Business and Professional People for Public Interest v. Illinois Commerce Com'n

• Decision Date: 21 December 1989
• Docket Number: Nos. 68100,68247,68306 and 68355,68246,s. 68100
• Court: Illinois Supreme Court
• Parties: , 144 Ill.Dec. 334, 117 P.U.R.4th 405 BUSINESS AND PROFESSIONAL PEOPLE FOR the PUBLIC INTEREST et al., Appellants, v. The ILLINOIS COMMERCE COMMISSION et al., Appellees.

Page 693

555 N.E.2d 693

136 Ill.2d 192, 144 Ill.Dec. 334, 117

P.U.R.4th 405

BUSINESS AND PROFESSIONAL PEOPLE FOR the PUBLIC INTEREST et

al., Appellants, v. The ILLINOIS COMMERCE COMMISSION et al., Appellees.

Nos. 68100, 68246, 68247, 68306 and 68355.

Supreme Court of Illinois.

Dec. 21, 1989.

As Modified on Denial of Rehearing May 31, 1990.

Jenner & Block, Chicago (Douglass W. Cassel, Jr., Howard A. Learner, Robert L. Graham, Laura A. Kaster and Norman M Hirsch, of counsel), for appellants Business and Professional People for the Public Interest and Citizens Utility Bd.

Richard M. Daley and Cecil A. Partee, State's Attys., Chicago (Thomas H. Rowland and Winifred A. Watts, Asst. State's Attys., of counsel), and Patrick N. Giordano, Foley & Lardner, Chicago, for appellants People of Cook County.

Allen W. Cherry, Chicago, for appellants Low Income Residential Consumers.

John P. Meyer, Danville, for appellant Illinois Dept. of Transp.

Judson H. Miner, Corp. counsel, and Kelly R. Welsh, Acting Corp. Counsel, Chicago (Ruth M. Moscovitch, Dodge Wells, Jean Dobrer and Robin Schulberg, of counsel), for appellant City of Chicago.

Stephen J. Moore, Public Counsel, and Stephen Fogel, Deputy Public Counsel, Chicago, for appellant Office of Public Counsel.

Clyde Kurlander, Edward P. O'Brien and John P. Kelliher, Sp. Asst. Attys. Gen., Chicago, for appellee Illinois Commerce Com'n.

Howard J. Trienens, Michael I. Miller, David W. Carpenter, and David F. Graham, Sidley & Austin, and Kevin M. Forde, Chicago, for appellee Commonwealth Edison Co.

Randall Robertson, Eric Robertson and Edward C. Fitzhenry, Lueders, Robertson & Konzen, Granite City, for appellee Illinois Industrial Energy Consumers.

Leonard S. Shifflett, of Burke, Wilson & McIlvaine, Chicago, for amicus curiae Illinois Retail Merchants Ass'n.

Justice CALVO delivered the opinion of the court:

The Illinois Commerce Commission (Commission) entered a sixth interim order (Sixth Order) in these consolidated cases on December 30, 1988, granting Commonwealth Edison Company (Edison) a two-step rate increase for electric service over a five-year period. Two of the seven commissioners concurred in part and dissented in part from the Sixth Order. Several intervenors, on behalf of various ratepayers, filed motions with this court for a direct appeal pursuant to Supreme Court Rule 302(b) (107 Ill.2d R. 302(b)), and we allowed said motions. Those intervenors filing briefs opposing various provisions of the Sixth Order include Business and Professional People for the Public Interest (BPI), Citizens Utility Board (CUB), the City of Chicago (City), the People of Cook County ex rel. Richard M. Daley (Cook County), Low Income Residential Consumers (LIRC), the People of the State of Illinois ex rel. Office of Public Counsel (State), and the Illinois Department of Transportation (IDOT). Edison, the Commission and the Illinois Industrial Energy Consumers (IIEC) filed briefs asking us to uphold the Sixth Order.

I. Proceedings Before the Commission

On August 21, 1987, pursuant to the Public Utilities Act (Act) ( Ill.Rev.Stat.1987, ch. 111 2/3, par. 1-101 et seq.), Edison filed tariffs with the Commission requesting a $1.414 billion annual, 26.9%, increase in rates for electric service to cover costs associated with bringing the Byron Unit 2, Braidwood Unit 1 and Braidwood Unit 2 nuclear power plants (units) into service. The Commission suspended the proposed tariffs through July 17, 1988, pursuant to section 9-201(b) of the Act, which allows the Commission to suspend tariffs for up to 11 months. Pending completion of audits of the units, as required by section 9-213 of the Act, the Commission held evidentiary hearings, beginning January 6, 1988, and extending over several months, on the nonaudit portions of the case. The auditors released the Byron Unit 2 and Braidwood Unit 1 audits in April 1988. Edison, various intervenors and the staff of the Commission (Staff) filed briefs on the nonaudit issues in May 1988. Staff recommended in early 1988 that Edison receive a rate decrease of $343 million.

On June 6, 1988, Staff filed a "Motion for the Commission to Defer the Resolution of the Rate Case and to Pursue an Alternative Resolution." Staff attached to this motion a settlement proposal. The proposal provided for a $235 million rate increase effective January 1, 1989, and a $245 million rate increase effective January 1, 1990. The proposal also provided for a rate freeze through December 31, 1993, after the second rate increase. The proposal contained numerous other provisions.

On June 8, the Commission entered its fourth interim order (Fourth Order) allowing Staff's motion over the objections of various intervenors. The Commission, however, found that because suspension of the tariffs ended on July 17, sufficient time did not exist within which to pursue a settlement. Consequently, the Commission, in its Fourth Order, stated that Edison had to withdraw and refile its tariffs if Edison wanted to pursue Staff's settlement proposal. If Edison refiled the tariffs, the Commission could again suspend the tariffs and thus provide the parties and intervenors with another 11-month period within which to pursue a settlement and conduct further proceedings. The Commission also stated that it would then consolidate the two dockets.

The Fourth Order provided further that if Edison did not agree to pursue the settlement proposal, the Commission would enter an order deciding the merits of the case by June 13, 1988. The Commission stated that if Edison agreed to pursue the proposal, the parties and intervenors would engage in negotiations until August 1, 1988. At that time, Staff could end the negotiations, if no reasonable opportunities for a resolution existed. The case would then proceed from the point at which it had stopped prior to the negotiations, and the Commission would enter a final order deciding the merits of the case by September 15, 1988. The Fourth Order also provided, however, that if Staff filed an offer of settlement (Settlement) by August 1, the Commission would establish a hearing schedule which would permit the Commission to enter a final order allowing or denying the Settlement by December 1, 1988. Under the Fourth Order, if the Commission decided to reject the Settlement, the Commission would enter a final order deciding the merits of the case by December 31, 1988.

On June 10, 1988, Edison withdrew and refiled its tariffs. Staff filed a Settlement on August 1, 1988. This Settlement contained the same provisions as the settlement proposal attached to Staff's earlier motion. In response, various intervenors moved for a decision on the merits of the case; the Commission denied the motion. Procedural hearings on the Settlement and the audits of Byron Unit 2 and Braidwood Unit 1 began on August 2. The auditors had not completed the Braidwood Unit 2 audit, and they did not release the audit until February 28, 1989, so the proceedings and the orders of the Commission did not resolve issues related to the Braidwood Unit 2 audit. The Commission held evidentiary hearings from September 19 through October 11. The parties filed briefs thereafter, and oral arguments took place on December 1 and 2, 1988.

The Commission issued a fifth interim order (Fifth Order) on December 21, 1988. The Commission attached to the Fifth Order a draft of its Sixth Order which incorporated the Settlement with some modifications. In the Fifth Order, the Commission stated it would adopt the Sixth Order, if Edison agreed to be bound by the terms and conditions in the Sixth Order. The Commission stated that Edison must agree to the Sixth Order because the Sixth Order contained certain provisions which the Commission could not legally implement unilaterally; these provisions included imposition of a rate moratorium and allowance of retroactive refunds. If Edison did not agree to the Sixth Order, the Fifth Order provided that the Commission would enter a decision on the merits of the case by May 6, 1989.

Edison submitted written acceptance of the Sixth Order, and on December 30, 1988, the Commission entered the Sixth Order. The Commission subsequently amended the Sixth Order on January 25, 1989, and again on February 8, 1989. One commissioner dissented from the latter amendment. The Commission denied the intervenors' petitions and applications for rehearing.

II. Authority of the Commission

A. Powers of the Commission

The main issue is whether the Commission had authority to enter the Sixth Order. The Commission only has those powers given it by the legislature through the Act. (Union Electric Co. v. Illinois Commerce Comm'n (1979), 77 Ill.2d 364, 383, 33 Ill.Dec. 121, 396 N.E.2d 510.) Under the Act, the Commission has "general supervision of all public utilities" (Ill.Rev.Stat.1987, ch. 111 2/3, par. 4-101), including Edison. In supervising the utilities, the Commission may examine the rates and other charges of the utilities and review the compliance of the utilities with the Act. Ill.Rev.Stat.1987, ch. 111 2/3, par. 4-101.

The Act gives the Commission investigative powers. (Ill.Rev.Stat.1987, ch. 111 2/3, par. 4-101.) The Commission, usually through its Staff, may gather evidence, subpoena witnesses, depose witnesses, or require the production of documents in order to determine whether a utility has complied with the Act. (Ill.Rev.Stat.1987, ch. 111 2/3, par. 10-106.) The Staff, or those employees of the Commission who engage in investigatory, prosecutorial, or advocacy functions, remains separate from the commissioners, hearing examiners and other members of the Commission who render decisions. (Ill.Rev.Stat.1987, ch. 111 2/3, par. 10-103.) The Commission, therefore, has a special role in that it performs investigative, prosecutorial and advocacy, as well as decisionmaking, functions.

When a utility files a rate schedule, the Commission has the power, "upon complaint or upon...