Pembroke Envtl. Just. Coal. v. Ill. Com. Comm'n

• Docket Number: Appeal No. 3-22-0108
• Decision Date: 12 April 2023
• Citation: 228 N.E.3d 834
• Parties: PEMBROKE ENVIRONMENTAL JUSTICE COALITION; Blacks in Green; Green Power Alliance; and Environmental Defense Fund of Illinois, Petitioners, v. The ILLINOIS COMMERCE COMMISSION; Northern Illinois Gas Company, d/b/a Nicor Gas Company; The County of Kankakee, Illinois; and the Village of Hopkins Park, Illinois, Respondents.
• Court: United States Appellate Court of Illinois

228 N.E.3d 834

2023 IL App (3d) 220108

PEMBROKE ENVIRONMENTAL JUSTICE COALITION; Blacks in Green; Green Power Alliance; and Environmental Defense Fund of Illinois, Petitioners,

v.The ILLINOIS COMMERCE COMMISSION; Northern Illinois Gas Company, d/b/a Nicor Gas Company; The County of Kankakee, Illinois; and the Village of Hopkins Park, Illinois, Respondents.

Appeal No. 3-22-0108

Appellate Court of Illinois, Third District.

Filed April 12, 2023

Petition for Review of Orders of the Illinois Commerce Commission.Docket No. 21-0698.

Emma Clouse and Aneel L. Chablani, of Chicago Lawyers’ Committee for Civil Rights, and Naomi Davis, both of Chicago, and Christie Hicks, Environmental Defense Fund, of Palos Heights, for petitioners.

Brian J. Dodds, Robert W. Funk, and Thomas R. Stanton, Special Assistant Attorneys General, for respondentIllinois Commerce Commission.

Clifford W. Berlow and John E. Rooney, of Jenner & Block LLP, of Chicago, for respondentNorthern Illinois Gas Company.

No brief filed for other respondents.

OPINION

JUSTICE BRENNANdelivered the judgment of the court, with opinion.

¶ 1 Following the enactment of legislation designed to facilitate the expansion of natural gas distribution services to Pembroke Township in Kankakee County, Northern Illinois Gas Company, doing business as Nicor Gas Company(Nicor), filed a petition with the Illinois Commerce Commission(Commission) seeking a certificate of public convenience and necessity (CPCN) authorizing it to provide such services.Several interested organizations, including Pembroke Environmental Justice Coalition, Environmental Defense Fund of Illinois, and Blacks in Green¹(collectively, Intervenors), intervened, arguing the petition should be denied.The Commission ultimately granted Nicor’s petition and awarded it a CPCN; it subsequently denied the Intervenors’ application for rehearing.The Intervenors filed a petition for review with this court, arguing the Commission misapplied various provisions of the Pembroke legislation and made findings that were insufficiently supported.For the reasons that follow, we affirm.

¶ 2 I. BACKGROUND

¶ 3 The following is derived from the record on appeal.In August 2021, the Illinois General Assembly enacted the Pembroke Township Natural Gas Investment Pilot Program Act(220 ILCS 85/1 et seq.(West Supp. 2021)) and amended the State Finance Act (30 ILCS 105/5.935(West Supp. 2021) and the Public Utilities Act (Utilities Act)(220 ILCS 5/8-406, 8-406.2(West Supp. 2021)) to create what we will refer to as the Pembroke Pilot Program.SeePub. Act 102-609 (eff. Aug. 27, 2021).Pembroke Township lies within Kankakee County.Prior to enactment of the program, the Chicago Tribune reported that Pembroke Township residents relied on propane, wood-burning stoves, and electrical space heaters to keep warm.John Keilman, Residents of Impoverished Pembroke Township Live Without Natural Gas Heat.Now Jesse Jackson Is Joining the Push to Bring a Pipeline to the Community., Chi. Tribune (Dec. 16, 2019, 7:42 p.m.), https://www.chicagotribune.com/news/breaking/ct-pembroke-nicor-gas-jackson-20191217-31xvyxklwvgshfbxznbh3t5gyy-story.html [https://perma.cc/3K85-KYS3].In 2019, Mayor Mark Hodge of the Village of Hopkins Park(which lies within Pembroke Township) reached out to community leaders to help secure access to natural gas in the township by brokering an agreement between Nicor and state agencies, describing natural gas access as "critical for economic development."Id.Dr. Rodney Alford, a physician who previously worked in the community, opined that bringing natural gas to Pembroke Township was " ‘more of a health issue,’ " while Mark Baines, Pembroke Fire Protection District chief, explained that malfunctioning electrical space heaters cause fires in the community, especially in mobile homes.Id.

¶ 4 In response to the outreach, Reverend Jesse Jackson Sr. sent a letter to Nicor president Melvin Williams.Jackson explained that Pembroke Township residents "lack heat and access to basic necessities" and "[e]nsuring access to utilities like natural gas, safe drinking water and broadband will help fight poverty and build this community."Jackson continued:

"These families have been subjected to substandard and inhumane living conditions, forced to use energy products that often cause fires and health issues from smoke or burns.***

*** And while policy and regulatory solutions are being considered in the United States at the federal, state, and local levels, we must not forget those communities that lack access to natural gas—an energy product that is much more clean and green than what they are currently using."

Accordingly, in 2020, Hodge, Jackson, the Rainbow Push Coalition, Illinois State SenatorPatrick Joyce, and other local and state leaders formed a steering committee to bring natural gas to the township.Senator Joyce sponsored the bill proposing the program.

¶ 5 Shortly after the creation of the Pembroke Pilot Program, on September 16, 2021, Nicor filed a petition for a CPCN pursuant to the recently enacted section 8-406.2 of the Utilities Act(220 ILCS 5/8-406.2(West Supp. 2021)), seeking to construct, operate, and maintain approximately 34.7 miles of new gas distribution main and related facilities in portions of Pembroke Township.The petition stated that residents of the Village of Hopkins Park had expressed interest in receiving natural gas service.The petition also sought extension into St. Anne Township, for which Nicor already had authority.Several interested organizations intervened.

¶ 6 In its petition, Nicor asserted that it had surveyed 523 prospective customers in the Hopkins Park area to gauge interest in converting to natural gas and received 279 responses, of which 270 expressed interest (97%).Its proposed project would cost an estimated $11.9 million, less than the upper limit allowed by statute, and was the least-cost means of providing the proposed service.The project would include "construction and installation of approximately 13,500 feet of 8[-inch] steel main, 37,200 feet of 6[-inch] polyethylene (‘PE’) main, 40,000 feet of 4[-inch] PE main, and 92,300 feet of 2[-inch] PE main, plus services, meters and regulators."Nicor stated it was the only public utility with gas facilities near Hopkins Park with sufficient available capacity to meet future needs.

¶ 7 Nicor further provided that its project would be installed in phases, would require acquisition of enumerated permits and easements, would "not result in the permanent conversion of any cropland, pastureland, or forested land to non-agricultural use," and was necessary and appropriate for Pembroke Township.Nicor stated it could finance the project without significant adverse financial consequences to customers, noting its "sound financial condition" and "history of strong investment credit ratings."Further, it could maintain reliable and efficient service while supplying gas from "existing gas supply contracts and from existing underground storage capacity."

¶ 8 Nicor submitted a declaration by Lewis ?.Binswanger, vice president of external affairs, stating that Nicor held two public meetings in the community as required by the Utilities Act.The declaration provided, in relevant part:

"6.Due to limitations on in-person gatherings necessitated by the ongoing COVID-19 pandemic, Nicor Gas held two virtual meetings regarding the Hopkins Park main extension on September 8 and 9, 2021 that were scheduled from 9:30-11:00 a.m.

7.Nicor Gas provided notice of these meetings through multiple forms of communication, including an informational letter mailed to more than 500 local addresses, informational fliers delivered to residential areas in and around Hopkins Park that were accessible by foot, posted signage across Pembroke Township (printed in both English and Spanish), a dedicated page on Nicor Gas’ website (www.nicorgas.com/pembroke), and social media posts on the Village of Hopkins Park Facebook page.Exhibit A to this declaration is a group exhibit containing copies or images of certain forms of the notice provided.

8.At the public meeting held on September 8, 2021, two individuals provided comments, and at the public meeting held on September 9, 2021, ten individuals provided comments.

9.At both public meetings, I spoke on behalf of Nicor Gas to provide an introductory overview of the Hopkins Park main extension.In addition, a moderator called upon individual attendees to provide comments in the order in which they expressed an intention to speak or to provide written comments.Nicor Gas considered the public input from these virtual meetings in connection with the Hopkins Park main extension."

Nicor also submitted testimony from Marie LaPorte, director of customer solutions, who detailed efforts by Nicor and the steering committee, and an exhibit indicating that 19 steering committee meetings took place between 2020 and 2021.Various Nicor employees and members of the Rainbow PUSH Coalition, as well as Senator Joyce and other local officials, were listed as invitees to the committee meetings.

¶ 9The Intervenors each filed verified petitions to intervene that were granted.The Commission and the Intervenors filed direct testimony, and Nicor filed rebuttal testimony.Nicor and the Intervenors filed cross exhibits; the Commission filed declarations; and Nicor filed declarations.The administrative law judge conducted an evidentiary hearing on November 9, 2021.The Commission, Nicor, and the Intervenors thereafter filed briefs and replies.The thrust of the Intervenors’ opposition was that Nicor failed to satisfy the statutory criteria because it did not establish it could safely manage the proposed project, it did not consider costs to prospective customers, and it did not properly consider community input.

¶ 10 The Commission entered its final order on January 5, 2022, granting Nicor’s request for a CPCN.The Intervenors filed a ...