ 24       In adopting the respective rates of common equity, the Commission made detailed
       findings. In No. 12-0001, the Commission noted Ameren had a lower overall operating risk
       than its holding company due to Ameren’s lack of competition and participation in the
       Modernization Act; thus, the Commission found that adopting the common equity ratio
       suggested by Ameren would ultimately expose Ameren to more risk than its holding
       company because the percentage of common equity was too high for a company that
       possessed less operating risk. Ameren’s credit rating had also recently been increased by
       Moody’s Investors Service, which gave Ameren the ability to obtain more favorable rates.
       After considering Ameren’s advantageous regulatory environment, the Commission found
       Ameren’s rate unreasonable and adopted the Commission staff’s recommended rate, which
       the Commission deemed more reasonable.
¶ 25       In No. 12-0293, the Commission deferred, in part, to its ruling in No. 12-0001. The
       Commission noted other utilities with a similar credit rating had much lower common equity
       rates in the range of 40%, which indicated a lower degree of financial risk. The Commission
       commented it was in Ameren’s best interests to use a capital structure with higher common

                                               -6-
       equity because it would allow Ameren a greater return on its capital while leaving ratepayers
       to shoulder the increased cost of capital. Additionally, in No. 12-0293, the Commission
       stated, “individually, the concerns raised by Staff are insufficient to win the day. But
       cumulatively, the Commission is persuaded that Staff’s imputed capital structure is
       appropriate.”
¶ 26        Subsection (c)(2) of the Modernization Act requires formula rates to “[r]eflect the
       utility’s actual capital structure for the applicable calendar year, excluding goodwill, subject
       to a determination of prudence and reasonableness consistent with Commission practice and
       law.” 220 ILCS 5/16-108.5(c)(2) (West 2012). Section 9-230 of the Utilities Act provides,
       “In determining a reasonable rate of return upon investment for any public utility in any
       proceeding to establish rates or charges, the Commission shall not include any (i) incremental
       risk, [or] (ii) increased cost of capital *** which is the direct or indirect result of the public
       utility’s affiliation with unregulated or nonutility companies.” 220 ILCS 5/9-230 (West
       2012).
¶ 27        Ameren asserts the Commission failed to follow the plain language of the statute by
       ignoring Ameren’s “actual capital structure” and instead relying upon the capital structure
       of Ameren’s holding company. Additionally, Ameren reasons the statutory language requires
       the Commission to presume Ameren’s proposed actual capital structure is appropriate and
       that the presumption can only be overcome if the Commission reviews the rate and finds it
       unreasonable. Ameren contends the Commission not only failed to make an express finding
       of unreasonableness but also improperly shifted the burden to Ameren to prove the
       reasonableness of its rates. Finally, Ameren argues its common equity rate should be higher
       because the regulatory environment insulated Ameren from its holding company’s greater
       risk profile.
¶ 28        The Commission, in turn, argues the statutory language does not create a presumption
       of validity but instead provides the Commission discretion to find Ameren’s proposed actual
       capital structure unreasonable, authority which the Commission exercised in reaching its
       decision. Specifically, the Commission argues section 9-230 of the Utilities Act (220 ILCS
       5/9-230 (West 2012)) grants the Commission the authority to set reasonable rates on return
       of investments. The Commission further contends, though it did not make an express finding
       of unreasonableness, its detailed finding implied that it found Ameren’s proposals to be
       unreasonable due, in part, to the inconsistency between Ameren’s and its holding company’s
       rates of common equity.
¶ 29        The plain language of the statute provides the Commission with the discretion to
       determine whether Ameren’s proposed actual capital structure is prudent and reasonable. We
       disagree with Ameren’s contention that the statutory language creates a presumption of
       reasonableness when read in conjunction with provisions of the Utilities Act. See 220 ILCS
       5/9-230 (West 2012) (the Commission has the authority to determine the reasonableness of
       a utility’s rate of return). We also disagree the Commission either failed to make a finding
       of reasonableness or shifted the burden of proof onto Ameren to prove the reasonableness
       of the rate of common equity. The parties presented extensive evidence and the Commission
       determined the Commission staff’s position was reasonable, thus rejecting Ameren’s
       proposed rates as unreasonable. Therefore, we conclude the Commission both possessed and

                                                  -7-
       exercised its authority in adopting the Commission staff’s recommendation. We must now
       determine whether the Commission’s findings of fact were against the manifest weight of the
       evidence. Commonwealth Edison Co., 405 Ill. App. 3d at 409, 937 N.E.2d at 706.
¶ 30        “Generally, equity is a more expensive form of capital than debt.” Illinois Bell Telephone
       Co. v. Illinois Commerce Comm’n, 283 Ill. App. 3d 188, 204, 669 N.E.2d 919, 931 (1996).
       “[B]ecause debt payments are generally tax deductible while dividend payments are not, debt
       costs less than equity.” Citizens Utility Board v. Illinois Commerce Comm’n, 276 Ill. App.
       3d 730, 744, 658 N.E.2d 1194, 1204 (1995). In other words, “the more equity in a utility’s
       capital structure, the higher the ROR [rate of return] must be to cover the cost of capital.”
       Illinois Bell Telephone Co., 283 Ill. App. 3d at 204, 669 N.E.2d at 931(citing Citizens Utility
       Board, 276 Ill. App. 3d at 744, 658 N.E.2d at 1204). “Reasonable persons will purchase a
       corporation’s securities only if they expect to receive later their initial investment plus a
       reasonable return. When they invest, they understand that they risk the possibility that the
       corporation may go out of business, and the investors may lose all or part of their
       investments. As the perceived risk of loss increases, the amount of return investors demand
       increases.” Citizens Utility Board, 276 Ill. App. 3d at 743-44, 658 N.E.2d at 1204.
¶ 31        The common equity figures adopted by the Commission permitted Ameren a favorable
       equity rate, better than other utilities with the same credit rating, and reflected Ameren’s low-
       risk regulatory environment. To allow Ameren to obtain a higher rate of common equity
       under these circumstances would, as the Commission explained, allow Ameren a greater
       return on its capital while leaving ratepayers to shoulder the increased cost of capital.
       Because Ameren has decreased risk due to its regulatory environment and lack of
       competition, it stands to reason investors would expect a lesser rate of return on their
       investment. Additionally, the record reflects the Commission did not adopt the actual capital
       structure of the holding company in setting Ameren’s rates. In No. 12-0001, the holding
       company’s common equity was 52.24%, but the Commission implemented a rate of 51.49%
       for Ameren. Likewise, in No. 12-0293, the holding company’s common equity was 51.05%,
       but the Commission adopted a common equity rate of 51% for Ameren. In both cases, the
       common equity was set just below the rate of the holding company, which illustrates the
       Commission’s finding that Ameren has less risk than the holding company and, thus, less
       need for higher rates of common equity.
¶ 32        The Commission acted within its authority and made adequate, detailed findings on the
       substantial evidence presented. Therefore, we conclude the Commission did not err in
       finding that Ameren’s rate was unreasonable and its subsequent adoption of the modified rate
       of common equity in both cases.

¶ 33                          2. Accumulated Deferred Income Taxes
¶ 34        Ameren contends the Commission erred by reducing Ameren’s rate base by ADIT for
       projected plant additions. “ADIT quantifies the income taxes that are deferred when the tax
       law provides for deductions with respect to an item in a year other than the year that the item
       is treated as an expense for financial reporting purposes.” (Internal quotation marks omitted.)
       Ameren Illinois Co. v. Illinois Commerce Comm’n, 2012 IL App (4th) 100962, ¶ 11, 967


                                                 -8-
       N.E.2d 298. For regulated utilities, ADIT reduces the utility’s rate base because it is treated
       as no-cost capital. Ameren Illinois Co., 2012 IL App (4th) 100962, ¶ 11, 967 N.E.2d 298. In
       other words, ADIT represents taxes payable in the future that provide a source of funds the
       utility can use until such time the taxes become due.
¶ 35        Subsection (c)(6) of the Modernization Act requires participating utilities to present to
       the Commission:
            “final data based on its most recently filed FERC Form 1 [(Annual Report of Major
            Electric Utilities as required by the Federal Energy Regulatory Commission)], plus
            projected plant additions and correspondingly updated depreciation reserve and expense
            for the calendar year in which the tariff and data are filed, that shall populate the
            performance-based formula rate and set the initial delivery services rates under the
            formula.” 220 ILCS 5/16-108.5(c)(6) (West 2012).
       Additionally, the statute provides “[n]othing in this Section is intended to allow costs that
       are not otherwise recoverable to be recoverable by virtue of inclusion in FERC Form 1.” 220
       ILCS 5/16-108.5(c)(6) (West 2012).
¶ 36        When the Commission calculated Ameren’s rate base, it deducted ADIT for projected
       plant additions, which reduced Ameren’s rate base by over $100 million in No. 12-0001 and
       nearly $44 million in No. 12-0293. An AARP witness, in reaching the $44 million figure,
       determined “the existence of 50% bonus depreciation in 2012 provides [Ameren] with a tax
       deduction equal to one-half of the amount of additions to plant in service, which would lead
       to growth in the balance of ADIT in 2012 well in excess of growth that would take place in
       absence of bonus depreciation.” Witnesses for Commission staff and the Citizens Utility
       Board suggested similar adjustments.
¶ 37        Ameren argues the Modernization Act did not provide the Commission with the authority
       to deduct ADIT because, while the statute provides guidance for other adjustments, the
       statute fails to mention an adjustment for ADIT. Ameren further asserts the omission of
       ADIT adjustments in the statute was proper because ADIT does not represent “transparent
       information” required for calculating formulas under the Modernization Act, which it
       illustrates with the experts’ varying approximations of ADIT ranging from $108 million to
       $173 million. Moreover, Ameren explains the reconciliation process in the Modernization
       Act eliminated the need for the traditional ADIT adjustment because the reconciliation rate
       relies upon “actual costs” incurred by Ameren in supplying gas and electricity.
¶ 38        The Commission contends it is common practice to make ADIT adjustments to a rate
       base, and the Commission has the authority under the Modernization Act to rely on its
       common practices in determining a just and reasonable rate. 220 ILCS 5/16-108.5(c)(6)
       (West 2012). The Commission notes Ameren used ADIT for years in calculating its rate base
       and points out that only now under the Modernization Act does Ameren seek to exclude this
       adjustment. While the Commission agrees the statute does not expressly allow an adjustment
       for ADIT, the Commission explains the statute does not expressly disallow the adjustment,
       but authorizes the Commission to exercise its discretion in determining just and reasonable
       rates.
¶ 39        The Modernization Act expressly prohibits a utility from recovering above and beyond

                                                -9-
       what would normally be recoverable in a ratemaking case. 220 ILCS 5/16-108.5(c)(6) (West
       2012); see also Commonwealth Edison Co., 405 Ill. App. 3d at 405, 937 N.E.2d at 703 (The
       Utilities Act “requires the Commission to ensure that a utility’s approved rate base does not
       exceed the investment value that the utility actually uses to provide service.”). The
       Commission asserts that ignoring the ADIT figure would do just that–allow Ameren to
       recover an unjust and unreasonable rate base that has been inflated by no-cost capital for the
       benefit of Ameren. We agree. Omitting ADIT from the rate base calculation would allow
       Ameren what amounts to an interest-free loan at the ratepayers’ expense that would
       artificially increase Ameren’s rates until the next reconciliation process, a result which is
       neither just nor reasonable for ratepayers. As Ameren noted, the reconciliation process will
       allow Ameren to recover its actual costs of the forecasted ADIT for projected plant additions
       in the event of a miscalculation during the ratemaking process.
¶ 40        As it was consistent with the common practice of the Commission to include ADIT in
       the ratemaking process, we conclude the Commission did not err by including the ADIT
       adjustment for projected plan additions in its ratemaking calculation.

¶ 41                                       3. Vacation Pay
¶ 42       Ameren’s final argument on appeal is that the Commission erred in determining accrued
       but unused vacation pay, an amount of more than $12 million, was an operating reserve that
       should be deducted from the rate base. We begin by noting Ameren did not challenge this
       issue in No 12-0001. Instead, this argument was presented for the first time on appeal in No.
       12-0293.
¶ 43       Ameren asserts the Commission had the discretion in the proceedings at issue in No. 12-
       0293 to alter the rate base by removing the reduction for accrued vacation pay but cites no
       authority in support of this argument. Additionally, Ameren contends the Commission issued
       a conclusory finding that accrued vacation pay was an operating reserve and that the finding
       was against the manifest weight of the evidence.
¶ 44       We initially note it has not been consistent with the Commission’s practice or law to
       reduce a public utility’s rate base by accrued vacation pay; in fact, the Commission has only
       done so in this case and in Commonwealth Edison’s related case (Illinois Commerce
       Commission No. 11-0721, order of May 29, 2012), which is now pending on appeal. The
       Commission’s assertion that accrued but unused vacation pay results in additional monies
       for Ameren’s use is suspect given Ameren’s liabilities associated with the funds. However,
       because of our discussion below, we are not required to decide whether a reduction of the
       rate base by accrued but unused vacation pay is appropriate.
¶ 45       We agree with the Commission’s argument that it lacked authority in No. 12-0293 to
       recalculate the rate base during the reconciliation proceedings. Subsection (c) of the
       Modernization Act pertains to the establishment of the initial performance-based formula
       rate, while subsection (d) governs proceedings during the annual reconciliation process. 220
       ILCS 5/16-108.5(c), (d) (West 2012). Subsection (d)(1) provides “[t]he first such
       reconciliation is not intended to provide for the recovery of costs previously excluded from
       rates based on a prior Commission order finding of imprudence or unreasonableness.” 220

                                               -10-
       ILCS 5/16-108.5(d)(1) (West 2012). Under subsection (d)(3), “the Commission shall not ***
       have the authority in a proceeding under this subsection (d) to consider or order any changes
       to the structure or protocols of the performance-based formula rate approved pursuant to
       subsection (c) of this Section.” 220 ILCS 5/16-108.5(d)(3) (West 2012). In other words, the
       plain, unambiguous language of subsections (d)(1) and (d)(3) prohibited the Commission
       from reconsidering the initial performance-based formula rate during the first annual
       reconciliation proceeding at issue in No. 12-0293. 220 ILCS 5/16-108.5(d)(1), (d)(3) (West
       2012).
¶ 46       We therefore conclude the Commission lacked the authority to recalculate the rate base
       during the first reconciliation proceeding and properly refused to alter the rate base by
       removing the calculation for accrued but unused vacation pay.

¶ 47                                  III. CONCLUSION
¶ 48      For the reasons stated above, we affirm the findings of the Commission.

¶ 49      Affirmed.




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