The opinion
Digitally signed by
Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2019.07.22
10:42:47 -05'00'
Commonwealth Edison Co. v. Illinois Commerce Comm’n,
2019 IL App (2d) 180504
Appellate Court COMMONWEALTH EDISON COMPANY, Petitioner, v. THE
Caption ILLINOIS COMMERCE COMMISION; AMEREN ILLINOIS
COMPANY, d/b/a Ameren Illinois; ASSOCIATION OF ILLINOIS
ELECTRIC COOPERATIVES; BLUE DELTA ENERGY, LLC;
CARBON SOLUTIONS GROUP; CITIZENS UTILITY BOARD;
COALITION FOR COMMUNITY SOLAR ACCESS; ELEVATE
ENERGY; ENSYNC, INC.; ENVIRONMENTAL DEFENSE
FUND; ENVIRONMENTAL LAW & POLICY CENTER; GRID
ALTERNATIVES, INC.; THE ILLINOIS CHAMBER OF
COMMERCE; ILLINOIS MUNICIPAL ELECTRIC AGENCY;
THE ILLINOIS POWER AGENCY; ILLINOIS SOLAR ENERGY
ASSOCIATION; LITTLE VILLAGE ENVIRONMENTAL
JUSTICE ORGANIZATION; NATURAL RESOURCES DEFENSE
COUNCIL; NORTHSTAR PV LLC, d/b/a Summitt Ridge Energy;
AVANGRID RENEWABLES LLC; EDP RENEWABLES NORTH
AMERICA LLC; INVENERGY LLC; NEXTERA ENERGY
RESOURCES, LLC; ROBERT BOSCH START-UP PLATFORM
NORTH AMERICA LLC; SERIES 2, d/b/a Bosch Building Grid
Technologies; SOLAR BUSINESS COALITION; SOLAR
DEVELOPMENT ASSOCIATES, LLC; SOLAR ENERGY
INDUSTRIES ASSOCIATION; COALITION FOR COMMUNITY
SOLAR ACCESS; ILLINOIS SOLAR ENERGY ASSOCIATION;
THE PEOPLE OF THE STATE OF ILLINOIS ex rel. LISA
MADIGAN, Attorney General; WABASH VALLEY POWER
ASSOCIATION, INC.; and WIND ON THE WIRES, Respondents.
District & No. Second District
Docket No. 2-18-0504
Filed May 2, 2019
Decision Under Petition for review of order of Illinois Commerce Commission, No.
Review 17-0838.
Judgment Affirmed.
Counsel on Clifford Berlow, of Jenner & Block LLP, of Chicago, and Matthew E.
Appeal Price, of Jenner & Block LLP, of Washington, D.C., for petitioner.
James E. Weging, Special Assistant Attorney General, of Chicago, for
respondent Illinois Commerce Commission.
Bradley D. Klein, of Chicago, for respondents Environmental Law &
Policy Center et al.
Panel JUSTICE BURKE delivered the judgment of the court, with opinion.
Justices Schostok and Hudson concurred in the judgment and opinion.
OPINION
¶1 Under recently enacted legislation, the Illinois Power Agency (IPA) developed a long-term
renewable resources procurement plan (plan) to promote renewable energy, including the
implementation of three programs that provide financial support to small renewable energy
generation facilities (generation facilities) that might not be economically viable otherwise.
Under the plan, the generation facilities memorialize their energy production through
renewable energy credits (credits) that the IPA then procures on behalf of three large electric
utilities: petitioner, Commonwealth Edison Company (ComEd), Ameren Illinois Company
(Ameren), and MidAmerican Energy Company (MidAmerican) (collectively, Electric
Utilities). The generation facilities sell credits to the Electric Utilities, which then pass along
certain costs to their customers.
¶2 Some generation facilities operate in the service areas of (1) electric utilities operated by
municipalities, (2) rural electric cooperatives, and (3) the Mount Carmel Public Utility
(collectively, Local Utilities), which are not subject to the plan. 1 The plan as approved
compels the Electric Utilities to buy credits from generation facilities operating in the service
areas of the Local Utilities, but the Local Utilities are statutorily exempt from purchasing
credits.
1
The Mount Carmel Public Utility is a public utility regulated by the Illinois Commerce
Commission, but its small customer base exempts it from the plan’s credit procurement requirements,
and the parties treat Mount Carmel as a municipal utility for purposes of the programs.
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¶3 On April 3, 2018, the Illinois Commerce Commission (Commission) approved the plan.
The Commission concluded that the generation facilities eligible for the programs are
statutorily defined to include those within the service areas of the Local Utilities. On appeal,
ComEd argues that the legislature intended to exclude the generation facilities operating in the
service areas of the Local Utilities from participating in the programs.
¶4 We acknowledge that terms like “electric utility” and “utility” are not deployed with
precision, rendering the statutory scheme ambiguous. However, deferring to the Commission’s
expertise, we agree with the Commission’s interpretation in favor of the stated legislative
intent of promoting the programs. We affirm.
¶5 I. BACKGROUND
¶6 A. Large Electric Utilities Versus Small Local Utilities
¶7 The Electric Utilities provide electric service to retail customers on their low-voltage local
distribution networks within their service territories. ComEd has a service territory in the
northern part of the state. Ameren has a service territory in the southern part of the state.
MidAmerican has a service territory in and around the Quad Cities. The Local Utilities,
meanwhile, have service territories akin to islands within the service territories of the Electric
Utilities.
¶8 On December 7, 2016, the legislature enacted Public Act 99-906, commonly known as the
Illinois Future Energy Jobs Act, with provisions to increase the state’s commitment to
renewable energy. Pub. Act 99-906, § 5 (eff. June 1, 2017). Public Act 99-906 modernized the
Illinois renewable portfolio standard, creating new programs to encourage the deployment of
solar photovoltaics and other renewable energy technologies throughout the state.
¶9 To achieve the broad new goals of the renewable portfolio standard, the legislation directed
the IPA to develop plans subject to review and approval by the Commission. 220 ILCS
5/16-111.5(b) (West 2016). Under the plan at issue, the Electric Utilities must purchase a
certain number of credits each year. 20 ILCS 3855/1-75(a), (c) (West 2016). The Local
Utilities are not part of the plan and have no obligation to purchase credits because the Illinois
Power Agency Act and the Public Utilities Act regulate only “public utilities” (20 ILCS
3855/1-75(c)(1)(N) (West 2016); 220 ILCS 5/1-102 (West 2016)), which are expressly defined
to exclude entities owned or operated by municipalities or rural electric cooperatives. 220
ILCS 5/3-105(b)(1), (3) (West 2016). In contrast, an “electric utility” is a “public utility” that
“has a franchise, license, permit or right to furnish or sell electricity to retail customers within
a service area.” 220 ILCS 5/16-102 (West 2016); see 20 ILCS 3855/1-10 (West 2016).
ComEd, Ameren, and MidAmerican are “electric utilities” under the Illinois Power Agency
Act and the Public Utilities Act. A “municipal utility” is defined separately as a “public utility
owned and operated by any subdivision or municipal corporation of this State.” 20 ILCS
3855/1-10 (West 2016).
¶ 10 B. Renewable Energy Credits
¶ 11 The credits memorialize the production of renewable energy by the generation facilities,
and the IPA specifies the quantity of credits that the Electric Utilities must procure each year.
Under the IPA’s direction, the Electric Utilities enter into contracts with eligible generation
facilities to purchase the credits. The Electric Utilities recover certain expenses associated with
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the credits from their retail customers through a rate charge, subject to a statutory cap. 20 ILCS
3855/1-75(c)(1)(B), (c)(1)(E), (c)(6) (West 2016).
¶ 12 The Illinois Power Agency Act requires that 75% of the credits derive from wind and solar
resources. 20 ILCS 3855/1-75(c)(1)(C) (West 2016). Many wind and solar projects are
large-scale wind farms or solar arrays that interconnect with the interstate high-voltage
transmission system. To be eligible for procurement, these large-scale projects must be located
in Illinois or in adjacent states, provided that an adjacent state’s facility demonstrates that the
operation of the facility will help promote this state’s interest in the “health, safety, and welfare
of its residents.” 20 ILCS 3855/1-75(c)(1)(G)(v), (c)(1)(I) (West 2016).
¶ 13 The parties agree that large-scale generation facilities located in the service territories of
the Local Utilities are eligible to sell credits to the Electric Utilities. Accordingly, the plan
directs the Electric Utilities to procure credits from those large-scale generation facilities,
while the Local Utilities have no obligation to do so.
¶ 14 C. The Programs
¶ 15 To promote the small-scale, community-level generation facilities that interconnect with
low-voltage distribution networks, the legislature directed the IPA to set aside a certain
number of credits to be purchased by the Electric Utilities through the three specialized
programs at issue in this case: the Adjustable Block Program (20 ILCS 3855/1-75(c)(1)(K)
(West 2016)), the Community Renewable Generation Program (20 ILCS 3855/1-75(c)(1)(N)
(West 2016)), and the Illinois Solar for All Program (20 ILCS 3855/1-56(b) (West 2016))
(collectively, programs). The Electric Utilities must procure a certain portion of their credits
through the programs.
¶ 16 As outlined below, the statutes prescribing the programs refer to “electric utilities” and
“utility,” which ComEd argues exclude small generation facilities that operate in the Local
Utilities’ service territories.
¶ 17 1. The Adjustable Block Program
¶ 18 “The credits from solar facilities must be procured using the Adjustable Block Program”
from statutorily defined facilities: at least 50% from “distributed renewable energy generation
devices” (distributed generation) and at least 25% from “community renewable generation
projects” (community generation). 20 ILCS 3855/1-75(c)(1)(K)(i)-(iii) (West 2016).
Distributed generation and community generation are defined in part by their interconnection
with the distribution system level of (1) an “electric utility,” such as ComEd, “as defined in
[section 1-10] of the Illinois Power Agency Act”; (2) a “municipal utility as defined in [section
1-10] that owns or operates electric distribution facilities”; or (3) “a rural electric cooperative
as defined in section 3-119 of the Public Utilities Act.” 20 ILCS 3855/1-10 (West 2016).
¶ 19 The IPA, to ensure balanced market development throughout the state, must design the
Adjustable Block Program to ensure that projects are developed “in diverse locations and are
not concentrated in a few geographic areas.” 20 ILCS 3855/1-75(c)(1)(K) (West 2016). The
IPA must design the Adjustable Block Program to “provide a transparent schedule of prices
and quantities to enable the photovoltaic market to scale up and for renewable energy credit
prices to adjust at a predictable rate over time.” 20 ILCS 3855/1-75(c)(1)(K) (West 2016).
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¶ 20 The contracts for credits under the Adjustable Block Program must have at least 15-year
terms (20 ILCS 3855/1-75(c)(1)(L)(i) (West 2016)), and either 100% or 20% of the credit
purchase price, depending on the size of the generation facility, “shall be paid in full by the
contracting utilities at the time that the facility producing the credits is interconnected at the
distribution system level of the utility and energized. The electric utility shall receive and retire
all credits generated by the project for the first 15 years of operation.” (Emphases added.) 20
ILCS 3855/1-75(c)(1)(L)(ii), (iii) (West 2016).
¶ 21 2. The Community Renewable Generation Program
¶ 22 The Community Renewable Generation Program (20 ILCS 3855/1-75(c)(1)(N) (West
2016)) was created for consumers to participate in renewable energy generation and share the
benefits regardless of where the system is installed. To accomplish that goal, consumers may
“subscribe” to community generation projects. 20 ILCS 3855/1-75(c)(1)(N) (West 2016). For
instance, a subscriber may purchase or lease solar panels in an off-site installation and receive
a credit on his monthly electric bill for the energy produced by his share of the installation.
This way, a consumer without a roof suitable for a solar installation can attain access to solar
energy.
¶ 23 A “[s]ubscriber” means “a person who (i) takes delivery service from an electric utility,
and (ii) has a subscription of no less than 200 watts to a community renewable generation
project that is located in the electric utility’s service area.” (Emphases added.) 20 ILCS
3855/1-10 (West 2016).
¶ 24 The program allows subscriptions to be “portable” and “transferable” such that
“subscriptions may be retained by the subscriber even if the subscriber relocates or changes its
address within the same utility service territory,” and “a subscriber may assign or sell
subscriptions to another person within the same utility service territory.” (Emphases added.) 20
ILCS 3855/1-75(c)(1)(N) (West 2016).
¶ 25 3. The Illinois Solar for All Program
¶ 26 The Illinois Solar for All Program extends renewable energy concepts to low-income
communities and communities striving for environmental justice. 20 ILCS 3855/1-56(b)(2)
(West 2016). The IPA is directed to reallocate funds from the renewable energy resources fund
to provide “incentives for low-income distributed generation and community solar projects.”
20 ILCS 3855/1-56(b)(2) (West 2016). The plan disburses these funds through four different
programs: (1) the low-income distributed generation incentive, (2) the low-income community
solar project initiative, (3) incentives for distributed generation serving non-profit and public
sector customers, and (4) low-income community solar pilot projects. The legislative
objectives “are to bring photovoltaics to low-income communities in this State in a manner that
maximizes the development of new photovoltaic generating facilities, to create a long-term,
low-income solar marketplace throughout this State, to integrate, through interaction with
stakeholders, with existing energy efficiency initiatives, and to minimize administrative
costs.” 20 ILCS 3855/1-56(b)(2) (West 2016).
¶ 27 Under the Solar for All Program, the credits may be purchased through an upfront payment
“once the device is interconnected at the distribution level system of the utility and is
energized.” (Emphasis added.) 20 ILCS 3855/1-56(b)(3) (West 2016). The credits produced by
the facility count toward the obligation for “the electric utility” with which the project is
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interconnected. (Emphasis added.) 20 ILCS 3855/1-56(b)(3) (West 2016).
¶ 28 D. The Commission’s Order
¶ 29 On December 4, 2017, the IPA filed with the Commission a petition requesting approval of
the plan. The administrative law judge granted ComEd and many other entities leave to
intervene. The Illinois Attorney General (AG) and the Staff of the Commission (Staff) also
participated in the proceeding.
¶ 30 On April 3, 2018, the Commission issued the final order approving the plan. The order
walked through each of the contested issues in the docket, explaining the parties’ positions and
the Commission’s analysis and conclusion.
¶ 31 The Commission explained that the renewable portfolio standard does not apply to the
Local Utilities and that those entities do not have renewable energy procurement obligations
under Illinois law. The Commission found the arrangement consistent with the Public Utilities
Act’s exclusion of municipally-owned utilities and rural electric cooperatives from the
definition of “public utility.” 220 ILCS 5/3-105 (West 2016). Thus, the customers of the Local
Utilities do not pay to support the programs. Yet, the plan proposed to allow certain generation
facilities in the service territories of Local Utilities to participate in the programs.
¶ 32 ComEd’s objection was that the Illinois Power Agency Act did not authorize the IPA to
require retail customers of the Electric Utilities to subsidize the small generation facilities
within the service territories of entities that are not otherwise subject to the renewable portfolio
standard and whose customers are not paying for the benefits. The IPA, the AG, and nine other
parties—the Environmental Law & Policy Center; the Natural Resources Defense Council; the
Citizens Utility Board; the Carbon Solutions Group; the Solar Business Coalition; Solar
Development Associates, LLC; Elevate Energy; GRID Alternatives; and the Joint Solar
Parties (consisting of the Solar Energy Industries Association, the Coalition for Community
Solar Access, and the Illinois Solar Energy Association)—filed briefs in opposition to
ComEd’s position. Several entities filed objections to the plan on various grounds, but ComEd
is the only entity that challenges the narrow ruling at issue in this appeal.
¶ 33 The Commission framed the issue as whether to allow customers and generation facilities
located in the Local Utilities’ service territories to participate in the programs. The
Commission answered that question in the affirmative.
¶ 34 The Commission noted that the plain language of the Illinois Power Agency Act defines
“community renewable generation project” and “distributed renewable energy generation
device” to expressly include projects “interconnected at the distribution system level of either
an electric utility ***, a municipal utility ***, or a rural electric cooperative as defined in
Section 3-119 of the Public Utilities Act.” 20 ILCS 3855/1-10 (West 2016). Citing the rules of
statutory interpretation, the Commission ruled that, when these terms are used within section
1-56(b) in describing the Illinois Solar for All Program and section 1-75(c) in describing the
Adjustable Block Program and the Community Renewable Generation Program, the
legislature intended that they be used as defined in section 1-10 of the Illinois Power Agency
Act.
¶ 35 Therefore, the Commission concluded, a “community renewable generation project” or a
“distributed renewable energy generation device” interconnected with a municipal utility or a
rural electric cooperative is eligible to participate in the programs.
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¶ 36 Noting that the legislature limited the type of projects that may participate in the
Adjustable Block Program to new photovoltaic projects (20 ILCS 3855/1-75(c)(1)(K) (West
2016)), the Commission held that the legislature did not intend to limit what service territories
could participate, only what type of projects could participate in the programs.
¶ 37 Further, the Commission found an established precedent of participation by generation
facilities outside the service territory of the contracting utility in renewable resource
procurement programs under Illinois law. The IPA pointed out that Illinois law has never
required that generation facilities that produce credits actually be in the utilities’ service
territories to meet the utilities’ compliance obligations under the renewable portfolio standard.
Moreover, qualifying facilities in adjacent states are eligible to contribute to renewable
portfolio standard compliance by selling credits to contracting utilities in Illinois.
¶ 38 The Commission determined that the legislature did not intend to incentivize out-of-state
renewable development while disqualifying a large portion of Illinois from participating in the
programs, especially when the programs ostensibly are designed for “diverse locations and are
not concentrated in a few geographic areas.” 20 ILCS 3855/1-75(c)(1)(K) (West 2016).
¶ 39 Given the precedent and clear language, the Commission expressed sympathy for
developers of renewable energy projects and Illinois citizens who have invested in new
generation facilities outside the investor-owned utility territories expecting incentives from the
Future Energy Jobs Act. A sudden reversal of expectations would cause harm that should not
be ignored.
¶ 40 In arguing against this approach, ComEd cited the program provisions that use the terms
“utility,” “electric utility,” and “contracting utility” and argued that the statutes exclude
generation facilities located in the Local Utilities’ service territories. ComEd pointed out that
“electric utility” has a definition distinct from “municipal utility” and that “rural electric
cooperative” does not even have “utility” in its name.
¶ 41 The Commission responded that these instances of defining “utility” do not supplant the
more direct and unambiguous definitions found in section 1-10 of the Illinois Power Agency
Act, which clearly state that distributed generation or community generation may be
interconnected with a municipal utility or rural electric cooperative. The Commission
concluded that, had the legislature sought to further narrow those definitions in applying these
terms to the Adjustable Block Program and the Illinois Solar for All Program, it could have
easily done so through an express statement that such projects are excluded.
¶ 42 The Commission reconciled the conflicting interpretations by concluding that the
legislature simply used the term “electric utility” more “colloquially” in certain parts of the
Illinois Power Agency Act and intended to refer to whatever entity serves as the
interconnecting utility—even if it is a municipal utility or rural electric cooperative—as the
“electric utility,” which is how the utility’s customer would likely understand it.
¶ 43 ComEd also alleged practical difficulties potentially resulting from allowing participation
in the programs by projects in the Local Utilities’ service territories. The Commission
expressed sensitivity to operational challenges and sought smooth implementation of the
programs, but it found that the plan adequately addresses any operational challenges that
ComEd alleged could occur.
¶ 44 Most notably, the plan’s requirements that the Local Utilities adopt net metering policies
equivalent to those of the Electric Utilities will ensure that customers of the Local Utilities
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receive bill crediting commensurate with state-regulated electric utility customers. The
Commission adopted the plan as written to include in the programs the small generation
facilities in the service territories of municipal electric utilities and rural electric cooperatives.
¶ 45 ComEd filed a petition for rehearing on May 3, 2018, that the Commission denied in
conference on May 17, 2018. ComEd filed a timely notice of appeal to this court within 35
days, on June 19, 2018. See 735 ILCS 5/3-103 (West 2016).
¶ 46 II. ANALYSIS
¶ 47 ComEd argues that the legislature did not intend to allow small generation facilities located
in the service territories of municipal utilities and rural electric cooperatives to qualify to sell
credits under the programs because the municipal utilities and rural electric cooperatives do
not contract to obtain any credits under the programs, and their customers are not paying the
costs. Instead, ComEd argues, the legislature intended to limit participation in the programs to
generation facilities located in the service territories of the Electric Utilities, whose customers
are bearing the programs’ costs. For the following reasons, we agree with the Commission that
generation facilities located in the service territories of municipal utilities and rural electric
cooperatives are eligible to participate in the programs.
¶ 48 A. Standard of Review
¶ 49 Section 16-111.5(b)(5) of the Public Utilities Act, adopted as part of Public Act 99-906,
sets forth various provisions relating to the procurement of long-term renewable resources. 220
ILCS 5/16-111.5(b)(5) (West 2016). Section 16-111.5(b)(5)(ii)(C) sets forth the procedure for
the review and approval of long-term renewable procurement plans by the IPA. 220 ILCS
5/16-111.5(b)(5)(ii)(C) (West 2016).
¶ 50 Section 16-111.5(b)(5)(ii)(D) of the Public Utilities Act provides the standard by which the
Commission must assess a plan:
“The Commission shall approve the initial long-term renewable resources procurement
plan and any subsequent revisions, including expressly the forecast used in the plan and
taking into account that funding will be limited to the amount of revenues actually
collected by the utilities, if the Commission determines that the plan will reasonably
and prudently accomplish the requirements of Section 1-56 and subsection (c) of
Section 1-75 of the Illinois Power Agency Act.” 220 ILCS 5/16-111.5(b)(5)(ii)(D)
(West 2016).
¶ 51 Review of final decisions of the Commission involves the exercise of special statutory
jurisdiction and is constrained by the provisions of the Public Utilities Act. Illinois
Landowners Alliance, NFP v. Illinois Commerce Comm’n, 2017 IL 121302, ¶ 29. Section
10-201(d) of the Public Utilities Act provides that “[t]he findings and conclusions of the
Commission on questions of fact shall be held prima facie to be true and as found by the
Commission” and that “rules, regulations, orders or decisions of the Commission shall be held
to be prima facie reasonable.” 220 ILCS 5/10-201(d) (West 2016). ComEd, as the entity
appealing from the final order, bears the burden of proof upon all issues raised by the appeal.
See 220 ILCS 5/10-201(d) (West 2016).
¶ 52 The Public Utilities Act further provides, however, that a “court shall reverse a
Commission *** order or decision, in whole or in part, if it finds,” inter alia, that the “findings
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of the Commission are not supported by substantial evidence based on the entire record of
evidence” or that the “order or decision is without the jurisdiction of the Commission” or “is in
violation of the State or federal constitution or laws.” 220 ILCS 5/10-201(e)(iv) (West 2016).
¶ 53 Here, there is no dispute that the IPA and the Commission have jurisdiction over the
Electric Utilities but not over the Local Utilities. 220 ILCS 5/3-105 (West 2016) (“public
utilities” are not utilities operated by any political subdivision or municipal corporation of this
state or electric cooperatives). Therefore, the Local Utilities have no obligation to financially
support the generation facilities by purchasing credits under the plan.
¶ 54 ComEd contends that the programs are not open to generation facilities within the service
territories of the Local Utilities and, therefore, the Commission’s order contradicts the plain
language of the statute. ComEd’s argument is one of statutory interpretation.
¶ 55 The primary objective in interpreting a statute is to ascertain and give effect to the intent of
the legislature. Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d 433, 440 (2010). The best
evidence of the legislature’s intent is the language of the statute itself. Bruso v. Alexian
Brothers Hospital, 178 Ill. 2d 445, 451-52 (1997). Statutes must not be read in isolation, but as
a whole; all relevant parts of the statute must be considered when courts attempt to define the
legislative intent underlying the statute. People v. NL Industries, 152 Ill. 2d 82, 98 (1992).
Moreover, when an act defines its terms, those terms must be construed according to the
definitions contained in the act. Robbins v. Carbondale Police Pension Board, 177 Ill. 2d 533,
540 (1997).
¶ 56 Courts are not bound by the Commission’s rulings on questions of law, which we review
de novo. Illinois Landowners Alliance, NFP, 2017 IL 121302, ¶ 29. However, courts have
consistently afforded “substantial weight and deference” to the Commission’s interpretation of
a statute that it is charged with administering and enforcing. Illinois Consolidated Telephone
Co. v. Illinois Commerce Comm’n, 95 Ill. 2d 142, 152 (1983); Commonwealth Edison Co. v.
Illinois Commerce Comm’n, 398 Ill. App. 3d 510, 514 (2009). “A significant reason for this
deference is that courts appreciate that agencies can make informed judgments upon the issues,
based upon their experience and expertise.” Illinois Consolidated Telephone Co., 95 Ill. 2d at
153. We agree with the Environmental Law & Policy Center that this case involves precisely
the type of complex statute where the Commission and the IPA’s collective experience and
expertise is valuable. Thus, we afford “substantial weight and deference” to their interpretation
of the Illinois Power Agency Act when considering whether ComEd has met its burden of
proof.
¶ 57 B. Generation Facility Eligibility
¶ 58 Program eligibility is determined, in part, by the way the generation facility interconnects
with the distribution network. The Illinois Power Agency Act makes small-scale generation
facilities that are interconnected with the Local Utilities eligible for the programs. The credits
from solar facilities must be procured using the Adjustable Block Program from statutorily
defined facilities: distributed generation and community generation. 20 ILCS
3855/1-75(c)(1)(K)(i)-(iii) (West 2016). Section 1-10 of the Illinois Power Agency Act defines
distributed generation and community generation to include projects interconnected with the
distribution system level of an electric utility, a municipal utility, or a rural electric
cooperative. 20 ILCS 3855/1-10 (West 2016). We agree with the Commission that, when these
terms are used in section 1-56(b) in describing the Illinois Solar for All Program and section
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1-75(c) in describing the Adjustable Block Program and the Community Renewable
Generation Program, the legislature intended that they be used as defined in section 1-10 of the
Illinois Power Agency Act, as distributed generation and community generation are not
defined anywhere else. The legislature unambiguously contemplated that generation facilities
subject to the plan might be interconnected with the Local Utilities. Therefore, assuming that
the other statutory requirements are met, a distributed generation device or community
generation project interconnected with a municipal utility or a rural electric cooperative is
eligible to participate in the programs.
¶ 59 ComEd responds that, although section 1-10 of the Illinois Power Agency Act defines
distributed generation and community generation broadly to permit interconnection with an
electric utility, municipal utility, or rural electric cooperative, these definitions (like all of the
definitions in section 1-10) are subject to additional qualifications or restrictions that the
legislature might apply to them in the context of a given statute.
¶ 60 For example, section 1-10 of the Illinois Power Agency Act defines distributed generation
and community generation to include a project or device “powered by wind, solar thermal
energy, photovoltaic cells or panels, biodiesel, crops and untreated and unadulterated organic
waste biomass, tree waste, and hydropower that does not involve new construction or
significant expansion of hydropower dams.” 20 ILCS 3855/1-10 (West 2016). Yet, when the
legislature created the Adjustable Block Program in section 1-75(c)(1)(K) of the Illinois Power
Agency Act, it more narrowly defined these terms by restricting the eligible projects and
devices to “new photovoltaic projects.” 20 ILCS 3855/1-75(c)(1)(K) (West 2016). As a result,
ComEd argues, the definitions in section 1-10 do not apply to the Adjustable Block Program.
¶ 61 ComEd argues that we should look to the Public Utilities Act to discern the scope of the
programs prescribed by the Illinois Power Agency Act. The Illinois Power Agency Act (20
ILCS 3855/1-10 (West 2016)) and the Public Utilities Act (220 ILCS 5/16-102 (West 2016))
each define “electric utility” as a type of “public utility.” In turn, the Public Utility Act’s
definition of “public utility” explicitly excludes municipal utilities and rural electric
cooperatives. 220 ILCS 5/3-105 (West 2016). ComEd concludes that the legislature expressed
its intent to exclude municipal utilities and rural electric cooperatives from the programs by
using the terms “electric utility” and “utility” in the statutes that codify the programs.
¶ 62 First, ComEd points out that section 1-75(c)(1)(L) of the Illinois Power Agency Act ties the
payment requirement for credits purchased under the Adjustable Block Program to the time
that the project is interconnected with the distribution system of the “contracting electric
utility.” 20 ILCS 3855/1-75(c)(1)(L)(ii)-(iii) (West 2016). Second, payment for credits under
the Illinois Solar for All Program corresponds to the time that the device is interconnected with
the distribution system level of the “utility” and is energized. 20 ILCS 3855/1-56(b)(3) (West
2016). Third, the Community Renewable Generation Program requires that “subscriber[s]” to
community generation “take[ ] delivery service from an electric utility” (20 ILCS 3855/1-10
(West 2016) (defining subscriber)), which as defined in the Illinois Power Agency Act does
not include the Local Utilities. Generation facilities interconnected with the systems of the
Local Utilities are not interconnected with the Electric Utilities, and the Local Utilities bear no
obligation to purchase credits for these systems.
¶ 63 ComEd argues that these interconnection requirements must be given full effect, citing the
axiom that qualifying provisions control and supersede more general provisions. See Knolls
Condominium Ass’n v. Harms, 202 Ill. 2d 450, 459 (2002) (“It is also a fundamental rule of
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statutory construction that where there exists a general statutory provision and a specific
statutory provision, either in the same or in another act, both relating to the same subject, the
specific provision controls and should be applied.”). ComEd concludes that a narrower
definition of “contracting electric utility,” i.e., the Electric Utilities, should control and exclude
generation facilities interconnected with the Local Utilities.
¶ 64 Despite its superficial appeal, ComEd’s position is essentially that the provisions linking
payment for credits to the timing of interconnection are a better indication of legislative intent
than the actual definitions of distributed generation and community generation, which mention
municipal utilities and rural electric cooperatives by name, in section 1-10 of the Illinois Power
Agency Act. In contrast to sections 1-56 and 1-75, which appear to use “electric utility” and
“utility” interchangeably, section 1-10’s definitions of distributed generation and community
generation explicitly cite the statutory definitions of “municipal utility” and “rural electric
cooperative,” thus avoiding the other sections’ textual imprecision. 20 ILCS 3855/1-10 (West
2016). Specifically, distributed generation and community generation can be interconnected
with “a municipal utility as defined in [section 1-10 of the Illinois Power Agency Act] that
owns or operates electric distribution facilities” or “a rural electric cooperative as defined in
[s]ection 3-119 of the Public Utilities Act.” 20 ILCS 3855/1-10 (West 2016).
¶ 65 ComEd also raises concerns about whether the Community Renewable Generation
Program can ensure that subscribers can take advantage of the new net metering available to
community generation projects. The program requires the kinds of net metering, billing, and
crediting services required of the Electric Utilities, but the plan acknowledges that the Local
Utilities are not regulated by the IPA or the Commission and are free to decline to take these
actions. The plan proposes that the approved vendor obtain a certification confirming that the
Local Utilities comply with these requirements, but ComEd argues that it is unclear how the
IPA or the Commission will ensure that they continue to comply.
¶ 66 Regarding the Illinois Solar for All Program, the plan states that the law is silent on how to
allocate credits from generation facilities that service the territories of the Local Utilities, so
the plan allocates to a utility’s renewable portfolio standard goals only those credits procured
through contracts with that utility. As a result, credits procured through contracts with the IPA
would not be applied to the utility’s renewable portfolio standard goals as the law requires.
¶ 67 ComEd argues that (1) this approach is inconsistent with section 1-56(b)(3), which
expressly requires that all credits purchased under the Illinois Solar for All
Program—regardless of whether the contract is executed by the utility or the IPA—be applied
and counted toward the utilities’ obligations under section 1-75(c) (20 ILCS 3855/1-56(b)(3)
(West 2016)); (2) the Adjustable Block Program counts all credits from generation facilities in
the service territories of the Local Utilities; and (3) neither the Illinois Power Agency Act nor
the Public Utilities Act supports using money collected for the achievement of the state’s
renewable portfolio standard goals to purchase credits that do not contribute to those goals.
¶ 68 ComEd argues that including generation facilities located in the service territories of the
Local Utilities would lead to an absurd result: funds collected from customers are spent on
credits that never count toward achievement of the renewable portfolio standard goals. See
Du Page County Election Comm’n v. State Board of Elections, 345 Ill. App. 3d 200, 208
(2003) (“[A] court should avoid statutory interpretations that lead to absurd results.”).
¶ 69 Given that the IPA and others argued that projects within the Local Utilities’ service
territories should be included because they provide benefits throughout the state, ComEd
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argues that it is unclear why credits associated with the statewide benefits should go
unrecognized toward achievement of the renewable portfolio standard goals.
¶ 70 ComEd accurately points out that “electric utility” has a definition distinct from
“municipal utility” and that “rural electric cooperative” does not even have “utility” in its
name. We further acknowledge, as did the Commission, that several program provisions use
the terms “utility” and “electric utility” in ways that are inconsistent with the definitional
provisions of section 1-10 of the Illinois Power Agency Act. However, this ambiguity does not
compel reversal of the order approving the plan.
¶ 71 Even when, as here, review is de novo, an agency’s construction of the law may be
afforded substantial weight and deference if the meaning of the terms used in a statute is
uncertain because agencies make informed judgments based upon their experience and
expertise and serve as an informed source for ascertaining the legislature’s intent. Provena
Covenant Medical Center v. Department of Revenue, 236 Ill. 2d 368, 387 n.9 (2010). We defer
to the Commission as the agency with expertise over the interpretation of the statutes
governing the programs. Only ComEd takes a position contrary to the plan.
¶ 72 Thus, we defer to the Commission’s interpretation that these instances of the use of
“utility” and “electric utility” do not supplant the more direct and unambiguous definitions
found in section 1-10 of the Illinois Power Agency Act, which clearly state that distributed
generation and community generation may be interconnected with a municipal utility or rural
electric cooperative, as those facilities are statutorily defined. If the legislature had intended to
further narrow those definitions in applying these terms to the programs, it could have easily
done so through an express statement that such projects are excluded from certain geographic
areas.
¶ 73 The Commission reconciled the conflicting interpretations by concluding that the
legislature simply used “electric utility” and “utility” more “colloquially” in certain parts of the
Illinois Power Agency Act, intending to refer to whatever entity serves as the interconnecting
utility, including a municipal utility or rural electric cooperative. In fact, ComEd
acknowledges that “ ‘utility’ and ‘electric utility’ are used interchangeably throughout the
[Illinois Power Agency] Act,” which tends to undermine its assertion that the legislature
intended to deploy the terms with precision to define the scope of program eligibility. If the
legislature had intended “electric utility” to refer only to ComEd, Ameren, and MidAmerican,
it would have used that term throughout the Illinois Power Agency Act and not resorted to
“utility” as shorthand. The legislature could have taken a much simpler route to articulate
specific geographic restrictions for the programs than by defining terms differently in various
statutes. Using cryptic references to “electric utility” and “utility” to place restrictions on the
programs would be unnecessarily convoluted.
¶ 74 Moreover, including the projects in the service territories of municipal utilities and rural
electric cooperatives is more consistent with the stated legislative intent to operate the
programs throughout the state:
“The [IPA] shall design its [plan] to maximize the State’s interest in the health, safety,
and welfare of its residents, including but not limited to minimizing sulfur dioxide,
nitrogen oxide, particulate matter and other pollution that adversely affects public
health in this State, increasing fuel and resource diversity in this State, enhancing the
reliability and resiliency of the electricity distribution system in this State, meeting
goals to limit carbon dioxide emissions under federal or State law, and contributing to a
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cleaner and healthier environment for the citizens of this State. In order to further these
legislative purposes, renewable energy credits shall be eligible to be counted toward
the renewable energy requirements of this subsection (c) if they are generated from
facilities located in this State. The [IPA] may qualify renewable energy credits from
facilities located in states adjacent to Illinois if the generator demonstrates and the
[IPA] determines that the operation of such facility or facilities will help promote the
State’s interest in the health, safety, and welfare of its residents based on the public
interest criteria described above. To ensure that the public interest criteria are applied
to the procurement and given full effect, the [IPA’s] long-term procurement plan shall
describe in detail how each public interest factor shall be considered and weighted for
facilities located in states adjacent to Illinois.” (Emphasis added.) 20 ILCS
3855/1-75(c)(1)(I) (West 2016).
¶ 75 The legislative goal was to create programs that were available to “all citizens of the State,”
but according to the Environmental Law & Policy Center, the Natural Resources Defense
Council, and the Solar Business Coalition, adopting ComEd’s statutory interpretation would
effectively exclude approximately 570,000 citizen and business customers in areas served by
municipal utilities and rural electric cooperatives. ComEd’s position would deny access to the
economic and environmental benefits of these programs to customers in towns and rural areas
across the state.
¶ 76 Furthermore, section 1-75(c)(1)(I) distinguishes between in-state and out-of-state
generation facilities, thereby placing geographical restrictions on eligibility for the programs.
The legislature thus contemplated geographical restrictions and made them explicit in the
statute, avoiding a convoluted interpretation. This refutes the notion that the legislature used
the terms “electric utility” and “utility” to express its intent to geographically exclude
generation facilities that operate within the service territories of the Local Utilities.
¶ 77 Under these circumstances, we agree with the Commission’s determination that the plan
will reasonably and prudently fulfill the requirements of section 1-56 and section 1-75(c) of the
Illinois Power Agency Act. See 220 ILCS 5/16-111.5(b)(5)(ii)(D) (West 2016).
¶ 78 III. CONCLUSION
¶ 79 We hold that the Commission did not err in approving the IPA’s plan to allow renewable
energy generation facilities located in the service territories of municipal electric utilities and
rural electric cooperatives to participate in new renewable energy support programs. Thus, for
the reasons stated, the order of the Commission is affirmed.
¶ 80 Affirmed.
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