The appeal of the Illinois Commerce Commission's decision to grant a CPCN to Grain Belt Express under the state's "expedited" review process was heard by the Illinois Fifth District Appellate Court this week.
You can listen to the oral argument here. The recording is only 48 minutes long -- oral arguments have time limits. Extensive briefing on all the issues has already happened. Oral argument is for a condensed version of important points, and a chance for the judges to ask questions of the parties regarding their arguments.
Chuck Davis, representing the Illinois Farm Bureau, presented the argument of the appellants (the parties who want the court to reverse the ICC's decision). It was a pretty simple argument -- Grain Belt Express is not eligible to apply under the expedited process because it is not a public utility, and its attempt to do so was likened to "a square peg trying to force itself into a round hole."
Davis pointed out the difference between two different permitting processes available in Illinois. The expedited process used by GBE begins with the words, "A public utility may...". GBE is not a public utility, therefore it could not apply under that process. GBE's application admitted that it "will be" a public utility -- in the future tense -- but not that it was -- in the present tense -- when application was made.
It's as simple as that.
And why is this important? Because there are two different procedural routes for obtaining a permit from the ICC. The longer, traditional process is for new entrants who are not public utilities. The expedited process is reserved for public utilities.
By using the expedited process improperly, GBE rushed inexperienced landowners through the permitting process in an amount of time "less than a baseball season." It also automatically granted GBE a finding under a different section of statute that allows the company to proceed quicker with eminent domain takings. Clean Line's Rock Island project was denied a finding under that section when it used the longer process to secure a CPCN for an identical project. RICL must go back before the ICC to gain the finding that was automatically granted to GBE through the expedited process.
I sort of wish someone had asked Clean Line's attorney why the company applied under different processes for identical projects. What made GBE different from RICL so it could use the expedited process?
The ICC's attorney made a few revelations during his tired argument that the two different processes are actually the same, before giving a preview of his future argument before the Illinois Supreme Court that really wasn't relevant to this case. At 24:40 he said GBE is for interstate transmission of electricity through Illinois to be used by the public within the MISO and PJM wholesale electricity market regions. He followed that up by clarifying at 30:27 that the Grain Belt Express project is an interstate transmission line for electricity "merely passing through Illinois."
Well, I'm glad that cat's been let out of the bag, after years of listening to Clean Line claim that the line would provide electricity to Illinois.
At 32:30 one of the judges asks whether GBE was a public utility prior to the ICC's findings under the expedited process.
Of course it wasn't.
Later, GBE's attorney began listing all the things the ICC found regarding the company's ability to construct and finance the project. But the same judge interrupted him at 40:33 to query whether all those things were speculative. There's no evidence that GBE was doing those things, only evidence that GBE could do them. Listen very carefully as this testy exchange goes on between the judge and GBE's attorney, with the judge trying to make his point, only to be interrupted by GBE's attorney to say that "we are" hiring contractors and proceeding to continue his list of what the ICC found GBE capable of doing in the future. The judge finally reasserts control to say that he understands what the ICC found the company capable of... but GBE doesn't have any past record of actually doing those things. "As a company, GBE has never done it." GBE's attorney meekly agrees... and suddenly he's done.
The judges had no questions for the appellant attorneys.
And now we wait for the court to issue a decision.
I'd say this went very well for the appellants.
You can listen to the oral argument here. The recording is only 48 minutes long -- oral arguments have time limits. Extensive briefing on all the issues has already happened. Oral argument is for a condensed version of important points, and a chance for the judges to ask questions of the parties regarding their arguments.
Chuck Davis, representing the Illinois Farm Bureau, presented the argument of the appellants (the parties who want the court to reverse the ICC's decision). It was a pretty simple argument -- Grain Belt Express is not eligible to apply under the expedited process because it is not a public utility, and its attempt to do so was likened to "a square peg trying to force itself into a round hole."
Davis pointed out the difference between two different permitting processes available in Illinois. The expedited process used by GBE begins with the words, "A public utility may...". GBE is not a public utility, therefore it could not apply under that process. GBE's application admitted that it "will be" a public utility -- in the future tense -- but not that it was -- in the present tense -- when application was made.
It's as simple as that.
And why is this important? Because there are two different procedural routes for obtaining a permit from the ICC. The longer, traditional process is for new entrants who are not public utilities. The expedited process is reserved for public utilities.
By using the expedited process improperly, GBE rushed inexperienced landowners through the permitting process in an amount of time "less than a baseball season." It also automatically granted GBE a finding under a different section of statute that allows the company to proceed quicker with eminent domain takings. Clean Line's Rock Island project was denied a finding under that section when it used the longer process to secure a CPCN for an identical project. RICL must go back before the ICC to gain the finding that was automatically granted to GBE through the expedited process.
I sort of wish someone had asked Clean Line's attorney why the company applied under different processes for identical projects. What made GBE different from RICL so it could use the expedited process?
The ICC's attorney made a few revelations during his tired argument that the two different processes are actually the same, before giving a preview of his future argument before the Illinois Supreme Court that really wasn't relevant to this case. At 24:40 he said GBE is for interstate transmission of electricity through Illinois to be used by the public within the MISO and PJM wholesale electricity market regions. He followed that up by clarifying at 30:27 that the Grain Belt Express project is an interstate transmission line for electricity "merely passing through Illinois."
Well, I'm glad that cat's been let out of the bag, after years of listening to Clean Line claim that the line would provide electricity to Illinois.
At 32:30 one of the judges asks whether GBE was a public utility prior to the ICC's findings under the expedited process.
Of course it wasn't.
Later, GBE's attorney began listing all the things the ICC found regarding the company's ability to construct and finance the project. But the same judge interrupted him at 40:33 to query whether all those things were speculative. There's no evidence that GBE was doing those things, only evidence that GBE could do them. Listen very carefully as this testy exchange goes on between the judge and GBE's attorney, with the judge trying to make his point, only to be interrupted by GBE's attorney to say that "we are" hiring contractors and proceeding to continue his list of what the ICC found GBE capable of doing in the future. The judge finally reasserts control to say that he understands what the ICC found the company capable of... but GBE doesn't have any past record of actually doing those things. "As a company, GBE has never done it." GBE's attorney meekly agrees... and suddenly he's done.
The judges had no questions for the appellant attorneys.
And now we wait for the court to issue a decision.
I'd say this went very well for the appellants.
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