Invenergy's Special Illinois GBE Law is Unconstitutional Says Lawsuit

Well, it was only a matter of time.  Remember last year when Invenergy made a new law that said Grain Belt Express was "for public use" and that the Illinois Commerce Commission must approve it without hearing?

Turns out at least one landowner thinks that law is unconstitutional.  In a Complaint recently filed in the Fifth Judicial Circuit in Clark County, Illinois, landowner Leonard Bradley Trust asks that the Court

A.  Enter a preliminary injunction staying ICC Docket # 22-0499 during the pendency of this action;
B.  Pursuant to Article I, Section 2 of the 1970 Illinois Constitution, declare that 220 ILCS 5/8-406(b-5) is unconstitutional;
C.  Pursuant to Article II, Section 1 of the 1970 Illinois Constitution, declare that 220 ILCS 5/8-406(b-5) is unconstitutional;
D.  Pursuant to Article IV, Section 13 of the 1970 Illinois Constitution, declare that 220 ILCS 5/8-406(b-5) is unconstitutional;
E.  Remand the July 26, 2022, application for a certificate of public convenience and necessity, ICC Docket # 22-0499, to the ICC for further proceedings without regard to § 8-406(b-5); and
F.  Other such preliminary and final legal and equitable relief as the law and facts require.

The Complaint says the law

delegates regulatory control to the ICC to protect consumers by ensuring that construction of plants, equipment, property or facilities provides for services and facilities that are “for public use” and, in all respects, adequate, efficient, reliable and environmentally safe and which constitute the least-cost means of meeting the utility’s service obligations.

But the special GBE law adds a section that finds GBE for public use, when only the ICC may make this finding for other projects.  Because the new law skips over a finding by the ICC, it deprives landowners in GBE's path of due process.

Without a hearing under §§ 8-406(b)(1) and 8-406.1(f)(1), Plaintiff and similarly situated landowners are deprived due process by being stripped of the opportunity to submit  evidence that GBE has not established that the Project 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 Project 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.

And because the landowners are stripped of due process

Section 8-406(b-5) allows GBE to qualify for a CPCN for the Project without review of the ICC or the courts as to whether GBE meets the requirements for a CPCN as a public utility.

The determination of whether a given use is a public use is a judicial function.

Through enactment of § 8- 406(b-5), the Illinois General Assembly has exercised judicial power to determine that the Project constitutes a public use.

GBE went just a bit too far with its special privilege law.  After all the years of Invenergy bellyaching about the Missouri legislature making "unconstitutional" laws, turns out the only problem is in Illinois, where GBE made the law for its own benefit.

Looks like the slime needs to be cleaned out of the Illinois legislature once again.