Posts Tagged ‘advanced metering infrastructure’

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In April 2013 I brought against Commonwealth Edison (Hawkins et al. v. ComEd). The proposed class consists of all ratepayers of ComEd, and the gist of the case is that ComEd willfully violated an order of the Illinois Commerce Commission to start installing smart meters back in September 2012.

ComEd to this day attempts to justify elevating itself above its statutorily-appointed regulator by claiming that the ICC’s 2012 decision in a different docket, one dealing with its formula rate (Ill C C Dkt No 11-0721), deprived it of $100,000,000 in revenues annually. This is a complete canard. On October 23, 2012, ComEd itself pulled from the ICC record all evidence of any alleged revenue shortfall supposedly attributable to the ICC’s formula rate order. Thus, there is not one iota of evidence supporting ComEd’s claimed revenue loss.

A month or so before I filed the suit, ComEd paid roughly $192,000 in “campaign contributions” to sponsors of its bill amending the Illinois Public Utilities Act and stripping the Illinois Commerce Commission of all power to even investigate, much less penalize, ComEd for its unlawful acts. That sum is a bit more than one tenth of one percent of the $182,000,000 in actual damages that ComEd’s violation inflicted on ratepayers.

Then-Governor Quinn vetoed ComEd’s legislation. A well-paid General Assembly then overrode his veto.
A few days after I filed the action, ComEd’s lawyers wrote to me and threatened to sue me and my clients for damages and attorneys’ fees if I did not immediately withdraw it because, they claimed, ComEd’s amendments to the Illinois Public Utilities Act “eviscerated” the entire basis for the action. I wrote back, telling them that the ComEd amendment to the PUA was perhaps the most brazenly unconstitutional enactment in the history of our state.

In November 2013 the Cook County Circuit Court granted ComEd’s motion to dismiss the action on jurisdictional grounds. The court did not reach any of the constitutional claims. We filed our appeal of that decision later that month. On February 17, 2015, the appellate court affirmed the circuit court’s decision.

While the appellate court did not rule in our favor, for several reasons this is not a loss. Among these is the appellate court’s response to our argument that, because of ComEd’s amendments to the Public Utilities Act, a ruling against the plaintiffs leaves them without a forum in which to bring their claim. The appellate court stated:

It is repugnant to our understanding of due process of law and justice that a wronged party be required to proceed exclusively in a forum that lacks the authority to investigate and take action against the wrong-doing entity. This clearly allows the wrongdoer to act with impunity and makes a mockery of the established principle that there should be a remedy for every wrong….Any changes to address plaintiffs’ concerns must be made by the legislature or by our supreme court.

Appellate courts don’t usually resort to terms like “repugnant” and “mockery” to characterize an act of the legislative branch. But both ComEd and the Illinois General Assembly have set their faces against a bedrock principle of Anglo-American jurisprudence, namely, if you’ve suffered a wrong, there is always at least one tribunal that will hear your claim.

What the appellate court is saying is that its hands are tied by language the Illinois Supreme Court used in another case, Sheffler v ComEd, and it’s up to them to refine it. This is about as close as an appellate court can get to a direction to take this up the Illinois Supreme Court.

Fix bayonets. This battle’s far from over.


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On Thursday, October 10, 2013, we argued ComEd’s motion to dismiss the smart meter class action lawsuit before Judge Mary L. Mikva. The court focused on the issue of whether it had jurisdiction over the plaintiffs’ claim that ComEd damaged consumers in the amount of $182 million by delaying smart meter deployment in violation of a June 2012 ICC order.

ComEd claimed that the ICC had exclusive jurisdiction of the matter. Paul Neilan and co-counsel Stuart Chanen, attorneys for the plaintiff class, argued that the ICC already exercised its jurisdiction when it ordered ComEd to start smart meter installations in September 2012, and that the circuit court now has jurisdiction to award damages caused by ComEd’s violation of the June 2012 order. Plaintiffs’ attorneys stressed that ComEd had requested the ICC to stay enforcement of that order, a request the ICC denied. The plaintiffs therefore urged the Court to retain jurisdiction and move on to the issue of the substantive damage that ComEd had caused through its smart meter delay. Mr. Neilan added that ComEd’s customers can’t recover these damages at the ICC.

Judge Mikva took the case under advisement and stated that she would issue a written ruling prior to a November 6 status.

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Our complaint against ComEd is grounded on their unilateral decision to delay implementation of smart meters because of their dissatisfaction with the Illinois Commerce Commission’s decision in a separate docket regarding ComEd’s formula rate. Because it may be somewhat daunting to work through the complaint and the various ICC orders, here’s a link to a video that explains how ComEd arrived at its decision.

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On May 5, 2013, Illinois Governor Pat Quinn vetoed legislation known as Senate Bill 9 that was pushed by Illinois utilities ComEd and Ameren in response to Illinois Commerce Commission rulings last year.

ComEd says that enactment of SB9 is necessary to get the installation of smart meters back on track. But if SB9 does become law, ComEd has committed to install only 60,000 smart meters in 2013 and another 160,000 in 2014. In stark contrast, over one million smart meters would have been installed by the end of 2014 under the original smart meter installation plan ordered by the ICC.

And what does ComEd want from consumers to install a measly 220,000 smart meters by the end of 2014? A $70 million rate increase in 2013 and a retroactive $70 million increase for 2012 under SB9, as well as an additional $311 million in 2014 under its April 29th rate filing. That’s a total rate increase of $451 million.

What ComEd’s really saying is that ratepayers should be happy because they’ll get one fifth as many smart meters installed over the next two years if they pay ComEd nearly half a billion more dollars. SB9 would cost consumers a fortune without getting smart meter installations back on track. ComEd is relentless in its efforts to pull off the biggest bait and switch in Illinois history.

ComEd has tried to justify SB9 on grounds that the ICC’s rulings misinterpreted the original smart grid law passed in 2011. ComEd contends its rates would have been $70 million per year higher if the ICC had correctly interpreted that law. ComEd has every right to make this argument, as it has done, to the Illinois Appellate Court. If ComEd prevails in court its rates will be $70 million higher.

But it is unconstitutional and illegal for ComEd to make an end run around the courts to the legislature and refuse to install any smart meters unless the legislature retroactively overturns the ICC. Most likely, ComEd doesn’t want to risk having an appellate court decide that the ICC’s reading of the law was right. It’s safer, easier, and probably cheaper to just ask the General Assembly to overrule a final, binding order of the ICC.

SB9 constitutes unprecedented legislative interference with a regulatory agency, as Governor Quinn stated in his veto message. In addition, SB9 is unconstitutional because it violates both the separation of powers and due process doctrines.

Rather than continuing to lobby for this extremely flawed bill, ComEd should focus on accelerating smart meter installations. If ComEd is right and the ICC wrong about the extra money ComEd says it deserves, the Illinois Appellate Court will rule in ComEd’s favor.

Once the Illinois General Assembly understands this, I’m confident that they will not want to wade into ComEd’s SB9 quagmire, and they’ll let Governor Quinn’s veto stand.

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