{ "id": 45702, "name": "COMMONWEALTH EDISON COMPANY, Petitioner, v. ILLINOIS COMMERCE COMMISSION, Respondent (Central Illinois Light Company et al., Intervenors)", "name_abbreviation": "Commonwealth Edison Co. v. Illinois Commerce Commission", "decision_date": "1998-03-31", "docket_number": "No. 2\u201497\u20140657", "first_page": "311", "last_page": "324", "citations": [ { "type": "official", "cite": "295 Ill. App. 3d 311" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "289 Ill. App. 3d 705", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 351184 ], "year": 1997, "pin_cites": [ { "page": "714" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/289/0705-01" ] }, { "cite": "283 Ill. App. 3d 188", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182718 ], "year": 1996, "pin_cites": [ { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0188-01" ] }, { "cite": "148 Ill. 2d 348", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3283297 ], "year": 1992, "pin_cites": [ { "page": "381" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/148/0348-01" ] }, { "cite": "414 Ill. 582", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5313789 ], "year": 1953, "pin_cites": [ { "page": "597", "parenthetical": "reviewing court may disregard in an order reasoning, findings, or recitals that are not essential to the validity of the order" } ], "opinion_index": 0, "case_paths": [ "/ill/414/0582-01" ] }, { "cite": "286 Ill. App. 3d 934", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1544498 ], "year": 1997, "pin_cites": [ { "page": "943", "parenthetical": "reviewing court in administrative review may search record for basis to affirm, regardless of whether that basis was relied on in order being reviewed" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/286/0934-01" ] }, { "cite": "47 Ill. 2d 498", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2906453 ], "year": 1970, "pin_cites": [ { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0498-01" ] }, { "cite": "111 Ill. 2d 505", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3167110 ], "year": 1986, "pin_cites": [ { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0505-01" ] } ], "analysis": { "cardinality": 925, "char_count": 31363, "ocr_confidence": 0.745, "pagerank": { "raw": 8.6239320562533e-08, "percentile": 0.4906778348853543 }, "sha256": "75f6c0e68f652512c089f234d23f42a0ae2ad809db65e494cc40016e6805754a", "simhash": "1:a69700d3eecb6ee4", "word_count": 4866 }, "last_updated": "2023-07-14T18:51:11.490834+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "COMMONWEALTH EDISON COMPANY, Petitioner, v. ILLINOIS COMMERCE COMMISSION, Respondent (Central Illinois Light Company et al., Intervenors)." ], "opinions": [ { "text": "JUSTICE DOYLE\ndelivered the opinion of the court:\nPetitioner, Commonwealth Edison Company (ComEd), appeals directly to this court from an order of respondent, the Illinois Commerce Commission (Commission). The order denied ComEd\u2019s petition to the Commission for consent and approval to provide energy support services to energy users. ComEd contends that the order was erroneous because the Commission improperly (1) applied a required balancing test; (2) based its decision on a section of the Public Utilities Act (220 ILCS 5/1 \u2014 101 et seq. (West 1996)) that had no bearing on the proceedings; and (3) relied on two central factual findings that were not supported by substantial evidence.\nOn April 1, 1996, ComEd filed a petition with the Commission seeking the Commission\u2019s consent and approval pursuant to section 7 \u2014 102 of the Public Utilities Act (Act) (220 ILCS 5/7 \u2014 102 (West 1996)) to provide energy support services to energy users. The petition and a later amended petition described energy support services as including the following: the furnishing, design, engineering, construction, operation, analysis, and management of electrical power equipment, energy systems, and energy conversion systems; the selection, evaluation, acquisition, installation, and testing of equipment used in such systems, including energy efficiency and conservation equipment; and the auditing and monitoring of such energy systems.\nComEd\u2019s amended petition stated that the business of providing energy support services typically involved a number of components, including evaluating an energy user\u2019s need for energy support services; developing a proposal describing the work to be completed in implementing the energy support services and the estimated cost and benefit to the user; purchasing and financing the proposed energy support services (including possible financing arranged by ComEd); providing the energy support services, possibly involving ComEd contracting with third-party service providers who would perform portions of the work; and, in some cases, guaranteeing part of the user\u2019s projected energy cost savings from the implementation of the energy support services.\nOn October 16, 1996, and October 24, 1996, a hearing was conducted regarding ComEd\u2019s petition. Both ComEd and the staff of the Commission (Staff) appeared at the hearing and presented evidence. The Central Illinois Light Company (CILCO) and the Northern Illinois Coalition for Fair Competition (NICFC) also appeared at the hearing and were allowed to intervene. Neither CILCO nor NICFC presented evidence at the hearing.\nComEd presented the testimony of several witnesses. ComEd\u2019s testimony included the following: ComEd filed the petition because it perceived a need to provide energy support services to energy users who had requested such services; ComEd is facing competition on many fronts and it is therefore imperative that it be allowed to provide energy supjport services so that it can be as competitive as possible; ComEd\u2019s entry into the energy support services market would constitute diversification for the company and would decrease its overall business risks by better enabling it to retain customers that it might otherwise lose to competitors that are able to provide energy support services; and it is important that ComEd be allowed to provide energy support services itself because customers want \u201cone-stop\u201d shopping that would allow them to obtain both energy and energy support services from a single provider.\nComEd also presented testimony regarding the benefits that would result if it were allowed to provide energy support services. This testimony was that ComEd\u2019s provision of energy support services would result in the following benefits: (1) benefits to all ComEd customers through the retention of customers by meeting customers\u2019 needs; (2) promotion of the public interest in the safe and efficient operation of electrical equipment; (3) establishment of reliable energy supply and support services for customers; and (4) enhancement of the skills of ComEd personnel who provide such services.\nStaff also presented testimony. Two Staff witnesses recommended that the Commission deny ComEd\u2019s petition. One of these Staff witnesses was Scott Rungren, a senior financial analyst in the finance department of the public utilities division of the Commission. Run-gren based his recommendation on his opinion that allowing ComEd to provide energy support services would impact ComEd\u2019s risk and cost of capital in an unquantified way, creating the potential for a violation of section 9 \u2014 230 of the Act (220 ILCS 5/9 \u2014 230 (West 1996)) in a future rate proceeding. Rungren testified that if a nonregulated subsidiary of Unicom, ComEd\u2019s parent holding company, provided energy support services instead of ComEd, there would be no need to be concerned about the Commission\u2019s ability to enforce section 9 \u2014 230 in a future rate proceeding. In Rungren\u2019s view, any risk associated with the provision of energy support services would not be reflected in ComEd\u2019s cost of capital if a Unicom subsidiary provided energy support services instead of ComEd.\nThe other Staff witness who recommended that the Commission deny the petition was Eric P. Schlaf, a senior economist with the Commission\u2019s office of policy and planning. Schlaf testified that it was not necessary for ComEd itself to provide energy support services because an unregulated subsidiary of Unicom could provide energy support services and accomplish each of the benefits that ComEd asserted would result from its provision of energy support services. Schlaf also testified that the approval of the petition would allow ComEd to take unfair advantage of its competitors in the energy support services market by exploiting a monopoly that ComEd has with respect to the transmission of energy in its service area.\nComEd presented testimony that was intended to rebut the testimony of Rungren and Schlaf. This testimony included the following: allowing ComEd to provide energy support services would decrease, not increase, ComEd\u2019s business risks because not offering energy support services would tend to increase the risk that ComEd would lose customers to other providers that are able to provide energy support services; because ComEd\u2019s entry into the energy support services business would not increase its business risk, it would not increase ComEd\u2019s cost of capital; the public interest would best be served if ComEd, rather than an unregulated Unicom subsidiary, provided energy support services because customers benefit most from \u201cone-stop\u201d shopping; the provision of energy support services by an unregulated Unicom subsidiary would place ComEd at a competitive disadvantage to other suppliers of energy support services; ComEd would not and could not take advantage of competitors through any monopoly it had in the transmission of energy; and, if the Commission were to deny ComEd\u2019s petition, ComEd\u2019s core electric business would be exposed to greater risk.\nOn January 16, 1997, the hearing examiner issued a proposed order. The proposed order included findings that ComEd\u2019s plan to provide energy support services was reasonable and would promote the public interest and convenience. The proposed order recommended approval of ComEd\u2019s amended petition.\nOn March 31, 1997, the Commission issued its final order (the order). The order denied ComEd\u2019s petition after finding that \u201cComEd\u2019s proposal to provide energy support services will not promote the public convenience.\u201d\nComEd subsequently filed a petition for rehearing, which was denied. ComEd\u2019s timely appeal followed.\nA direct appeal from an order of the Commission is governed by section 10 \u2014 201 of the Act (220 ILCS 5/10 \u2014 201(a) (West 1996)). Section 10 \u2014 201 provides that the appellate court shall reverse a commission order if the court determines, inter alla, that the order was not supported by substantial evidence, or the order was in violation of the state or federal constitutions or laws. 220 ILCS 5/10\u2014 201(e)(iv)(A), (e)(iv)(C) (West 1996).\nOn appeal, ComEd first contends that the Commission committed legal error by improperly applying a required balancing test when it decided to deny ComEd\u2019s petition. The parties agree that section 7 \u2014 102 of the Act governs ComEd\u2019s petition.\nSection 7 \u2014 102 requires a public utility to seek formal approval from the Commission before the utility may, inter alia, make a contractual guarantee, engage in a nonutility business (such as the provision of energy support services), or provide financing to third parties. See 220 ILCS 5/7 \u2014 102(f), (g), (h) (West 1996). Section 7 \u2014 102 directs the Commission, if it considers it necessary, to conduct a hearing regarding the utility\u2019s petition.\nSection 7 \u2014 102 also directs the commission to apply a \u201cpublic convenience\u201d standard. In this regard, section 7 \u2014 102 provides that \u201cif the Commission is satisfied that such petition should reasonably be granted, and that the public will be convenienced thereby, the Commission shall make such order in the premises as it may deem proper and as the circumstances may require.\u201d (Emphasis added.) 220 ILCS 5/7 \u2014 102 (West 1996).\nThe Commission has broad discretion to decide whether a petition should be approved under the public convenience standard. Illinois Power Co. v. Illinois Commerce Comm\u2019n, 111 Ill. 2d 505, 511 (1986). In this case, the Commission decided that it would apply a balancing test to determine whether the public convenience standard had been met when it stated that in applying the public convenience standard \u201capproval of a transaction should be granted if the evidence indicates that the benefits to rate payers are reasonably likely to exceed the costs or harms to rate payers.\u201d\nComEd agrees that the Commission should determine whether the public convenience standard has been met by applying the balancing test. However, ComEd contends that the Commission misapplied the balancing test by considering only the costs related to the petition and completely ignoring the related benefits. ComEd maintains that it presented uncontroverted evidence of real and substantial benefits which would result from its provision of energy support services to energy users but that the Commission ignored these benefits and therefore did not perform the required balancing between benefits and costs. ComEd argues that the Commission\u2019s failure to perform the required balancing test violated section 7 \u2014 102. In ComEd\u2019s view, this violation of section 7 \u2014 102 warrants reversal of the Commission\u2019s order and remand to the Commission for the purpose of applying the required balancing test.\nWe agree with ComEd that the Commission\u2019s order does not explicitly balance the individual benefits and costs which the parties asserted would result from ComEd\u2019s provision of energy support services. However, the order does contain a broad statement which indicates that the Commission did apply the balancing test before deciding to deny ComEd\u2019s petition. This broad statement, which immediately followed the definition of the public convenience standard in the order, was that the \u201cCommission is applying the [balancing test] in this case and we find that this petition is not in the public interest and should be denied.\u201d\nComEd takes the position that this statement is insufficient to satisfy section 7 \u2014 102 because it merely indicates that the Commission says it applied the balancing test, but does not show that the Commission actually applied the test. Perhaps ideally the Commission would provide an explicit explanation of how it balanced the benefits and costs when it applies the balancing test to determine whether the section 7 \u2014 102 public convenience standard has been met. However, the Commission\u2019s failure to provide such an explanation, by itself, is not a sufficient reason to reverse the order because the Commission is not required to make particular findings as to each evidentiary fact or claim. United Cities Gas Co. v. Illinois Commerce Comm\u2019n, 47 Ill. 2d 498, 501 (1970). Consequently, we cannot say that the Commission violated section 7 \u2014 102 merely because it did not specifically discuss each benefit and cost when it applied the balancing test.\nIn addition to its statement in the order that it was applying the balancing test, there are other grounds for concluding that the Commission applied the balancing test. One of these grounds is based on another statement in the order which was related to a lesser test to determine whether the public convenience standard had been met. This statement was that ComEd did not even meet a lesser public convenience standard. Under the lesser standard, the Commission could have approved the petition if, as a result of ComEd\u2019s provision of energy support services, \u201crate payers were left indifferent.\u201d The order states that ComEd did not meet this lesser test. This statement is another way of saying that the benefits not only failed to exceed the claimed costs but that the benefits did not even equal the costs. This statement therefore indicates that the Commission weighed the benefits and costs and determined that the benefits were outweighed by the costs.\nAnother basis for concluding that the Commission applied the balancing test is found in the Commission\u2019s reasoning in the order. Although this reasoning was primarily couched in terms of the costs and harms that the Commission determined were likely to result from ComEd\u2019s provision of energy support services, the reasoning also shows that the Commission, at least implicitly, weighed the benefits that ComEd asserted would result against the costs.\nFor example, ComEd asserted that one of the benefits that would result from its provision of energy support services to energy users would be reduced costs to these users and a consequent reduction of costs to all ComEd customers. However, the Commission concluded that allowing ComEd to enter the energy support services market with its monopolist\u2019s ability to become the dominant energy support service provider would eventually result in users of energy support services paying noncompetitive, i.e., higher, prices than if ComEd did not enter the energy support services market.\nIn its reasoning, the Commission also determined that a Unicom subsidiary could freely enter the energy support services market and could employ ComEd personnel to provide energy support services. Thus, Unicom could provide most, if not all, of the other benefits which ComEd asserted would result from its provision of energy support services. These benefits include promoting the public interest in the safe and efficient operation of electrical equipment, the establishment of reliable energy supply and support services for customers, and the enhancement of the skills of ComEd personnel.\nThe Commission concluded that Unicom could provide these benefits without the costs to ratepayers noted above. Consequently, the Commission implicitly concluded that the benefits that ComEd asserted would result from its provision of energy support services did not outweigh the costs that would result.\nFor all these reasons, we conclude that the Commission applied the balancing test when it determined that the public convenience standard had not been met. Accordingly, reversal of the Commission\u2019s order on the ground that it failed to apply the balancing test is not warranted.\nComEd next contends that the Commission committed reversible legal error when it relied on and applied section 9 \u2014 230 of the Act in deciding to deny the petition. Section 9 \u2014 230 provides:\n\u201cIn determining a reasonable rate of return upon investment for any public utility in any proceeding to establish rates or charges, the Commission shall not include any incremental risk or increased cost of capital which is the direct or indirect result of the public utility\u2019s affiliation with unregulated or nonutility companies.\u201d 220 ILCS 5/9 \u2014 230 (West 1996).\nComEd contends that the Commission relied on section 9 \u2014 230 in reaching its decision and that the Commission\u2019s reliance on section 9 \u2014 230 was erroneous because section 9 \u2014 230 does not authorize the Commission to reject the utility\u2019s petition for approval of an initiative under section 7 \u2014 102. ComEd further contends that the Commission did not offer any other authority that supports its reliance on section 9 \u2014 230.\nThe Commission responds by attempting to minimize the extent that it relied on section 9 \u2014 230 in reaching its decision. The Commission implies that because its reliance on section 9 \u2014 230 was minimal, any error in its reliance on section 9 \u2014 230 was not reversible because there were other grounds sufficient to support its decision.\nIn resolving this issue, we will initially determine whether other grounds for the Commission\u2019s decision were sufficient to support the decision. We believe that if the record shows sufficient other grounds that support the Commission\u2019s decision, then it is not necessary to determine whether the Commission\u2019s reliance on section 9 \u2014 230 was erroneous. See Gernand v. Illinois Commerce Comm\u2019n, 286 Ill. App. 3d 934, 943 (1997) (reviewing court in administrative review may search record for basis to affirm, regardless of whether that basis was relied on in order being reviewed).\nAs to the other grounds, we agree with the Commission that the harms which the Commission determined would result from ComEd\u2019s entry into the energy support services market due to ComEd\u2019s monopolist\u2019s advantage, coupled with the Commission\u2019s determination that an unregulated Unicom subsidiary could provide the energy support services which ComEd seeks to provide, were sufficient for the Commission to determine that ComEd failed to meet the section 7 \u2014 102 public convenience standard. Moreover, it is readily apparent that the Commission relied on these grounds when it determined that ComEd\u2019s petition did not satisfy the public convenience standard. This is obvious from several statements in the order, including the following:\n\u201c \u2018Permitting ComEd to enter the energy services market with a monopolist\u2019s advantage over an important element of potential services, remotely generated energy, in that market will not convenience the public. In fact, the public will be harmed by such permission. [(Emphasis added.)]\n* * *\nDenying ComEd\u2019s petition will not exclude Unicom from the energy services market. As an unregulated entity, Unicom may enter the energy services market at its pleasure.\u201d\nFor these reasons, we conclude that the Commission would have decided to deny ComEd\u2019s petition even if it had not relied on section 9 \u2014 230. Accordingly, it is not necessary for us to determine whether it was improper for the Commission to rely on section 9 \u2014 230 in reaching its decision to deny the petition. See Produce Terminal Corp. v. Illinois Commerce Comm\u2019n ex rel. Peoples Gas Light & Coke Co., 414 Ill. 582, 597 (1953) (reviewing court may disregard in an order reasoning, findings, or recitals that are not essential to the validity of the order).\nComEd next contends that the order should be reversed because the Commission made two essential factual findings that were not supported by substantial evidence. ComEd asserts that the erroneous factual findings were (1) the Commission\u2019s finding that ComEd\u2019s provision of energy support services would result in unquantified incremental risks to ComEd\u2019s cost of capital and would increase the difficulty of the Commission\u2019s tasks pursuant to section 9 \u2014 230 of the Act in a future rate case; and (2) the Commission\u2019s finding that ComEd had a monopolist\u2019s advantage that it would unfairly exploit if it were allowed to provide energy support services to energy users.\nThe first claimed factual error was the basis for the Commission\u2019s reliance on section 9 \u2014 230. We have previously determined that it is not necessary for us to decide whether the Commission erred in relying on section 9 \u2014 230. Therefore, it is not necessary for us to determine whether the record contains substantial evidence supporting the finding that ComEd\u2019s provision of energy support services would result in unquantified incremental risks to ComEd\u2019s cost of capital.\nWe turn then to ComEd\u2019s contention that there is no substantial evidence in the record to support the Commission\u2019s finding regarding ComEd\u2019s purported monopolist\u2019s advantage and ComEd\u2019s likely exploitation of any such advantage. ComEd asserts that the only evidence in the record to even suggest that it could have an advantage over competitors if it were allowed to provide energy support services was Schlaf s testimony. ComEd acknowledges that Schlaf testified that ComEd\u2019s control of its transmission system would give ComEd an advantage over its competitors in the energy support services market because ComEd could generate electricity remotely to sell to users while ComEd\u2019s competitors could provide electricity only by generating it on the user\u2019s site. However, ComEd asserts that Schlaf did not explain how ComEd\u2019s ability to sell remotely generated electricity would allow it to monopolize the energy support services market. ComEd argues that the overwhelming evidence in the record shows that it would not have any advantage in the unregulated energy support services market, as a monopolist or otherwise.\nThe Act provides that the Commission\u2019s factual findings and conclusions are \u201cheld prima facie to be true and as found by the Commission.\u201d 220ILCS 5/10 \u2014 201(d) (West 1996). A reviewing court should therefore affirm the Commission\u2019s findings of fact if the findings are supported by substantial evidence in the record. People ex rel. Hartigan v. Illinois Commerce Comm\u2019n, 148 Ill. 2d 348, 381 (1992).\nFor purposes of judicial review of an order of the Commission, substantial evidence consists of more than a mere scintilla but may be less than a preponderance of evidence, such that a reasoning mind would conclude that the evidence was sufficient to support a particular conclusion. Illinois Bell Telephone Co. v. Illinois Commerce Comm\u2019n, 283 Ill. App. 3d 188, 200 (1996). A party who challenges a finding of the Commission on the ground that the finding was not supported by substantial evidence must do more than merely show that the evidence supports a different conclusion. To prevail, the party must demonstrate that the opposite conclusion was clearly evident. Abbott Laboratories, Inc. v. Illinois Commerce Comm\u2019n, 289 Ill. App. 3d 705, 714 (1997).\nIn this case, ComEd challenges the Commission\u2019s factual findings and conclusions regarding a monopolist\u2019s advantage if ComEd were allowed to enter the energy support services market. In its reasoning, the Commission found the following: ComEd\u2019s ability to offer \u201cone-stop shopping\u201d to its customers by offering energy support services bundled with remotely generated electricity would result in a monopolist\u2019s advantage for ComEd in the energy support services market; this would seriously disadvantage competitors in the energy support services market because these competitors do not have the ability to offer energy users energy support services bundled with remotely generated electricity; if ComEd were permitted unlimited entry to the energy support services market with its monopolist\u2019s advantage, it would drive competitors from the market; and after competitors had left the market, ComEd would have a dominant market position which it could \u201creasonably be expected to exploit by offering noncompetitive prices for energy support services.\u201d\nThe Commission based its findings and conclusions on Schlafs testimony. Schlafs testimony, as it related to the advantages ComEd would have over competitors in the energy support services market, was as follows:\n\u201cThe petition is not likely to convenience the public because it could harm the competitiveness of the energy support services market by allowing ComEd to exploit their monopoly over their transmission system. ComEd would have an advantage over other providers of unregulated energy support services because other energy service providers could only provide electricity by generating it on the customer\u2019s site. In contrast, ComEd has access to its transmission system to allow it to generate the power off-site and move it to the customer. Since ComEd refuses to provide transmission access to its competitors, other energy service providers do not have this option. Before ComEd is allowed to sell bundled energy services on an unregulated basis, ComEd should provide transmission access on a non-discriminatory basis.\u201d\nBased on Schlafs testimony, the Commission could have reasonably concluded that ComEd had a monopolist\u2019s advantage with respect to the energy support services market. It follows that ComEd\u2019s monopolist\u2019s advantage would seriously disadvantage its competitors in the energy support services market and that, if ComEd were allowed to enter the energy support services market with this monopolist\u2019s advantage, competitors would be driven from the market. It is a reasonable conclusion that without competitors ComEd would have a dominate position in the energy support services market that it would exploit by offering noncompetitive prices.\nNone of ComEd\u2019s contrary arguments show that conclusions opposite to those the Commission stated in its order are clearly evident. ComEd\u2019s own evidence that its customers want \u201cone-stop\u201d shopping undercuts its arguments that it would not have a monopolist\u2019s advantage. ComEd does not dispute Schlafs testimony that ComEd has refused to allow its competitors to have access to its transmission system. It follows that ComEd is the only electricity provider that can deliver remotely generated electricity to users in ComEd\u2019s area. If, as ComEd\u2019s evidence shows, users want to have one-stop shopping, ComEd effectively has a monopolist\u2019s advantage.\nFor these reasons, we find that the record contains substantial evidence that supports the Commission\u2019s factual findings and conclusions regarding ComEd\u2019s monopolist\u2019s advantage. Accordingly, reversal of the Commission\u2019s order on the ground that there was no such substantial evidence in the record is not warranted.\nFor the foregoing reasons the order of the Illinois Commerce Commission is affirmed.\nAffirmed.\nINGLIS, J., concurs.", "type": "majority", "author": "JUSTICE DOYLE" }, { "text": "JUSTICE McLAREN,\nspecially concurring in part and dissenting in part:\nI concur in the portion of the opinion that finds error when the Commission relied on and applied section 9 \u2014 230 of the Act. I dissent because I believe the cause should be remanded for further proceedings to allow the Commission to reconsider its judgment without the application of section 9 \u2014 230 and to set forth its reasoning and findings of fact so that a meaningful review, if necessary, may be accomplished.\nComEd claims that the Commission did not properly apply the balancing test. The majority agrees with ComEd that the Commission\u2019s order does not explicitly balance the individual benefits and costs which the parties asserted would result from ComEd\u2019s provision of energy support services. However, the majority then determines that a broad statement made by the Commission indicates that it did apply the test and that the test was applied properly. The majority concludes that the statement \u201cthat ComEd did not even meet a lesser public convenience standard\u201d establishes that the Commission properly applied the balancing test. The former statement, taken at face value, indicates that the Commission was aware of the need for applying the balancing test. It does not establish that the balancing test was applied properly. The latter statement is simply a non sequitur. A little boy when asked why he did not like another little boy responded by saying, \u201cbecause I don\u2019t like him a lot.\u201d\nFinally, the majority determines that the Commission determined that ComEd\u2019s petition did not satisfy the public convenience standard based upon the following:\n\u201c1 \u201cPermitting ComEd to enter the energy services market with a monopolist\u2019s advantage over an important element of potential services, remotely generated energy, in that market will not convenience the public. In fact, the public will be harmed by such permission. [(Emphasis added by the majority.)]\n^ ^ ^\nDenying ComEd\u2019s petition will not exclude Unicom from the energy services market. As an unregulated entity, Uni-com may enter the energy services market at its pleasure.\u201d \u2019\nFor these reasons, we conclude that the Commission would have decided to deny ComEd\u2019s petition even if it had not relied on section 9 \u2014 230.\u201d Commonwealth Edison Co. v. Illinois Commerce Comm\u2019n, 295 Ill. App. 3d at 320, quoting the Commission\u2019s order.\nThe above extract might prove that left to its own devices the Commission would repeat its decision. However, it sets forth neither the rationale nor the facts that we must review in order to determine if the Commission properly fulfilled its duties. First, I submit the emphasized portion of the extract above is a conclusion, not a fact as characterized by the Commission. Second, on review, when we ask \u201cwhy\u201d this does not serve the public convenience, the Commission\u2019s answer is essentially \u201cbecause.\u201d Third, what Unicom may or may not do is irrelevant and immaterial to the issue of the public convenience standard. What Unicom does or does not do, unless it is established that Unicom can do it better, is meaningless. In addition, the Commission\u2019s position appears internally inconsistent in that it contends that ComEd, with all its monopoly powers, can drive competitors out of the market and make inordinate profit, while the Commission simultaneously contends that under section 9 \u2014 230 consumers could be at risk and have to subsidize the nonprofitable endeavor.\nBased upon the lack of a finding in the record and the Commission\u2019s erroneous reliance on section 9 \u2014 230, I am not convinced, as is the majority, that a different result may not reasonably occur if the cause is remanded. The Commission may realize that conclusions are not facts, that the other entities that may enter the market are relevant only if there are greater benefits or fewer burdens that the Commission has not placed in the record. Finally, the Commission may wish to point out how, with deregulation, ComEd will still have a monopoly, or, if there is a partial monopoly, how that will adversely affect consumers. I therefore believe that this cause should be remanded for further proceedings consistent with this dissent.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE McLAREN," } ], "attorneys": [ "Bruce W. Doughty, Paul F. Hanzlik, Karen Kremer Mahoney, and E. Glenn Rippie, all of Hopkins & Sutter, and Thomas J. Russell, of Commonwealth Edison Company, both of Chicago, for petitioner.", "Office of General Counsel, of Illinois Commerce Commission, of Springfield (John P. Kelliher, Assistant Attorney General, and David I. Fein, Assistant State\u2019s Attorney, of counsel), for respondent.", "Edward J. Griffin and W. Michael Seidel, both of Defrees & Fiske, of Chicago, for Central Illinois Light Company.", "Kathleen I. Niew, of Niew & Associates, P.C., of Oak Brook, for Northern Illinois Coalition for Fair Competition." ], "corrections": "", "head_matter": "COMMONWEALTH EDISON COMPANY, Petitioner, v. ILLINOIS COMMERCE COMMISSION, Respondent (Central Illinois Light Company et al., Intervenors).\nSecond District\nNo. 2\u201497\u20140657\nOpinion filed March 31, 1998.\nMcLAREN, J., specially concurring in part and dissenting in part.\nBruce W. Doughty, Paul F. Hanzlik, Karen Kremer Mahoney, and E. Glenn Rippie, all of Hopkins & Sutter, and Thomas J. Russell, of Commonwealth Edison Company, both of Chicago, for petitioner.\nOffice of General Counsel, of Illinois Commerce Commission, of Springfield (John P. Kelliher, Assistant Attorney General, and David I. Fein, Assistant State\u2019s Attorney, of counsel), for respondent.\nEdward J. Griffin and W. Michael Seidel, both of Defrees & Fiske, of Chicago, for Central Illinois Light Company.\nKathleen I. Niew, of Niew & Associates, P.C., of Oak Brook, for Northern Illinois Coalition for Fair Competition." }, "file_name": "0311-01", "first_page_order": 331, "last_page_order": 344 }