## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Com m onwealth Edison Co. v. Illin ois Com m erce Com m ’n , 2013 IL App (2d) 120334

Appellate Court Caption COMMONWEAL TH EDI SON COMPANY, Petitioner, v. I L L I NOI S COMMERCE COMMI SSI ON; THE PEOPL E ex rel. L I SA MADI GAN, At torney Gene ral; AARP; AARP I L L I NOI S; BL

UESTAR ENERGY SERVI CES, I

NC. ; BU I L DI

NG OWNERS AND MANAGERS ASSOCI ATI ON OF CHI CAGO; CHI CAGO TRANSI T AUTHO RI TY; CI TI Z ENS UTI L I TY BO ARD; CHRYSL ER, L L C; THE CI TY OF CHI CAGO; THE COMMERCI AL GROUP (styled as such collectively from the following petitioners: Be st Buy Comp an y , Inc.; J .C. Penney C o r p o r a t i o n , I n c

. ; M a c y ’ s , I n c

. ; W a l m a r t S t o r e s , I n c

. ) ; C ONSTEL LATI ON ENERGY COMMODI TI ES GROUP, I NC.; CONS T E L L AT I ON NE W E NE R GY, I NC.; UNI TED STATES DEPARTMENT OF ENERGY; I NTERNATI ONAL BROTH ERHOOD OF EL ECTRI CAL WORKERS L OC AL UNI ON NO. 15, AFL -CI O; I L L I NOI S I NDUSTRIAL

ENERGY CONSUMERS, a/k/a I I EC (styled

as such collectively from the following petitioners: Abbott L aboratories, Inc.; Arc elormitta l US A; Caterpillar, Inc.; Citgo, Inc.; Corn Products International, Inc.; Daimler Chry sler Corporation; Enbridg e Energy , L P; Ex x onmobil; For d M o t or Company ; Merc handise Mart; Sterling Steel Company
, L L C; Therma l Chicag o Cooling, Inc.; Citco Inc.; Gene ral Iron Industries
, Inc.); NORTHEAST I L L I NOI S REGI ONAL COMMUTER RAI L ROAD CORPORATI ON, d/b/a Metra; NUCOR STEEL KANKA KEE, I

NC

. ; THE KROGER COMPANY; THE COAL I TI ON TO RE Q U E ST EQUI TAB L E AL L OCATI ON OF COSTS TOGETH ER, a/k/a “REACT” (st y led as such collectively from the following petitioners: A. Finkl and Sons Company ; Alsip Paper C o ndominium As s o ci at i on; Aux Sable L iquid Products, L P; The City of Chicag o; Commerce Energy , Inc.; Flint Hills Resource s, L L C; Integry s Energy Service s, Inc.; Metropolitan Water Reclamation District of Gre ater Chicag o; PDV Midwest Refining
, L L C; Uni ted Airlines, Inc.; Wells Manufa cturing
, Inc.); RETAI L ENERGY S UPPL Y ASSOCIATI ON, a/k/a “RESA” (styled as such collectively from the following petitioners:Commerce Energy , Inc.; Consolidated Edison Sol utions, Inc.; Direc t Energy Service s, L L C; Gexa Energy ; Hess Corporation; Intergry s Energy Service s, Inc.; L iberty Power Corporation; Reliant Energy Retail Service s, L L C; Sempra Ene rgy Soluti ons; Strateg ic Energ y , L L C; Suez Energy Resource s NA, Inc.; US Energy S aving s Corporation); and UNIVERSI TY OF I L L I

NOI S, Respondents.

District & N o. Second District Docke t No. 2-12-0334

Filed September 27, 2013

Held (Note : This syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt e r of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The I llinois Commerce Commi ssion’ s o r d e r r e q u ir in g p e titioner to ref

und the incre ased rate s approve d by the Commi ssion pursuant to an err oneous methodology that overstate d the value of one o f p et itioner’s plants in service was upheld, since the o rd er wa s within the Commi ssion’s j u ri s diction, permitting petitioner an opportunity to introduce new evidenc e on the actua l costs incurre d during the re fu n d period would
amount to improper retroa ctive rate making
, and the exclusion of cer tain plant additions from the rate base was supported by substantial evidenc e.

Dec ision Under
Review Petition for revie w of order of I llinois Commerce Commission, No. 07- 0566.

J udg ment Affir med.

Counsel on Appea l E. Glenn Ripp i e, of Rooney Rippie & Ratnaswamy L L P, and Ba rry L evensta m, of J enner & Bloc k L L P, both of Chicag o, an d Da v i d W. DeB ruin and Matthew E. Price, both of J enner & Bloc k L L P, of Washington, D.C., for pe titioner.

J ames E. Weging
, of I llinois Commerce Commi ssion, of Chicag o, for responde nt I llinois Commerce Commission.

-2-L isa Madig an, Attorney Gene ral, of Chicag o (Michae l A. S codro, Solicitor Gene ral, and Paul Be rks, Assistan t At torney Gene ral, of counsel), f

or re spondent People ex re l. Madig an.

J ul ie L

. Soderna, of Citi zens Utility Boa rd, of Chicag o, for responde nt Citi zens Utili ty

Boa rd.

Panel PRES I DI NG J U ST I CE B U RK

E d elivere d the judgme nt of the court, with opinion.
J ustices Hutchinson and Spence concur red in the judgme nt and opinion.

OP INION

¶ 1 Commonwealth Edison Company (ComEd) is a public utilit y company that distributes elec tricity to consumers in northern I llinois

. ComEd petitioned the I l l i n o i s Commerce Commi ssion (Commissi on) to restruc ture and alter the rate s ComEd char g es, seeking a $360 mill ion incre ase (2007 Rate Case). ComEd calc ulated its reve nue require ment using 2006

as an historical “test y ear ” and included cer tain new distribution assets, ref err ed to as “plant.” The Commi ssion enter ed an order g ranting an incre ase of about $274 milli on (2007 Rate Orde r), and ComEd collecte d those rate s from customers betwee n September 2008 and May 2011. ¶ 2 ComEd appea led the order
, and we held that the Commi ssion, in approving the rate s, had employ ed an err oneous methodology that overstate d the value of ComEd’s plant in service

. Commonwealth Edison Co. v. Illinois Commerce Comm’n
, 405 I ll. App. 3d 389, 392 (2010) ( ComEd ). We rema

nded the cause to the Commi ssion to make a finding on the propriety of including third- quarte r 2008 plant additions in the pro forma adjustments. On rema nd, the Commi ssion deter

mined that the 2 0 0 7 R ate Orde r implicitl y denied inclusion of the plant additions. In a “Refund Orde r,” the Commi ssion order ed ComEd to ref und to customers

near l y $37 milli on that ComEd collecte d betwee n September 30, 2010, when this court issued its ruling in ComEd
, and May 30, 2011, when new rate s t o o k ef fec t (the ref

und period). ¶ 3 C o m E d ap p ea l s th e C o m m i s s i o n ’s R ef u n d Orde r. First, ComEd argues that the Commi ssion exceede d its jurisdiction in order ing the ref und. Second, ComEd argues that a ref und is unne cessa

ry beca use ComEd’s a ctual costs duringthe re fund per iod wereg reater than projec ted, and there fore the err or in the 2007 Rate Ord er did not actua lly result in an overstate ment of the value of ComEd’s plant in service

. Third, ComEd a sserts that, even if

a ref und wer e appropr iate, the Commi ssion did not revie w and weigh the previously
prese nted evidenc e on the third-quar ter 2008 plant additions and there fore failed to comply with this court’s mandate in c alculatingthe amount to be re funded.

-3-¶ 4 We hold that (1) the Commi ssion had jurisdiction t o o rd er t h e re fu nd; (2) a llowing

ComEd to introduce new evidenc e on actua l costs during the ref und period would have been improper retroa ctive rate making in that it would have require d reope ning the proce eding s to all parties for evidenc e on actua l co s t s an d saving s on the entire 2007 Rate Orde r, and there fore
, the Commi ssion proper ly deter mined that the ref

und should be the differ ence betwee n the actua l rate s collecte d pursuant to the 2007 Rate Orde r and the rate s that would have be en cha

rg ed if they

had bee n set in a ccor dance with our views expressed in ComEd ; and (3) the Co m m i s s i o n sufficie ntly followed our mandate on rema nd, and substantial

e v id e nce supports the Commi ssion’s exclusion of the third-quar ter 2008 plant addit io n s f

r o m the rate base . We affir

m the Refund Or der.

¶ 5 I . J URI SDI CTI ON ¶ 6 The Commi ssion enter ed the Refund Orde r, which is a final order
, on Fe bruar y 23, 2012. On Marc h 2, 2012, C o mEd filed a timely application for rehe aring conce rning the issues raised in this appea l. On Marc h 22, 2012, the Commi ssion denied ComEd’s application for rehe aring . Four

day s later, ComEd filed a petition for re view in this court. ¶ 7 This court has jurisdiction to consider the appea l pursuant to I llinois Supreme Court Rule 335 (ef f. Feb. 1, 1994) and section 10-201(a) o f t h e P ub lic Utiliti es Act (Ac t) (220 I L CS 5/10-201(a) (West 2010) (appe al al l o we d within 35 day s of denial of rehe aring to the appellate court of a

ny district where the subject matter is situated)).

¶ 8 I I . BA CKGROUND ¶ 9 ComEd delivers elec tricity to more than 3.7 milli on reta il consumers in northern I llinois

. In response to the enac tment of the Electric Service Customer Choice and Rate Relief L aw of 1997 (Rate Relief L aw) (220 I L CS 5/16-101 et seq. (West 2006)), ComEd divested itself of its electr icity g ener ating assets (see 220 I L CS 5/ 16-111(g ) (West 2006)) a nd beca me an “integrate d distribution company ,” also known as a “wires company .” C omEd’s costs as a “wire s company” do not vary appre ciably over time, a s they did when costs wer e driven by
g ener atingelec tricity

. ComEd , 405 I ll. App. 3d at 393-94. ¶ 10 The rate s for delivering elec tricity are calc ulated separ ately from the rate s for the elec tric supply itself. 220 I L CS 5/16-109A, 16-111.5 (West 2006). An elec tric utility like ComEd is entitled to rate s that allow it to rec over fully its prudent and rea sonable costs of service

. 220 I L CS 5/16-108(c) (West 2006) (rates “shall allow the elec tric utilit y to r ecove r the costs of providingdelivery

service s through its charg es”)

. ¶ 11 A ra te case is initiated when a utilit y files tariff s providing for a rate incre ase and th e Commi ssion suspends those tariff s to c onduct an investigation a nd hearing. 220 I L CS 5/9- 201 (W est 2006). The Commi ssion may approve , reje ct, or modify the proposed tariff s. Section 9-201(c ) of the Act pro v i d es that, if the Commi ssion initiates a proce eding

conce rning t h e appropr iateness of a utilit y ’s proposed rate s, the utilit y has the burden of proving that the proposed r ates a re just and r easona

ble. 220 I L CS 5/ 9-201(c ) (West 2006)

. ¶ 12 In establishing the rate s that a public utilit y is to char g e its c ustomers, the Commi ssion

-4-considers the utilit y ’s operating costs, rate base, and allowed rate of return. ComEd
, 405 I ll.

App. 3d at 394 (citing Citi zens Utiliti es Co. v. Illinois Commerce Comm’n
, 124 I ll. 2d 195, 200 (1988))

. Recove ry of the utilit y ’s operating costs and the return on its rate base is known

as the utilit y ’s annual reve nue require ment. Gene rally speaking
, a utilit y determ i n es i ts

reve nue require ment by adding operating costs to invested ca pital multi plied by

the rate of
return. ComEd
, 405 I ll. App. 3d at 394 (citing Business & Professional People for the Public Interest v. Illinois Commerce Comm’n
, 146 I ll. 2d 175, 195 (199 1 ) (BP I II )). “ ‘The components of the revenue require ment have freque ntly been e x presse d in the formula “R (re venue require ment) = C (oper ating costs) + Ir (invested capital or rate base times r ate of
return on capital) .” ’ ” ComEd
, 405 I ll. App. 3d at 394 (quoting BPI II
, 146 I ll. 2d at 195-96, quoting Citi

zens Utilities Co. , 124 I ll. 2d at 200-01). 1 ¶ 13 The utilit y ’s return, or profit, is the product of the utilit y ’s allowed rate of return and its
rate base. Both fac tors are deter mined by the Commi ssion. Section 9-211 of the Act provides that a utilit y ’s rate base may includ e “ ‘o n l y t he value of such investment which is both prudently incurre d and used and useful in providing service to public utilit y customer s.’ ” ComEd , 405 I ll. App. 3d at 394-95 (quoting220 I L CS 5/ 9-211 (West 2006)). ¶ 14 The I llinois Administrative Code (Administrative Code) provides that a utilit y ’s reve nue require ment may

be ca lculated by

beg inning with costs incur red dur ing a

12-month period known as a “test y ear ,” which may be either an historical or a future period. 8 3 I ll. Adm. Code 287.20 (20 03). I f an historical test y ear is used, it can be any consec utive 12-month period, beg inning no more than 24 months befor e the utility ’s filingnew tariffs, for which
actua l data are available at the time of filing. 83 I ll. Adm. Code 287.20 (2003). “The supreme court has explained that the purpose of the test y ear ru l es is ‘to preve nt a utilit y from overstating its reve nue require ment by mismatching low revenue data from one y ear with high expense data from a differ ent y ear .’ ” ComEd
, 405 I ll. App. 3d at 395-96 (quoting BPI II , 146 I ll. 2d at 238). ¶ 15 The historical data might be subject to “ pro forma ” adjustments, which are estimated or calc ulated adjustments that ref lect cer tain known and measura

ble chang es in post-te st-y ear data as specifie d in the rules. 83 I ll. Adm. Code 287.20, 287.40 (2003). The pro forma adjustments must ref

lect chang es aff

ecting the rate payers in plant inves t m ent, operating

reve nues, expenses, and cost of capital wher e such chang es occur red during the selec ted historical t est y ear or ar e re asonably cer tain to occur

within 12 months afte r t he fili ng date of the tariff

s and wher e the amounts of the chan ges are deter minable. 83 I ll. Adm. Code 287.40 (2003); ComEd , 405 I ll. App. 3d at 396.

¶ 16 A. 2007 Rate Case ¶ 17 On October 17, 2007, ComEd fi l ed t ar i ffs that incorporated a g ener al i ncre ase in rates for delivering elec tricity and revised other terms and conditions of serv i ce. See 220 I L CS 5/9-201 (West 2 0 0 6 ). ComEd proposed no chang e in the price of the elec tricity itself. ComEd asser

ted that a $360 milli on incre ase in its delivery rate s was nece ssary beca use the

Revenue Requ ir ement = (Op er at ing Cost s) + ( Rat e Ba se) (Ra te of Return ) 1

-5-exis ting r ates we re ba sed on costs that we re year s out of date.

¶ 18 ComEd used the 2006 cale ndar y ear as an historical test y ear and included cer tain pro forma adjustments. ComEd proposed to incre ase its 2006 rate base inves tment amount by $1,498,317,000 based on new plant that had been or would be implemented over a 21-month period fr om J anuar

y 2007 through September 2008. ¶ 19 On November 28, 2007, the Commi s s i o n s u s p en d ed C o mEd’s proposed tariff s and initiated the 2007 Rate Ca s e. T h e C ommissi on assig ned two administrative law judge s (AL J s) to take evidenc e and issue a proposed order

. Severa l parties, including the Attorney Gene ra l (AG) and the Citi zens Utility Boa rd (CUB ), intervene d to protec t their interests. Testimony and documentar y exhibi ts wer e submitt ed, and evidentiar y hearings wer e held from Apr il 28, 2008, to May 5, 2008. ComEd , 405 I ll. App. 3d at 396. ¶ 20 ComEd as s er t ed t h at i t s d el ivery costs included the costs of its investment in new infrastruc ture place d into service since the last rate case

. ComEd soug ht a pro forma adjustment to the rate base to i n cl u d e ce rt ain new plant that had enter ed or would enter service afte r the 2006 test y ear but befor e the end of the third quarte r of 2008. ComEd argued that the costs it sought to rec over wer e prudently incurre d and rea sonable in amount and that the plant it include d in the rate base was used and use ful and ne cessa ry to provide deliver

y service s. ComEd, 405 I ll. App. 3d at 396. ¶ 21 ComEd and the Commi ssion’s st af f (S t af f) submitt ed a joint rec ommendation to the Commi ssion. First, based on the evidenc e, the Commission’s rules, and re levant dec isions in ear lier rate case s, ComEd and the Staff rec ommended excluding from ComEd’s rate base

acc umulated depre ciation and cer tain taxes. ComEd and the S t af f o p i ned that the Commi ssion should not reduc e the rate base further by subtracting extra depre ciation and defe rre d taxes, as the intervenor s might p r o p o s e

. Se c o n d
, Co mE d and the Staff rec ommended that, if the Commi ssion approve d the joint rec ommendation as a whole, the rate base should i n cl u d e p lant place d in service throug h only the second quarte r of 2008. ComEd’ s “conditional withdrawal” of its reque st to include plant additions from the third quarte r of 2008 reduc ed its reque sted rate base by about $175 milli on. ComEd
, 405 I ll. App. 3d at 397. ¶ 22 On September 10, 2008, the Commi ssi o n i s s u ed t h e 2 0 0 7 Or der, which author ized C o m E d t o fi l e new tariffs to implement a $273,573,000 rate incre ase. The new rate s wer e desig ned to rec over an annual reve nue require ment of $1,961,065,000, based in part on the Commi ssion’s deter

mination that the value of ComEd’s rate b as e investment was $6,694,039,000. The Commi ssion c oncluded that the value of ComEd’s te st-y ear rate base investment should be incre ased by the amount of its planned post-test-year plant additions, without rec og nizi ng identified p o st-test-year decr ease s in exis ting investment value. Consist ent with the rec ommendation of ComEd and the Staff, the Commi ssion also excluded from the rate base the value of the plant place d in service in the third quarte r of 20 0 8

. ComEd , 405 I ll. App. 3d at 397.

¶ 23 B. ComEd ¶ 24 ComEd appea led the 2007 Rate Orde r, argu i n g t h at t h e C o m m i s s ion did not gr ant C omEd full rec overy of prudent and rea sonable costs of cer tain employ ees’ salarie s and

-6-wag es. ComEd further asser ted that, if we ruled ag ainst it on issues raised by the intervenor s, it wo u l d b e denied the benef it of the barg ain that it struck with the Staff. Specifica lly
, ComEd argued that it would be manifestly unfair to modify the agree ment without allowing ComEd to add to its rate base the plant place d in service in the third quarter of 2008. ¶ 25 The AG, the CUB, and the I llinois Industrial Energy Co nsumers (I I EC), including A bbott L aboratories, Inc., and other larg e elec tricity consumers, wer e among cer tain intervenor s that als o ap p ealed the 2007 Rate Orde r. The AG, CUB, and I I EC argued that the Commi ssion

err ed in allowing for post-test-year plant additions in the rate base without also rec og nizi ng

a setoff for p o s t -t es t -y ear chang es in acc umulated depre ciation in the exis ting plant. I I EC
argued tha t t h e 2007 Rate Order unlawfully inflated Com Ed’s rate base, violated t est-year require ments as set forth in case law and the Commi ssion’s own rules, and misapprehe nded the Commi ssion’s duty to decide a case exclusively on the rec ord befor e it, reg ardle ss of how the Commiss ion decided the same issue in the pa st. ¶ 26 We r

uled in f avor of the intervenor s on this issue, holding that the Commi ssion abused its discretion in excluding from the rate base the increase in acc umulated depre ciation of exis ting plant during the post-test-year period. ComEd
, 405 I ll. App. 3d at 420. We conclude d that ComEd’s rea ding of the test-year rules to exclude acc umulated depre ciation for the pro forma period would cre ate an incentive for the utilit y to alway s seek upwar d pro forma adjustments, reg ardle ss of any decline in actua l net plant, so the utilit y could rec over

an amount that ignor es acc ompanying depre ciation acc umulating over the same period. Such

an interpre tation would result in a consis t en t ly and unavoidably inflated rate base and an inesca pably inacc urate picture of the utilit y ’s financ es. We deeme d ComEd’s interpre tation
to be plainly i n co n s i stent with the Commi ssion’s treatment of plant investment wher e the utilit y adopts a future test y ear and also plainly inconsistent with basic matching principles. ComEd , 405 I ll. App. 3d at 407. ¶ 27 We direc ted the Commi ssion to re v i s i t the acc umulated depre ciation issue, including allowing ComEd to reque st rec overy of the ag g reg ate cost of the third -q u ar t er 2 008 plant additions. ComEd
, 405 I ll. App. 3d at 420. We stated that “[w]h i l e we agree that the Commi ssion abused its discretion in failing to a ccount for the acc umulated depre ciation of the exis ting plant during the post-test-year period, we conclude that unilatera lly altering the ComEd/S taff stipul ation would be manifestly unfair to ComEd.” ComEd
, 405 I ll. App. 3d at 408. We emphasized that we wer e expressing no opinion a s to whether the Commiss ion should include in the rate base those costs, and we noted that ComEd bore the burden of proof on rema

nd

. ComEd
, 405 I ll. App. 3d at 420. We rema nded the cause to the Commi ssion for “fur

ther proce eding s consistent with this opinion.” ComEd
, 405 I ll. App. 3d at 420.

¶ 28 C. Comm ission P roce eding s on Remand ¶ 29 The 2007 Rate Orde r rema in ed i n ef fe ct un til the Commi ssion could set new rate s on

rema nd, based on our holding in ComEd

. See Independent Voters of Illinois v. Illinois CommerceComm’n , 117 I ll. 2d 90, 103 (1987) (“D uring the interval betwee n reve rsal and the t i m e a n ew rate schedule is approve d by the C ommissi on and takes eff ect, [ the ut ility ]

-7-may continue to char g e the challeng ed rate s, subject to ref unds for the portions that wer e held improper by this court [citation]
, or it would appea r that the Commi ssion may immediately set temporar

y rate s ***.”). ¶ 30 Whil e the appea l in Co mE d w a s pending
, ComEd filed new tariff s basing delivery

service
rate s on an adjusted 2009 test y ear

. As with the 2007 tariff s, the Commi ssion suspended these tariff

s and opened I CC Docke t No. 10-0467 (2010 Rate Case). On May 24, 2011, the Commi ssion enter ed its final order in that case , approving an in cr ease in ComEd’s rate s (2010 Rate Orde r). The new rate s went into eff ect on May 30, 2011. Thus, ComEd collecte d
rate s under the illega l 2007 Rate Orde r from September 30, 2010, when we issued ComEd
, throug h May

30, 2011, when the 2010 Rate Orde r took eff ect. ¶ 31 On J une 22, 2011, the Commi ssion beg an the proce eding s on rema nd. The parties raised
two i s s u es : (1) whether ComEd was required to issue a refund of the nearly $37 milli on it had collecte d during the ref und period and (2) if a ref und was war

rante d, whether the ref

und
amount should acc ount for ComEd’s proposed third-quar ter 200 8 plant additions. The Commi ssion interpre ted ComEd as direc ting it to order a re fu n d upon rema nd. The Commi ssio n conclude d that “through the mecha nism of rema

nd, the appellate court has tasked the Commi ssion with g iving effe ct t o its words. Once the appellate court found the
rate approve d by the Commi ssion [i n the 2007 Rate Orde r] to be illega l, rec alculation of the
rate base, and associate d rate s, was compelled beca use from that point on ComEd was found to be re cover ing c osts using unlawf ul, invalid rates.” ¶ 32 On Fe bruar

y 23, 2012, the Commi ssion enter ed its Refund Orde r. ComEd c laimed that the rate base during the ref und period was g reater than the rate base used by the Commi ssion in the 2007 R at e Order, and there fore a ref und would not be equitable. The Commi ssion reje cted that argument and declined to consider the actua l value of ComEd’s plant in service during the ref

und period. The Commi ssion stated that “[i] ncre ased costs for ComEd have no part in the decision of whether to g rant a ref und beca use the focus should be on rate payers” who “lost the use of

their money

while pay

ing the illega l rates.” ¶ 33 Citi ng Indepe ndent Voters , the Commiss ion de termined that the ref und amount should be the differ ence betwee n the actua l rate s collecte d pursuant to the 2007 Rate Orde r and the
rate s that would have been char g ed if they had been set in acc ordanc e wi t h o u r v iews expressed in ComEd

. The Commi ssion set the ref und period from September 30, 2010, the date we issued ComEd
, to May 31, 2011, when the new rate s specifie d in the 2010 Rate Orde r took eff

ect. The Commi ssion rec alculate d ComEd’s rate base to acco u n t fo r the

acc u mu la ted depre ciation of exis ting plant in service throug h the second quarte r of 2008. The Commi ssion ordere d ComEd to refund to customers $36,701,000. ¶ 34 In calc ulating the amount to be ref unded, the Commi ssion deter mined that the 2007 Rate Orde r had implicitl y found that ComEd’s reque s t t o include the third-quar ter 2008 plant additions lacke d evidentiar y support. The Commi ssion drew the infere nce from the portion of the 2007 Rate O rder

that contained a

“deta iled fac tual analy sis why the first and se cond quarte r 2008 plant additions met the *** require ments for pro forma additions to rate base” but said nothing about the third-quar ter 2008 plant additions. The Commi ssion further stated that “bec ause ComEd had rea ched an agree ment with Staff to limit the pro forma additions

-8-to the first two quarte rs of 20 0 8
, i n surre buttal testimony it did not addre ss Staff witness

[Tom] Griff

in’s continued opposition in rebuttal testimony to the inclusion of the thirdquarte r [2008] plant.” The Commi ssion “ clar ified that the orig inal order in this proce eding should have included a specific finding that it did not fin d s upport for the third-quar ter [2008] plant additions in the recor d.” ComEd timely appea ls.

¶ 35 I I I . ANALYSI S ¶ 36 On appea l, ComEd argues that we must reve rse the Commi ssi o n ’s Refund Orde r. We
g ive s ubstantial defe renc e to the decisions of t he C ommissi on, in light of its expertise and experience in this are a. ComEd
, 405 I ll

. Ap p

. 3 d at 397. Acc ording ly
, on appea l, the Commi ssion’s finding s of fac t are considere d prima facie true; its order s are considere d prima facie rea sonable; and t h e ap pellant bear s the burden of proof on all issues raised. ComEd , 405 I ll. App. 3d at 397. ¶ 37 We are not bound by the Commi ssion’s deter minations on questions of law, but we will
g ive substantial w eig ht a

nd defe renc e to the Commissi on’s interpre tation of an ambiguous statute that it is char g ed with administering and enfor cing

. ComEd
, 405 I ll. App. 3d at 397. Our revie w is limit ed to the following matters: (1) whether the Commi ssion acte d within its authority ; (2) whether it made adequate findin gs to support its decision; (3) whether the decision was supported by substantial evidenc e; and (4 ) wh ether state or fede ral constitutional rights we re infr inge d. ComEd , 405 I ll. App. 3d at 397-98. ¶ 38 T h e C o m m i s s i o n i s n o t require d to provide finding s on eac h evidentiar y claim; its find i n gs ar e s u fficie nt if they are specific enough to enable the court to make an informed and intelligent revie w of its order

. 220 I L CS 5/10-201(e) (iii) (West 2006); ComEd
, 405 I ll. App. 3d at 398. In other words, the Commi ssion must state the fac ts essential to its ruling so that the court can proper ly revie w the basis for the decision. ComEd
, 405 I ll. App. 3d at 398. “Substantial evidenc e” me ans more tha n a mere scintilla, but it doe s not ha ve to rise to the level of a preponde rance of the evidenc e. ComEd
, 405 I ll. App. 3d at 398. Substantial evidenc e is evidenc e that a “re asoning mind would acc ept as sufficie nt to support a particula r conclusion.” (I

nterna l quotation marks omitted.) ComEd
, 405 I ll. App. 3d at 398. Def ere nce to the Commi ssion is espec ially appropriate in the are a of fix ing rate s. ComEd
, 405 I ll. App. 3d at 398. On revie w, this court can neither ree valuate the credibility or weight of the evi d en ce nor subs titute its judgme nt for that of t he C ommissi on. ComEd
, 405 I ll. App. 3d at 398. ¶ 39 Fi rs t , C o m E d ar gu es t h at the Commi ssion exceede d its jurisdiction in ordering the ref und. Second, ComEd a

rgues that a ref

und is unne cessa

ry beca use its actual c osts during the ref und period wer e g reater than projec ted, and there fore the err or in the 2007 Rate Orde r did not actua lly result in a n overstate ment of the value of ComEd’s plant in service

. Third, ComEd asser

ts that, even if a ref

und wer e appropriate, the Commi ssion did not revie w and weigh the previo u sly prese nted evidenc e on the third-quar ter 2008 plant additions and there fore failed to comply with this court’s mandate in calc ulating the amount to be ref unded. For the following rea sons, we reje ct eac h of ComEd’s claims, and we aff irm the Re fu nd Orde r.

-9-¶ 40 A. Commiss ion’s Authority to Order Refund ¶ 41 First, ComEd argues that the Commi ssion lacke d authority to enter t h e R efund Order

. The scope of the Commi ssion’s jurisdiction is a question of law, which we revie w de novo

. City of Chi cago v. I

llinois CommerceComm’n , 294 I ll. App. 3d 129, 134-35 (1997). ¶ 42 In Indepe n d

en t V o t er s , o u r s up reme court established that the Commi ssion has the authority to order a ref

und under fac ts simil ar to those in this case

. The Indepe ndent Voters line of case s beg an in 1971 wh en the Commi ssion g rante d a rate incre ase to I llinois Be ll Telephone Company

. The first appea l resulted in the rate o rd er b eing partially reve rsed, based on the Commi ssion’s err or in including in the utili t y ’s re v en ue require ment cer tain lobbyin g, ad v er tising, and licensing expenses. Illinois Bell Telephone Co. v. Illinois Commerce Comm’n
, 55 I ll. 2d 461, 480-84 (1973). Whil e that appea l was pending
, the utilit y initiated a second proce eding befor e the Commi ssion, seeking another g ener al rate incre ase. The Commi ssion, following the guidelines of permissible expenses set forth in the orig inal
appea l, approve d the second reque st for a ra t e i n cr ea se. The first rate order was in eff ect during the litigation, including the appea l reg arding it, and that rate order rema ined in eff ect until the second rate orde r bec ame e ffe ctive. Indepe ndent Voters , 117 I ll. 2d at 93. ¶ 43 On rema

nd, the Commi ssion reope ned proce eding s on the first rate order
, at which time the Independe nt Voters of I llinoi s (IVI ) asked the Commi ssion to awa rd the utilit y ’s
customers a ref

und of the improper amounts paid under the rate order

. Indepe ndent Voters
, 117 I ll. 2d at 93-94. The IVI soug ht restitution for two periods: (1) from the time that the first
rate order took eff

ect throug h the supreme court’s reve rsal of the order and (2) from the time of the supreme court’s reve rsal to the time the second rate order took eff ect. The Commi ssion reje cted the IVI ’s argument for restitution, as did the circ uit and appellate courts. Indepe ndent Voters , 117 I ll. 2d at 94. ¶ 44 When the matter rea ched the supreme court, it explained that restitution is a n equitable

reme dy
, the basis of which is unjust enric hment to the defe ndant. “Restitution is compelled
ag ainst one who has obtained money or proper ty withou t authorit y and usually wher e an adequate leg al reme dy does not e x ist for the ag g rieve d party .” Indepe ndent Voters
, 117 I ll. 2d at 98. The supreme court hel d that the Commi ssion proper ly denied restitution for the period from the eff

ective date of the challeng ed rate order throug h the reve rsal of that order

. Th e co u rt cited certain sections of t he Act, which have remained subs tantively unchang ed since Indepe ndent Voters was de cided: “[A] Commi ssion-approve d rate order cannot be deeme d excessive fo r repa rations
purposes if the Commi ssion found it rea sonable and just, althoug h it is later set aside by

a revie wing court, because section 71 [(I ll. Rev. Stat. 1971, ch. 111 b
, ¶ 75) (now 2 2 0 I L CS 5/10-204 (W es t 2 010))] provides that the order shall rema in in eff ect during the pendenc y of an appea l, unless it is stayed or suspended. [The utility ] was prohibited from ch ar ging more or less than the rate s set by the Commi ssion (I ll. Rev. Stat. 1971
, ch

. 111 2/3, par. 37) [(now 220 I L CS 5/9-240 (West 2010))] and was statutorily require d to follow the 1971 rate s set by the Commi ssion. Since [t he utilit y ] wa s require d by statute to collect the new rate s, which wer e found just and rea sonable by the Commi ssion, [t he

-10-utilit y] has rec eived no unlawful char g es of wh i ch it should be ‘disg org ed’ under restitutional principles.” Indepe ndent Voters , 117 I ll. 2d at 98-99. ¶ 45 The supreme court treated the second proposed ref und period differ ently
, holding that the Commi ssion err ed in denying restitution for the period from the reve rsal of the first rate order
to the eff ective date of the second rate order

. The supreme court observe d that the challeng ed
rate order was invalid from the time the court enter ed its judgme nt that held cer tain portions
to be invalid. Indepe ndent Voters
, 117 I ll. 2d at 102. Thus, the supreme court held, the Commi ssi o n s h o u l d have g rante d the utilit y ’s customers a ref und for overpa

y ment from when the supr eme c ourt enter ed its judgme nt until new rates we re se t: “The portion of the rate s that was held to be err oneously set by the Commi ssion should be ref unded to customers who paid them from the time of this court’s previous decision until the new rate s t o o k ef fe ct ***. To hold otherwise would allow [t he utilit y ] to continue collecting the unlawfully incre ased rate and benef itting from such, without a

reme dy to the customer, until the Commi ssion conducts hearings and deter mines a new

ra t e base. The Commi ssion conducte d hearings here in the same month that the court

announce d its de cision, and a new rate went into eff ect within the month that this c ourt issued its mandate. The rate-m ak i n g proce ss, howeve r, may be leng thy
, and a utilit y could be tempted to extend that proce ss if it continued to benef it from the incre ased rate without the risk that it would have to ref und custom er s o v er ch arg es afte r a judicial

reve rsal. During the interval betwee n reve rsal and the time a new rate schedule is
approve d by the C ommissi on and takes eff ect, [ the ut ility ] may continue t o ch ar ge the challeng ed rate s, subject to ref unds for the portions that wer e held improper by this court [citation]
, or it would appea r that the Commi ssion may immediately set temporar y rate s ***.” Indepe ndent Voters , 117 I ll. 2d at 102-03. ¶ 46 The supreme court reje cted the argument that the compre hensive leg islative scheme that controls utilit y rate s justified keeping a rate order in eff ect afte r reve rsal. Indepe ndent Voters
, 117 I ll. 2d at 103. The court noted that, wi t h o u t a stay or suspension, the Act specific ally authorizes a utilit y to collect the rate s during the pendenc y of an appea l, but “once that rate order is set aside on appea l, the utilit y should not con t i n u e t o b enef it from what has been deter mined to be unlawful portions of a rate incre ase.” Indepe ndent Voters
, 117 I ll. 2d at 104. ¶ 47 Mindful that the unavailab i lity of a ref und would forc e consumers to pay an excessive
rate , there by raising due proce ss conce rns, the supreme court ruled that a revie wing court’s equitable power s may be i n v o k ed t o authorize such a ref und. Although the Act does not specific ally provi de a reme dy for this situation, it provides for a court to revie w the lawfulne ss and rea sonablene ss of Commi ssion proce eding s. Indepe ndent Voters
, 117 I ll. 2d
at 104 (citing I ll. Rev. Stat. 1971, ch. 111 b
, ¶ 68 (now 220 I L CS 5/10-201(a) (West 2010)))

. Be ca use an appropr iate reme dy was not provided in the Act, the court was authorized to

exe rc i se its equitable power s to order the ref und. Indepe ndent Voters
, 117 I ll. 2d at 104 (citing Peoples Gas Light & Coke Co. v. Slatt ery , 373 I ll. 31, 42 (1939), appeal dismissed sub nom

. Peoples Gas Light &Coke Co. v. Hart , 309 U.S. 634 (1940)). ¶ 48 T h e s up re m e court reje cted the notion that the rule ag ainst retroa ctive r at em ak i n g preve nts a ref

und afte r a rate order is reve rsed by a revie wing court. Indepe ndent Voters
, 117

-11-I ll. 2d at 1 0 4

. The court rea soned that the Act authorizes judicial revie w of Commi ssion

proce eding s, allowing a deter mination of “the lawfulne ss and rea sonablene ss of a rule,
regulation, order or decision and may vacate, modif y or otherwise hold an order invalid.” Indepe ndent Voters
, 117 I ll. 2d at 105 (citing I ll. Rev. Stat. 1971, ch. 111 b
, ¶¶ 68, 71 (now 220 I L CS 5/10-201, 10-204 (West 2010)))

. The ref und was not prec luded by the rule ag ainst
retroa ctive rate making bec au s e t he ref und was a result of a direc t, statutorily authorized revie w of the Commi ssion’s order
, and the case previously was rema nded to the Commi ssion
to corr ect the err oneous portion of the rate s and not for orig inal rate making

. Indep en dent Voters
, 117 I ll. 2d at 105. The court held that “[t] he function of the courts in revie wing Commi ssion proce eding s would be meaning less if no reme d y co uld be provided afte r the
court holds that a Co mm is s ion-approve d rate order included allowanc e of improper expenses and deduc tions for the utility .” Indepe ndent Voters , 117 I ll. 2d at 105. ¶ 49 In summary , the supreme court held that, when a revie wingcourt re verse s a rate orde r, the Act prohibits a re t rospective ref und dating back to the rate order ’s eff ective date ( Independent Voters
, 117 I ll. 2d at 98-99); but the revie wing court’s equitable power s authorize a prospective refund from the date of reversa l to the effec tive dat e o f a n ew rate schedule

. Indepe ndent Voters
, 117 I ll. 2d at 102-03. Indepe ndent Voters establishes the Commi ssion’s authority to enter the Refund Orde r, direc ting ComEd to issue a ref und for the ref und period. I f we wer e to hold that the 2007 Rate Orde r rema ined in eff ect, despite its

reve rsal, until the eff

ective date of the 2010 Rate Orde r, we would allow ComEd to have collecte d and benef

itted from the unlawfully incre ased rate from September 30, 2010, when this court issued its ruling i n Co mE d
, t o May 30, 2011, when new rate s took eff ect. Indepe ndent Voters prohibits such a re sult. ¶ 50 ComEd ar gu es t h at t he Refund Orde r must be reve rsed beca use the power to order

a ref und “flows from a court’s inhere nt equitable authority” rathe r than the Commi ssion’s authority under the Act. (Emphasis in orig inal.) ComEd insists that the Commi ssion lacke d authority beca

use we did not s p ec i fi ca l l y addre ss in ComEd the possibili ty of a ref und. In ComEd
, we held that the Commi ssion, in approving ComEd’s rate s, had employ ed an

err oneous methodology that overstate d the value of ComEd’s plant in service

. We rema nded the cause for the Commi ssion to rec alculate the rate base, taki n g into acc ount the

acc umulated depre ciation of the exis ting plant and ComEd’s reque st to include t h e t h irdquarte r 2008 plant ad d i t i ons. We also direc ted the Commi ssion to conduct further
proce eding s consistent with our opinion. In direc ting the Commi ssion to conduct additional
proce eding s as neede d, we ex er ci s ed our inhere nt equitable power to authorize the Commi ssion t o re m edy ComEd’s unjust enric hment in collecting the illega l rate s. The Commi ssion was acting with our authorization when it hear d the petition for a ref und of the
overpa y ment. ¶ 51 In fac t, Indepe nden t V o t er s s t an d s for the proposition that, when a revie wingcourt

reve rses a rate order

and re mands the ca

use to the Commissi on to rec alculate the rate s, the Commi ssion c ommits reve rsible error if it denies a pe tition for a ref und of excessive rate s collecte d from the date of reve rsal o f t h e rate order to when new rate s take eff ect. In that

case , the decision that partially reve rsed the c halleng ed rate orde r ( Illinois Be ll Telephone ) did not mention the possibili ty of a ref und; but IVI p etitioned for one on rema nd, and the

-12-C o m m i s s i o n denied it. By reve rsing the Commi ssion’s denial of a ref und wher e one was owed, Indepe ndent Voters established that the Commi ssion is not only authorized but required to g rant a petition for a ref und of the portion of Commi ssion-approve d rate s that a revie wing court previously held to be err oneously set. A Commi ssion-order ed ref und upon

rema nd acc omplishes the revie wing court’s g oal of restitution as an equitable reme dy for the unjust enrichment to the utility

. ¶ 52 T h e C o m m i s s i o n co rr ec tly rec og nized its duty under Indepe ndent Voters to order a ref und in this case

. The Commi ssion observe d that “through the mecha nism of rema

nd, the appellate court has tasked the Commi ssion with g iving eff ect to its words. Once the appellate
court found the rate approve d by the Commi ssion [i n the 2007 Rate Orde r] to be illega l,

rec alculation of the rate base, a nd associate d rate s, was compe lled beca use fr om that point

on ComEd was found to be rec overing costs using unlawful, invalid rate s.” In calc ulating and order ing the ref

und on rema

nd, t h e C o m mission was fulfilli ng its role as fac t finder in the aid of the e quitable power that we invoked in ComEd

. ¶ 53 We reje ct C omEd’s claim t hat People ex re l

. Ha r tigan v. Illi nois CommerceComm’n
, 148 I ll. 2d 348 (1992), compels a depar ture from Indepe ndent Voters

. ComEd cites Hartigan for the proposition that only a revie wing court, and not the Commi ssion, may order a ref und. The Commi ssion conclude d that Hartigan did not bar the ref und, due to its “convoluted
proce dural history ,” which w e summarize. ¶ 54 In Hartigan
, ComEd pe titioned the Commi ssion f or a rate incre ase to pa

y for a nucle ar g ener ating fac ility

. Hartigan
, 148 I ll. 2d at 359. The Commi ssion g rante d a $495 milli on rate incre ase (Rate Orde r I ), and sever al intervenor s appea led to the circ uit court, which reve rsed 2 Rate Orde r I

and re manded the c ause to the Commission. Hartigan , 148 I ll. 2d at 360. ¶ 55 C o n cl u d i n g t h at t h e C o m m i s s i o n had used a flawe d methodology in identifyin g

rea sonable costs, the circ uit court order ed the Commi ssion to (1) “roll back” the rate incre ase established in Rate Orde r I
, (2) establish tempora ry revised rate s within 30 day s, and (3) exclude various costs of the nuclea r fac ility when rec alculating the rate base. Hartigan
, 148 I ll. 2d at 360-61. Upon ComEd’s e merg ency petition, the circ uit c ourt stayed enfor ceme nt, which eff ectively allowed ComEd to continue collecting throug hout the appellate p r o c e s s th e $495 milli on rate incre ase that the cir cu i t co u rt had found to be illega l. The Commi ssion conditioned the stay on ComEd cre ating an escr ow acc ount ref lecting the differ ence betwee n the rates with and without the costs of the nuclear facility

. I f t h e ci rcuit court’s reve rsal of Rate Orde r I was ultimately upheld, ComEd would be require d to pay its customers a ref und with interest. The circ uit court expressly reta ined jurisdiction to enfor ce the stay order

. Hartigan , 148 I ll. 2d at 361. ¶ 56 The supreme court aff irmed the circ uit c ourt’s reve rsal of Rate Orde r I but r ever sed, as beyond sta tu t o ry authorit y , the parts of the circ uit court’s holding that order ed the Commi ssion to set cer

tain rate s within a li mited time and to exclude cer tain costs from it s

At the ti m e of Hart iga n , the Comm is si on’ s ord er s wer e re viewed fi rs t by the ci rc uit cou rt

. 2
I n 1986
, the Gene ra l Asse m bly amended the A c t, dir ect ing tha t the Comm is si on’ s ra te ord er s be

re viewed dir ect ly by the app el la te cou rt

.
-13-ultimate rate de termination. Hartigan , 148 I ll. 2d at 362. The supre me cour t noted that the

reme dy of a ref

und was “allowa

ble,” leaving open the question of whether the Commi ssion
or t he cir cuit court wa s authorized to dictate the ter ms of a refund. Hartigan
, 148 I ll. 2d at 362. ¶ 57 On rema

nd, the Commi ssion iss u ed a s ec o n d ra t e o rd er (Rate Orde r I I ), which (1)

rec alculate d the rate base and (2) order ed ComEd to ref und, with 5% interest, $194.6 milli on in excess rate s collecte d from the date the circ uit court reve rse d R at e Order I throug h Dec ember

31, 1989, afte r which ne w rates took eff ect. Hartigan , 148 I ll. 2d at 362-63. ¶ 58 On appea l, the circ uit court, citing its rete n t i o n o f j uri s d i ct i o n , fo u n d t h at t h e Commi ssions’s refund te rms in Rate Orde r I I wer e dicta

. Hartigan , 148 I ll. 2d at 363. The ci rc u i t court deter

mined that its statutory revie w jurisdiction ended when it reve rsed Rate Orde r I and rema

nded the cause to the Commi ssion. Howeve r, the circ uit court insisted that its conditional stay order was authorized by I llinois Supreme Court Rule 305(b) (ef f. J uly 1, 1982), and there fore its ref und jurisdiction surv i v ed until the stay order ’s conditions wer e

acc omplished. Hartigan
, 148 I ll. 2d at 364. Acc ording ly
, the circ uit court issued a series of order s in which it specifie d the terms and methodology for calc ulating the ref und. The circ uit court’s r efund te rms conflicte d with the Commi ssion’s refund te rms. ¶ 59 The parties appea led to the appellate court, which deter mined that the Commi ssion, not the circ uit court, had jurisdiction. The appellate court deter mined that section 9-252 of the Act author ized the Comm ission to order the ref und as part of Rate Orde r I I

. Hartigan , 148 I ll. 2d at 394. Section 9-252 provides in per tinent part, “ ‘[w] hen complaint is made to the Commi ssion concer

ning a ny rate or other c harg e of a

ny public utilit y

and the Commission finds, afte r a hear ing, that the public utilit y has char g ed an ex ce s s i v e or unjustly discriminatory amount for its product, commodity or service
, the Commi ssion may order that the public utilit y make due repa ration to the complainant there for, with inter est at the leg al
rate from the date of pay m en t of such excessive or unjustly discriminatory amount.’ ” Hartigan
, 148 I ll. 2d at 394 (quoting I ll. Rev. Stat. 1985, ch. 111 b
, ¶ 9-252 (now 220 I L CS 5/9-252 (West 2010)))

. The appellate court aff irmed t he C ommissi on’s rate deter mination in Rate Orde r I I , but reve rsed the r efund’ s inclusion of reve nues fr om a later test year

. ¶ 60 The parties appea led to the supreme court, which rea ffirme d I n d e p endent Voters and held that, althoug h a ref

und was appropr iate, section 9-252 did not authorize the Commi ssion to order the re fund:
“In the instant case , the [C ommissi on]-approved rate s w h ic h wer e established in Rate Orde r I wer e set aside on appea l by the circ uit court. This court aff irmed the circuit court’s reve rsal of Rate Orde r I

. [C itation.] These fac ts prese nt a situation simil ar to that of the fac tual situation that this court encounte red in Indepe ndent Voters

. [C itation.] This court’s decision in Indepe ndent Voters controls the instant case

. There fore
, the ref und of illega l rate s collecte d under the Commi ssion’s Rate Orde r I is an equitable reme dy made available to rate payers pursuant to this court’s equitable power s delineate d in its decision in Indepe ndent Voters and is not a statutorily based reme dy
, as the appell at e court

-14-conclude d.” Hartigan , 148 I ll. 2d at 397-98. 3

¶ 61 The supreme court deter mined that the circ uit court, not the Commi ssion, had s ubject
matter j u ri s d iction over the terms and implementation of the ref und of the illega l rate s collecte d pursuant to the Commi ssion’s Rate Orde r I

. Hartigan
, 148 I ll. 2d at 393. The
supreme court explained that “ [i] f no stay is obtained
, and the rate is reve rsed on appea l, the utilit y may continue to collect the challeng ed ra t es while the appea l is pending
, but must ref u n d t h at p o rt ion of the rate order which the revie wing court holds to be improper.” (Emphasis in orig inal.) Hartigan , 148 I ll. 2d at 394 (citing Indepe ndent Vot ers , 117 I ll. 2d
at 103). The supreme court deter mined that the Act did not authorize t h e circ uit court to order the “ ‘rollbac k, or return, to prior rates’ ” but, pursuant to section 10-204 of t he Act, could stay the operation of the invalidated rate order

. Hartigan
, 148 I ll. 2d at 401 (citing I ll. Rev. Stat. 1985, ch. 111 b
, ¶ 10-204 (now 220 I L CS 5/10-204 (West 2010)))

. Fur thermore
, in gr antingthe stay

order pursuant to Rule 305(b), the circ uit c ourt was a ctingin a judicial
capa city and exercising inhere nt equitable power s. Hartigan
, 148 I ll. 2d at 402. The supreme court deter

mined that, under Rule 305(b), the stay order was conditioned upon “just terms” in t h at the utilit y and the intervenor s benef itted. Hartigan
, 148 I ll. 2d at 402 (“ ‘The stay , whether g rante d by the trial or revie wing court, shall be conditioned upon such terms as are just.’ ” (Emphasis omitted.) (quoting I ll. S. Ct. R. 305(b)( 3) (ef f. J uly 1, 1982)))

. First, if the circ uit court had ref

used to stay its suspension of the invalidated rate s and a revie wing court h ad re v er sed the circ uit court and had reinstated Rate Orde r I
, the rule ag ainst retroa ct i v e rate making would have p ro hibited the utilit y from rec overing any money lost during the appellate proce ss. Hartigan
, 148 I ll. 2d at 403. Second, if the circ uit c ourt had not r etained jurisdiction over a potential ref und, consumers could have been require d to pay i m p ro p er rate s throug hout the appellate proce ss, without a reme dy

. Hartigan
, 148 I ll. 2d at 404. The
supreme court held that “the circ uit court lawfully acquir ed and reta ined equitable jurisdiction over the terms and implementation of the ref und pursuant to [Rule 305(b)].” Hartigan , 148 I ll. 2d at 404. ¶ 62 Most importantly
, Hart i g a n re af fi rm ed t h e p ri nciple that the ref und of illega l rates collecte d under a judicially rev erse d Commi ssion-approve d rate order is an equitable reme dy made a vailable to rate payers pursuant to a revie wing court’s equitable power s. Hartigan
, 148 I ll. 2d at 397-98. On t he is sue of whether the C ommi s s i o n h as jurisdiction to order such a ref und, Hartigan is proce durally distinguishable from Indepe ndent Voters and this case

. The Hartigan court wa s prese nted with a situation where the Commiss ion and the c ircuit court
enter ed conflicting re fund order s, which require d the supreme court to assess the circ uit court’s attempt to reta in jurisdiction by means of its condition al s t ay o rd er. No such jurisdictional conflict exis ts h er e. L ike Indepe ndent Voters
, this case involves a

On app eal
, Com Ed cor re ct ly poi nts outth at , be cau se a r ef und to ra te payers is aut hor ized 3 b y a c o u r t ’ s equ it abl e power s and not by the Act
, sec ti on 9- 253, li ke sec ti on 9- 252, doe s n o t aut hor ize the Ref

u n d Orde r. Sec ti on 9- 253, whic h was ena ct ed af te r Ind epe nde nt Vot ers and Hart iga n , con cer ns the re fun d of overch ar ges, i.e

. , cha rges oth er tha n Comm is si on- app roved ra te s. Sec ti on 9

- 253 doe s no t e nla rge t he Co m m is si on’ s j uri sdi ct ion over r ef unds fo r j udi ci al ly re verse d Comm is si on- app roved r at es.

-15-s tra ig htf orwa rd proce dural history : in ComEd
, we reve rsed in part the Commi ssion-a p p r o v e d 2007 Rate Orde r and rema nded the cause for the Commi ss i on to conduct additional
proce eding s, including rec alculating the rate s, which ultimately w a r r a nte d a r e f u n d to r emedy
rate payers’ overpa

y ment. We hold that ou r d ec i s i on in ComEd g ave the Commi ssion the authority to order t h e ref

und. Our holding is consistent with both Indepe ndent Voters and Hartigan

.

¶ 63 B. Calc ulation of Refund ¶ 64 ComEd next contend s t h at t h e R ef u n d Or der is inequitable beca use the er

roneous portions of the 2007 Rate Orde r wer e har m l ess and did not cause ComEd to be unjustly enric hed. ComEd does not challeng e the Commi ssion’s arithmetic in calc ulating the ref und, only its methodology

. ComEd insists that the Commi ssion should have acc ounted for the utilit y ’s actua l costs when calc ulating the ref und. ComEd argues that “both the evidenc e the Commi ssion ref

used to consider on rema

nd and the Commi ssion’s own finding s in the 2010 Rate Orde r d em o n s t rate that the investment value actua lly dedicated by ComEd to utilit y service s duringthe refund per iod was higher than the value calc ulated by the Commiss ion in the 2007 Rate Orde r.” ( Emphasis in origina l.) ¶ 65 In Indepe ndent Voters
, the utilit y made pr ecise ly the same argument: the Commi ssionapprove d rate s wer e actua lly too low to provide the reve nue the utilit y neede d, and there fore the utilit y ’s conti n u ed collection of those illega l rate s afte r reve rsal produce d no unjust enric hment that would war rant a ref und to its cu stomers. The supreme court reje cted the claim, noting that afte r reve rsal the Commi ssion had approve d new rate s that allowed the utilit y a rate incre ase. Indepe ndent Voters
, 117 I ll. 2d at 105. The court emphasized that the utilit y had been allowed to collect, from the date of the court’s previous decision throug h the eff ective date of the new rate s, the improper portions of the previous rate schedule

. The court h eld that the ref

und should be the differ ence betwee n the orig inal rate s and the rate s th at would have been char g ed if they had been set in acc ordanc e with the views expressed in the previous decision for the period betwee n the court’s re v er sal and the eff ective date of the

new rate order

. Indepe ndent Voters
, 117 I ll. 2d at 105. In this case , the Commi ssion corr ectly f o ll o w ed Indepe ndent Voters
, calc ulating the ref und as the differ ence betwee n the rate s u n d e r the 2007 Rate Orde r and the rate s that would have been charg ed if they h ad been set in

acc ordanc e with the views w e expressed in ComEd

. ¶ 66 ComEd c ites Hartigan for the proposition that the Commi ssion should have a ccounte d for ComEd’s actua l o p er at i ng costs incurre d during the ref und period. In Hartigan
, the Commi ssion-approve d Rate Orde r I was reve rsed on judicial revie w ( Hartigan , 148 I ll. 2d at 360-61), an d o n re m and, the Commi ssion enter ed R ate Order I I
, which reca lculated the
rate s and order ed a ref

und based on the rate payers’ overpa y ment ( Hartigan
, 148 I ll. 2d at 362-63). The supreme court ultimately ruled that the Commi ssion lacke d authority to enter Rate Orde r I I
, beca

use the circ uit court had reta ined jurisdiction throug hout the appellate
proce ss. Hartigan , 148 I ll. 2d at 401-04. ¶ 67 Howeve r, the supreme court aff irmed the circ uit co u rt ’s deter mination that the re fund
amount should be based on the actua l reve nue coll ec ted by the utilit y during the ref und

-16-p er i o d rathe r than the projec ted reve nue estimated in the Commi ssion’s Rate Orde r I

.

Hartigan
, 148 I ll. 2d at 408-09. The supreme court held that “t h e amount of money to be ref unded consists of the differ ence betwee n the rate s collecte d pursuant to Rate Orde r I and the rate s that should have been collecte d[,] which wer e es t ab l ished in Rate Orde r I I .” Hartigan , 148 I ll. 2d at 409 (citing Indepe ndent Voters , 117 I ll. 2d at 105). ¶ 68 The supreme court reve rsed the appellate court’s holding th at t h e C o mmissi on should offse t the refund principal by any incre ase in the utility ’s ac tual operating costs. Hartigan
, 148 I ll. 2d at 409. The supreme court rea soned that, beca use the Commi ssion sets rate s using the reve nue require ment formula, which includes ope r a ti n g c o s ts a s a c o mp o nent, the utilit y ’s
operating costs alre ady should have been taken into a ccount when the circ uit c ourt order ed the ref und. Hartigan
, 148 I ll. 2d at 40 9 -1 0

. C omEd interpre ts this portion of Hartigan to mean that the utility ’s actual cost incre ases should be taken into account whe n calc ulating the ref und. We disag ree

. By sta t i n g t h at “the utility ’s opera ting costs should alre ady have been taken int o acc ount,” t he Hartigan court was expressing that the rev en u e requirement formula acc ounts for a utilit y ’s projec ted operating costs, not that actua l costs sho uld be deter mined later and fac tored into a ref und. Allowing ComEd to introduce new evidenc e on actua l costs incurred du ri n g the ref und period would have been improper retroa ctive
rate making
, which would have require d reope ning the proce eding s to all parties for evidenc e

on actua l costs and saving s on the entire 2007 Rate Orde r. The Commi ssion proper ly calc ulated the ref

und as the differ ence betwee n the actua l reve nues collecte d pursuant to the 2007 Rate Orde r and the reve nues that would have been char g ed if the rate s had been set in

acc ordanc e with ComEd

. ¶ 69 We also reje ct the notion that the Commi ssion’s approva l of operating costs in the 2010 Rate Orde r has any bearing on the ref und calc ulation acc ompanying the 2007 Rate Case. ComEd likens Rate Orde r I I in Hartigan to the 2010 Rate Orde r in this case , but the order s

are n ot analog ous. Rate Order I I is more li ke the Refund Order here in that eac h order ed a ref und afte r re calc ulating r ates following judi cial review. The 2007 Rate C ase, which is at issue here
, and the 2010 Rate Case involve differ ent rate petitions corr esponding to differ ent test y ear s. Calculating the ref und for the 2007 Rate Case by fac toring in ComEd’s costs that

wer e approve d in the 2010 Rate Orde r would thwart the purpose of the test year rules, which is “ ‘to preve nt a uti l i t y fr o m o verstating its reve nue require ment by mismatching low

reve nue data from one y ear with high expense data from a differ ent y ear .’ ” ComEd
, 405 I ll. App. 3d at 395-96 ( quoting BPI II , 146 I ll. 2d at 238).

¶ 70 C. Third-Quar ter 2008 Plant Additions ¶ 71 Finally
, ComEd a rgues that, even if a ref

und wer e appropr iate, the Commi ssion should have enter ed new finding s reg arding the third-quar ter 2008 plant additions, and there fore it failed to comply with this court’s mandate and make sufficie nt finding s when calc ulating the

amoun t to be ref

unded. Specifica lly
, ComEd asser ts that the Commi ssion’s decision must be reve rsed on the g rounds of estoppel, lack of detail, and lack o f s ub s t an tial evidenc e supporting the decision. ComEd a sserts that a r easse ssment of those plant additions would have compelled the Commi ssion to factor them into the rate base, and then the ref und. We

-17-disag ree

.

¶ 72 In ComEd
, t h e i n t er v enors preva iled on the issue of test y ear rate base a ccumulate d depre ciation, which cause d ComEd to rene w on rema nd its reque st to include in the rate base the third-quar

ter 2008 pro forma capital adjustments. The “ pro forma ” adjustments are estimated or calc ulated adjustments that ref lect cer tain known and measura

ble chang es in post-test-year data, as specifie d in the rules. 83 I ll. Adm. Code 287.20, 287.40 (2003). The
pro forma adjustments must ref lect chang es aff

ecting the rate payers in plant investment,
operating reve nues, expenses, and cost of capital wher e such chang es o cc urre d during the selec ted histo ri ca l t est y ear or are rea sonably cer tain to occur within 12 months afte r the filing date of the tariff

s and wher e the amounts of the chang es are deter minable. 83 I ll. Adm. Code 287.40 (2003); ComEd , 405 I ll. App. 3d at 396. ¶ 73 In ComEd
, the parties, depending on their viewpoints, asked us to order the Commiss ion
to include or exclude the third-q u ar ter 2008 plant additions. In contra st, the Commi ssion
argued that we should not automatically order that those plant additions be i ncluded in the
rate base. Instead, the Commi ssion was amena ble to con d

u c ti n g f u r th e r p ro c e e d ings. Be cause the previous exclusion of the third-quar ter 2008 plant additions had been neg otiated as part of the ComEd/Staff stipulation, we left the de termination to the Commis sion: “The C o m m i s s ion did not enter finding s of fac t reg arding the third-quar ter 2008 additions, and the Commi ssion is the fac t-finding body

. BPI II
, 146 I ll. 2d at 196 (‘In the
rate making scheme
, the Commi ssion and not the court is the fac t-finding body ’). Apar t from examining whether the Commi ssion acte d o u t s i d e the scope of its authority or infring ed upon a constitutional rig ht, a court is limit ed to revie wing whether the Commi ssion set out adequa te finding s of fact supporting its decision and whether the finding s are ag ainst the m anifest weight of the evidenc e. BPI II
, 146 I ll. 2d at 196. Considering that the C ommis sion has not had the opportunity to make findings of fac t reg arding the third-quar

ter 2008 plant additions, we decline to direc t the Commi ssion to take any action on rema

nd other than allowingComEd to petiti on for their inclusion in the rate base .” ComEd , 405 I ll. App. 3d at 408-09. ¶ 74 On remand, the C ommissi on deter mined that, in its 2007 Rate Orde r, the Commission alre ady had implicitl y found that the third-quar ter 2008 plant additions should be excluded from the rate base for lack of evidentiar y support. The Commi ssion drew the infere nce from

a portion of the 2007 Rate Orde r that contained a “deta iled fac tual analy sis why the first and second quarte r 2008 plant additions met the *** require ments for pro forma additions to rate base” but said nothing about the third-quar ter 2008 plant additions. The Commi ssion pointed
out that “bec ause ComEd had rea ched an agree m en t wi t h Staff to limit the pro forma additions to the first two quarte rs of 2008, in surre buttal testimony [C omEd] did not addre ss S t af f witness Griff

in’s continued opposition in rebuttal testimony to the inclusion of t h e t h i rd -quar

ter [2008] plant.” The Commi ssion emphasized that the 2007 Rate Orde r wa s based on the evidenc e in the re cord, not on the ComEd/Staff sti pulation. The Com mission “cla rifie[d] that the orig inal order in this proce eding should have included a specific finding that it did not find support for the third-quar ter [2008] plant additions in the recor d.” ¶ 75 ComEd asser

ts that the Commi ssion should be judicially estopped from deviatingfrom

-18-its argument in the previous appea l that further proce eding s on the third-quar ter 2008 plant additions wer e appropriate. The doctrine ofjudicial estoppel promotes the truth and protec ts the integ rity of the court sy stem by preve nting litigants from deliberately shifting positions
to suit the exigenc ies of the moment. United Automobile Insurance Co. v. Buck ley
, 2011 I L App (1st) 103666, ¶ 35. J ud i ci al est oppel is flexibl e but five elements g ener ally are

nece ssary : ( 1) the two positions mus t be taken by the same party ; ( 2) the positions must be taken in judicial proce eding s; (3) the positions must be g iven under oath; (4) the party must h ave succe ssfully maintained the first position and rece ived s ome benefit; and (5 ) t h e t wo positions must be totally inconsistent. United Automobile Insurance Co.
, 2011 I L App (1st) 103666, ¶ 35. J udicial estoppel applies to stat em en t s o f fac t and not to leg al opinions or conclusions. United Automobile Insurance Co.
, 2011 I L App (1st) 103666, ¶ 35. In this case , the Commi ssion has taken only one position reg arding proce eding s on the third-quar ter 2008 plant additions: the Commi ssion, not the appellate court, should decide in the first instance whether those plant additions should be included i n the rate base. More importantly
, the Commi ssion has not taken inconsistent positions on the answe r to that question. In the prior
appea l, the Commi ssion opposed our “automatica lly” g ranting ComEd’s petition and advocated rema

nding the cause to the Co m m i s s i on instead. On rema nd, the Commi ssion cited Griff

in’s testimony in support of excluding the third-quar ter 2008 plant additions as not being known and measura ble within the rec ord of the case

. Finding t h at it had alre ady adopted the Staff’s evidenc e, the Commi ssion excluded from the rate base the third-quar ter 2008 plant additions. Advocating a rema nd and then deny i ng the challeng ed pro forma adjustments are not inconsistent posit ions taken by the Commiss ion. ¶ 76 We further reje ct ComEd’s g ener al asser tion that the Refund Orde r, and in turn the 2007 Rate Orde r, lack sufficie nt detail reg arding the third-quar t er 2 0 0 8 plant additions. I f a revie wing court deter

mines that the Commiss ion’s rule, regulation, or der, or decision does
not c ontain finding s or analy sis suff icient to a llow a

n informed judicial revie w there of, the
court shall rema

nd the rule, regulation, o rder
, or decision, in whole or in part, with instructions to the Commi ssion to make the nece ssary finding s or analy sis. 220 I L CS 5/10- 201(e) (iii) (West 2010). Howeve r, the Commi ssion need not rec ite all the evidenc e on which its finding s are based. Chicago Junction Ry. Co. v. Illinois Commerce Comm’n
, 412 I ll. 579, 584 (1952). ¶ 77 In the Refund Orde r, the Commi ssion a ccur ately char acte rized the finding s in the 2007 Rate Orde r and the evidenc e in the rec ord on which they wer e based. In the 2007 Rate Orde r, the Commi ssion noted that, historically
, i t has welcome d consensus rec ommendations
prese nted by groups of litigants and has enter ed order s based on such rec o mm e n dations when they are supported by the evidence. Noting that the C omEd/St aff stipulation on pro forma adjustments was not unanimous, the Commi ssion ruled that “the stipulation is irrele vant to the Commi ssion for purp o s es of our deter minations in this matter. Acc ording ly
, the stipulation will be treated as mere ly another proposed resolution for the various contested i s s u es addre ssed in this proce eding that must be considere d based on the rec ord evide n ce adduce d in this docket.” ¶ 78 Throughout th e p r o c e e d in g s , th e Commi ssion’s treatment of the ComEd/S taff stipulation has been consistent with Business & Professional People for the Publ ic Interest v. Illi nois

-19-Commerce Comm’n
, 136 I ll. 2d 192, 217-18 (1989) ( BPI I ), whe re the supreme court held that the Commiss ion and a utilit y may not e nter into a settlement that excludes intervenor s unless the re sulting orde r is otherwise la wful: “Abse nt statu t o ry law to the contra ry , we have no quarr el with the Commi ssion’s ability to consider a settlemen t proposal not agree d to by all of the parties and the intervenor s as a dec ision on the me rits, a s long as the provisions of such a proposal are within the Commi ssion’s power to impose, the provisions do not violate the Act, and the provisions are independe ntly supported by s u b s ta nti a l e vidence in the whole rec ord. Such was not the situation in the case at bar

. *** [T] he Commi ssion may not enter into a settlement with a utility which excludes the intervenor s in the case , and it may not enter an order not based on the evidenc e.” (Emphasis in orig inal.) BPI I , 136 I ll. 2d at 217-18. ¶ 79 C o n s i stent with BPI I
, the Commi ssion stated in the 2007 Rat e Or d er t h at i t h ad evaluated the whole rec ord to deter mine whether the proposed pro forma capital additions, including the third-quar

ter 2008 plant, satisfied sections 287.20 and 287.40 of title 83 of the Administrative Code (see 83 I ll. Adm. Code 287.20, 287.40 (2003)) and complied with the
test y ear rules. The Commi ssion reiter ated that “of key importance is that neither [S taff] nor [C omEd] are reque sting that the Commi ssion enter an order approving the agree ment or stipulation that they have rea ched reg arding resolut i o n of various issues in this matter. Instead the Commi ssion, as we are lawfully mandated to do, will conduct a [ BPI I ] analy sis and base our deter

mination and ultimate conclusions on the applicable law and merits of the

rec ord evide nce.” ¶ 80 The 2007 Rate Orde r contains a finding that, beca use the pro

forma additions for the first
two quarte rs of 2008 satisfy sections 287.20 and 287.40 and the test-year rules, the evidenc e coupled with the rele vant leg al standards supports including those pro forma additions in the
rate base. The 2007 R ate Orde r was silent on whether the rec ord contains substantial evidenc e to support including the third-quar ter 2008 plant additions. Howeve r, in opposition
to ComEd, the Staff introduced evidence on this issue, and the Commi ssion rec ited the evidenc e in detail in both the 2007 Rate Or der a nd the Refund Or der on r emand. ¶ 81 On appea l, the Commi ssion argues that “[t] here can be no doubt that the Commi ssion has found that the evidenc e did not support the g rant of the thi rd-quarter pro forma capital adjustments in this docket.” The rec ord indicates that the Comm i s s i o n indeed decide d to

e xc lu d e th e third-quar

ter 2008 pro

forma capital adjustments in this docket. Be sides claiming
unpersua sively th at t h e Commi ssion violated our mandate on rema nd, ComEd does not identify any err or based on the timing of th e C ommissi on’s decision. Whether the Commi ssion made its express finding s in the Refund Orde r on rema nd or in the orig inal 2007 Rate Orde r is not ge rmane to whether the dec ision is s upported by substantial evidence

. ¶ 82 We conclude that there is substantial evidenc e to support the Commi ssion’s conclusion in the Refund Orde r that the third-quar ter 2008 pro forma capital adjustments wer e not known and measura

ble for the 2006 test year

. A revie wing court shall reve rse a Commi ssion rule, reg ulation, order
, or decision, in whole or in part, if it finds that: (a) the Commi ssion’s finding s are not supported by substantial evidenc e based on the entire rec ord o f ev idence

-20-prese nted to or befor e the Commi ssion for and against such rule, regulation, order
, or

decision; (b) the rule, reg ulation, order
, or decision is without the jurisdiction of the Commi ssion; (c) the rule, re gu l at i on, order
, or decision violates the state or fede ral constitution or laws; or (d) the proce eding s or manner by which the Commi ssion considere d and decided it s rule, regulation, order
, or dec ision viol ated the state or fe dera l constitution or laws, to the pr ejudice of the appe llant. 220 I L CS 5/ 10-201(e )(iv) ( West 2010). ¶ 83 Griff

in or igina lly had opposed all three quarte rs of 2008 pro forma capital additions a s being neither rea sonably cer tain to occur nor known and measura ble under section 287. After considering additional information prese nted as part of the stipulation, Griffi n agree d that the pro forma capital a dditions for the first t wo quar ters of 2008 w ere appropriate bec ause those projec ts wer e “summer critica l” for the summer of 2008. Howeve r, the stipulation did
not alter the Staff’s opposition to the third-quar ter 2008 pro forma capital adjustments. The Staff persisted in their conclusion that those adjustments wer e neither rea sonably cer tain to

occur nor deter

minable. Griff

in expl ai n ed t o the Commi ssion that ComEd’s projec ted construction budg ets and actua l costs showed varia n c e s , w h ich led him to conclude that those budg ets could not support ComEd’s argument that the challeng ed additions wer e rea sonably

cer tain to occur and wer e deter minable. Ba sed on Griff

in’s testimony and other evidenc e, the Commi ssion acc epted the proforma capital adjustments for the first two quarte rs but not the third-quar ter of 2008. ¶ 84 In the Refund Orde r, the Commi ssion ag ain cited Griff in’s t es t i m o n y re gar d i n gthe

u n ce rt ainty of ComEd’s projec ted construction costs as support for excluding the thirdquarte r 2008 pro forma capital adjustments. ComEd essentially argues that its ev idence should be acc epted over the Staff’s evidenc e, but that i s not a basis for overturning the Commi ssion’s fac tual decision. ComEd’s prese ntation of more witnesses and more pag es of testimony does not compel the opposite c onclusion. ¶ 85 ComEd also disputes the Comm ission’s comment that ComEd had failed to addr ess in

s u r r eb utt a l testimony Griff

in’s continued opposition to the inclusion of the th ird

- q u a r ter 2 0 0 8 plant addit io n s

. Co mE d c it e s th e te stimony of ComEd witnesses Kathry n Houtsma and Stacie Fr ank, who stated that approva l of the ComEd/S taff stipulation was a condition of ComEd’s decision to forg o the inclusion of the third-qua rt er 2 0 0 8 plant additions. Reg arding those additions, Houtsma and Frank focused their testimony on their di sagree men t wi t h another witness, Mr. Effr on, on the issue of how the ComEd/S taff stipulation related to depre ciation

rese rve and para llel incre a s e s to a c c u mulated defe rre d income taxes rela ting to exis ting plant. Houtsma and Frank made conclusory statements t hat t he e v i d ence in the record supported including the third-quar

ter 2008 plant additi o ns, but they offe red no testimony to rebut Griff in’s opinion that the challeng ed plant additions wer e neither rea sonably cer tain to occur nor determinable. Further, ComEd does n o t ci t e t o an y other part of t he record that would indicate an inacc urac y in the Commi ssion’s comment about ComEd’s surre buttal testimony

. ¶ 86 Showing defe renc e to the Commi ssion, we conclude t h at s ub s t an t i al evidenc e in the

rec ord supports its decision to exclude from the rate base the third-quar ter 2008 plant additions. See ComEd
, 4 0 5 I l l. App. 3d at 398 (“substantial evidence ” does not rise to the level of a preponde ranc e of the evidenc e, but rathe r is evidenc e that a “re asoning mind would

acc ept as sufficie nt to support a particula r conclusion” (interna l quotation marks omitted)).

-21-¶ 87 Finally
, we reje ct ComEd’s claim that, beca use ComEd actua lly im p l em en t ed cer tain third-quar ter 2008 plant additions, the Commi ssion err ed in ref using to include the additions in the rate base. This argument rooted in hindsight fails for the same re ason as ComEd’s claim that its actua l operating costs incurre d during the ref und period should be fac tored into the re fund. Allowing ComEd to introduce new evidenc e on actua l third-quarte r 2008 plant additions would have been improper retroactive ratema king in that it woul d have require d
reope ning the proce eding s to all parties for evidenc e on the e ntire 2007 Rate Or der.

¶ 88 IV. CONCLUSI ON ¶ 89 For

the pre cedingrea sons, the decision of the Commission is affirmed.

¶ 90 Affir

med.

-22-