William Shay and Jonathan LA Phillips recently helped achieve a major legal victory on behalf of a large group of landowners, which should stop the construction across their lands of a proposed new high voltage electric transmission line. On August 10, 2016, the Illinois Appellate Court, Third District, reversed an Order of the Illinois Commerce Commission which had authorized Rock Island Clean Line LLC to construct the transmission line in Illinois. The basis of the Appellate Court opinion is that Rock Island does not possess the attributes of a public utility under the Illinois Public Utilities Act, and therefore is ineligible to receive regulatory approval for the line. Our client, the Illinois Landowners Alliance, consists of over 300 individuals with interests in over 100,000 acres of land in Illinois. The ILA, represented by Shay Phillips, Ltd., intervened and actively participated in Illinois Commerce Commission Docket 12-0560, opposing Rock Island’s application to the ICC for approval of the project.
Rock Island Clean Line Project; Required State Regulatory Approvals
Rock Island is a subsidiary of recently formed and privately owned Clean Line Energy Partners LLC, based in Houston, Texas. Its project, a direct current transmission line, was proposed to run from O’Brien County in northwest Iowa to Grundy County in northeast Illinois, crossing lands of ILA members. Rock Island needs regulatory approval from both the Illinois Commerce Commission and the Iowa Utilities Board in order to construct the project. Regulatory proceedings in Iowa are pending.
Following testimony, hearings, and briefing in the Illinois regulatory proceeding, the Commerce Commission awarded Rock Island a certificate of public convenience and necessity to construct the Illinois portion of the project on November 25, 2014. The ILA appealed, along with the Illinois Farm Bureau and Commonwealth Edison Company. We prevailed on that appeal.
Third District holds that Rock Island lacks required Public Utility status
In its August 10, 2016 opinion, which can be seen here, the Illinois Appellate Court, Third District, reversed the Illinois Commerce Commission. It found that Rock Island did not satisfy the definition of “public utility” under the Illinois Public Utilities Act for two reasons. First, the Court found that Rock Island did not own any utility assets within the state of Illinois. Secondly, the Court found that Rock Island’s planned sales of capacity on the transmission line to electric generators and other parties was to a limited group of eligible users, and therefore was not for public use. As such, Rock Island is not eligible for, and the ICC lacked authority to issue, a certificate for the project. The ILA, Farm Bureau and ComEd argued that other reasons existed for the Commerce Commission’s Order to be reversed, but the Appellate Court declined to address those arguments once it found that Rock Island failed to satisfy the threshold public utility status requirement.
Where does Rock Island go from here?
It has the right to request that the Illinois Supreme Court review the Appellate Court’s opinion, by filing a petition for leave to appeal. The Supreme Court’s decision whether to accept such a request is discretionary, and it accepts only a small minority of such petitions. Even if Rock Island files a petition, and even if the Supreme Court grants the petition and agrees to review the Appellate Court decision, Rock Island will still have to convince the Supreme Court, through briefing and oral argument, that the Appellate Court’s decision should be reversed. Rock Island’s opponents who participated in the appeal, including the ILA, would have the right to participate fully in proceedings before the Supreme Court.