SR0585 97TH GENERAL ASSEMBLY

SR0585 LRB097 20097 JWD 65470 r

SENATE RESOLUTION

WHEREAS, The 97th Illinois General Assembly passed Senate Bill 1533 and House Bill 691 with super-majority votes in both legislative chambers; Senate Bill 1533 became law on July 13, 2011 as Public Act 97-96, and House Bill 691 became law on December 8, 2011 as Public Act 97-630; and

WHEREAS, Public Act 97-96 set forth a detailed framework for the development of a clean coal brownfield facility, commonly known as the Chicago Clean Energy project, that included a provision requiring the Illinois Commerce Commission to approve the final sourcing agreements between the Chicago Clean Energy project and gas utilities for the purchase of substitute natural gas; and

WHEREAS, Public Act 97-630 was enacted as "trailer legislation" to Public Act 97-96 with the intent to: (1) address statutorily unauthorized early termination provisions that had been included in the final draft sourcing agreements transmitted to the Illinois Commerce Commission by the Illinois Power Agency; and (2) clarify the limited role of the Illinois Commerce Commission in approving the final sourcing agreements between the Chicago Clean Energy project and gas utilities; and

WHEREAS, Pursuant to Public Act 97-630, the Illinois Commerce Commission in reviewing and approving sourcing agreements was only to: (1) fill in the blanks in the final draft sourcing agreement based upon the previously established capital costs, operations and maintenance costs, and the rate of return for the Chicago Clean Energy project; (2) remove 2 statutorily unauthorized early termination provisions from the final draft sourcing agreement; and (3) correct typographical and scrivener's errors; and

WHEREAS, No statutory authority was given to the Illinois Commerce Commission to modify the terms of the final draft sourcing agreement or impose other obligations upon the Chicago Clean Energy project beyond the limitations set forth in Public Acts 97-96 and 97-630; and

WHEREAS, The Illinois Appellate and Supreme Courts have consistently held that, because administrative agencies are creatures of statute, they possess only those powers expressly delegated by law, and they may not act beyond their statutorily delegated authority; and

WHEREAS, The Illinois Appellate and Supreme Courts have consistently held that public policy in Illinois is expressed by the General Assembly, and it is not the province of an administrative agency to inquire into the wisdom and propriety of the legislature's act or to substitute its own judgment for that of the legislature; therefore, be it

RESOLVED, BY THE SENATE OF THE NINETY-SEVENTH GENERAL ASSEMBLY OF THE STATE OF ILLINOIS, that we express serious concerns that the Illinois Commerce Commission Order entered on January 10, 2012 in Docket No. 11-0710: (1) modifies the final draft sourcing agreement with respect to recovery of costs despite the Commission lacking statutory authority to do so and despite the statutory language and legislative intent of Public Act 97-96 to provide full cost recovery to the Chicago Clean Energy project; (2) fails to delete one of the 2 provisions for early termination that were contained in the final draft sourcing agreements submitted to the Commission by the Illinois Power Agency; and (3) imposes an obligation to secure a third-party guarantee that is contemplated nowhere in statute, that exceeds the limited role envisioned for the Commission, and that is in addition to the substantial consumer protections already set forth in the statutory framework for the Chicago Clean Energy project; and be it further

RESOLVED, That we urge that the Illinois Commerce Commission rehear the matter and, upon rehearing, the Commissioners of the Illinois Commerce Commission reach a decision that reflects statutory directives and the intent of the Illinois General Assembly in passing Public Acts 97-96 and 97-630; and be it further

RESOLVED, That suitable copies of this resolution be delivered to the Commissioners of the Illinois Commerce Commission, the Director of the Illinois Power Agency, and the Governor.