NO. 5-95-0564
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
CITIZENS UNITED FOR RESPONSIBLE ) Petition for Review
ENERGY DEVELOPMENT, INC. (CURED), ) of Orders of the Illinois
) Commerce Commission.
Petitioner, )
)
v. ) No. 93-0385
)
ILLINOIS COMMERCE COMMISSION, )
ILLINOIS MUNICIPAL ELECTRIC AGENCY, )
ILLINOIS POWER COMPANY, et al., )
)
Respondents. )
_________________________________________________________________
JUSTICE GOLDENHERSH delivered the opinion of the court:
Petitioner, Citizens United for Responsible Energy Develop-
ment, Inc. (CURED), appeals to this court for statutory direct
review pursuant to Supreme Court Rule 335 (155 Ill. 2d R. 335) and
section 3-113 of the Code of Civil Procedure (735 ILCS 5/3-113
(West 1994)) of an order of respondent, Illinois Commerce Commis-
sion (Commission), issuing a certificate of public convenience and
necessity to respondent, Illinois Municipal Electric Agency
(Agency), for the construction of a 138-kilovolt electric transmis-
sion line near Aviston, commonly referred to as the Aviston-
Highland line, and related substation facilities, as well as the
interconnection of the transmission line with an electric substa-
tion owned by Illinois Power Company (Illinois Power), and CURED
also appeals for review of an order denying CURED's petition for
rehearing. CURED also filed this appeal pursuant to section 10-201
of the Public Utilities Act (Act) (220 ILCS 5/10-201 (West 1994)).
In this cause, CURED contends that: (1) the Commission's staff was
derelict by not investigating or testifying about the issue of
least-cost means, which caused the proceedings in this case to be
in violation of section 8-406(b) of the Act (220 ILCS 5/8-406(b)
(West 1994)) and the Commission's own policy and rules and
practice; (2) the Commission's finding that "construction of the
Aviston-Highland line and new substation is the least-cost means of
satisfying the service needs of Highland" is not supported by
substantial evidence based on the entire record; (3) section 4-7(b)
of the Agency's contract with Illinois Power, in which the Agency
obtained Illinois Power's silence at the certificate proceeding,
was against public policy and so tainted the certificate proceed-
ings as to require that the provision be voided and a new certifi-
cate proceeding be held; (4) because the use of Illinois Power's
existing Collinsville-Highland right-of-way as a potential route
for a new 138-kilovolt line was not studied by the Commission's
staff, the Agency, or Illinois Power, insufficient evidence existed
in the record to permit the Commission to decide whether the use of
that right-of-way would be both feasible and preferable to the
proposed Aviston-Highland line; and (5) the Commission, pursuant to
section 8-502 of the Act (220 ILCS 5/8-502 (West 1994)), has the
authority to require Illinois Power to share its East Collinsville-
Highland right-of-way with the Agency. We reverse and remand with
directions.
FACTS
On October 18, 1993, the Agency filed a verified petition with
the Commission, seeking approval under section 11.119.1-10 of the
Illinois Joint Municipal Electric Power Act (65 ILCS 5/11-119.1-10
(West 1994)) for the construction of approximately 13 miles of 138-
kilovolt line from Illinois Power's Aviston substation in Clinton
County to a new substation south of Highland to be built by the
Agency. The new substation would transform power from 138 kilovolt
to 34.5 kilovolt. The petition named Illinois Power as a respon-
dent, since the proposed transmission line requires interconnection
with Illinois Power's Aviston substation. Petitions to intervene
in this proceeding were filed by CURED, a not-for-profit corpora-
tion whose members are landowners who would be affected by the
proposed transmission line, along with the Illinois Department of
Agriculture, the Village of Aviston, and numerous potentially
affected landowners. CURED is the only intervenor taking part in
this appeal.
The Agency's petition was an extension of its June 1, 1990,
power-sales contract with the City of Highland. The contract
requires the Agency to provide all electricity needed for the
operation of Highland's electric utility during the 15-year term of
the contract. On October 15, 1990, the Agency and Highland entered
into an addendum to that contract in which the Agency agreed to
construct facilities rated at 138 kilovolt to serve Highland within
five years of the effective date of the contract, subject to
obtaining regulatory approval. The Agency and Highland agreed that
the Agency would own the transmission facilities to be constructed.
The Agency also agreed to provide the funds for the total cost of
the project, with reimbursement in part by Highland. The agreement
specifically provides that the Agency's unreimbursed cost for the
project is one-half the total cost, but in no event more than
$3,000,000. The balance of the total cost is to be repaid by
Highland to the Agency through rates over the 15-year life of the
power-sales contract.
In order to satisfy the agreement and meet Highland's need for
additional transmission capacity, the Agency proposed construction
of the Aviston-Highland line. Estimated cost of the 138-kilovolt
transmission line over the Agency's proposed route was $3,280,651.
Estimated cost of the new Agency substation was $2,684,500. In
order to connect the substation with the existing delivery point,
Highland will have to construct, at its own expense, 1 miles of
34.5-kilovolt electric transmission line. This added expense was
not taken into account in the Agency's estimated cost of the
project.
As stated, the Agency named Illinois Power as a respondent in
its petition. Illinois Power filed an answer to the petition on
November 9, 1993. On January 10, 1994, the Agency and Illinois
Power entered into a coordination-and-interchange agreement.
Section 4.7 of that agreement sets forth the responsibilities of
the Agency and Illinois Power with respect to the initial transmis-
sion facilities required to provide full transmission from the
Aviston-Highland line and provides, inter alia, as follows: (1) the
Agency and Highland shall complete the 138-kilovolt line from
Illinois Power's Aviston substation to Highland at the Agency's and
Highland's costs; (2) Illinois Power will not intervene in support
or opposition at the certificate proceeding before the Commission
relating to the line to be built for the City of Highland, nor
shall Illinois Power initiate any other action or proceeding with
the purpose or effect of interfering with the Agency's and
Highland's construction of the Aviston-Highland 138-kilovolt line;
(3) the parties shall cooperate fully with each other in planning
and constructing the proposed 138-kilovolt line and associated
substation facilities; (4) Illinois Power shall be responsible for
the operation of the Aviston-Highland 138-kilovolt line; (5) the
Agency shall be responsible for the cost of maintenance of the
line, provided that in the event that Illinois Power taps the line
in order to service its own load, Illinois Power shall subsequently
assume responsibility for the cost of maintaining the entire line;
and (6) Illinois Power shall meet Highland's full firm transmission
requirements once the Aviston-Highland 138-kilovolt line is
completed by the Agency/Highland. Pursuant to provision (2)
recited above, Illinois Power neither supported nor opposed the
Agency's petition but remained neutral throughout the proceedings.
This matter was initially called for hearing on March 4, 1994,
in front of a hearing examiner. Eight additional days of testimony
were taken between April 1994 and August 1994. During the
hearings, no one disputed Highland's need for additional power.
The Agency prepared a long-term forecast for peak demand and energy
consumption, which was not challenged by any party. The parties
that participated in the hearings before the Commission were the
Agency, the Commission's staff, the Department of Agriculture,
Illinois Power, the Village of Aviston, CURED, and the individual
property owners.
Testimony from those hearings shows that the Agency considered
two alternative transmission lines but chose the Aviston-Highland
route as the best route. The Commission's staff supported
construction of the Aviston-Highland line but recommended a
revision to the Agency's proposed final route. The staff took the
position that the Agency was not required to prove that its
proposed Aviston-Highland transmission line represented the least-
cost means of satisfying the service needs of customers. In fact,
the staff did not consider the issue of least-cost means in
evaluating the Agency's proposal. The staff attorney instructed
the staff economist, Gunnard Kluck, not to consider the issue of
least-cost means in evaluating the Agency's proposal. Kluck
followed that order.
CURED took the position that while there was a need to
transmit additional electrical power to Highland, construction of
the transmission line as proposed by the Agency is not convenient,
not necessary, and not the least-cost means. CURED proposed two
alternative routes: first, a line from Lebanon Horner Park to
Highland, and second, a line from the East Collinsville substation
to Highland over Illinois Power's existing right-of-way. The
individual landowners who presented evidence supported CURED's
position. CURED also contended that the Agency vastly underesti-
mated the cost of the Aviston-Highland line for two reasons: (1)
the Agency's estimated cost of land acquisition at $225,000 was
ridiculously low, and (2) the Agency's estimate was outdated, since
it was estimated in 1990 and never updated.
The Commission agreed with CURED that before it could approve
construction of the proposed transmission line, the Agency must
demonstrate, inter alia, that the proposed construction is the
least-cost means of satisfying the service needs of its customers.
The Commission then concluded that the Agency's proposed plan to
construct a 138-kilovolt line from Aviston to Highland constituted
the least-cost means of satisfying the service needs of Highland.
The Commission added, "While the final costs of the [Agency's]
proposed project may turn out to be higher than the [Agency's]
latest cost estimate, there is no evidence indicating that there is
a better solution to Highland's power needs at a lesser cost."
On November 14, 1994, CURED filed a motion to reopen eviden-
tiary hearings. Responses to the motion were filed by Illinois
Power and the Agency on November 22, 1994, and November 23, 1994,
respectively. On December 1, 1994, CURED filed a reply to the
Agency's response. On December 14, 1994, the hearing examiner, on
his own motion, reopened the record in this proceeding pursuant to
the Commission's rules of practice (83 Ill. Admin. Code §200.870
(1994)) for the purpose of scheduling a hearing to discuss the
motion to reopen evidentiary hearings. The motion requested
additional hearings on issues pertaining to offers to landowners
made by the Agency subsequent to the close of the record. Hearings
were subsequently held on December 21, 1994, January 9, 1995, and
January 18, 1995. An exhibit prepared by the Agency, which
summarized offers made to landowners between September 20, 1994,
and October 28, 1994, for easements required on the Agency's
proposed route for the 138-kilovolt transmission line, was admitted
into evidence, and Kevin L. Wagner, the Agency's manager of
engineering, was recalled as a witness to answer questions
pertaining to that exhibit. This exhibit showed that offers to
landowners for the complete right-of-way of the line totalled
$613,408.50. None of these offers had been accepted. The proposed
right-of-way from Aviston to Highland crosses 61 different tracts
of land owned by 50 different landowners.
After the hearings were completed, CURED submitted a brief
with respect to the hearing officer's proposed order. CURED argued
that the Commission had authority under section 8-502 of the Act
(220 ILCS 5/8-502 (West 1994)) to require Illinois Power to permit
the Agency to share the East Collinsville-Highland right-of-way,
for the purpose of overbuilding the existing 34.5-kilovolt line
with a 138-kilovolt line. The Commission adopted the hearing
examiner's proposed order without alteration. In that order, the
Commission concluded that it was not necessary to determine whether
section 8-502 of the Act provides the Commission with authority to
require Illinois Power to permit the Agency to share the East
Collinsville-Highland right-of-way in light of sufficient grounds
in the record to reject this alternative. The bases for rejecting
this route, as listed in the Commission's order, include: (1) the
Agency indicated that the existing East Collinsville-Highland route
does not provide necessary clearance for a 138-kilovolt line; (2)
the cost for developing this route would be approximately $6.9
million; and (3) Illinois Power indicated that overbuilding its
existing 34.5-kilovolt line from East Collinsville to Highland with
a 138-kilovolt line would adversely affect the reliability of its
system and service. As previously stated, the Commission's order
concluded that the Agency proved that its proposed Aviston-Highland
138-kilovolt electric transmission line represented the least-cost
means of satisfying the needs of the Agency's customers. Accord-
ingly, the Commission issued a certificate of public convenience
and necessity to the Agency for construction of the proposed line.
CURED filed an application for rehearing on July 6, 1995. The
Commission denied that application on July 19, 1995. CURED now
appeals from both the Commission's order issuing the certificate of
public convenience and necessity and the Commission's order denying
CURED's application for rehearing.
ISSUES
CURED raises five specific contentions in this appeal, the
first two concerning the issue of least-cost means. CURED specifi-
cally contends that the Commission's staff was derelict by not
investigating and not testifying concerning the issue of least-cost
means, which caused the proceedings in this case to be in violation
of section 8-406(b) of the Act (220 ILCS 5/8-406(b) (West 1992))
and the Commission's own policy and rules of practice. CURED also
contends that the Commission's finding that the Aviston-Highland
line is the least-cost-means method of servicing Highland is not
supported by substantial evidence. The Agency responds that (1) it
did, in fact, prove that the Aviston-Highland route is the least-
cost means of meeting Highland's electricity needs and, (2) in any
event, the Agency is a municipal corporation and, therefore, it is
exempt from the Commission's authority and absolved of the least-
cost-means requirement. The Commission, on the other hand, agrees
that it was an error for the staff not to testify on the issue of
least-cost means, but that such error was not critical, as the
staff was not a party to the proceedings before the Commission
pursuant to section 200.40 of the Illinois Administrative Code (83
Ill. Admin. Code §200.40 (1994), which specifically provides that
staff witnesses are not parties. Moreover, the Commission contends
that its conclusion that construction of the Aviston-Highland line
and the new substation is the least-cost means of satisfying the
service needs of Highland is fully supported by the record. After
careful consideration, we believe that the least-cost-means
requirement is decisive in this case. Because the least-cost-means
issue was not fully considered, the order of the Commission must be
reversed and the cause must be remanded for further proceedings.
I
A certificate of public convenience and necessity is issued to
prevent unnecessary duplication of facilities and to protect the
public from inadequate service and higher rates resulting from such
duplication, while simultaneously protecting a utility against
indiscriminate or ruinous competition. Amalgamated Trust & Savings
Bank v. Village of Glenview, 98 Ill. App. 3d 254, 260, 423 N.E.2d
1230, 1234 (1981). What constitutes the public convenience and
necessity is within the discretionary powers of the Commission.
Egyptian Transportation System, Inc. v. Louisville & Nashville R.R.
Co., 321 Ill. 580, 152 N.E. 510 (1926). In reviewing an order of
the Commission, courts are limited to a consideration of the
questions of whether the Commission acted within its authority,
whether it made adequate findings to support its decision, whether
the decision was supported by substantial evidence, and whether
constitutional rights were infringed by the decision. Monarch Gas
Co. v. Illinois Commerce Comm'n, 51 Ill. App. 3d 892, 894-95, 366
N.E.2d 945, 947 (1977). In reviewing an order of the Commission,
a court must not put itself in the place of the Commission and
conduct an independent investigation, nor should it substitute its
judgment for that of the Commission. Produce Terminal Co. v.
Illinois Commerce Comm'n, 414 Ill. 582, 589, 112 N.E.2d 141, 144
(1953). It is well settled that great weight and deference should
be given to the Commission's orders, but such orders can be set
aside when it is clearly apparent that they are arbitrary or
unreasonable or directly contravene some established rule of law.
Illinois Central R.R. Co. v. Franklin County, 387 Ill. 301, 56
N.E.2d 775 (1944). The purpose of judicial review of an order of
the Commission is to keep the Commission within jurisdictional
bounds prescribed by law and also to guard against a violation of
any rights guaranteed by the constitution; therefore, courts may
reexamine facts and set aside an order of the Commission if
evidence in the record shows the order to be without substantial
foundation. Illinois Central R.R. Co. v. Illinois Commerce Comm'n,
411 Ill. 526, 104 N.E.2d 796 (1952).
In the instant case, the Commission concluded that before it
could approve the proposed construction, the Agency was required to
demonstrate, inter alia, that the proposed construction was the
least-cost means of satisfying the service needs of its customers.
The Commission explained that its conclusion was based on its
interpretation of section 11-119.1-10 of the Illinois Joint
Municipal Electric Power Act (Power Act) (65 ILCS 5/11-119.1-10
(West 1994)). This section provides that, except as otherwise
stated in the act, a municipal power agency may exercise any and
all of the powers enumerated in the Power Act, subject to the
consent and approval of the Commission, in the same manner and to
the same extent as public utilities regulated by the Commission
under the Public Utilities Act. Three exceptions are set forth to
this requirement for Commission approval, namely: (1) contracts
between a municipal power agency and its wholesale customers; (2)
the rates to be charged by a municipal power agency to its
wholesale customers; and (3) the issuance of bonds by a municipal
power agency. 65 ILCS 5/11-119.1-10 (West 1994). The Commission
noted that none of these three exceptions applied here. The
Commission went on to explain that before a public utility could
construct a line as proposed, it would have to obtain a certificate
of public convenience and necessity pursuant to section 8-406(b) of
the Public Utilities Act. This section specifically provides:
"(b) No public utility shall begin the construction of
any new plant, equipment, property or facility which is not in
substitution of any existing plant, equipment, property or
facility or any extension or alteration thereof or in addition
thereto, and which in the case of gas and electric utilities
may affect the energy plan of the utility unless and until it
shall have obtained from the Commission a certificate that
public convenience and necessity require such construction.
Whenever after a hearing the Commission determines that any
new construction or the transaction of any business by a
public utility will promote the public convenience and is
necessary thereto, it shall have the power to issue certifi-
cates of public convenience and necessity. The Commission
shall determine that proposed construction will promote the
public convenience and necessity only if the utility demon-
strates: (1) that the proposed construction is necessary to
provide adequate, reliable and efficient service to its
customers and is the least-cost means of satisfying the
service needs of its customers; (2) with respect to gas and
electric utilities, that the proposed construction is consis-
tent with the most recent energy plan adopted by the Commis-
sion for the utility and the State, as updated; (3) that the
utility is capable of efficiently managing and supervising the
construction process and has taken sufficient action to ensure
adequate and efficient construction and supervision thereof;
and (4) that the utility is capable of financing the proposed
construction without significant adverse financial consequenc-
es for the utility or its customers. If the Commission finds
that the public convenience and necessity requires a new
electric generating facility to be added by the utility, the
Commission shall evaluate the proposed construction in
comparison with the merits of a facility designed to use
Illinois coal in an environmentally acceptable way, and shall
consider the economic impact on employment directly or
indirectly related to the production of coal in Illinois over
the entire period of time affected by the proposed construc-
tion or its alternatives." (Emphasis added.) 220 ILCS 5/8-
406(b) (West 1994).
The Commission explained that since no language in section 11-
119.1-10 of the Power Act discharges the Agency from meeting the
least-cost-means requirement, least-cost means must be considered.
The Agency has provided us with no cases to the contrary, and
we believe that the Commission's statutory interpretation in this
regard is sound. In its application, however, we find the
Commission's conclusion, that construction of the Aviston-Highland
line and new substation is the least-cost means of satisfying the
service needs of Highland, to be without sufficient basis and
substantial foundation, as the question of least-cost means was not
even considered by the Commission's staff. The testimony of the
Commission's staff economist, Gunnard Kluck, is highly illuminat-
ing.
Kluck testified that he was directed from the outset by staff
counsel to not even consider the Agency as a fully regulated
utility and not to address the issue of least-cost means. Kluck
specifically stated: "I am aware that there are costs involved but
I did not, in my conclusion to accept IMEA's proposal, consider the
cost ***. Let me answer the question this way. There is--in
regard to section 8-406(b)(1) the only issue that I eliminated or
did not consider was the cost." The record does not explain why
least-cost means was ignored and yet other requirements set forth
in section 8-406(b) were investigated and considered by the staff
in deciding to accept the Agency's proposal. Moreover, Kluck
testified that he was presently involved in three other proceedings
concerning certificates of public convenience and necessity and in
each of those other proceedings he evaluated or considered least-
cost-means issues. Because the issue of least-cost means was not
even considered by the staff, we find that the Commission's
determination, that the Agency's proposal constituted the least-
cost means of satisfying the service needs of the customers of
Highland, lacked sufficient foundation.
Also inexplicable and troublesome was the hearing examiner's
indifference to investigating the least-cost-means issue further.
Section 200.500 of the Illinois Administrative Code specifically
provides:
"The hearing examiner shall have authority over the conduct of
a proceeding and the responsibility for submission of the
matter to the Commission for decision. The Hearing Examiner
shall have those duties and powers necessary to these ends,
consistent with applicable statutes and Commission rules and
policies, including the following:
* * *
e) At any stage of the hearing or after all parties
have completed the presentation of their evidence to call
upon any party or the Staff of the Commission to produce
further evidence which is material and relevant to any
issue." 83 Ill. Admin. Code §200.500(e) (1994).
The hearing examiner clearly had the authority to order further
investigation by the staff into the issue of least-cost means when
it became apparent that this issue was ignored. Likewise, the
Commission is afforded wide discretion in the hearing process.
Section 200.25 of the Illinois Administrative Code specifically
provides:
"Section 200.25 Standards for Discretion
All Commission discretion under this Part shall be exercised
so as to accomplish the goals set forth in the remainder of
this Section.
(a) Integrity of the fact-finding process - The principal
goal of the hearing process is to assemble a complete
factual record to serve as basis for a correct and le-
gally sustainable decision." 83 Ill. Admin. Code
§200.25(a) (1994).
To not order further investigation of the issue of cost was a clear
abuse of discretion on the part of both the hearing examiner and
the Commission.
We would be remiss not to point out that the numbers submitted
by the parties do not, in our estimation, clearly indicate that the
Agency's proposed line constitutes least-cost means. The estimated
cost of the 138-kilovolt transmission line proposed by the Agency
was $3,280,651. The estimated cost of the new Agency substation
was $2,684,500. Together, these sums amount to nearly $6,000,000.
It was disclosed that in order to connect the substation with the
existing delivery point, Highland will have to connect, at its own
expense, 1 miles of 34.5-kilovolt electric transmission line.
While we are not certain what this would exactly cost, the record
discloses that the estimated cost of each mile of line is approxi-
mately $250,000. Therefore, Highland would be faced with almost
$500,000 in additional costs for construction of this line.
Furthermore, it was determined that the Agency severely
underestimated the cost of obtaining easements for its proposed
line. Originally, the estimate was $225,000 to $236,000, including
all legal costs. However, after additional hearings, at CURED's
insistence, it was disclosed that offers of $613,408.50 had been
made to landowners in order to purchase these easements, yet not
even one easement had been obtained as a result of these offers.
And while we will not speculate as to what it might cost to
institute eminent domain proceedings, suffice it to say this could
add considerable amounts to the final bill. On the other hand, the
Collinsville-Highland line proposed by CURED and the landowners was
estimated to cost $6.9 million, not including the rebuilding of the
Highland substation to accommodate 138-kilovolt power. While at
first glance the Agency's proposed route appears to cost less, upon
closer reflection, as summarized above, it is clear that the
Aviston-Highland line could well exceed the initial $6.9 million
estimate of the Collinsville-Highland line.
The record is obviously incomplete as to the least-cost-means
requirement. What makes this matter even more disconcerting is the
fact that the Agency is contractually liable for only up to $3
million in the total cost of this project, while the costs will in
all likelihood exceed $6 million. The Agency, therefore, does not
have any real or substantial interest in choosing the least-cost-
means method of transmitting electricity. This makes the issue of
cost even more important and indicates a need for complete
investigation of the issue. We find that the Commission abused its
discretion in not ordering additional proceedings and ordering its
staff to investigate the issue of least-cost means. The order of
the Commission granting the Agency a certificate of public
convenience and necessity must be reversed, and the cause must be
remanded with directions to conduct a complete investigation into
the section 8-406(b) requirement of least-cost means.
II
Because of our determination on the issue of cost, we need not
address the other contentions raised by CURED. However, we do note
great misgivings concerning section 4.7 of the coordination-and-
interchange agreement between the Agency and Illinois Power, which
required Illinois Power to remain neutral during the certificate
proceedings. While we do not go so far as to say that such an
agreement is against public policy and negates the issuance of a
certificate of public convenience and necessity, this matter should
also be investigated thoroughly upon remand, specifically in light
of least-cost-means considerations.
Finally, we agree with CURED that the Commission, pursuant to
section 8-502 of the Public Utilities Act (220 ILCS 5/8-502 (West
1994)), has the authority to require Illinois Power to share its
East Collinsville-Highland right-of-way with the Agency, should
that route be deemed superior. Section 8-502 specifically
provides:
"§ 8-502. Whenever the Commission, after a hearing had
upon its own motion or upon complaint, shall find that public
convenience and necessity require the use by one public
utility of the conduits, subways, wires, poles, pipes or other
property or equipment, or any part thereof, on, over or under
any street or highway, belonging to another public utility,
and that such use will not prevent the owner or other users
thereof from performing their public duties nor result in
irreparable injury to such owner or other users of such
conduits, subways, wires, poles, pipes or other property or
equipment, or in any substantial detriment to the service, and
that such public utilities have failed to agree upon such use
or the terms and conditions or compensation for the same, the
Commission may, by order, direct that such use be permitted
and prescribe a reasonable compensation and reasonable terms
and conditions for such joint use. If such use be directed,
the public utility to whom the use is permitted shall be
liable to the owner or other users of such conduits, subways,
wires, poles, pipes or other property or equipment, for such
damage as may result therefrom to the property of such owner
or other users thereof." 220 ILCS 5/8-502 (West 1994).
The Commission declined to answer this question, finding that there
were sufficient grounds in the record for rejecting the East
Collinsville-Highland right-of-way. However, we believe that
section 8-502 allows for such joint use, and this alternative line
should be given proper consideration on remand. The testimony of
staff witness Jack McDonald clearly indicates that this alternative
was not given due consideration. McDonald testified that Illinois
Power disclosed that it would not approve the sharing of the right-
of-way with the Agency and that this was a consideration he used in
determining to support the Agency's proposed route. We believe the
East Collinsville-Highland route warrants further consideration.
After reviewing the entire record, we find that an impartial
investigation did not occur. Instead, the record reveals that the
Commission focused on ways to approve the Agency's proposal,
without seriously considering any alternatives. It may indeed be
that the Aviston-Highland line is the best choice and the least-
cost means, but the record presented to us for review leaves us
with many serious concerns, and the order lacks sufficient founda-
tion.
For the foregoing reasons, the order of the Illinois Commerce
Commission issuing a certificate of public convenience and
necessity is reversed, and the cause is remanded to the Commission,
with directions, for further proceedings not inconsistent with this
opinion.
Reversed and remanded with directions.
KUEHN, P.J., concurs.
JUSTICE WELCH, dissenting:
I dissent. I believe there is evidence to support the
Commission's findings and the findings of the Commission are not
against the manifest weight of the evidence and therefore should be
affirmed.
NO. 5-95-0564
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________
CITIZENS UNITED FOR RESPONSIBLE ) Petition for Review
ENERGY DEVELOPMENT, INC. (CURED), ) of Orders of the Illinois
) Commerce Commission.
Petitioner, )
)
v. ) No. 93-0385
)
ILLINOIS COMMERCE COMMISSION, )
ILLINOIS MUNICIPAL ELECTRIC AGENCY, )
ILLINOIS POWER COMPANY, et al., )
)
Respondents. )
___________________________________________________________________________
Opinion Filed: December 5, 1996
___________________________________________________________________________
Justices: Honorable Richard P. Goldenhersh, J.
Honorable Clyde L. Kuehn, P.J.,
Concurs
Honorable Thomas M. Welch, J.,
Dissents
___________________________________________________________________________
Attorneys Edward G. Maag, 720 W. Main St., Suite 100, Belleville,
for IL 62220; John Long, 205 South Main Street, P.O. Box 209,
Petitioner Troy, IL 62294
___________________________________________________________________________
Attorneys Tobias G. Barry, Aplington, Kaufman, McClintock, Steele &
for Barry, Ltd., 160 Marquette Street, LaSalle, IL 61301;
Respondents Douglas G. Brown, Troy A. Fodor, Douglas G. Brown, P.C.,
913 South Sixth Street, Springfield, IL 62703 (for Illinois
Municipal Electric Agency)
John P. Kelliher, Special Assistant Attorney General, Office
of the General Counsel, 160 North LaSalle Street, Suite
C-800, Chicago, IL 60601 (for Illinois Commerce Commission)
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