Late in 2014, the Illinois Supreme Court agreed to clarify the dimensions of the Illinois Commerce Commission’s authority, allowing a petition for leave to appeal in the FutureGen case – Commonwealth Edison Co. v. Illinois Commerce Commission. The problem was, only a few months after the Court granted review, the Department of Energy suspended all funding for the FutureGen project. Eleven months after the funding terminated, the FutureGen Alliance Board ceased all project development efforts. In the final days of its May term, the Illinois Supreme Court dismissed Commonwealth Edison on grounds of mootness. Our detailed summary of the facts and underlying court decisions in Commonwealth Edison is here. Our report on the oral argument is here.
FutureGen was created to research and develop near-zero emissions coal technology. The proposed clean coal electric generating facility, dubbed FutureGen 2.0, was scheduled to begin operating in 2017. The Illinois Commerce Commission issued an order finding that it could force both public utility companies and private owned and competitively operated Area Retail Electric Suppliers (“ARES”) to purchase all of FutureGen’s output for twenty years. The petitioners filed suit, arguing that the Commission lacked the authority to require the ARES to enter into sourcing agreements. The Appellate Court affirmed the order of the Commission, and the Supreme Court allowed the petitioners’ petition for leave to appeal.
Following the Energy Department’s suspension of funding, the Court directed the parties to brief the issue of mootness. All parties filed briefs agreeing that the appeal was moot, but the petitioners asked the Court to decide the issues anyway under the public interest exception to the mootness doctrine.
In a unanimous decision by Justice Kilbride, the Court declined to do so. The Court noted that public interest was a very limited exception to the mootness doctrine requiring finding three facts: (1) the question is of a public nature; (2) an authoritative determination of the question is desirable for the future guidance of public officers; and (3) the question is likely to recur. But none of the three prerequisites were present here, according to the Court.
Any public nature of the question presented had ceased to exist once the FutureGen project was terminated. The second factor, the need for an authoritative determination, depends to a considerable extent on whether the law is in disarray or conflicting precedent exists. But the parties agreed that the issue presented was one of first impression. The petitioners insisted that “nothing . . . prevents another retrofitted clean coal facility” from proposing similar sourcing agreements, but the Court found that the FutureGen project was relatively unique, and the relevant statute had only limited application to retrofitted clean coal facilities. So there was no reason to imagine that the issue would necessarily ever recur.
The Court concluded its opinion by using its supervisory authority to vacate the Appellate Court opinion (without expressing any opinion on its correctness). The petitioners asked the Court to also vacate the Commission’s order, but the Court held that there was no need to do so, since the Commission’s orders were nonprecedential, and therefore would not necessarily control a new case.