# Concerned Citizens & Property Owners v. Illinois Commerce Comm'n

> Illinois Supreme Court · January 23, 2026 · 2026 IL 131026

URL: https://www.frixlaw.com/law-library/cases/11245322

## Case

- **Court:** Illinois Supreme Court
- **Decided:** January 23, 2026
- **Citations:** 2026 IL 131026
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

2026 IL 131026

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket Nos. 131026, 131032)

CONCERNED CITIZENS & PROPERTY OWNERS et al., Appellees, v.
THE ILLINOIS COMMERCE COMMISSION et al., Appellants.

Opinion filed January 23, 2026.

JUSTICE O’BRIEN delivered the judgment of the court, with opinion.

Chief Justice Neville and Justices Theis, Overstreet, Cunningham, and
Rochford concurred in the judgment and opinion.

Justice Holder White took no part in the decision.

OPINION

¶1 Respondent the Illinois Commerce Commission (ICC) granted a certificate of
public convenience and necessity (CPCN) to appellant Grain Belt Express, LLC
(GBX), to construct and operate a high-voltage direct current (HVDC) transmission
line over the objection of intervenors Concerned Citizens & Property Owners; the
Illinois Agricultural Association, also known as the Illinois Farm Bureau;
Concerned People Alliance; Nafsica Zotos; and York Township Irrigators
(collectively Concerned Citizens), who joined the agency proceedings. At issue is
whether GBX satisfied the requirement in the Public Utilities Act (Act) that GBX
“is capable of financing the proposed construction without significant adverse
financial consequences for the utility or its customers” to be issued a CPCN. 220
ILCS 5/8-406.1(f)(3) (West 2022). We find that it did and that a showing of current
and present capability is not a condition precedent to the issuance of a CPCN.

¶2 BACKGROUND

¶3 GBX sought a CPCN from the ICC to construct and operate an HVDC
transmission line originating at wind generating facilities in Kansas, traveling
through Missouri and transversing nine southern Illinois counties, and ending at an
electricity substation in Indiana. GBX filed its application under sections 8-406(b-
5) and 8-406.1 of the Act (id. §§ 8-406(b-5), 8-406.1). Concerned Citizens
intervened in the ICC proceedings to challenge GBX’s application based on what
it alleged was GBX’s lack of compliance with the statutory requirements, including
section 8-406.1(f)(3) (id. § 8-406.1(f)(3)) and the unconstitutionality of the statute.
Clean Grid Alliance; Hanson Aggregates Midwest, Inc.; Greyrock, LLC; the
Citizens Utility Board (CUB); Leonard Brad Daugherty, as trustee of the Leonard
Daugherty Trust, Dated July 9, 2010; Rex Encore Farms, LLC; and the Illinois
Manufacturers Association also intervened in support of GBX’s application.

¶4 GBX’s HVDC transmission line project is designed to deliver energy to buyers
in Missouri, Indiana, and Illinois and to other states within the Midcontinent
Independent System Operator (MISO) and PJM Interconnection LLC (PJM) grids
through the grids’ existing infrastructures. GBX included with its application
witness testimony and other supporting exhibits and submitted additional testimony
at a hearing before the ICC. GBX presented the following evidence. GBX is a
wholly owned subsidiary of Invenergy Transmission, LLC, which is an affiliate
company of Invenergy Renewables, LLC. Invenergy Transmission created GBX as
a special purpose entity to construct, own, and operate the instant project without
assets, debt, or liabilities. Cost recovery would come through sales, leases, and
agreements with transmission service customers. GBX would not finance or

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recover its infrastructure costs from Illinois ratepayers. The project is a merchant
transmission project with GBX and its investors assuming all market risk.

¶5 GBX had secured regulatory approvals from Missouri, Kansas, and Indiana
before it filed its application for a CPCN in Illinois. It would fund construction of
the project using the “project finance” method, which is typically used in the energy
infrastructure industry. That method of financing involves GBX entering into long-
term contracts and commercial agreements with customers for transmission
capacity once preliminary development and regulatory permitting are completed.
With those contracts as security, GBX will execute project-specific financing with
lenders and investors. Under the project finance model, lenders and investors
generally require that project developers have the necessary permits and approvals
in place, have secured financing commitments beyond the lenders’ funding, and
have a high degree of certainty on the project’s budget and timeline before they will
financially commit to the project. GBX’s financing will depend on finding
transmission service customers who will pay charges for the service.

¶6 The initial total cost for constructing the project was estimated at $4.95 billion,
with $1.4 billion for construction of the Illinois segment of the transmission line.
The revised cost estimate was closer to $6.5 billion and does not include any
network upgrades. GBX would finance 65% to 80% through debt with loans from
commercial banks and the United States Department of Energy. The rest would be
raised from equity investors, including investments from Invenergy Renewables
and its affiliates, which, according to witness testimony, have capital resources to
undertake initial development and permitting, including $60 million Invenergy
Renewables has already spent on development costs. No profit and loss statements,
financial statements, or pro forma statements were submitted by GBX. Invenergy
enjoys long-term successful relationships with various commercial lenders to
whom GBX would turn for loan financing, including Wells Fargo, MUFG, GE
Capital, JP Morgan, Santander, Morgan Stanley, Natixis, Bank of America, and
Rabobank.

¶7 Shashank Sane, vice president of transmission for Invenergy, LLC, and GBX,
and Rolanda Shine, director of finance for Invenergy, LLC, testified about their
experience, and that of GBX, in financing the construction of large-scale energy
projects. According to Sane,

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“Invenergy Transmission and its affiliate companies have developed
transmission and collection lines in nearly all ice and wind structural loading
regions, through various air contaminants and lightning isochronic levels, tying
into weak and strong power grids while meeting interconnection requirements,
traversing geographical regions such as the Nevada desert, the mountainous
terrain of Idaho, the wetlands of Texas, the farmland of Illinois, the swamps of
Georgia and more.”

Invenergy developed and financed “191 large-scale clean power projects in the
United States and globally,” “representing $47 billion in completed transactions.”
Sane detailed a recent project in Texas, where “Invenergy Renewables and its
affiliate companies recently developed, constructed, and [are] currently operating a
27-mile transmission line” and an Invenergy project in Illinois where it completed
construction of the Blooming Grove Wind Project in 2020. Sane also identified two
HVDC transmission lines being developed by Invenergy Renewables and its
affiliates. The New Mexico North Path is an infrastructure project advancing wind
and solar energy, and Clean Path New York “is an $11B clean infrastructure project
comprised of over 20 wind and solar generation projects *** and a new, 175-mile
underground HVDC transmission line.”

¶8 Sane also testified regarding the collective experience of the GBX management
team, which “includes executive, professional and technical personnel who have
managed, built and financed projects in the transmission, renewable and traditional
energy sectors,” and have “financed billions of dollars of energy projects and
managed the development of projects that produce or transmit thousands of
megawatts of power.” In addition, Sane explained that “[m]embers of the
management team have had management, engineering and other supervisory roles
in the construction of transmission lines.” Submitted with Sane’s testimony was a
listing setting forth the qualifications of Invenergy’s management team.

¶9 Shine testified that she had “assisted with over $1 billion in construction, tax
equity and preferred equity financing,” and closed a “$650 million debt financing
deal for the first liquified natural gas (‘LNG’)-to power project in El Salvador” and
“managed construction funds through COVID impacts and identified and addressed
working capital challenges arising from LNG market volatility and delays in
revenue.” In her role in a prior company, she “closed over 150 solar projects with

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leading tax equity and debt players across the Unite[d] States and Spain” and
“raised three funds of distributed generation assets and streamlined financing
process by standardizing documentation and credit analysis” and “maximized
project value by driving favorable terms on investor yield and lease terms.” She
also “provided structured financing solutions to United States and Canadian clients
operating in the international markets related to hydropower, oil and gas, offshore
drilling, LNG and mining” and “conducted underwriting analyses on sponsor
credit, technology, offtake quality and market uncertainty.” Submitted with Shine’s
testimony was an exhibit listing the 50 completed and current “Affiliate Developed
and/or Constructed Generation and Transmission Facilities.” Invenergy
Transmission had, either in construction or in operation at the time of the ICC
proceedings, more than “4000 miles of transmission and collection lines, 88
substations, 96 generator step-up transformers and 5323 pad mount transformers”
and was developing two other high-voltage transmission line projects. Shine
described a 2021 transmission project in Latin America consisting of a new
transmission line, a substation, and accompanying infrastructure that was financed
“through multilateral and private placement sources of funding” as an example of
Invenergy’s experience.

¶ 10 Shine and Sane explained the substantial history of capital markets supporting
transmission projects. According to Shine, “significant amounts of liquidity exist
in the capital markets for transmission projects that have reached an advanced stage
of development,” and “[n]umerous institutional lenders and investors have
provided capital to transmission projects and other infrastructure projects and
demonstrate continued interest in this sector.” Sane explained the growing demand
for renewable energy sources, particularly “wind and solar generation, in Illinois,”
and anticipated the “demand will continue to grow over the next 20-30 years.”
Shine and Sane provided evidence regarding the benefits of and market demand for
the transmission service capacity that the project would offer. After soliciting
customers for an earlier version of this project, GBX received communications
from 14 wind developers from 26 wind farms around the proposed converter station
in Kansas, and 14 shippers requested transmission service capacity. Both Sane and
Shine testified GBX met the statutory requirement of section 8-406.1(f)(3) of the
Act (220 ILCS 5/8-406.1(f)(3) (West 2022)).

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¶ 11 The ICC’s staff witness, Michael McNally, provided testimony. He was a senior
financial analyst in the finance department of the ICC’s financial analysis division.
He and the ICC staff recommended a revised financing condition requiring GBX
to obtain financial commitments for the entire project before it began construction
on any easement property in Illinois. This condition differed from the one offered
by GBX, whereby it agreed to obtain financing for only the Illinois phase of the
project before beginning any construction. McNally explained the revised financing
condition would prevent the risk of significant adverse financial consequences for
GBX or its customers if the company was forced to abandon the project. In that
circumstance, only the investors would suffer. McNally described GBX’s current
financials as irrelevant to the statutory requirement in section 8-406.1(f)(3) (id.)
because the revised financial condition was forward-looking and would be based
on anticipated customer contracts GBX would seek at an advanced stage of project
development. He did not know if there would be an additional hearing when GBX
provided its compliance documents to the ICC.

¶ 12 The ICC issued the CPCN, finding that GBX was a qualifying applicant and the
project was a qualifying project under section 8-406(b-5), that the section 8-406(b-
5) qualification satisfied the criteria under section 8-406.1(f)(1), and that GBX was
“capable of financing” the project without significant adverse financial
consequences for GBX or its customers. See Grain Belt Express LLC, Ill. Comm.
Comm’n No. 22-0499 (Order-Final Mar. 8, 2023), https://www.icc.illinois.gov/
docket/P2022-0499/documents/334872/files/583350.pdf [https://perma.cc/4CHD-
H5PL]; see also 220 ILCS 5/8-406(b-5), 8-406.1(f)(1), (3) (West 2022). It
considered the project finance method to be commonly used in the energy
infrastructure industry and reviewed GBX’s capitalization, experience, and
financial relationships. Grain Belt Express, Ill. Comm. Comm’n No. 22-0499, at
49. The ICC concluded that there would be sufficient transmission contracts to
support the financing and that the revised financing condition would protect
Illinoisans. Id. It noted GBX agreed it would not allocate the costs of project
construction and operation to Illinois ratepayers without ICC approval and that the
evidence did not show any permanent adverse effect on property values along the
transmission line. Id. at 50, 86. The ICC further determined that GBX sought a
CPCN under section 8-406(b-5) and did not need to request authorization under
section 8-406(a), that the grant of a CPCN under section 8-406.1(i) requires the
ICC to also authorize construction under section 8-503, and that a finding the

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project satisfies section 8-406.1(f)(1)-(3) is a finding that it promotes the public
convenience and necessity. Id. at 11, 25, 91; see 220 ILCS 5/8-406(a), (b-5), 8-
406.1(i), 8-503, 8-406.1(f)(1)-(3) (West 2022). The ICC did not address the
constitutional claims Concerned Citizens raised, including whether the statute
violated the special legislation, equal protection, and separation of powers clauses
of the Illinois Constitution of 1970 (Ill. Const. 1970, art. IV, § 13; id. art. I, § 2; id.
art. II, § 1). Grain Belt Express, Ill. Comm. Comm’n No. 22-0499, at 21.

¶ 13 Concerned Citizens sought direct administrative review in the appellate court
of its statutory and constitutional claims and the issuance of the certificate. The
appellate court reversed the ICC’s order, finding that GBX did not establish the
requirement that it is capable of financing the project without significant adverse
financial consequences for itself or its customers (220 ILCS 5/8-406.1(f)(3) (West
2022)). 2024 IL App (5th) 230271-U, ¶ 38. The appellate court considered the
industry’s project finance method to be “speculative financing” and concluded that
the revised financing condition demonstrated GBX’s inadequate showing that it
could finance the project. Id. ¶¶ 29, 35. The court determined that neither GBX nor
its parent company, Invenergy Renewables, presented any evidence of their
“financial health.” Id. ¶ 31. It also determined that section 8-406.1(f)(3)’s
requirement that an applicant be “capable of financing” the project was a condition
precedent to the issuance of a certificate, necessitating that GBX establish it could
finance the project at the time ICC would grant an application for a CPCN. Id. ¶ 28.
The appellate court did not address Concerned Citizens’ other statutory claims,
including whether the ICC lacked authority to impose the cost allocation condition
and a 60-month construction deadline.

¶ 14 GBX and the ICC both petitioned for leave to appeal to this court. GBX argued
that the appellate court’s decision will make it impossible for any renewable energy
project to be approved, contrary to the state’s energy goals, and that it upends the
industry financing norms. The ICC argued that the appellate court misinterpreted
sections 8-406(b-5) and 8-406.1(f)(3) of the Act (220 ILCS 5/8-406(b-5), 8-
406.1(f)(3) (West 2022)) and improperly reweighed the evidence of whether GBX
is capable of financing the project with significant adverse financing consequences
for GBX or its customers, substituting its conclusion for that of the ICC. We granted
the petitions for leave to appeal and consolidated the appeals. The following parties
filed amicus briefs in support of GBX: the AFL-CIO; the Illinois Chamber of

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Commerce; the Illinois Manufacturers’ Association and the Electricity Consumers
Resource Council; the Clean Grid Alliance and the American Clean Power
Association; and the Natural Resources Defense Council, the Environmental Law
and Policy Center, Sierra Club, and CUB. See Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶ 15 ANALYSIS

¶ 16 The issue in this appeal is the interpretation of section 8-406.1(f)(3) of the Act,
which requires that an applicant be “capable of financing the proposed construction
without significant adverse financial consequences for the utility or its customers.”
220 ILCS 5/8-406.1(f)(3) (West 2022). GBX argues that section 8-406.1(f)(3) (id.)
does not establish a condition precedent to the issuance of a CPCN, contrary to the
finding of the appellate court, and that it presented sufficient evidence to satisfy the
requirement. The ICC maintains that its conclusion that GBX is capable of
financing the project without significant adverse financial consequences for GBX
or its customers was consistent with the Act and supported by substantial evidence.
Concerned Citizens argues that GBX failed to present any evidence it could
currently finance the project at the time it was granted the certificate. It interprets
section 8-406.1(f)(3) (id.) as necessitating that GBX establish financing in place
when the certificate issues and that GBX did not show current and present financing
and also failed to present any evidence it had capability of financing the project at
any time.

¶ 17 When we review an administrative decision, we look at the final judgment of
the administrative agency and not the appellate court judgment. Illinois
Landowners Alliance, NFP v. Illinois Commerce Comm’n, 2017 IL 121302, ¶ 29.
The Act provides that ICC’s factual findings “shall be held prima facie to be true”
and its orders and decisions “shall be held to be prima facie reasonable.” 220 ILCS
5/10-201(d) (West 2022). A court will reverse an ICC order when the ICC’s
findings are “ ‘not supported by substantial evidence based on the entire record of
evidence.’ ” Landowners Alliance, 2017 IL 121302, ¶ 29 (quoting 220 ILCS 5/10-
201(e)(iv)(A) (West 2014)). Courts are not bound by the ICC’s rulings on questions
of law. Id. Rather, we review an agency’s interpretation of an unambiguous statute
de novo. Id.

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¶ 18 To resolve this appeal, we interpret the Act, the statute at issue. Section 8-
406(b-5) of the Act was enacted as part of Public Act 102-0662 (eff. Sept. 15,
2021), commonly known as the Climate and Equitable Jobs Act, and authorizes a
“qualifying direct current applicant” to apply for and obtain a CPCN to construct a
“qualifying direct current project” without owning any physical plant, equipment,
or property in Illinois at the time of the application. 220 ILCS 5/8-406(b-5) (West
2022). The statutory amendment was the legislature’s response to this court’s
decision in Landowners Alliance, 2017 IL 121302, ¶ 1, where we found the ICC
had no authority to review Rock Island Clean Line’s application for a CPCN
because “the company did not qualify as a public utility under Illinois law.” The
amendment also addressed a subsequent decision, Concerned Citizens & Property
Owners v. Illinois Commerce Comm’n, 2018 IL App (5th) 150551, ¶ 24, where the
appellate court found that, because GBX was not a public utility, the ICC erred
when it issued it a CPCN for a transmission line project similar to the one at issue
and that the ICC lacked authority to grant it to GBX.

¶ 19 As the ICC found, under section 8-406(b-5), GBX is a “qualifying direct current
applicant,” and its project is a “qualifying direct current project.” Grain Belt
Express, Ill. Comm. Comm’n No. 22-0499, at 21; see 220 ILCS 5/8-406(b-5) (West
2022). A “ ‘[q]ualifying direct current applicant’ ” is “an entity that seeks to provide
direct current bulk transmission service for the purpose of transporting electric
energy in interstate commerce.” 220 ILCS 5/8-406(b-5) (West 2022). A
“ ‘[q]ualifying direct current project’ ” is

“a high voltage direct current electric service line that crosses at least one
Illinois border, the Illinois portion of which is physically located within the
region of the Midcontinent Independent System Operator, Inc., or its successor
organization, and runs through the counties of Pike, Scott, Greene, Macoupin,
Montgomery, Christian, Shelby, Cumberland, and Clark, is capable of
transmitting electricity at voltages of 345 kilovolts or above, and may also
include associated interconnected alternating current interconnection facilities
in this State that are part of the proposed project and reasonably necessary to
connect the project with other portions of the grid.” Id.

Section 8-604(b-5) further provides, in pertinent part:

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“Notwithstanding any other provision of this Act, a qualifying direct current
applicant that does not own, control, operate, or manage, within this State, any
plant, equipment, or property used or to be used for the transmission of
electricity at the time of its application or of the Commission’s order may file
an application on or before December 31, 2023 with the Commission pursuant
to this Section or Section 8-406.1 for, and the Commission may grant, a
certificate of public convenience and necessity to construct, operate, and
maintain a qualifying direct current project. *** If the qualifying direct current
applicant demonstrates in its application that the proposed qualifying direct
current project is designed to deliver electricity to a point or points on the
electric transmission grid in either or both the PJM Interconnection, LLC or the
Midcontinent Independent System Operator, Inc., or their respective successor
organizations, the proposed qualifying direct current project shall be deemed to
be, and the Commission shall find it to be, for public use.” Id.

¶ 20 Section 8-406.1 provides for an expedited process to obtain a CPCN. Id. § 8-
406.1. It sets forth the requirements, in relevant part, as follows:

“(f) The Commission shall, after notice and hearing, grant a certificate of
public convenience and necessity filed in accordance with the requirements of
this Section if, based upon the application filed with the Commission and the
evidentiary record, it finds the Project will promote the public convenience and
necessity and that all of the following criteria are satisfied:

***

(3) That the public utility is capable of financing the proposed
construction without significant adverse financial consequences for the
utility or its customers.” Id. § 8-406.1(f)(3).

¶ 21 Section 8-406.1(f)(3) requires an applicant to demonstrate it “is capable of
financing the proposed construction without significant adverse financial
consequences for the utility or its customers.” Id. As stated above, GBX construes
the requirement as forward-looking, while Concerned Citizens maintains the
requirement necessitates GBX establish its current capability to finance the project
prior to issuance of the CPCN. To resolve this dispute, we employ the rules of
statutory interpretation. When interpreting a statute, the court’s primary goal is to

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give effect to the legislature’s intent, giving the language of the statute its plain and
ordinary meaning. People ex rel. Madigan v. Wildermuth, 2017 IL 120763, ¶ 17.
We apply the statute as written without looking to any aids of statutory construction
when its language is plain and unambiguous. Goodman v. Ward, 241 Ill. 2d 398,
408 (2011). When a word is undefined in a statute, we may look to common usage
as found in the dictionary. Carmichael v. Laborers’ & Retirement Board
Employees’ Annuity & Benefit Fund of Chicago, 2018 IL 122793, ¶ 56 (“When a
statute fails to define a term, it is entirely appropriate to look to the dictionary to
ascertain the meaning of the term.”).

¶ 22 “Capable” is defined as “having attributes (such as physical or mental power)
required for performance or accomplishment,” “having traits conducive to or
features permitting something,” and “having or showing general efficiency and
ability.” Merriam-Webster Online Dictionary, https://www.merriam-webster.com/
dictionary/capable (last visited Dec. 23, 2025) [https://perma.cc/VYR2-E8TH].
Affording the language “is capable of” its plain and ordinary meaning, GBX must
have the capacity, power, or fitness to finance the project; the traits conducive to or
features permitting the project financing; and has shown or can show the general
efficiency and ability to finance the project. The language does not require GBX to
demonstrate it could finance its project at the time of its application as a condition
precedent to obtain approval for it from the ICC. Such an interpretation inserts an
additional requirement, “at the time of its application,” into the statute, violating
the rules of interpretation. See Mosby v. Ingalls Memorial Hospital, 2023 IL
129081, ¶ 31 (“When the statutory language is plain and unambiguous, a court may
not ‘depart from a statute’s plain language by reading into the law exceptions,
limitations, or conditions that the legislature did not express.’ ” (quoting Schultz v.
Illinois Farmers Insurance Co., 237 Ill. 2d 391, 408 (2010))). Simply put, section
8-406.1(f)(3) (220 ILCS 5/8-406.1(f)(3) (West 2022)) is devoid of any language
requiring a utility seeking a CPCN to establish proof of current and present financial
funding or funds in escrow prior to the issuance of a CPCN. Rather, the legislature’s
use of the broad language, “is capable of financing the proposed construction
without significant adverse financial consequences,” evinces that it intended an
expansive interpretation of section 8-406.1(f)(3). See id.; see also Cassidy v. China
Vitamins, LLC, 2018 IL 122873, ¶ 28 (rejecting “a cramped interpretation of the
intentionally broad language” of a statute). Had the legislature intended that
applicants have financing in place at the time the CPCN was to issue, it would have

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put such a requirement into the statute. See People v. Hoffman, 2025 IL 130344,
¶ 57 (O’Brien, J., dissenting, joined by Neville and Rochford, JJ.) (“Importantly, it
is the statutory text that best reflects the legislature’s intent.”); Chatham Foot
Specialists, P.C. v. Health Care Service Corp., 216 Ill. 2d 366, 398 (2005)
(legislature would have expressed the requirement had it intended to include it in
the statute). There is no temporal limitation in the statutory language.

¶ 23 The ICC therefore correctly rejected Concerned Citizens’ narrow interpretation
that GBX was required to establish it could finance the project “at present.” Grain
Belt Express, Ill. Comm. Comm’n No. 22-0499, at 45. In doing so, the ICC also
specifically noted that Concerned Citizens’ construction of the phrase “ ‘is capable
of financing’ ” ignores the remaining plain language of section 8-406.1(f)(3), which
states, “ ‘without significant adverse financial consequences for the utility or its
customers.’ ” (Emphasis added.) Id. at 49 (quoting 220 ILCS 5/8-406.1(f)(3) (West
2022)). Concerned Citizens advocates for a two-step interpretation of the statutory
requirement: that the utility be capable of financing the proposed construction and
that, only if that requirement is satisfied, will the existence of any significant
adverse financial consequences be considered. Concerned Citizens’ approach and
interpretation fail to consider the statute as a whole, contrary to what the
interpretative rules direct. ICC’s McNally acknowledged that Concerned Citizens
interprets the statute that way but stated that the ICC considers section 8-406.1(f)(3)
to be one requirement read as a whole. The interpretation offered by Concerned
Citizens fails to construe section 8-406.1(f)(3) according to its plain and
unambiguous language, which sets forth one requirement, not a two-step process.
The narrow interpretation presented by Concerned Citizens would require all
projects to have full financing in place at the time a utility applied for permits.
Because customers will not sign on with a utility until it has obtained regulatory
approvals, the narrow interpretation presented by Concerned Citizens would
essentially stall all future energy projects and eliminate the opportunity for Illinois
to reach its clean energy goals. This outcome is not what the legislature intended.

¶ 24 “The Public Utilities Act was enacted to assure the provision of efficient and
adequate utility service to the public at a reasonable cost.” Zahn v. North American
Power & Gas, LLC, 2016 IL 120526, ¶ 17. As part of the Climate and Equitable
Jobs Act, section 8-406(b-5) (220 ILCS 5/8-406(b-5) (West 2022)) was added to
the Act to address the need for increased availability of renewable energies,

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including electricity generated by wind farms. See, e.g., id. § 8-512(b)(2) (state’s
renewable energy access plan “shall *** develop a plan to achieve transmission
capacity necessary to deliver the electric output from renewable energy
technologies” to Illinois customers). Section 8-406(b-5) allows GBX, a nonpublic
utility, to step into the shoes of a public utility to construct a transmission line to
provide access to cleaner, cheaper, and more reliable electricity for Illinois
residents. See Pub. Act 102-662 (eff. Sept. 15, 2021). Because of the need to
advance renewable energy to meet our state’s goals to convert to renewable energy
to satisfy our electricity demands, section 8-406.1 presents an expedited process for
issuance of a CPCN. See 220 ILCS 5/8-406.1 (West 2022).

¶ 25 The ICC’s correct interpretation of the plain and unambiguous language, “is
capable of financing the proposed construction without significant adverse
financial consequences for the utility or its customers,” not only aligns with the Act
but also with the legislature’s express commitment to reduce the state’s dependency
on fossil fuels and move to renewable energies. See 50 ILCS 65/15-5(1) (West
2022) (“The health, welfare, and prosperity of Illinois residents require that Illinois
take all steps possible to combat climate change, address harmful environmental
impacts deriving from the generation of electricity, maximize quality job creation
in the emerging clean energy economy, [and] ensure affordable utility service
***.”). Moreover, it allows energy providers and energy transmission providers to
obtain permits and begin construction of energy projects based on their future
capability to raise capital, which expands the field of potential energy projects and
acknowledges the energy industry’s use of the project finance model to fund these
large-scale investments. GBX’s Sane and Shine explained that, under this method,
it is only after a project reaches an advanced stage of development that a developer
such as GBX will execute project-specific financing arrangements with investors
and lenders to acquire the capital to secure financing to complete development and
construction. Investors in these types of projects prefer the developers such as GBX
to have all necessary permits, other financial commitments, and a high degree of
certainty on the project’s budget and timeline before they will invest. Such a
method reflects the unique balance between the industry’s model of obtaining
future financing and ensuring a utility will be able to complete a proposed project.
See Rock Island Clean Line LLC, Ill. Comm. Comm’n No. 12-0560, at 150 (Order-
Final Nov. 25, 2014), https://www.icc.illinois.gov/docket/P2012-0560/documents/
221967/files/391921.pdf [https://perma.cc/6A5N-UUUB] (rejecting the

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challengers’ argument that section 8-406.1 required the applicant for a CPCN to
have financing secured at the time of the application). Lastly, we emphasize that a
revised financing condition was included in the instant CPCN that requires GBX to
secure financing for the entire project before beginning any construction on
easement properties in Illinois. Accordingly, we find that the ICC’s determination
that GBX was not required to demonstrate a current and present ability to finance
its proposed project at the time the ICC issues the CPCN is consistent with the plain
and unambiguous language of section 8-406.1(f)(3) (220 ILCS 5/8-406.1(f)(3)
(West 2022)) and the overall intent of the Act. 1

¶ 26 With the above understanding in mind, we now turn to the factual question of
whether GBX established that it is capable of financing the proposed construction
without significant adverse financial consequences for it or its customers. To satisfy
section 8-406.1(f)(3)’s plain and unambiguous statutory requirement, GBX had to
demonstrate to the ICC that it (1) is capable of financing the proposed
construction—that is, it has the ability to finance the project—and (2) that such
capability to finance the project will not result in significant adverse financial
consequences to GBX or its customers. The ICC found that GBX satisfied both
statutory requirements. Grain Belt Express, Ill. Comm. Comm’n No. 22-0499, at
49. The appellate court subsequently reversed this finding. 2024 IL App (5th)
230271-U, ¶ 42. The ICC and GBX argue that the appellate court improperly
reweighed the evidence and substituted its judgment of that of the ICC. They
maintain that the ICC’s ruling was supported by substantial evidence and should be
affirmed. Concerned Citizens counters that GBX failed to present any evidence of
its financial capability and that the ICC merely took GBX at its word that it will
secure the necessary financing to complete the project in the future.

¶ 27 To determine whether the ICC correctly found that GBX demonstrated that it
is capable of financing the proposed construction without significant adverse

1
We offer no opinion on the analysis or holdings found in Loper Bright Enterprises v.
Raimondo, 603 U.S. 369 (2024). The Loper Bright Court held that, under the federal
Administrative Procedure Act (5 U.S.C. 500 et seq. (2024)), courts “may not defer to an
agency interpretation of the law simply because a statute is ambiguous” Loper Bright, 603
U.S. at 413. None of the parties here argue that section 8-406.1 is ambiguous, and our
interpretation of the statute is based on its plain and unambiguous language. Because the
statute in question is not ambiguous, Loper Bright has no bearing on this appeal.

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financial consequences, we review the evidence submitted to the ICC. We will only
reverse an ICC order if we conclude that the ICC’s findings are not supported by
substantial evidence based on the entire record of evidence submitted to the ICC.
Citizens Utility Board v. Illinois Commerce Comm’n, 166 Ill. 2d 111, 120-21
(1995). “Substantial evidence exists if a reasoning mind would accept the evidence
as sufficient to support the challenged finding; it consists of more than a mere
scintilla of evidence but may be less than a preponderance of the evidence.” City of
Elgin v. Illinois Commerce Comm’n, 2016 IL App (2d) 150047, ¶ 25. A reversal of
an ICC order is not appropriate on a mere “showing that the evidence may support
a different conclusion; it must be shown that the opposite conclusion is clearly
evident.” Continental Mobile Telephone Co. v. Illinois Commerce Comm’n, 269 Ill.
App. 3d 161, 171 (1994).

¶ 28 Upon review, we find GBX presented substantial evidence in support that it “is
capable of financing the proposed construction without significant adverse
financial consequences” for itself or its customers. This evidence was presented by
Sane, GBX’s and Invenergy’s vice president of transmission, and Shine,
Invenergy’s finance director, who both testified to Invenergy’s experience in
financing similar transmission line projects, its skilled management team and
established relationships with commercial lenders, and interest in the project and
the renewable energy industry. Shine and Sane testified that the project finance
method is commonly used in the energy sector to fund large scale projects, that
Shine had assisted with more than $1 billion in construction financing, and that
Sane had been involved in construction financings totaling approximately $5
billion. Shine and Sane further testified that the lenders prefer that developers such
as GBX have the necessary permits, any needed additional financing, and certainty
on time and budget before undertaking financing obligations. When the energy
project reaches an advanced stage of development, GBX will enter into project-
specific financing agreements to secure financing to complete the project. Until that
stage of project development is reached, Invenergy Renewables will continue to
finance the project, adding to the $60 million it has already invested. As the project
is further developed, GBX will be able to secure customer contracts to serve as
collateral for financing from lenders with whom Invenergy has established
relationships. GBX received responses from its request for interest in the project
from 14 wind farm developers and 14 energy shippers seeking transmission service
capacity, which supports its ability to obtain customers whose contracts would

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serve as collateral for commercial loans as the ICC concluded. We find the record
contains substantial evidence that GBX is capable of funding the project.

¶ 29 While GBX did not present any financial information of GBX and Invenergy,
we note that the plain and unambiguous language found in section 8-406.1(f)(3)
does not specify what type of evidence needs to be presented to establish whether
a utility is capable of financing a project without significant adverse financial
consequences to itself and its customers. Sane and Shine both described the
numerous energy projects in which their companies had been involved globally,
including $47 billion in completed energy transactions in the United States alone.
Importantly, the ICC’s McNally testified that, because of the nature of the
industry’s project finance model, the current financial information of GBX and
Invenergy was irrelevant. Based on his review of GBX’s application, McNally
expressly recommended that the ICC find, “conditioned on the imposition of the
Revised Financing Condition, that Grain Belt Express is capable of financing the
proposed construction without significant adverse financial consequences for the
utility or its customers.” McNally noted that the ICC had used the same financing
condition in Rock Island Clean Line, requiring it to provide proof of financing to
construct the entirety of the project before beginning any construction in Illinois.
Rock Island Clean Line, Ill. Comm. Comm’n No. 12-0560, at 139-40. It also
approved the same financing condition in Grain Belt Express Clean Line LLC, Ill.
Comm. Comm’n No. 15-0277, at 146 (Order-Final Nov. 12, 2015), https://www.
icc.illinois.gov/docket/P2015-0277/documents/236482/files/417411.pdf [https://
perma.cc/M53Y-QSX9], rev’d on other grounds by Concerned Citizens, 2018 IL
App (5th) 150551.

¶ 30 In addition to requiring funding for the entirety of the project before
construction begins on any easement property in Illinois, the revised financing
condition requires that GBX provide ICC with the following documents to “verify
its compliance” with the condition:

“(a) On a confidential basis, documents sufficient to demonstrate equity and
loan or other debt financing agreements and commitments entered into or
obtained by Grain Belt Express or its parent company for the purpose of funding
the Project that, in the aggregate, provide commitments for funds for the total
project cost;

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(b) An attestation certified by an officer of Grain Belt Express that Grain
Belt Express has not, prior to the date of the attestation, installed Phase II
transmission facilities on easement property; or a notification that such
installation is scheduled to begin on a specified date;

(c) A statement of the total project cost, broken out by the components listed
in the definition of ‘total project cost,’ above, and reviewed by an officer of
Grain Belt Express, along with a reconciliation of the total project cost in the
statement to the total project cost as of July 18, 2022 of $4.95 billion (not
including estimated costs for network upgrades); and

(d) A reconciliation statement, certified by an officer of Grain Belt Express,
showing that the agreements and commitments for funds provided in (a) are
equal to or greater than the total project cost provided in (c).” Grain Belt
Express LLC, Ill. Comm. Comm’n No. 22-0499 (Appendix B Mar. 8, 2023),
https://www.icc.illinois.gov/docket/P2022-0499/documents/334872/files/
583352.pdf [https://perma.cc/S4DQ-5A65].

The revised financing condition necessitates GBX present to the ICC specific
documents confirming that GBX is able to pay for the entire project before it begins
any construction in Illinois on easement property. Thus, the record contains
substantial evidence that GBX and its customers are protected from significant
adverse financial consequences, as construction cannot begin until GBX has
enough money to finish the project. Accordingly, we find that the evidence within
the record supports the ICC’s decision to issue GBX a CPCN under the expedited
process set out in section 8-406.1 (220 ILCS 5/8-406.1 (West 2022)) of the Act.
See id. § 10-201(e)(iv)(A) (ICC order should be reversed when “not supported by
substantial evidence”); Landowners Alliance, 2017 IL 121302, ¶ 29 (same).

¶ 31 In coming to this conclusion, we find that the appellate court improperly
rejected Sane and Shine’s testimony. The appellate court’s findings disregard the
evidence presented before the ICC. The court’s reweighing of the evidence and
substituting its conclusions for those of the ICC were contrary to the canons of
statutory construction. Business & Professional People for the Public Interest v.
Illinois Commerce Comm’n, 146 Ill. 2d 175, 210 (1991) (“This court will not
substitute its judgment for that of the Commission where, as here, it has made an
evidentiary determination supported by the record.”). Again, we find that GBX

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presented substantial evidence that it was “capable of financing the proposed
construction without significant adverse financial consequences” for itself or its
customers. The appellate court erred in finding it did not.

¶ 32 Likewise, we reject Concerned Citizens’ claim that the ICC has traditionally
required applicants to present sufficient financial documentation to satisfy the
statutory requirements, as the cases on which it relies are distinguished on their
facts. Those applicants were existing public utilities with physical plant and
infrastructure already present in the state. See Ameren Illinois Co., Ill. Comm.
Comm’n No. 13-0115 (Order-Final Sept. 4, 2013), https://www.icc.illinois.gov/
docket/P2013-0115/documents/202655/files/357013.pdf [https://perma.cc/64YA-
QE43] (application to construct, operate, and maintain an electrical transmission
line connecting an existing substation and transmission line); Ameren Illinois Co.,
Ill. Comm. Comm’n No. 15-0064 (Order-Final June 16, 2015), https://www.icc.
illinois.gov/docket/P2015-0064/documents/230963/files/407594.pdf [https://
perma.cc/D3BW-AL9V] (application to construct electric transmission lines to
connect an existing substation to new substation to be constructed); Ameren
Transmission Co., Ill. Comm. Comm’n No. 15-0278 (Order-Final Nov. 12, 2015),
https://www.icc.illinois.gov/docket/P2015-0278/documents/236531/files/417496.
pdf [https://perma.cc/H6HW-7ZMT] (application to connect portions of existing
electric transmission line); American Transmission Co., Ill. Comm. Comm’n No.
16-0412 (Order-Final Dec. 20, 2016), https://www.icc.illinois.gov/docket/P2016-
0412/documents/249152/files/439648.pdf [https://perma.cc/KUF4-DFJK]
(application for electric transmission line to connect with transmission facilities
already operating in Illinois); Aqua Illinois, Inc., Ill. Comm. Comm’n No. 22-0336
(Order-Final Dec. 15, 2022), https://www.icc.illinois.gov/docket/P2022-0336/
documents/331604/files/577211.pdf [https://perma.cc/443C-6TU8] (application
for water distribution system and wastewater collection system in expanded
development; applicant is public utility providing water and sewer service). The
projects were paid for with traditional financing methods and relied on the existing
resources of the applicant or its parent company. See Ameren Illinois, Ill. Comm.
Comm’n No. 13-0115, at 14 (short-term and long-term debt, equity supported by
cash flow, and liquidity from parent company); Ameren Illinois, Ill. Comm.
Comm’n No. 15-0064, at 11 (short-term debt, long-term debt, and equity; retained
earnings; and equity infusions from parent company); Ameren Transmission, Ill.
Comm. Comm’n No. 15-0278, at 7-8 (parent corporation, intercompany borrowing

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arrangement, and retained earnings); American Transmission, Ill. Comm. Comm’n
No. 16-0412, at 4-6 (debt and internal earnings); Aqua Illinois, Ill. Comm. Comm’n
No. 22-0336, at 6 (day-to-day working capital, available bank lines of credit). In
contrast, GBX is a public utility only by legislative fiat, and unlike the above
applicants, the ratepayers will not contribute to the construction costs. In the
emerging renewables energy industry, infrastructure projects are not financed based
on current financial capability but on future revenues that will be generated from
customers paying for transmission line capacity. GBX is not a traditional public
electricity utility like the utilities involved in the ICC cases cited by Concerned
Citizens. Moreover, as we explained above, section 8-406.1(f)(3) does not specify
what type of evidence a utility must present to satisfy the section’s plain and
unambiguous statutory requirements.

¶ 33 We find the record presents substantial evidence supporting the ICC’s finding
that GBX “is capable of financing the project without significant adverse financial
consequences” to it or its customers and that the revised financing condition ensures
that GBX will not begin construction until it can pay for the entire project. Proof of
GBX’s current and present financial capability was not a condition precedent to the
issuance of the CPCN. Instead, evidence of the industry’s method of financing the
construction of large-scale energy projects, along with unrefuted evidence that such
projects do not generate revenue until regulatory permits are issued and customer
contracts are executed, supports the ICC’s decision to issue a CPCN to GBX.

¶ 34 Lastly, we decline to address any of the constitutional and other statutory issues
raised below. None of these arguments were addressed by the appellate court. Our
decision is therefore limited to the question before us, whether the record contains
substantial evidence supporting the ICC’s decision to issue GBX a CPCN under
section 8-406.1(f)(3) of the Act (220 ILCS 5/8-406.1(f)(3) (West 2022)).

¶ 35 CONCLUSION

¶ 36 For the foregoing reasons, we reverse the appellate court’s order reversing the
ICC’s grant of a CPCN to GBX. We remand this matter to the appellate court. See
People v. Lantz, 186 Ill. 2d 243, 262 (1999) (“[T]he appropriate procedure
generally is to remand the matter to the appellate court so that previously

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unaddressed issues may be considered there first.”).

¶ 37 Appellate court judgment reversed.

¶ 38 Commission decision affirmed.

¶ 39 Cause remanded.

¶ 40 JUSTICE HOLDER WHITE took no part in the consideration or decision of
this case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11245322. Public record. Not legal advice.