Commonwealth Edison Co. v. Ill. Commerce Comm'n
| Decision Date | 31 July 2014 |
| Docket Number | Nos. 1–13–2011,1–13–2012.,s. 1–13–2011 |
| Citation | 16 N.E.3d 801 |
| Parties | COMMONWEALTH EDISON COMPANY, Petitioner, v. ILLINOIS COMMERCE COMMISSION ; Citizens Utility Board ; The City of Chicago ; and The People of the State of Illinois, Respondents. |
| Court | United States Appellate Court of Illinois |
Thomas S. O'Neill, of Commonwealth Edison Company, Deborah Decker, of Exelon Company, John J. Hamill, Kathryn Hunt Muse, and Daniel T. Fenski, all of Jenner & Block, and E. Glenn Rippie, of Rooney Rippie & Ratnaswamy LLP, all of Chicago, for petitioner.
Lisa Madigan, Attorney General, of Chicago (John P. Kelliher, Special Assistant Attorney General, of counsel), for respondent Illinois Commerce Commission.
Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro, Solicitor General, and Evan Siegel, Assistant Attorney General, of counsel), for the People.
¶ 1 In this consolidated appeal, petitioner Commonwealth Edison (ComEd), challenges two orders of respondent, the Illinois Commerce Commission (the Commission) interpreting and applying section 16–125(e) of the Public Utilities Act (220 ILCS 5/16–125(e) (West 2010)) (the Act) to power interruptions that resulted from a series of severe storm systems that hit northern Illinois in 2011 and caused damage to ComEd's electric delivery system. The Commission concluded that, pursuant to the language of section 16–125(e), ComEd was liable for damages to the affected consumers. However, with the exception of the storm that occurred on July 11, 2011, the Commission granted ComEd a waiver of liability under section 16–125(e)(1) of the Act where the power interruption resulted from “[u]npreventable damage due to weather events or conditions.” 220 ILCS 5/16–125(e)(1) (West 2010).
¶ 2 ComEd now contends that the statute only applies where there is a continuous power outage caused by a single event that interrupts power to over 30,000 of the same customers for the same four-hour period and that the Commission erred in deciding that section 16–125(e)(1) applied to the “numerous dispersed and discrete interruptions at different times, in different places, and for different reasons.” ComEd further contends that it is entitled to a full waiver of liability for the July 11, 2011 storm. ComEd also argues that the Commission unlawfully precluded ComEd from recovering its cost of providing notice to the customers. For the reasons that follow, we dismiss appeal No. 1–13–2012 and affirm the Commission's decision in appeal No. 1–13–2011.
¶ 4 Several storm systems struck northern Illinois in 2011 causing significant damage to thousands of ComEd's customers. One of the storms occurred on February 1, 2011 (Winter 2011 Storm). Six storms occurred in the summer of 2011 (Summer 2011 Storms), specifically on June 8, June 21, June 30, July 11, July 22, and July 27, 2011. More than 2 million of ComEd's customers experienced a power interruption. After some customers made claims for damages resulting from the power outages, ComEd filed two verified petitions before the Commission. Docket No. 11–0588 was filed on August 18, 2011 and involved the Summer 2011 Storms. Docket No. 11–0662 was filed on September 29, 2011 and involved the Winter 2011 Storm. ComEd sought a determination of the applicability of section 16–125(e) of the Act, which provided, in pertinent part:
ComEd sought a ruling that section 16–125(e) did not apply to the outages at issue because no one single interruption left 30,000 customers without electricity at the same time. In the alternative, ComEd argued that, even if the statute applies, any liability should be waived pursuant to subsection 16–125(e)(1) because the interruptions were “[u]npreventable damage due to weather events or conditions.”
¶ 5 An administrative law judge (ALJ) held evidentiary hearings in July 2012. ComEd, the Commission's staff, and the office of the Illinois Attorney General (Attorney General) presented evidence. Respondents, City of Chicago and Citizens Utility Board, also appeared at the hearings.
¶ 6 The Commission issued its ruling in both cases on June 5, 2013. In two separate orders, the Commission determined that, by its plain and unambiguous language, section 16–125(e) applied to the outages related to the Summer 2011 Storms, as well as the Winter 2011 Storm. The Commission specifically found that “[s]ection 16–125(e) applies when 30,000 or more of ComEd's customers have their service interrupted during the same four-hour period.” Commonwealth Edison Company, Ill. Commerce Comm'n Final Order 11–0588 at 16 (June 5, 2013); Commonwealth Edison Company, Ill. Commerce Comm'n Final Order 11–0662 at 18 (June 5, 2013). The Commission rejected ComEd's argument that the General Assembly intended section 16–125(e) to apply only to single discrete interruptions that continuously interrupt power to over 30,000 of the same customers for the same four-hour period.
¶ 7 In the Winter 2011 Storm case, docket No. 11–0662, the Commission further determined that ComEd was entitled to a waiver of liability under section 16–125(e)(1) where the evidence demonstrated that the great majority of the power interruptions that occurred were the result of “unpreventable damage due to weather events or conditions.” Commonwealth Edison Company, Ill. Commerce Comm'n Final Order 11–0662 at 23 (June 5, 2013). The Commission made a similar determination in the Summer 2011 Storms case, docket No. 11–0588, with the exception of the July 11, 2011 storm. Further, the Commission found that the 34,559 customers affected by the July 11, 2011 storm, as well as the municipalities in which the affected customers resided, were entitled to file for compensation under the Act. ComEd was directed to file a confidential document with the Commission identifying the customers or areas that would be entitled to file a claim. The Commission also required ComEd to work with the Commission's consumer services division in drafting, within 60 days, written notice to the affected customers informing them that they were entitled to seek damages. The Commission further concluded that the “[c]osts incurred in providing such notice, and all associated costs, shall not be included in rate base or treated as allowable expenses for purposes of determining the rates to be charged by the public utility.”
¶ 8 On June 27, 2013, the Commission denied ComEd's petitions for rehearing in both cases. ComEd promptly appealed. ComEd filed an appeal (No. 1–13–2011) from the Commission's order pertaining to the Summer 2011 Storms in docket No. 11–0588; ComEd filed an appeal (No. 1–13–2012) from the Commission's order pertaining to the Winter 2011 Storm in docket No. 11–0662.
¶ 9 On July 29, 2013, the Commission filed a motion to dismiss individual appeal No. 1–13–2012, which pertained to docket No. 11–0662 and the Winter 2011 Storm. On August 6, 2013, this court entered an order stating that the motion would be taken with the case; on the same day the court allowed ComEd's motion to consolidate the two appeals.
¶ 11 We first address the Commission's motion to dismiss appeal No. 1–13–2012, which we took with the case. The Commission, relying on well-established precedent, argues that the appeal must be dismissed because, in the underlying decision in docket No. 11–0662 (Winter 2011 Storm), ComEd was the prevailing party and received complete relief when the Commission granted ComEd's alternative request for a waiver of liability under section 16–125(e)(1) of the Act for “[u]npreventable damage due to weather events or conditions.” In response, ComEd contends that a 1942 Illinois Supreme Court case, Inter–State Water Co. v. City of Danville, 379 Ill. 41, 39 N.E.2d 356 (1942), trumps all of the case law relied upon by the Commission and stands for the proposition that a party can appeal a Commission decision if the party is “affected” by the decision, even if not “aggrieved” by the decision. We disagree.
¶ 12 It is well established that “[c]ourts of review will not decide moot or abstract questions, will not review cases merely to establish precedent, and will not render advisory opinions.” Condon v. American Telephone & Telegraph Co., 136 Ill.2d 95, 99–100, 143 Ill.Dec. 271, 554 N.E.2d 206 (1990) (). “The courts of Illinois do not issue advisory opinions to guide future litigation, and this court has adhered to this rule with few exceptions.” Golden Rule Insurance Co. v. Schwartz, 203 Ill.2d 456, 469, 272 Ill.Dec. 176, 786 N.E.2d 1010 (2003). “Where a decision reached on the merits would render wholly ineffective relief to the prevailing party, the court, in effect, has rendered an advisory opinion.” Schweickart v. Powers, 245 Ill.App.3d 281, 287–88, 184 Ill.Dec. 376, 613 N.E.2d 403 (1993). “It is fundamental that the forum of courts of appeal should not be afforded to successful parties who may not...
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