It's story time! One of the most entertaining things I've read in a while is this analysis of the Appellate Court's decision to reverse the Grain Belt Express permit written by attorney Paul Neilan. Legal work doesn't have to be boring!
First, I believe it’s significant that the basis for the court’s decision was the issue of whether GBX was capable of financing the project, as opposed to the legal or constitutional issues that were raised. That’s the “no substantial evidence” test that’s set forth in Article X of the PUA as one of the grounds for reversing an ICC order. The 5th District discusses this test in par. 26 as the requirement for “more than a scintilla” of evidence, but less than a preponderance of the evidence. In most cases (and I’m looking at ComEd here), the Illinois appellate courts have interpreted this test to mean that the utility can throw spaghetti and ketchup at the wall, and if it looks like some of it stuck, then that is “substantial evidence,” no matter how big a mess it is. The court decided that none of GBX’s ketchup/spaghetti stuck to the wall.
It’s also interesting to read the court’s discussion, and characterization, of the ICC’s revised financing condition in par. 36. The court is really sending a message to the ICC about how it does business. But first, a parable from Franz Kafka:
There was once a sacred temple, and each year the high priests of the temple would drink vast quantities of sacrificial wine from large casks to celebrate their holy rites. Then one year leopards broke into the temple and drank the sacrificial vessels dry. This happened the following year also, and in fact every year thereafter. The high priests began to mark their celestial calendars and they were able to calculate the date of the leopards’ arrival long in advance. The arrival of the leopards then became part of their ceremony.
In our case, the ALJs are the high priests, and the leopards are the ever-expanding number of conditions subsequent that a utility cannot meet at the time of its application. The ICC then just incorporates the leopards into its orders, gives the utility a “pass” and grants the certification anyway, and then tells it to come back when it’s satisfied the condition, or if it needs more time. The courts let the ICC get away with this time after time.
The 5th District has now put the kibosh on this, as their discussion of the revised financing condition shows. The court states that in adopting the RFC, the Commission "all but concedes its own error."
That is, IMHO, a major change in direction. It’s a correct change. I’m almost tempted to have the court’s words engraved on a plaque.
Another significant feature of the order is that the Commission's order was reversed, not reversed and remanded with instructions to take further evidence on the issue of GBX’s capability of financing the project. In that ordering paragraph I see the Fifth District sending a message to Pritzker and the General Assembly that they should stop prostituting themselves for every venture capital firm that donates big bucks to their reelection campaigns, or in Pritzker’s case, is a regular in their Sunday morning foursome at the country club.
Paragraph 32 makes a point similar to the above, and if I were the Tsar I’d label this the “Flounder Doctrine.” I draw this name from the 1978 movie Animal House, in which one of the characters, Flounder, was foolish enough to lend his parents’ car to John Belushi and some of his senior frat brothers for a road trip. When the car is returned as a near-wreck, Belushi or one of the other frat brothers tells him, “You f#&ked up. You trusted us.” Here, the 5th District says that “...GBX asked the Commission to simply take its word, and trust that it had the funding and financial stability it alleges.” I was struck by the similarity to the line from Animal House about Flounder mistakenly trusting his frat bros.
Another interesting bit is the court’s treatment of GBX's arguments that the economic concerns of the landowners, such as clouds on title, are purely speculative, while GBX's project financing model was not speculative. The Commission has worked long and hard to cement its reputation as the Pantheon of Double Standards, and its treatment of ordinary (non-utility) parties verges on pathological colonialism masquerading as normality. So it’s gratifying to see the issues raised by non-utility parties taken seriously for once.
Likewise on the idea of necessity. In paragraph 30, the court's refers to the Rock Island project, which it noted was abandoned despite GBX's effort to convince the courts a few years ago that without it Western Civilization would end, or a rupture appear in the space-time continuum.
It’s also interesting to read the court’s discussion, and characterization, of the ICC’s revised financing condition in par. 36. The court is really sending a message to the ICC about how it does business. But first, a parable from Franz Kafka:
There was once a sacred temple, and each year the high priests of the temple would drink vast quantities of sacrificial wine from large casks to celebrate their holy rites. Then one year leopards broke into the temple and drank the sacrificial vessels dry. This happened the following year also, and in fact every year thereafter. The high priests began to mark their celestial calendars and they were able to calculate the date of the leopards’ arrival long in advance. The arrival of the leopards then became part of their ceremony.
In our case, the ALJs are the high priests, and the leopards are the ever-expanding number of conditions subsequent that a utility cannot meet at the time of its application. The ICC then just incorporates the leopards into its orders, gives the utility a “pass” and grants the certification anyway, and then tells it to come back when it’s satisfied the condition, or if it needs more time. The courts let the ICC get away with this time after time.
The 5th District has now put the kibosh on this, as their discussion of the revised financing condition shows. The court states that in adopting the RFC, the Commission "all but concedes its own error."
That is, IMHO, a major change in direction. It’s a correct change. I’m almost tempted to have the court’s words engraved on a plaque.
Another significant feature of the order is that the Commission's order was reversed, not reversed and remanded with instructions to take further evidence on the issue of GBX’s capability of financing the project. In that ordering paragraph I see the Fifth District sending a message to Pritzker and the General Assembly that they should stop prostituting themselves for every venture capital firm that donates big bucks to their reelection campaigns, or in Pritzker’s case, is a regular in their Sunday morning foursome at the country club.
Paragraph 32 makes a point similar to the above, and if I were the Tsar I’d label this the “Flounder Doctrine.” I draw this name from the 1978 movie Animal House, in which one of the characters, Flounder, was foolish enough to lend his parents’ car to John Belushi and some of his senior frat brothers for a road trip. When the car is returned as a near-wreck, Belushi or one of the other frat brothers tells him, “You f#&ked up. You trusted us.” Here, the 5th District says that “...GBX asked the Commission to simply take its word, and trust that it had the funding and financial stability it alleges.” I was struck by the similarity to the line from Animal House about Flounder mistakenly trusting his frat bros.
Another interesting bit is the court’s treatment of GBX's arguments that the economic concerns of the landowners, such as clouds on title, are purely speculative, while GBX's project financing model was not speculative. The Commission has worked long and hard to cement its reputation as the Pantheon of Double Standards, and its treatment of ordinary (non-utility) parties verges on pathological colonialism masquerading as normality. So it’s gratifying to see the issues raised by non-utility parties taken seriously for once.
Likewise on the idea of necessity. In paragraph 30, the court's refers to the Rock Island project, which it noted was abandoned despite GBX's effort to convince the courts a few years ago that without it Western Civilization would end, or a rupture appear in the space-time continuum.
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