A state appeals panel has rebuffed the efforts of environmental and social justice groups seeking to block extension of a new natural gas line into an impoverished, predominantly Black rural Kankakee County community where residents have for decades relied on things like wood stoves, propane and electrical space heaters for heat and energy.
After the General Assembly acted in 2021 to enable natural gas extension in Pembroke Township, Northern Illinois Gas Company filed a petition with the Illinois Commerce Commission requesting a certificate of public convenience and necessity as authorization to install about 35 miles of new gas distribution main lines. That prompted intervention from groups asking the ICC to deny the permit. These included organizations known as Pembroke Environmental Justice Coalition, the Environmental Defense Fund of Illinois and Blacks in Green.
After the ICC granted Nicor the permit, it then denied the intervenors’ request for a second hearing. The groups then sought review from the Third District Appellate Court. Green Power Alliance, a program of Blacks in Green, is listed as a party in the appeal.
Justice Liam Brennan wrote the panel’s opinion, issued April 12; Justices Lance Peterson and Linda Davenport concurred.
Before the appeals panel, the intervenors argued the ICC misapplied various parts of the state law known as the Pembroke Township Natural Gas Investment Pilot Program Act. Lawmakers also amended the State Finance Act and the Public Utilities Act, Brennan wrote, “to create what we will refer to as the Pembroke Pilot Program.” The intervenors said the ICC was wrong to determine “Nicor could efficiently manage and supervise the construction and that Nicor could finance the construction without significant adverse financial consequences to its customers and without exceeding the statutory allowable cost,” Brennan wrote.
According to court records, the natural gas extension had broad public support, including from government officials, firefighters, a doctor and the Rev. Jesse Jackson Sr. who wrote a letter to Nicor reading in part, “These families have been subjected to substandard and inhumane living conditions, forced to use energy products that often cause fires and health issues from smoke or burns.”
When it sought the permit, Nicor said it surveyed 523 possible customers in Hopkins Park and found 270 of 279 responses expressed interest. Nicor said the work would cost nearly $12 million, less than what the law authorized, and said no other utility had the capacity to meet future needs in the region.
“We infer the General Assembly intended to streamline the process for a public utility to expand its natural gas distribution into Pembroke Township for the benefit of its low-income residents by creating an independent means of obtaining a CPCN for this limited purpose,” Brennan wrote, rejecting the intervenors’ argument the ICC didn’t exert full scrutiny over Nicor’s CPCN application.
The panel further said “the intervenors overlook key details of the statute” to mount their procedural arguments and affirmed the ICC’s ruling on the application. It rejected the contention “the agency decision was clearly erroneous,” noting Nicor met its obligations to promote and conduct public meetings and consider the comments from those sessions and included in its filings declarations asserting none of those remarks warranted plan alterations.
Although the intervenors challenged public access because the meetings were online and many township residents lack broadband access, the panel noted Nicor mailed letters to more than 500 addresses and the intervenors offered only one example of a resident who said technology issues kept them from participating, while 12 individuals successfully provided public comment.
Attacking Nicor specifically, the intervenors argued the ICC didn’t properly consider the utility’s alleged “history of safety violations,” Brennan wrote, nor did the agency evaluate the township’s “unique physical and ecological characteristics and inadequate emergency services that make it ‘especially vulnerable in the event of a safety incident’ such as a gas explosion or leak.”
The panel said lawmakers enacted the Pembroke Pilot Program with knowledge of both the local ecology and Nicor’s history, noted the ICC is entitled to deference on its opinion of Nicor’s ability to manage the project and said concern about the results of an ongoing underground gas storage investigation shouldn’t factor into determining suitability for a pipeline project.
“Environmental objections do not pertain to specific aspects of Nicor’s proposal, but to the expansion of natural gas facilities into Pembroke Township generally,” Brennan wrote, explaining the panel would not undo lawmakers’ analysis.
The panel also said the intervenors failed to show Nicor and the ICC fell short of required financial analysis, rejection the assertion there was no calculation for costs for customers to convert, upgrade or replace appliances. The question, the panel said, is whether Nicor can afford to do the work as projected, and it found no reason to dispute the ICC’s determination.
Finally, the panel said the ICC was within its rights to deny a rehearing on the intervenors’ objections, agreeing with Nicor that the groups “failed to properly proffer new evidence in that they submitted no new testimony,” Brennan wrote. “Our review of the record indicates the Intervenors attached no testimony, affidavits or other documents to their application for rehearing to support their vague evidentiary allegations. Nevertheless, the Intervenors maintain that their submission of conclusory statements concerning proposed additional evidence was sufficient to warrant rehearing.”
Chicago Lawyers’ Committee for Civil Rights and the Environmental Defense Fund, of Palos Heights, represented the intervenors.
Lawyers from the from the Illinois Attorney General’s Office represented the ICC, whilc Jenner & Block represented Nicor.