2016 IL App (3d) 150099

Opinion filed August 10, 2016 

_____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2016 

ILLINOIS LANDOWNERS ALLIANCE, )

NFP, ) 

 ) 

Petitioner, ) 

 ) 

 v. ) 

 ) 

THE ILLINOIS COMMERCE COMMISSION; ) 

COMMONWEALTH EDISON COMPANY.; ) 

INTERNATIONAL BROTHERHOOD OF ) 

ELECTRICAL WORKERS, AFL-CIO ) 

LOCAL UNIONS 51, 9, 145 & 196; ILLINOIS ) 

AGRICULTURAL ASSOCIATION a/k/a ) 

Illinois Farm Bureau; WIND ON THE WIRES; ) 

ENVIRONMENTAL LAW AND POLICY ) 

CENTER; NATURAL RESOURCES ) 

DEFENSE COUNCIL; BUILDING OWNERS ) 

AND MANAGERS ASSOCIATION OF ) 

CHICAGO; DYNEGY MIDWEST ) 

GENERATION, LLC; DYNEGY KENDALL ) 

ENERGY, LLC; AMEREN TRANSMISSION ) 

COMPANY OF ILLINOIS; MIDWEST ) 

GENERATION, LLC; JOHN L. CANTLIN; ) 

and JOSEPH H. CANTLIN, ) 

 ) 

 Respondents. ) 

_______________________________________ ) 

 ) 

ILLINOIS AGRICULTURAL ASSOCIATION ) 

a/k/a Illinois Farm Bureau, ) 

 ) 

Petitioner, ) 

 ) 

v. )

Petitions for Review of Order 

of the Illinois Commerce 

Commission, No. 12-0560. 

AppealNos. 3-15-0099, 3-15-0103 & 

3-15-0104 
2 

)

THE ILLINOIS COMMERCE COMMISSION; ) 

ROCK ISLAND CLEAN LINE, LLC; ) 

COMMONWEALTH EDISON COMPANY; ) 

INTERNATIONAL BROTHERHOOD OF ) 

ELECTRICAL WORKERS, AFL-CIO ) 

LOCAL UNIONS 51, 9, 145 & 196; ) 

ILLINOIS LANDOWNERS ALLIANCE, ) 

NFP; WIND ON THE WIRES; ) 

ENVIRONMENTAL LAW AND POLICY ) 

CENTER; NATURAL RESOURCES ) 

DEFENSE COUNCIL; BUILDING OWNERS ) 

AND MANAGERS ASSOCIATION OF ) 

CHICAGO; DYNEGY MIDWEST ) 

GENERATION, LLC; DYNEGY KENDALL ) 

ENERGY, LLC; AMEREN TRANSMISSION ) 

COMPANY OF ILLINOIS; MIDWEST ) 

GENERATION, LLC; JOHN L. CANTLIN; ) 

JOSEPH H. CANTLIN; TIMOTHY B. ) 

CANTLIN; FRIESLAND FARMS, LLC; ) 

LARRY GERDES; STEVEN GERDES; ) 

JASON D. JAMES; JAMES BEDEKER; ) 

SALLY BEDEKER; and FIRST MIDWEST ) 

BANK TRUST #6243, ) 

 ) 

 Respondents. ) 

_______________________________________ ) 

 ) 

COMMONWEALTH EDISON COMPANY, ) 

 ) 

Petitioner, ) 

 ) 

 v. ) 

 ) 

THE ILLINOIS COMMERCE COMMISSION; ) 

ROCK ISLAND CLEAN LINE, LLC; ) 

INTERNATIONAL BROTHERHOOD OF ) 

ELECTRICAL WORKERS, AFL-CIO ) 

LOCAL UNIONS 51, 9, 145 & 196; ILLINOIS ) 

AGRICULTURAL ASSOCIATION a/k/a ) 

Illinois Farm Bureau; WIND ON THE WIRES; ) 

ENVIRONMENTAL LAW AND POLICY ) 

CENTER; NATURAL RESOURCES ) 

DEFENSE COUNCIL; BUILDING OWNERS ) 

AND MANAGERS ASSOCIATION OF ) 

CHICAGO; DYNEGY MIDWEST ) 

GENERATION, LLC; DYNEGY KENDALL )
3 

ENERGY, LLC; AMEREN TRANSMISSION )

COMPANY OF ILLINOIS; MIDWEST ) 

GENERATION, LLC; ILLINOIS LAND ) 

OWNERS ALLIANCE, NFP; JOHN L. ) 

CANTLIN; JOSEPH H. CANTLIN; ) 

TIMOTHY B. CANTLIN; FRIESLAND ) 

FARMS, LLC; LARRY GERDES; STEVEN ) 

GERDES; JASON D. JAMES; JAMES ) 

BEDEKER; SALLY BEDEKER; AND FIRST ) 

MIDWEST BANK TRUST #6243, ) 

) 

) 

) 

Respondents. )

______________________________________________________________________________

JUSTICE LYTTON delivered the judgment of the court, with opinion. 

Justices Carter and Wright concurred in the judgment and opinion. 

_____________________________________________________________________________

 OPINION 

¶ 1 Illinois Landowners Alliance (ILA), Illinois Agricultural Association also known as 

Illinois Farm Bureau (IAA), and Commonwealth Edison Company (Com Ed) petition this court 

for review of an order of the Illinois Commerce Commission (Commission) allowing Rock 

Island Clean Line, LLC (Rock Island) to operate as a public utility under the Public Utilities Act 

(Act) (220 ILCS 5/1-101 et seq. (West 2012)) and granting the company a certificate of public 

convenience and necessity to construct, operate, and maintain a high voltage electric 

transmission line across several counties in Illinois. On appeal, petitioners argue that (1) the 

application should have been dismissed as a matter of law because Rock Island is not a public 

utility and (2) the Commission’s findings in favor of a certificate of public convenience and 

necessity (CPCN) were not supported by substantial evidence. We reverse the Commission’s 

order granting the certificate and remand for further proceedings. 
4 

¶ 2 BACKGROUND

¶ 3 Rock Island is a subsidiary of Clean Line Energy Partners LLC (Clean Line), a 

transmission energy development company, with its principal offices in Houston, Texas. In 

addition to Rock Island, Clean Line owns four other companies that are developing long-distance 

transmission projects across the northern states. Clean Line is owned in part by Grid America 

Holdings, Inc., which is owned by National Grid USA, a business that owns and operates more 

than 8600 miles of high voltage transmission facilities in the United States. 

¶ 4 Rock Island was formed to construct and manage an electric transmission line project that 

would run from O’Brien County in northwest Iowa to Grundy County in northeast Illinois. The 

primary purpose of the project is to connect wind generation facilities in northwest Iowa, South 

Dakota, Nebraska, and Minnesota with electricity markets on the PJM Interconnection grid. PJM 

is a regional transmission organization that coordinates the movement of wholesale electricity to 

markets in Illinois, Indiana, Michigan, Ohio, Kentucky, the District of Columbia, and eight other 

states in the northeast. 

¶ 5 The proposed line would span 379 miles through Iowa to the Mississippi River, crossing 

the river in Princeton, Iowa, and entering Illinois near Cordova, Illinois. It would then extend

approximately 121 miles in Illinois to a Com Ed substation in Grundy County (Collins 

substation). 

¶ 6 In preparation for the project, Rock Island filed an application with the Commission for a 

certificate of public convenience and necessity under section 8-406 of the Act (220 ILCS 5/8-

406(a), (b) (West 2012)) authorizing it to operate as a transmission-only public utility in Illinois 

and to construct, operate, and maintain an electric transmission line for wind energy. In its

application, Rock Island stated that the development of additional transmission infrastructure is 

critical to our nation’s ability to utilize its wind resources to meet the demand for electricity from 
5 

renewable sources. Rock Island further claimed that although wind energy generates an 

alternating electrical current (AC), it is more cost effective to transmit the energy using a direct 

current (DC) transmission line. 

¶ 7 According to the proposed plan, the Rock Island project would construct a high voltage 

direct current (HVDC) electric transmission line from Iowa to Illinois. The line would convert 

AC wind energy to DC electricity at a converter station in O’Brien County, Iowa. From there, 

the high voltage current would travel 500 miles to a DC-to-AC converter station in Grundy 

County, Illinois. The proposal stated that Rock Island would then run an AC transmission line a 

few miles to the Collins substation, where the electricity would be delivered into the PJM grid.

The application set forth a proposed route for the line but did not seek the right of eminent 

domain. 

¶ 8 Rock Island stated that the project has a capacity of 3500 megawatts and is able to 

connect up to 4000 megawatts of generating capacity in the resource area in Iowa to northern 

Illinois. At that rate, it will deliver 15 million megawatt-hours of electricity annually, enough to 

power 1.4 million homes. 

¶ 9 Rock Island’s application and supporting materials outlined a plan for raising the capital 

necessary to finance construction at an unspecified future date on a “project financing basis.” 

Rock Island emphasized that it was a “merchant developer”—not a traditional utility with costbased rates—and claimed that Illinois residents would not pay for the line through rate 

assessments. It does not plan to seek cost recovery through the electric rates paid by consumers 

in Illinois. Instead, it indicated that its rates will be regulated by the Federal Energy Regulatory 

Commission (FERC) and that the project will pay for itself through the revenues it receives from 

anticipated purchase agreements with wind generators. Rock Island stated that it plans to enter 

into long-term financing agreements with one or more wind generators, or “anchor tenants,” in 
6 

the resource area (northwest Iowa) and then attract lenders using the anchor tenant agreements as 

collateral. The financing plan included in the application did not identify any current anchor 

tenants or lenders. 

¶ 10 Numerous parties sought and were granted leave to intervene, including ILA, IAA, Com 

Ed, local unions of the International Brotherhood of Electrical Workers, Wind on the Wires, and 

various private landowners. Commission staff members also participated in the application 

process by presenting evaluations, reports, and recommendations to the Commission. 

¶ 11 Initially, IAA and ILA filed motions to dismiss, arguing that Rock Island was not a 

public utility under section 3-105 of the Act because it did not own infrastructure for electric 

transmission in Illinois. The intervenors argued that only a public utility may obtain a section 8-

406(a) certificate to transact business and only a public utility may obtain a section 8-406(b) 

certificate to construct facilities. They maintained that because Rock Island was not a public 

utility, it could not be granted a certificate of public convenience and necessity under the Act. 

¶ 12 The Commission’s administrative law judge (ALJ) denied both motions. The ALJ ruled

that the application process under section 8-406 of the Act is not limited to entities that are 

already certified public utilities and concluded that Rock Island could apply for public utility 

status and seek certification to construct and manage a transmission facility at the same time. 

¶ 13 At the evidentiary hearing on the application, witnesses for Rock Island testified that its 

objective in constructing the project is to provide a direct transmission link for wind generating 

plants that will be built in the Iowa resource area and to transport that output to electricity 

markets in Illinois. According to Rock Island, the demand for electricity from renewable 

resources in Illinois and surrounding states will remain high for years to come due to state 

renewable portfolio standards requirements imposed by recent legislation. These state-imposed 
7 

mandates require utilities to replace energy generated by fossil fuels with renewable energy, and 

at least 75% of that renewable energy must come from wind power. 

¶ 14 David Berry, vice president of strategy and finance for Clean Line, characterized the 

proposed transmission line as a “merchant project” because Rock Island is assuming the market 

risk of the project. Rock Island does not have a process to recover its costs from ratepayers and 

therefore must sell capacity through negotiated contracts. Berry testified that the FERC 

approved Rock Island’s proposal to presubscribe up to 75% of its transmission capacity to

anchor tenants and sell the remaining 25% of the line’s capacity to other generators. Rock Island 

would market its excess capacity using a bidding process, otherwise known as “open season” 

bidding, in which Rock Island would offer services to other wind generator customers along the 

line. According to Berry’s testimony, the FERC order requires Rock Island to provide 

standardized generator interconnection service to any generator that requests to connect through 

the bidding process, subject to an open access transmission tariff administered by PJM. 

¶ 15 Berry further testified that developers will not invest capital in the construction of 

additional wind generation facilities in the resource area without reasonable assurance of 

adequate transmission capacity and infrastructure to deliver the energy to population centers such 

as northern Illinois. He stated that while it is theoretically possible to move power from the 

resource area to northern Illinois using existing 345-kilovolt lines, it would entail substantially 

higher losses as compared to using the proposed HVDC transmission lines. 

¶ 16 Rock Island admitted that the wind generators used in its energy and financial simulation 

models are based on predictions and do not yet exist. Currently, Rock Island does not have any 

transmission customers; the only way it could serve a customer is by building the project. 

¶ 17 Rock Island witnesses further testified that the project will cost approximately $1.8 

billion to construct, operate, and maintain. As of December 2013, shareholders had committed 
8 

approximately $95 million of equity to Clean Line, with approximately $21.6 million specifically 

invested in the Rock Island project. Rock Island currently possesses an option to purchase real 

property in Grundy County, Illinois, upon which it intends to construct a converter station next to 

the Collins substation. 

¶ 18 On cross-examination, Michael Skelly, the president of Rock Island and Clean Line, 

testified that on the date the application was filed, Rock Island did not own, control, operate, or 

manage any transmission plants, equipment, or property in Illinois. He also stated that as of the 

date of his testimony, Rock Island still did not own property in Illinois. 

¶ 19 Paul Marshall, an ILA board member, testified that ILA is a not-for-profit entity 

composed of approximately 300 members who own or have an interest in land impacted by the 

path of the transmission line. According to his testimony, roughly 100,000 acres of land fall on 

or along the proposed project route. 

¶ 20 Dr. Jeffrey Gray, a federal electricity regulation and policies expert, performed an 

economic analysis for ILA. He testified that Rock Island “might be able to demonstrate need if it 

could show that the project is adequately subscribed.” He noted that, until then, the demand or 

need for the project is “speculative.” Gray explained that the electric industry has a structured

wholesale marketing system that uses regional transmission organizations like PJM to collect the 

electricity generated in a region and distribute it to consumers, particularly those in need of 

renewable energy credits. In this case, Rock Island would use the transmission line to “ship” 

renewable energy created by the wind generators to the PJM grid. Gray noted that the Rock 

Island project is not currently included in the PJM regional transmission plan because none of 

the project’s capacity has been contracted and no potential generators have obtained rights to buy 

service on the line. 
9 

¶ 21 Gray further testified that the impact of the project is unknown because Rock Island has 

not addressed the costs of negative land use impacts and has assumed traits and characteristics 

about connecting generators that cannot be substantiated because the generators have yet to be 

built. He opined that the financial aspects of the project leave open the possibility of switching 

the project from “merchant” status to “cost-allocation” status and allocating future transmission 

costs of unknown amounts to Illinois electricity customers. 

¶ 22 Steven Naumann, another ILA expert, testified that the impact of the project on 

competition was unknown because the project was not sufficiently developed and had too many 

uncertain factors. He noted that while Rock Island stated that it has no current plans to request 

that the project be cost-allocated, the company does not explicitly rule out making such a future 

request. 

¶ 23 Commission staff economist, Richard Zuraski, noted that a competitive electricity market 

already exists in Illinois and stated in his report that the proposed project was unnecessary. He 

further noted that the determination of whether the proposed project would promote the 

development of an effectively competitive electricity market was “subject to considerable 

uncertainty.” Zuraski opined that Rock Island failed to demonstrate that the purported benefits of 

the project would outweigh its costs. He reported that, based on his model analysis, the economic 

benefit to Illinois electricity consumers was also subject to “considerable uncertainty.” Zuraski 

stated that he was concerned that if the project failed to be successful in the competitive market, 

Rock Island would look to the Commission to get the project “back on its feet,” a request that 

could end up costing ratepayers more money. He opined that, based on the project’s financial 

uncertainty, it was an overstatement to say that there was no risk to Illinois ratepayers. Zuraski’s 

concerns led Commission staff to conclude that Rock Island had not met its burden to show that 

the proposed project would promote development of an effectively competitive market that 
10 

operates efficiently, is equitable to all customers, and is the least cost means of satisfying the 

objectives.

¶ 24 The staff report also noted that if and when the project becomes subject to a FERC open 

access transmission tariff requiring the provision of nondiscriminatory open access, the project’s 

limited capacity will still prevent Rock Island from providing access to all eligible customers.

Staff concluded that Rock Island “is asking the Commission to *** grant it a CPCN so it looks 

like a ‘public utility’ for purposes of condemning private property to build its line, while at the 

same time it plans to offer only a token percentage of that line’s capacity for ‘public use.’ ” 

¶ 25 In an attempt to address the financial concerns raised in its report, the Commission staff 

suggested several conditions, including that Rock Island “will not install transmission facilities 

*** on easement property until such time as Rock Island has obtained commitments for funds in 

a total amount equal to or greater than the total project cost.” 

¶ 26 The Commission issued a 242-page order granting Rock Island a certificate of public 

convenience and necessity to transact business as a transmission public utility and to construct, 

operate, and maintain the proposed transmission line over the preferred route described in the 

application. In its order, the Commission agreed with the ALJ’s determination that Rock Island 

met the qualifications of a public utility and satisfied the public use requirement under section 3-

105(a) of the Act. The Commission stated that, based on the information in the record, it seemed 

likely that the line would be used primarily, if not entirely, for delivery of wind energy from 

O’Brien County, Iowa, to the Collins substation in Illinois and that it was “reasonable to assume” 

potential users would include transmission customers who purchased capacity for delivery of 

electricity to northern Illinois. 

¶ 27 The Commission also determined that the proposed project would promote public 

convenience and necessity under the Act. The Commission found that although Rock Island 
11 

failed to demonstrate that the project was necessary to provide adequate, reliable, and efficient 

service to customers, it had presented sufficient evidence to demonstrate that the proposed line

“will promote the development of an effectively competitive electricity market that operates 

efficiently, is equitable to all customers, and is the least cost means of satisfying those 

objectives.” See 220 ILCS 5/8-406(b)(1) (West 2012). 

¶ 28 In reaching its decision, the Commission noted that Rock Island’s financial resources 

were insufficient to finance the project’s construction but concluded that Rock Island could 

satisfy the financing requirement based on financing conditions proposed by Commission Staff. 

In accordance with those conditions, the order required Rock Island to submit documents to the 

Staff demonstrating that it had obtained the necessary financial commitments and to file 

compliance documents with the Commission before beginning construction on easement 

properties. 

¶ 29 ILA, IAA, and Com Ed filed applications for rehearing, and the Commission denied their 

requests. All three parties filed separate petitions with this court, challenging the Commission’s 

decision. We consolidated their petitions for review. 

¶ 30 ANALYSIS

¶ 31 Petitioners challenge the Commission’s order on two grounds: (1) that the Commission 

lacked authority to grant a certificate of public convenience and necessity because Rock Island is 

not a public utility; and (2) that the findings of the Commission are not supported by substantial 

evidence. Our resolution of the first issue is dispositive. 

¶ 32 I. Standard of Review 
12 

¶ 33 On appeal, a reviewing court must reverse the Commission’s decision if it finds that (1) 

the findings of the Commission are not supported by substantial evidence, (2) the Commission 

lacked jurisdiction to enter the order or decision, (3) the order or decision is in violation of the 

state or federal constitution or laws, or (4) the proceedings violated the appellant’s constitutional 

rights. 220 ILCS 5/10-201(e)(iv) (West 2012). 

¶ 34 The standard of review of the Commission’s findings of fact is deferential. Orders of the 

Commission are deemed prima facie reasonable, and the Commission’s findings of fact are 

deemed prima facie true. 220 ILCS 5/10-201(d) (West 2012). The Commission’s findings of fact 

may only be overturned if they are against the manifest weight of the evidence. Apple Canyon 

Lake Property Owners’ Ass’n v. Illinois Commerce Comm’n, 2013 IL App (3d) 100832, ¶ 57. 

¶ 35 The Commission’s interpretation of statutory standards is also entitled to deference; 

however, reviewing courts are not bound by its interpretation of law. Citizens Utility Board v. 

Illinois Commerce Comm’n, 166 Ill. 2d 111, 121 (1995). The Commission’s interpretation of a 

statute is reviewed de novo. Commonwealth Edison Co. v. Illinois Commerce Comm’n, 398 Ill. 

App. 3d 510, 522 (2009). Where governing statutory language is clear and unambiguous, it must 

be applied as written, and there is no need to resort to extrinsic aids. Illinois Bell Telephone Co. 

v. Illinois Commerce Comm’n, 362 Ill. App. 3d 652, 657 (2005). Courts will not defer to an 

agency’s construction where the statute is clear because “an interpretation placed upon a statute 

by an administrative official cannot alter its plain language.” Burlington Northern, Inc. v. 

Department of Revenue, 32 Ill. App. 3d 166, 174 (1975). 

¶ 36 II. The Commission’s Authority to Grant a CPCN 
13 

¶ 37 The Illinois Commerce Commission was statutorily created to exercise general 

supervision over all Illinois public utilities in accordance with the provisions of the Public 

Utilities Act. 220 ILCS 5/4-101 (West 2012). Under the Act, a public utility must obtain a 

certificate of public convenience and necessity from the Commission before transacting any 

business or constructing a high-voltage transmission line. 220 ILCS 5/8-406(a), (b) (West 2012).

The Commission derives its authority to supervise public utilities and issue certificates of public 

convenience and necessity solely from the statute creating it and may not, by its own 

interpretation, extend its jurisdiction. Sheffler v. Commonwealth Edison Co., 399 Ill. App. 3d 51, 

60 (2010). The Commission’s jurisdiction must be found, if at all, in its power to regulate public 

utilities. Peoples Energy Corp. v. Illinois Commerce Comm’n, 142 Ill. App. 3d 917, 924 (1986). 

¶ 38 A. Public Utility Status

¶ 39 Public utility status is determined by operation of section 3-105 of the Act and conferred 

by order of the Commission authorizing the utility to transact business and construct and manage

utility services. See 220 ILCS 5/3-105(a), 5/8-406(a), (b) (West 2012). Section 3-105 of the Act

defines a “public utility” as any company that: 

“owns, controls, operates or manages, within the State, directly or indirectly, for 

public use, any plant, equipment or property used or to be used for or in 

connection with, or owns or controls any franchise, license, permit or right to 

engage in: 

(1) the production, storage, [or] transmission *** of heat, cold, power, 

electricity, water, or light[.]” 220 ILCS 5/3-105(a)(1) (West 2012). 
14 

¶ 40 An applicant does not satisfy the statutory qualifications of a public utility simply 

because it sells something ordinarily sold by a public utility, such as heat, power, water, or 

electricity. Mississippi River Fuel Corp. v. Illinois Commerce Comm’n, 1 Ill. 2d 509, 516 (1953). 

A public utility also must provide its product or service “for public use,” carrying with it the duty 

of the producer or manufacturer to serve the public and treat all persons alike, without 

discrimination. Id. “The use must concern the public as distinguished from an individual or any 

particular number of individuals, but the use and enjoyment of the utility need not extend to the 

whole public or political subdivision.” Palmyra Telephone Co. v. Modesto Telephone Co., 336 

Ill. 158, 164 (1929). A private company that provides public utility services according to its own 

terms and conditions does not meet the statutory definition of a public utility. See Highland 

Dairy Farms Co. v. Helvetia Milk Condensing Co, 308 Ill. 294, 301 (1923) (company that

constructed water plants and furnished water to select members of the community “according to 

[its] own wishes” was not a public utility).

¶ 41 According to these principles, there are essentially two prongs to attaining public utility 

status: (1) a company must own, control, operate, or manage utility assets, directly or indirectly, 

within the State; and (2) it must offer those assets for public use without discrimination. See 

Mississippi River Fuel Corp., 1 Ill. 2d at 516-19. Based on its application and the evidence 

presented to the Commission, Rock Island failed to meet both requirements.

¶ 42 1. Assets Within the State

¶ 43 Rock Island does not own, control, operate, or manage assets within the State. In 

testimony before the Commission, Rock Island admitted that the project was in the planning 

stages and that it would only pursue construction if the company determined that it would be 

profitable in light of future market developments and financial support. Rock Island currently 
15 

does not own any transmission assets in Illinois, nor does it have any agreements for service with 

renewable energy generators in this state. While the potential may exist for generators to 

purchase service on the line, no Illinois generators have agreed to use the proposed line. 

¶ 44 2. Public Use Without Discrimination

¶ 45 In addition, the proposed transmission line is not for public use without discrimination. In

Mississippi River Fuel Corp., a fuel supply company, Mississippi River Fuel, sold natural gas in 

Illinois through individual fuel contracts with 23 private industrial retail customers. It also sold 

natural gas to Illinois Power and Light Company and Union Electric Power Company for resale 

to the general public. Mississippi River Fuel Corp., 1 Ill. 2d at 512. Although Mississippi had 

facilities and customers in Illinois, our supreme court affirmed the circuit court’s conclusion that 

it was not a public utility because Mississippi River Fuel did not devote its services to “public 

use.” Id. at 513. In reaching its decision, the court noted that Mississippi River Fuel’s contracts 

with industrial retail customers were not based on fixed rates, that they varied as to terms and 

conditions, and that they were only offered to select customers. The court found that the interest 

of the general public was in obtaining an adequate supply of gas at reasonable prices from the 

public utility to which the company supplied natural gas for resale, not Mississippi River Fuel. 

Id. at 518-19. It concluded that, under such circumstances, the company’s act of selling gas to a 

limited group of industrial customers could not be characterized as “public use.” Id. at 519. 

¶ 46 Similarly, Rock Island’s plan does not devote assets for public use in Illinois without 

discrimination. The anchor tenants, who will use a majority of Rock Island’s transmission 

capacity, are wind generators in the resource area of northwest Iowa, South Dakota, Nebraska, 

and Minnesota. According to Rock Island, 75% of the project’s capacity will be sold to 

generators in the resource area, who will then use the transmission line to deliver their product to 
16 

the PJM grid. PJM will then distribute the renewable energy electricity to members of its 

multistate regional transmission organization. The remaining 25% will be sold to those seeking 

transmission services through an “open season” bidding process approved by the FERC. The 

FERC order approving the sale of excess capacity does not mandate that an Illinois wind 

generator or other renewable energy generator participate in the bidding process. But if it did, 

there is no way to know whether an Illinois energy generator will submit a successful bid. 

Moreover, the project does not designate any part of the renewable energy transmitted along the 

proposed line for public use in Illinois. Thus, it fails to satisfy the statute’s public use 

requirement. 

¶ 47 Based on its application and supporting documentation, Rock Island has not attained 

public utility status within the meaning of the Public Utilities Act. Because Rock Island is not a 

public utility, the Commission lacked authority to issue a certificate of public convenience and 

necessity under section 8-406(b) of the Act. See Peoples Energy Corp., 142 Ill. App. 3d at 924. 

¶ 48 B. Public Utility Status as Applied to Section 8-406 

¶ 49 In reaching our conclusion, we acknowledge the Commission’s position that public utility 

status is not a prerequisite to seeking a certificate of public convenience and necessity under 

sections 8-406(a) and (b). The Act does not require an applicant to be a public utility before it 

seeks certification under the appropriate provisions. A plain reading of the statute shows that an 

applicant may seek public utility status while, at the same time, applying for a certificate of 

public convenience and necessity to transact business and construct facilities. See 220 ILCS 5/8-

406(a), (b) (West 2012). In this case, the issue is whether jurisdiction was properly conferred 

based on the Commission’s decision that Rock Island was a public utility. We conclude that it 

was not. 
17 

¶ 50 III. The Commission’s Findings 

¶ 51 The petitioners also claim that the Commission’s decision should be reversed because its 

findings are not supported by substantial evidence. We need not address this issue in light of our 

determination that the Commission lacked authority to issue a certificate of public convenience 

and necessity. 

¶ 52 CONCLUSION

¶ 53 We reverse the order of the Illinois Commerce Commission, granting a certificate of 

public convenience and necessity, and remand the cause to the Commission with directions to 

enter an order consistent with this decision. 

¶ 54 Reversed; cause remanded.