Dana Herra Jun. 16, 2016, 3:21pm

A state appellate court has rejected a claim by the Citizens Utility Board that ComEd should extend the special metering it allows customers who generate their own green energy to groups of people supporting community green energy projects.

CUB and the Environmental Defense Fund, a nonprofit organization dedicated to addressing environmental problems, asked the Illinois Commerce Commission to approve a community-owned solar pilot program in ComEd’s service territory. The two organizations also asked the ICC to order ComEd to modify its rate structure and schedule of fixed charges – collectively known as ComEd’s “tariff” - to allow groups of customers who band together to support renewable energy facilities not located on their individual properties to receive the same kind of net metering benefits held by those who generate renewable energy at their own homes or businesses.

Net electrical metering is provided through a rider on the ComEd tariff. The metering service is offered to eligible ComEd customers who generate electricity through renewable sources like solar panels or wind turbines located on the customers’ own premises. These customers can export the electricity they generate to the electric grid, offsetting their own utility charges.

In February of 2015, CUB and EDF approached the ICC for approval of a community-owned solar project and proposed a modified rider that would allow the customers participating in this project, but not located on the same premises as the solar panels, to enjoy the benefits of net metering. According to court documents, the organizations did not see this as a new service, just an amendment to the eligibility definition in the existing rider.

ComEd moved to dismiss the petition. The utility provider said it had considered the proposal and decided not to extend the definition of who is eligible for net metering, and argued that the Public Utilities Act prohibits the ICC from requiring it to do so. ComEd said the act also allows only a utility to initiate a rate change.

The commission granted the motion to dismiss. According to court documents, the commission concluded the new rider is different enough that it should be considered a new program, not an amendment to an existing service, and the commission lacked authority under the Public Utilities Act to require its adoption. The commission pointed out the new rider would require ComEd to offer net metering to customers not defined as eligible for the program by statute. Since the current tariff only requires ComEd to provide net metering to eligible customers until the load of net meter customers reaches 5 percent of the previous year’s peak demand, expanding the definition of eligible customers would likely cause that milestone to be met sooner, and customers eligible for the service under the current tariff could be denied.

CUB and EDF first filed for a rehearing and were denied. They then appealed, petitioning a direct review of the commission’s decision by the appellate court.

However, on June 10, a three-justice panel of the Illinois First District Appellate Court rejected the arguments raised by CUB and EDF. The court’s opinion as authored by Justice Thomas E. Hoffman, with justices Mary K. Rochford and Mathias W. Delort concurring.

“The Commission is an administrative agency responsible for setting utility rates, whose powers and duties are set forth in the Act,” the court wrote. “Consequently, we give substantial deference to the Commission’s decisions in light of its expertise in the area of utility rate making.”

The court added that it would not reverse an order or decision of the ICC unless it found the commission acted outside its jurisdiction, the decision was not supported by substantial evidence, or the commission violated the law or the Constitution in arriving at its decision. Since none of those factors were met, the court affirmed the commission’s finding.

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