ICC Judge Issues PROPOSED Order on Rock Island Clean Line

Last Monday, Illinois Commerce Commission ALJ Larry Jones issued his proposal for an Order of the Commission regarding RICL's request for authority to build its project in Illinois.  Note that this is just a proposal, it is NOT an official Order of the Commission and has no authority unless adopted by the five member Commission.

Meanwhile, the legal debate will continue.  Under Section 200.830 of the Rules, exceptions to the Proposed Order and replies thereto may be filed by the parties.

Let's just start out by stating that the Proposed Order (P.O., for short) is a beast -- 216 pages of repetitive back and forth, and lots of legal prose.  If you've actually read the whole thing, congratulations!  It took me most of the week to plow through it and to do the research to answer my own questions about certain parts.

First of all, we need to know what RICL asked the ICC to do.

In this proceeding, Rock Island Clean Line LLC (“Rock Island,” “RICL” or “RI”) filed the above-referenced petition with the Illinois Commerce Commission (“Commission” or “ICC”) pursuant to Sections 8-406 and 8-503 of the Public Utilities Act (“Act”),  220 ILCS 5/1-101, et seq.

Rock Island therein requests an order granting it a certificate of public convenience and necessity (“CPCN” or “Certificate”), pursuant to Section 8-406 of the Act, authorizing it to operate as a transmission public utility in the State of Illinois and to construct, operate and maintain an electric transmission line (“Project”); and authorizing and directing it, pursuant to Section 8-503 of the Act, to construct the proposed line. 

Section 8-406 governs the following:

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 certificates of public convenience and necessity. The Commission shall determine that proposed construction will promote the public convenience and necessity only if the utility demonstrates: (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 or that the proposed construction will promote the development of an effectively competitive electricity market that operates efficiently, is equitable to all customers, and is the least cost means of satisfying those objectives; (2) 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 (3) that the utility is capable of financing the proposed construction without significant adverse financial consequences for the utility or its customers.

Here's what the P.O. determined about RICL's request under 8-406:

Having reviewed the record, the Commission finds, with regard to the first alternative showing in Section 8-406(b)(1), that Rock Island has not demonstrated that the Project is necessary to provide adequate, reliable, and efficient service to customers within the meaning of Section 8-406(b)(1).

BUT, regarding the second alternative:

In conclusion, upon consideration of the record and the determinations contained above, and subject to the conditions set forth above and elsewhere in this Order, the Commission finds that the Project will provide an opportunity for the delivery of more renewable energy into Illinois, and will promote the development of an effectively competitive electricity market that operates efficiently, including with respect to renewable energy; is equitable to all customers; and is the least cost means of satisfying those objectives, within the meaning of Section 8-406(b)(2).

The "conditions" attached to the judge's proposed conclusion are as follows:

Prior to recovering any Project costs from Illinois retail ratepayers through PJM or MISO regional cost allocation, Rock Island will obtain the permission of the Illinois Commerce Commission in a new proceeding initiated by Rock Island. For the purposes of the prior sentence, any system upgrades set forth in an interconnection agreement with PJM or MISO and the costs of which are allocated to Rock Island will be considered “Project costs.” For the avoidance of doubt, the phrase “recovering any Project costs from Illinois retail ratepayers through PJM or MISO regional cost allocation” includes the recovery of costs though PJM and MISO transmission service charges that are paid by retail electric suppliers in respect of their electric load served in Illinois.  

AND

As a condition of this Order, Rock Island shall not attempt to effect the interconnection until it has fully complied with the applicable requirements of PJM and the other conditions in this Order, and has signed all interconnection agreements.

AND (This is a biggie!)

Rock Island will not install transmission facilities for the Rock Island Clean Line Project on easement property until such time as Rock Island has obtained commitments for funds in a total amount equal to or greater than the total project cost.  For the purposes of this condition:

 (i) “install transmission facilities” shall mean to affix permanently to the ground transmission towers or other transmission equipment, including installation of bases and footings for transmission towers, but shall not include (A) preparatory work such as surveys, soil borings, engineering and design, obtaining permits and other approvals from governmental bodies, acquisition of options and easements for right-of-way, and ordering of equipment and materials, and (B) site preparation work and procurement and installation of equipment and facilities on property owned in fee by Rock Island including the converter station sites;

(ii) “easement property” shall mean property on which Rock Island has acquired an easement to install transmission facilities;

(iii)  “has obtained commitments for funds” shall mean (A) for loans and other debt commitments, that Rock Island has entered into a loan agreement(s) with a lender(s) and has received the loan funds or has the right to draw down the loan funds on a schedule that is consistent with the need for funds to complete the Project, and (B) for equity, that Rock Island or its parent company has received the funds from the equity investors or that the equity investors have entered into a commitment to provide funds on a schedule that is consistent with the need for funds to complete the Project; and  

(iv) “total project cost” shall mean the total estimated remaining cost, at the time that Rock Island is prepared to begin to install transmission facilities, for the following Project activities: engineering, manufacturing and installation of converter stations; transmission line engineering; transmission towers; conductor; construction labor necessary to complete the Project; right of way acquisition costs; and other costs necessary to complete the Project.  For reference, the total estimated project cost as of November 1, 2012 is $2.0 billion.

To allow the Commission to verify its compliance with this condition, Rock Island shall submit the following documents to the Director of the Financial Analysis Division and the Director of the Public Safety & Reliability Division at such time as Rock Island is prepared to begin to install transmission facilities:

a) On a confidential basis, equity and loan or other debt financing agreements and commitments entered into or obtained by Rock Island or its parent company for the purpose of funding the Rock Island Clean Line Project that, in the aggregate, provide commitments for funds for the total project cost;

b) An attestation certified by an officer of Rock Island that Rock Island has not, prior to the date of the attestation, installed transmission facilities on easement property; or a notification that such installation is scheduled to begin on a specified date;

c) A statement of the total project cost, broken out by the components listed in the definition of “total project cost,” above, and certified by an officer of Rock Island, along with a reconciliation of the total project cost in the statement to the total project cost as of November 1, 2012 of $2.0 billion; and

d) A reconciliation statement, certified by an officer of Rock Island, showing that the agreements and commitments for funds provided in (a) are equal to or greater than the total project cost provided in (c).

So, the P.O. did not find that RICL was necessary, but did find that it would promote the development of a competitive electricity market (not that the current market doesn't already do that).  Therefore, the P.O. recommends that RICL be granted a Certificate of Public Convenience and Necessity under Section 8-406 because it satisfied the second part of (1) after the "or" (see 8-406 language above).  However, the proposed finding comes with HEFTY conditions and would expire two years after being granted.  Do you think RICL can get its stuff together to satisfy all the conditions AND get a permit from Iowa within two years?  Tick tock!  How many years has RICL been trying to make these projects work now?  Has it been 5 years already?

Now let's move on to RICL's request that the ICC "authorize" or direct it to construct the line under Section 8-503.  Remember that RICL told the ICC that they might not even construct the project after all if it wasn't profitable enough? 

The Commission has reviewed the evidence and arguments.  First of all, to the extent Rock Island is asserting that the criteria in Sections 8-406(b) and 8-503 are identical, and that a finding the Section 8-406(b) criteria have been met would automatically mean the Commission is required to grant the relief sought under Section 8-503, the Commission disagrees.  Such an interpretation would render Section 8-503 superfluous.    

ComEd and Staff argue that Rock Island’s request for Section 8-503 relief is premature, in that Rock Island is seeking authority that cannot be utilized given the contingencies, conditions and regulatory approvals still needed.    While the Commission is by no means suggesting that RI would have to satisfy every condition, contingency or uncertainty before Section 8-503 authorization may be granted, the Commission does agree with Staff and ComEd that under the circumstances, it would be premature to grant Section 8-503 relief to Rock Island in this proceeding.  

Rock Island claims Section 8-503 approval is needed now because it is one of the major regulatory approvals needed to satisfy potential lenders and investors; however, Rock Island does not explain how a Section 8-503 authorization is somehow more urgent or important in that regard than is the proceeding in Iowa, where the Project originates and the first 379 miles of the 500-mile line would be built.  Even Rock Island does not estimate a decision being reached in Iowa until 2015, assuming the formal proceeding has even begun there.

IT IS FURTHER ORDERED that the request for relief pursuant to Section 8-503 of the Act is not granted at this time; this determination is without prejudice to the filing of a request for such relief in the future. 

Authority under Section 8-503 is necessary to apply for eminent domain under Section 8-509, which reads:

When necessary for the construction of any alterations, additions, extensions or improvements ordered or authorized under Section 8‑503 or 12‑218 of this Act, any public utility may enter upon, take or damage private property in the manner provided for by the law of eminent domain.

But, the P.O. is NOT proposing that RICL be granted eminent domain authority at this time.  RICL may re-apply for Section 8-503 at a later date.  Important:  RICL does NOT have eminent domain authority to condemn and take property in Illinois at this time, and this proposed order would not give it to them!

But, the P.O. also proposed that the recommended CPCN issued under Section 8-406 would allow Section 8-510 of the Code, which states:

Land surveys. For the purpose of making land surveys, any public utility that has been granted a certificate of public convenience and necessity by, or received an order under Section 8‑503 of this Act from, the Commission may, 30 days after providing written notice to the owner thereof by registered mail, enter upon the property of any owner who has refused permission for entrance upon that property, but subject to responsibility for all damages which may be inflicted thereby.

The P.O. recommended granting RICL the Certificate required to enter onto private property under Section 8-510, and reasoned:

...the issuance of the Certificate will enable Rock Island to gain access to the property to conduct surveys and related activities, which are steps characterized by Rock Island as important ones in which to engage in the near future.

The P.O. proposes that RICL be granted authority to trespass upon, enter, and damage private property, although prohibited from taking that same property by eminent domain. Yet, it's clear that RICL at this time does NOT have any dedicated funds, so how would landowners be compensated for damages incurred in the surveying process? What protections are in place for landowners in the likely event that funds are not acquired to build the project and the company goes bankrupt?  At this time... none!

But, remember, this is only a PROPOSED Order, subject to more legal filings and alternative proposed language.  What the Commission actually approves may be radically different.

Meanwhile, keep up to date on all the RICL news and action alerts by liking BlockRICL on facebook or visiting their website.