but gentleman for the balance please reserve whatever time from the twenty that you want for your rebuttal you understand ok the good morning your honors may please the court my name is john amarilly oh and i represent the illinois competitive energy association i see it and for purposes of oral argument the illinois industrial energy consumers as well i would like to reserve two minutes for a lawyer on your honor's this case concerns the illinois commerce commission's approval of the illinois power agency's twenty thirteen electricity procurement plan which states that the commission has the extraordinary and unprecedented power to compel privately owned competitively operated alternative retail electric suppliers called aries to purchase electricity from another privately owned facility in the future john a planned retrofitted clean coal power plant the order also says that for reasons of administrative then alternatively use that same newly claimed power to force you to ladies to contract for future tense energy on aries behalf the commission in fact has the power to do neither with the sole exception of the initial clean coal facility which does not exist aries are by their very nature free to contract with whomever they choose areas cannot be forced into contracts with facilities like future john nor can the commission of void that fact and the express limits of its own power by compelling utilities to contract an aries behalf before i reach the merits of those questions or honors i just like take a brief moment to address the standard of review which was disputed by the parties in the briefing the standard of review here today is unquestionably did no vote this court was absolutely no deference whatsoever so the agency's interpretation of either the public utilities act or the  basic chevron analysis courts will defer to an agency's interpretation of a statute only where that statute is ambiguous the language of both statutes here is very clear both sides actually agree that this case can be decided on the plain language of the statutes the fact that the parties disagree about the meaning of that language does not render either statute ambiguous however because the i c seasons or petition of the statutes is patently and reasonable it's unreasonable because  relies on ignoring expressly defined terms in both statues terms a legislature took the time to define for us and the i c c is not free to ignore the first of those is that appropriate plan which really sets the table for this entire dispute the legislature decided in its wisdom and as a matter of law that performance plans do not apply to aries because their central planning devices and the legislature was attempting to create a competitive market in illinois the legislature is very clear on this point section one dash five of the i p a act legislative findings and declarations states that is the purpose of the i p a as an agency to develop electricity procurement plans agency to quote develop secure plans for eligible retail customers of public utilities again neither aries nor their competitive customers are mentioned the public utilities act section sixteen dash one eleven point five eight provisions relating to procure men's says the same thing it says one procurement plans are for eligible retail customers to eligible retail customers are the customers of public utilities and three areas customers that is competitive customers quote shall not be included in particular mint plan requirements and quote the legislature left aries out of the planning process for good reason again it was creating a competitive market and it wanted to move away from the kind of top down control that the i c c is attempting to assert here another term that the its interpretation of the relevant statutes is found in the retrofit provision of the clean coal portfolio standard specifically section one dash seventy five the five of that statute which says that the i c c may approve utility sourcing agreements utility sourcing agreements i repeat that because it is a doubly if not more defined term in both statutes utility is the find in section one dash ten of the i p a act and section three dash one hundred five of the public utilities act to express the excluded areas and vice versa moreover the term utility sourcing agreement the phrase of the legislature is used here and the term area sourcing agreement the phrase the legislature did not use or separately and exclusively defined in section one dash ten of the i p a act so when the legislature was using the term utility and the term utility sourcing agreement was using terms that it explicitly defined multiple times to exclude areas which the i c c now seeks to include with this order the low just a very bright line that the i c c now seeks to ignore or at the very least alert and that is i would submit your honour's a very slippery slope to ignore explicitly defined terms by the legislature and to ignore the difference between private entity and the public and city moreover the i c c relies on the certification provision for aries and the public utilities act that section sixteen dash one one five eighty five of that statu which they said applicants will source electricity from clean coal facilities in amounts equal to percentages set forth in the clean coal portfolio standard but that of course speaks only to the amount of clean coal electricity that areas have to purchase we c de that areas have the obligation to purchase clean coal at tricity if it's available on the market but we have the right to meet that obligation on our own terms the legislature left the decision of how to reach that mark to aries business judgment that is an inherent part of the competitive market it goes to the heart of what carries our this statute does not say that areas must enter into sourcing agreements with retrofitted thing coal facilities much less facilities of the  all barry's shell execute sourcing agreements to source electricity from the initial clean coal facility so there you have an express statement a clear statement of a contracting requirement which sixteen one one five d if i remember correctly that is not the kind of facility that we're talking about here today i just use it for to draw the comparison finally the i c c falls back on its applied administr authority it says that if it doesn't have the express authority to do what it wants to do which it plainly does not that it still has the implied authority to do this however your honour's is well established that agencies like the i c c have no common law power and he claimed power must find its source in the statutes and those statutes cannot be interpreted in a way that's inconsistent with their express provisions here that is exactly what the i c c is doing by norrin the definition of utility b granted that is the power to compel agencies to contract in the statutory scheme from which we might reasonably infer that the i c c has the power that it claims here the only similar power again relates to the initial clean coal facility and the very importantly your honour's the legislature reserve that power to itself it did not delegate that power to the i c c it would be a very unusual reading of the statutory scheme if one were to conclude that the legislature chose not to delegate that narrow or that more limited authority to the i c c but somehow by implication it meant to delegate this considerably broader power to the agency if you want to be minutes yes on this issue just to conclude now thank you your honor i would also add just very quickly that the implied power is not a trump card it cannot be used to ignore the expressed terms of the statute which is exactly what the agency's doing thank you three good morning they please the court express you want to use as stake screws you all sure use the expression of one thing is the exclusion of another chris townsend on behalf of the coalition of energ there is one and only one situation in which they are annoyed commerce commission has been given the statutory authority to take the extraordinary step of compelling alternative retail electric suppliers to enter into a electricity from the initial clean coal facility unquote and that such an specifies that the sourcing agreement must include specific terms compel retail suppliers to enter into specific contracts with any other clean coal facilities schism and so would you please be seated people in the rows move over make room for this gentleman excuse me please proceed thank you your honor everyone agrees that the retrofitted clean coal facility known as future john simply doesn't satisfy the statutory definition of the initial facility as if it were initial clean coal facility should be more your honor may please the court my name is matthew price on behalf of the commonwealth edison company if you're taking how much time it minutes and i'd like to reserve two for a bottle please receipts or this case is a simple and straightforward case regardless of whether the commission has the power to force the alternative retail electric suppliers into their own sourcing agreements with future john and that's an issue that my colleagues argued the con ed takes no position on it cannot force com ed to enter into agreement to procure power for areas customers for other companies customers the stature descriptor clear that the commission can require con ed to procure power only for com ed own eligible retail customers and that's a statutory defined term wh the customers the small commercial and residential customers that still continue to purchase electricity supply from con ed rather than having chosen to enter a competitive market but just as they did in the old days when the before the illinois general  the general summary was concerned to make sure that those customers were getting a good deal on the electricity that they were buying from combat and so that an act of this entire procurement process uncreative the i p a and created the spectrum it planning process they were to make sure that these eligible retail customers  we're getting a good deal on electricity that's the purpose of the procurement planning process and so what the commission has has done here is taken that process which was an active for a very specific and narrow legislative purpose and is trying to use that process to to do something that the process was never intended to do which is to force con ed to buy electricity for the competitor we tell suppliers customers that's not why the the procurement planning process was and acted and nothing in the statutes governing that process allowed the commission to do that and that's been clear by the plain text of the statute if you look at section sixteen deaths from eleven point five of the public utilities act it states an electric utility that serves at least one hundred thousand customers in illinois that's con ed short procure power and energy for from monopolizing or putting a corner on the market has to to eliminate the source of energy to the alternate retail will come it doesn't control any energy climate this is simply an electric distribution marketplace and buy from from right in her sources supply is limited to buy resale only that which will service the cost so that they can corner the market to the only aspect of its business that earns a profit from is the service of distributing electricity that's why are so it has no interest in core in the market and the purpose of the provision was to make sure that you know when you're dealing with purchasing electricity supply for the older we talk consumers there aren't the competitive marketplace pressures that would exist for the areas and so the ip act was set up and if you look at the ip act of a legislative findings it's very clear the general assembly wanted to make sure that in this regulated area of electricity supply that holdover from the old system the competitors were getting a good deal and so the ip is supposed to supervise that permit process and that's while the statutes are limited by their plain terms to be eligible retail customers to come out now that the commission seems to draw its authority from section one dollar seventy five fifty five of the ip act this is the retrofit provision that the briefs refer to and the commissions argument seems premised on the notion that this obsession is some sort of freestanding grant of authority with respect to may propose to the agency so remans with utilities and alternative electric suppliers but in another sentence in that same section says the agency in the commission may approve any such utility sourcing agreements and it doesn't mean the about the error is in a in the approval of the commission and i'm concerned on the one hand you know it's tempting to say oh it's just an ambiguous section on the other hand it's tempting to say it's not ambiguous this is what the legislature definitely meant they had the chance to put in areas in that second sentence and they  didn't if they if they didn't put in the areas on purpose but the areas are still required to buy clean coal they can buy through any any from any source in the free market they don't have to buy it from anybody that's required in any illinois law lot bills to take care of them and now the commission sort of arbitrarily has said to us oh and by the way you're going to have to take care of all the series customers to even though it is going to get paid for that am i wondering if we didn't miss an opportunity that it gives the commission authority to expand according to com and its legislative mandate away from the public the only power agency act which controls only the utilities so the commission although it does have feel free to use less if you would like ok thank you ron it may please the court good morning tom stanton on behalf of the illinois commerce commission this case involves attempts by two groups of regulated entities to resist obligations under the clean co coal facilities including retrofit clean coal facilities claim that the commission lacks the authority to require them to enter into sourcing agreement to fill that empty on the other hand you have the utilities here commented who despite agreeing with the commission that the costs of the future gen project should be shared by both utilities and aries it competitively much matter they claim that the procurement plans are limited to only its eligible retail customers and therefore the commission is prohibited from approving any fis fair and reasonable cost recovery mechanism every covers the costs of the future and project from all its retail customers and even group has met its burden here to show that the commission's order is a lawful and therefore the order should be affirmed like a first address public utilities at that section unambiguous lee requires that the very source electricity from clean coal facilities including include call facilities quote other than the initial clean toefl silly that sixteen one fifteen d of clean coal sillies and therefore the areas required to source electricity from future gen are retrofitted clean coal facility up to an amount that doesn't exceed cost base benchmarks that the commission approves each year second is the retrofit covering electricity generated by retrofit clean coal facilities that were previously owned by illinois utilities it further provides that these new owners of the retrofit clean coal facilities they may propose to the i p a sourcing agreements with both utilities areas and then a proviso the ip in the commission may approve the source of its act together these provisions demonstrate that the commission is authorized to bind carries its counterpart as to the future gen sourcing agreement and the power to approve includes the reconcile why legislature would somehow deny the commission and sonar and the i p a d authority to approve those agreements that the statute specifically says that these new owners can propose to electricity from clean coal facilities now the air is also claimed to find support for their position in principles of competition and the development of competitive markets here in illinois but why in the name of competition with the legislature pose a clean coal requirement and the commission to approve sourcing agreements with both utilities and berries in additional areas similar focus on the goal of competitive markets ignores other legislative policies and goals regarding clean coal that your city and the source sourcing of clean coal the tricity is a legislative mandy this is what the legislator want legislature wanted a source when courage the use of advance clean coal technologies that capture and sequester carbon dioxide emissions to advance environmental protection goals they also sought to include elect city generated by clean coal facilities in a diverse electricity portfolio and more generally the legislature established the goal at twenty five percent of the electricity used in illinois shelby generated by cost effective clean coal facilities by january first twenty twenty five of the area's position that they don't have a responsibility to source clean coal electricity that undermines those policies and goals  legislature was clear that both the aries and the utilities were to be responsible and what about when they get to the rhetoric when we pick sure the the initial clean coal facility is rather unique in that the legislature established a detailed comprehensive s agree the future gen select just is going to be more expensive than other comparable can't clean coal available in the market understanding that this is the first technology of its kind so there isn't anything really comparable to future gen anywhere else in the country at this moment as so so the fatal flaw in the here is position here is their creation of an artificial distinction between voluntary and involuntary source agreements and i see his reply brief of pages eight and nine they agree that the commission is authorized to approve sourcing agreement that areas voluntarily enters into a future chip but they claim that the commission lacks authority to prove want to guess their will that's the real issue they don't disagree that they can voluntarily enter in and the commission can approve it they're just saying that you can't force us to do it but that's not correct there's no voluntary involuntary distinction in the retrofit provision and that actually that flatly contradicts their proposed interpretation of the term utility sourcing agreement right for the term utility sourcing agreement means only utilities aries where in section one seventy five eighty five is this limited authority for the commission to prove only voluntary sourcing agreements the answer of course is that the retrofit provision creates no artificial distinction as the pages eight nine and even ten of their repl so the approval of already in the record provision applies to sourcing your games with both utilities and aries just as the commission said it did so turning to comments appeal having found that it had the authority to approve a sourc utilities in the aires the commercial turn to the issue of cost recovery so the rest of the retrofit provision requires that a sourcing agree its contract price for electricity has to be set on a cost of service basis now what that means is that the commission sets  revenue requirement to allow future gen to recover its cost and then the commission determines how those costs are going to be recovered this is a great design cost recovery issue the general assembly has given the commission broad discretion with respect to rates how costs should be recovered from customers the commission could have required the utilities and seventy or so areas to each enter into their own sourcing agreement with future gen but that would be less efficient create additional costs that would ultimately be passed on to customers and offer a less would be the same well actually under the sourcing agreement there's no physical delivery of lecture receipts to any of these suppliers so comment is not future jones output is not physically delivered to calm his not physically deliver to any of the aries what happens is since the cost of service contract futures ends in titles which cost what they're going to do is they're going to sell their electricity into the midwest independent system operator centrally nonprofit organization that the statute that they want to rely on for the relatively retail customers and they say they point to the following restriction it's in section sixteen one eleven dot i pay so see what the definition of eligible retail customer and they say quote those customers that are excluded from the definition may not have any impact on the low requirements the not electricity the load is the amount of tricity that's used by the customers because it's not as i mentioned it's essentially a financial trek transaction it doesn't produce any incremental lo what happens is they're just agreeing to pay the cost whatever's left over after that electricity is sold into the market will get the revenues that future gen receives will just reduce the cost and in that figure will be distributed to the customers through a competitive we don't chill charge so that's an important point of the load requirement because that's the only restriction that comment points to to show that we can't do the cost recovery mechanism that language in the retrofit provision and i'll comment also points to the rate cap in section one seventy five eighty two but that's not a limitation on the commission's power to adopt cost recovery mechanism excuse me for interrupting two minutes clean coal mandate from the legislature they wanted to promote environmental goals but they they had the commission of the i could do this during the during the procurement process but it is fundamentally different from what  it procures electricity for eligible retail customers and that he pushes for the reasons discussed here in our briefs the commission requests that you want to be affirm thank you your honour's counsel for the i c c let off his argument by saying that the term utility sourcing agreement is not expressly defined i would direct the court's attention to section one dash ten of the i p a act that's twenty i also yes three eight five five slash one dash ten where it specifically defines sourcing agreement saying sourcing agreement means one in the case of electricity electric utilities rather an agreement between and then it goes on with a rather lengthy explanation and then to sourcing  nt means in the case of an aries and then again it goes on with a rather lengthy explanation of what that means the point is that those terms are specifically defined in the statutes and their separately and exclusively define the the retrofit provision does say that the i p a has the ability to propose and consider sourcing agreements between aries and the owners of retrofitted clean coal facilities and that makes perfect sense in designing a particular plant and in determining utilities needs and the needs of their eligible retail customers and what energy the i p a expects to be on the market in the future the i p a obviously has to consider what the market is and will be doing areas now make up eighty percent of the retail market so of course they can look out the window when they're deciding what utilities needs are i don't think those two provisions are inconsistent and to the extent that they could be inconsistent  legislature's expressly defined terms must trump further counsel for the i c c said that aries if there is a position that we don't have the source clean kollek tricity not twenty minutes ago i conceded that we do there's no question we have the source clean coal that tricity the point is we can do it as private entities operating on a competitive market on our own terms that most of the very heart of what an aries is what you didn't hear counsel for the i c c say or rather doing is quoting much of the statutes and there's a reason for that they're relying on their characterizations of those statues which respectfully are inaccurate i think when you look to the language of the statutes themselves and they express the defined terms you'll see in so doing saddling illinois ratepayers by the way with over six hundred fifty million dollars that future gen needs and private equity to get going it doesn't have the power to favor a private seventy five d three and this is complicated but it's an important point if you look at one seventy five d three that would appear to apply only to the initial claim close facility but the definition of sourcing agreement  terms and among those terms set forth in d three b little three is the fact that the utilities obligation is limited to its share of the state's retail wrote in other words the general somebody thought about this but thought about what are you totally sourcing agreement should  we're going to recess for ten minutes