good morning madam chief justice your honor may please or my name is jonathan emma really oh and i represent the illinois competitive energy association and the illinois industrial energy your honour's as you know the subject of this dispute is future gen two point zero a planned clean coal power plant that for at least the next several decades is expected bruce produce energy at a price far in excess of the going market rate in fact at least five times the current market rate and i mention that point because i think it's important because in very practical terms explains why we're here today illinois is a competitive energy market and in any competitive market no one is going to pay five dollars for a commodity when you can be a one dollar exact same  because of that basic economic fact the future gen lyons was having difficulty attracting the six hundred fifty or seven hundred billion dollars that it needed to get started out of its building and no one wanted to buy their overpriced electricity and their potential investors recognize them so they went to the commission and they went to the i p o and they asked them to force you to look at alternative retail electric suppliers areas to buy all of their electricity and to be locked into that is more contracts up against their will now from future times perspective that of course instantly solve their demand problem by mandating into existence a false market for  simultaneously asserts potential investors that they would turn a profit on the project because that profit would be guaranteed out of the pocket books of illinois ratepayers he had a mission to redo that plan with some modifications  action one dash seventy five the folly of the idea this is what the parties call for their authority to force areas into those contracts and there is already that utilities act as their agents under the alternative plan in that regard the problem of course is that the retrofit provision doesn't give the commission those powers and there's a reason neither the i p a act nor the public utilities act gives the commission those powers because the legislature very clearly  market in the one of a market free of exactly the kind of top down command economy decision making that the commission seeks to impose here so what does retrofit provision actually say well it says that the commission exclusively defined in the statues so this means that when the legislature was using the term utility sourcing treatment in the retrofit that it was using a term that it expressly defined multiple t regulation that are simple but this really is one of it's a fundamental thing the difference between utilities and areas and that is ultimately what this case can be boiled down to the legislation by controlling firms and the commission is excluded from the terms electric utility and public utility but not the generic  i think it's an absurd argument your honor no one contests that utilities are public utilities electric utility or the rather the other way around public utilities and electric utilities are utilities when the commission makes that argument provision where the term utility is used to refer to an aries which is what they're trying to do here except of course in the retrofit provision we're debating in fact if you look at the statute as i'm sure you will your honor already have the standalone term utility is use to the i p i in the commission that would be a logical if the legislature didn't also give them the power to will those contracts into existence but the commission your honour's if you read their briefs closely they never explain clearly why that's the case why that would be illogical and there's a reason for that it's not a logic this isn't an ambiguity there's no inconsistency here this isn't a case of legislative oversight it makes sense that the statute reads that way and it makes sense for at least bargain entered into between two parties here would be the owner retrofit still areas we don't have that are second it makes perfect sense for the commission to consider such agreements if they're ever actually freely reached because and mission to do their jobs better in this context around their job is very clear is that helping till it is plan for the power means of their eligible retail customers and it helps them do that because it helps them analyze basic market conditions i think it's worth remembering on this point your honour's that areas now make up over eighty percent of retail market so how can the i p a in the commission be expected to do their job and regulate the remaining twenty percent for utilities and they're eligible retail us interest if they don't look at what the other eighty percent of the market is doing they can't so there's really no inconsistency here in fact the sest for language is entirely consistent with the legislation stated goal of so that brings me to my next point which i think is really important to understand is the fundamentals of what we're talking about today for chairman plans were never meant to regulate areas as comment argued before the  procurement it made that clear in its legislative findings in declarations section one dash five it made that clear in the section laying out the i p s journal powers section one dash twenty it repeated it again in the eligible retail customers of utilities it made no similar statements anywhere in the statutory scheme regarding areas in their competitive swimmers even though i should point out at that point aires had already existed for several years and yet here despite all of this the ip in the commission included areas and their competitive customers in the current plan against their will now i should point out that their argument on this point is shifted a bit originally they argue that the because the legislature didn't specifically forbid them from using their kids to regulators and because the legislature didn't explicitly forbid them from forcing years into contracts with future gen then they're free to do so but is this court is all too this one when we're dealing with a statute that's in derivation of the common law the public utilities that agencies cannot lay claim to an implied administrative power unless they can show first that it doesn't contradict the expressions of the statute here finding my power we do exactly that because of legislatures use of the term utility sourcing agreement and second agencies can't lay claim to an implied power unless they can show that it is similar in fine to a power that was expressly granted by the legislature be said that the granting granting the mission are to leave center in fact really can't be described as similar in kind of the power that we're discussing here because utilities and areas are fundamentally different in that it's comparing apples and oranges utilities it must be remembered are the last remnants of that old vertically integrated system where they controlled everything the generation the transmission the sale of it into your homes and businesses areas are the exact opposite the private independent companies operating on on the competitive market their only job is to supply electricity on a competitive retail basis they sell it to you in your home they sell to you as so unlike areas it makes sense for utilities to be more heavily regulated because they own all the hardware the wiring that brings electricity into our homes our businesses areas don't you kill us are critical meetings of why areas are so they're completely different types energies with completely different roles in the competitive system what's primarily at issue here isn't the relationship between power generators and utilities it's a relationship between generators and aries so we're talking about powers that are only example of that that we can find in the entire statutory scheme relates to the initial clean coal power plant and we should be said that the initial clean coal power plant was a completely separate project that was to be set up in taylorsville all the parties agree future  not but when it was discussed in the initial power plant the legislature was very clear expresses stated that areas would be required to enter into sourcing agreements with that facility showing us that when the legislature hear we don't believe this case is moot your honor because the suspension of federal funding is just that it's a suspension both future john and comment agree with us on this point the commission doesn't take a stand on it  but that decision can be reversed at any time in fact as we speak future events lobbyists are lobbying congress hard for exactly that outcome as long as a future general lyon's exists and these orders are in place and they are still in place this case is not moving but even if the court finds that it is moving believe that the court should consider these issues and under the public interest and just a couple of quick points on that there's no question that this case presents a matter of public  this case presents the questions that very station and first impression but even more directly these orders impose as i said a six hundred fifty or seven hundred million dollar obligation on the rate payers of illinois to finance it rather  guarantee private investments future tense investors a six hundred seven hundred million dollar obligation on the people of this state is unquestionably but that may or may not occur i mean that there is no future also though i think maybe what your question is getting at is is this case likely to recur or is this issue likely or what are our current all right but i think it most the power to regulate areas in this manner we can guarantee that they will do it i don't think it's reasonable to expect the commission to act like cincinnatus returned with flowers or george washington honor but there's nothing stopping future john from going back to the drawing board and figuring out other financing what they can certainly do that a decision from this court would simply mean that they can do it in a way that subjects areas to the requirement planning power of the commission and in a way that puts a seven hundred million dollar in direct obligation on the backs of illinois rate payers they could always go to the general assembly and ask for seven hundred million dollars now i know given the current environment that's a lightly but it's a possibility they could ask local stations some kind of box there are a number of other ways that future trying to go about this we're just saying that this one way is impermissible council you up and response to justice i said these orders remain in place what is the effect of those orders now today that the effect of the orders right now is to bring areas within the procurement planning power of the commission i think that's one of the most direct an important impacts now it may but not many more specifically in the context of why this is not vote what's the effect of the order i would repeat the same answer intended for the commission to control how areas private companies operating in the competitive market induct their business and there is surely nothing to say much less establish that the legislature intended to invest the commission with the power nearly the guaranteed certain rate of return for favored projects private investors agree with us that any of these points are wrong and the orders must be overturned if there is a result of the picture i mean the comment customers would be hit w silly so in this regard the planning process is expanded to include the aries and their customers and this can be seen in the first few sentences of section one seventy five d for one seventy five d five s the retrofit provision so the first sentence the legislature directs the commission and the ip to consider sourcing your claims with which are very clean coal facilities and it said it's a shall consider and without limitation and it becomes clear in the second sentence when legislature authorized these new owners of these retrofitted clean call facilities to propose sourcing agreements with the utilities and the aires required to comply with section sixteen d one fifteen so it's planning process so when council says that areas are not to be included as part of the preplanning process and that section one seventy five the five first two sentences which are right there so what sort of proving the twenty thirteen for sure of plan the commission determined that it has the authority to order the areas to enter into the approved future gen sorcery two provisions of her first as the every sourcing obligation section sixteen one fifteen d five of the public utilities act requires that every this with aries and in light of the aries section sixteen one fifteen the five sourcing many the commission reasonably determined that it could be part of the areas to enter into that proof if you chose sourcing them to fill that mandate now  because they don't have the authority to do with themselves so the commission crick correctly rejected the statutory construction at the inclusion of one term necessarily excludes other possible terms and application of that rule would defeat the legislature's intent here looking at the statutory scheme as a whole the legislature intended that both utilities and aries would source electricity from a cost effective retrofitted clean coal facility and share in the costs of its serves it just doesn't make sense that the directive of the general assembly that was in reference when we're talking about important for the poor to understand that the the orders issued here resulted in a contract and between con ed and future john there's an ongoing contractual obligation the kind that now house to purchase electricity from future future gen and i obligation so this is really the court's only opportunity to address the legality of that contractual obligation and the commission orders that that resulted in in the contract and so for that when a future gen doesn't go  well i agree with roger that there's a possibility that the the case need to get become moot in the future but at this moment the case is not moot there's an ongoing controversy there is an actual contractual obligation that exists in the here and now and this is the court's one opportunity to address  that contractual obligation which is resolution of this appeal critical to the ability of the clients to attain replacement funding i have no knowledge of that that's really a question that is i think a perfectly answered by the  and small commercial customers who are least able to afford the billing rhesus that would result from a contract future gen in particular if they were forced to bear the entire cost but my brother council it helen said that there would be no cost increase that's not right the  rate capture actually higher about one third higher than the increase in in bill costs that's expected under the current arrangement or comment would be able to recoup its costs your competitor the usual charge of comic customers would experience a significant increase above the current increase if they were not able to recoup their costs through the competitive neutral charge the second point i want to make is that designing to compel beautiful cars was well within the commission that's under the subsection d and so the commission had the power to craft a cost recovery mechanism that will would allow comment to recover its costs and the compelling useful charge that the statute doesn't say what that cost recovery mechanism must look like it left wide discretion to the commission to design using its expert judgement in appropriate cost recovery mechanism at the competitive neutral charge also within that discretion and indeed competitive trial is really mandated by the statute and we explain this argument in detail on pages twenty four three twenty six of our brief it's complicated because the way the statute is drafted but i don't like the court to look at those pictures of our brief and trace through the definition of sourcing agreement and the kinds of terms that must be included in a source agreement to see that the legislature did not want to impose disproportionate costs on comments eligible retail customers and the final point i'd make is that that's consistent with the general simplest purpose as a whole in ensuring that we tell a lect competition will still be equitable to all customers and we have a project like your agenda which is designed to bring environmental and fuel diversity benefits to the state of illinois a whole from which all residents will benefit it's equitable that all residents should share proportionately in those it please the court counsel my name is kyle berry and i represent the future in industrial alliance first as to the question of movements like write a brief update since the briefing on the moon is question the alliance has entered into a grid interconnection agreement and paid made payment pursuant to that over two hundred thousand dollars they've also renewed the option agreement to purchase the power plant in varied ocean illinois along the illinois river from amarin so they continue to pursue the project they have also continue to engage in discussions with the administration in washington and members of congress to determine how to best protect the dio you funding for the project of course there's no guarantee that that will happen the the money is still there it hasn't expired yet and they're they're working very vigorously on trying to protect it we will of course let you know let your owners know immediately if something changes but as as of right now the project remains a going concern and  it remains a going concern because it's eight very significant project illinois was selected as the site for this project after a national competition it's it's a first of its kind near zero emissions power plant designed to show that coal can be used in environmentally friendly way to generate electricity construction began on the project last august and a lot has been done since then before then over two hundred million dollars have been spent and it's significant to i think to emphasize the economic benefits that will that illinois will enjoy if the project gets built as you a by study showed twelve billion dollars in economic impact in the state of illinois one thousand plus construction jobs during construction period close over one hundred permanent jobs just to summarize because i've got to close here this isn't as the clean co portfolio standard was and design for this project the project version two point zero didn't exist when the clean coal portfolio standard was created and the retrofit provision because it switched from a greenfield project a new building from scratch to a retrofit of of the married osha power plant the retrofit provision was perfectly set up for this project and it serves as an invitation for a project like this to apply for the benefits on the retrofit bridge in which is exactly what future gen did in the end the commission looked at the statutory scheme which is complex involves both the public utilities act and the only power read see act and it interpreted in a way that made the statutory scheme work it made it gave effect to the clean coal portfolio standard to encourage the development of a project and in terms of making the who who the rate payers are  to support the project the the commission did so and competitively neutral way which is what the rate relief law is is has has its foundation in making sure that the discriminates against out of state projects it's facially neutral there is no out of discrimination and the harm here is entirely hypothetical and given the state's ability noice investment the project i think can be seen parts of or needs to comply with those standards but there is a very big difference there is a world of difference in due process terms alone between ford being ordered by government agency contract with another private party on that agency's terms and for doing so on its own terms because of the circumstances of available supply we don't deny that areas are a fire to source clean coal that tricity from somewhere provided it's available but areas have a right as private companies operating under competitive market decide how to meet that obligation for themselves so the fact that the certification requirement requires aries to source clean coal actressy generally really doesn't advance the commission's argument at all in fact i think that provision is more notable for what it doesn't say rather than what it does it doesn't say power is mostly it doesn't say that commission in order areas or tell them how to me and it doesn't orders are still in place utilities customers and aries customers but still be subject to the comparatively neutral charges that can be used as a springboard for future to find alternative financing so that charge can still be imposed there's nothing in the statutory scheme of which i'm aware that is correct i didn't mean to say that utilities customers would never see a price hike under this plan only that they couldn't be forced to carry the entire load themselves only a fraction