STATE OF ILLINOIS
ILLINOIS COMMERCE COMMISSION
In the Matter of the Petition of
METROPOLITAN TRANSIT DEVELOPMENT CORPORATION
for Approval of Electrification Infrastructure Interconnection and Power-Purchase Arrangement
Docket No. 23-0214
ORDER GRANTING WITHDRAWAL OF VERIFIED PETITION WITHOUT PREJUDICE
I. RECITALS AND BACKGROUND
A. The Verified Petition
On March 1, 2023, Metropolitan Transit Development Corporation ("MTDC" or "Petitioner"), an Illinois municipal corporation and public transit authority duly organized and existing under the Metropolitan Transit Development Act, 70 ILCS 3615, filed a Verified Petition for Approval of Electrification Infrastructure and Interconnection ("Verified Petition") with the Illinois Commerce Commission ("Commission" or "ICC") in the above-captioned docket. The Verified Petition was verified by Harold J. Greenway, Executive Director of MTDC, who attested under penalty of perjury to the truth and accuracy of the factual allegations and representations contained therein.
The Verified Petition sought Commission approval for MTDC to interconnect new high-capacity depot charging infrastructure with a combined new electrical load of forty-five megawatts (45 MW) to the distribution system of Prairie Shore Electric Company ("Prairie Shore"), an Illinois public utility, at three depot locations within the metropolitan Chicago area, as follows:
(a) North Garage, located at 4501 West Lawrence Avenue, Chicago, Illinois 60630, with a proposed new interconnected electrical load of eighteen megawatts (18 MW);
(b) West Garage, located at 1200 South Cicero Avenue, Chicago, Illinois 60804, with a proposed new interconnected electrical load of fifteen megawatts (15 MW); and
(c) South Garage, located at 7800 South Vincennes Avenue, Chicago, Illinois 60620, with a proposed new interconnected electrical load of twelve megawatts (12 MW).
In addition to the interconnection approvals, the Verified Petition sought Commission approval for MTDC to enter into a long-term power-purchase arrangement with Prairie Shore under a proposed rate schedule designated as Schedule EV-T (Electric Vehicle — Transit). The proposed arrangement contemplated a blended rate of $0.062 per kilowatt-hour (kWh) for electricity delivered to the three depot locations over the term of the agreement. The proposed Schedule EV-T was designed to accommodate the unique load characteristics of transit depot charging operations, including high-demand overnight charging cycles and managed daytime opportunity charging.
The underlying project contemplated by the Verified Petition involved the procurement of two hundred twenty-five (225) battery-electric transit buses and the design, engineering, and installation of depot charging infrastructure at each of the three garage locations identified above. The total estimated project cost, including vehicle procurement, charging infrastructure, electrical interconnection work, and related soft costs, was ninety-eight million one hundred twenty-five thousand dollars ($98,125,000).
B. Federal Funding
The electrification project described in the Verified Petition was to be funded in substantial part by a federal grant awarded by the Federal Transit Administration ("FTA"), an agency of the United States Department of Transportation, under the Low- and No-Emission Vehicle Program authorized by 49 U.S.C. § 5339(c). On January 9, 2023, the FTA issued a Notice of Award to MTDC for Grant Award Number IL-2023-0067-00 in the amount of seventy-eight million five hundred thousand dollars ($78,500,000), representing approximately eighty percent (80%) of the total estimated project cost. MTDC's required non-federal local match under the terms of the grant award was nineteen million six hundred twenty-five thousand dollars ($19,625,000), constituting twenty percent (20%) of the total project cost. The Verified Petition identified the FTA grant as the primary source of project funding and represented that MTDC had budgeted and committed the requisite local matching funds.
C. Intervenors. On March 15, 2023, Prairie Shore Electric Company filed a Petition to Intervene as a party of record in this docket. Prairie Shore is the electric public utility to whose distribution system MTDC proposed to interconnect the depot charging infrastructure, and Prairie Shore was identified in the Verified Petition as the proposed counterparty to the power-purchase arrangement under Schedule EV-T. Prairie Shore's Petition to Intervene was granted by the Administrative Law Judge ("ALJ") on March 22, 2023. Prairie Shore is represented in this proceeding by the law firm of Hargrove, Peck & Tillotson LLP, with Andrew S. Peck serving as lead counsel.
On March 20, 2023, the Clean Air Transit Alliance ("CATA"), a nonprofit advocacy organization focused on the promotion of zero-emission public transit, filed a Petition to Intervene as a party of record in this docket. CATA expressed support for the electrification project described in the Verified Petition and sought to participate in the proceeding to ensure that public interest and environmental considerations were adequately addressed. CATA's Petition to Intervene was granted by the ALJ on March 27, 2023. CATA is represented in this proceeding by the law firm of Rosenberg & Dietrich LLP, with Diane L. Rosenberg serving as lead counsel.
D. Procedural History
Following the filing of the Verified Petition and the granting of the above-described interventions, the ALJ conducted two status conferences in this matter. The first status conference was held on April 5, 2023, at which the parties discussed the procedural schedule, identified preliminary issues, and addressed the scope of discovery. The second status conference was held on May 10, 2023, at which the parties reported on the progress of discovery and confirmed the schedule for prefiled testimony and an evidentiary hearing.
On May 15, 2023, ICC Staff filed its Staff Report in this docket. The Staff Report was prepared by Commission analysts and reviewed the technical and economic aspects of the proposed interconnection and power-purchase arrangement. ICC Staff Counsel in this matter is Ellen R. Dempsey of the Illinois Commerce Commission.
An evidentiary hearing was scheduled for June 28, 2023, at the offices of the Illinois Commerce Commission, 160 North LaSalle Street, Chicago, Illinois. As of the date of this Order, no evidentiary hearing has been held in this docket.
E. Grant Rescission and Motion to Withdraw
On June 8, 2023, the congressional continuing resolution that had been funding discretionary transit capital programs, including the Low- and No-Emission Vehicle Program under 49 U.S.C. § 5339(c), expired without congressional reauthorization of discretionary transit capital funding. The lapse in appropriations affected numerous pending and awarded grants administered by the Federal Transit Administration.
On June 12, 2023, the FTA issued a formal Notice of Grant Rescission for Grant Award Number IL-2023-0067-00, citing the lapse of appropriated funds as the basis for rescission. The Notice of Grant Rescission rescinded in its entirety the $78,500,000 federal grant award that had been issued to MTDC on January 9, 2023. As a result of the rescission, the primary source of funding for the electrification project described in the Verified Petition was eliminated.
On June 14, 2023, the Board of Directors of MTDC convened an emergency session to address the impact of the grant rescission on the electrification project and the pending proceeding before the Commission. Following deliberation, the Board of Directors voted seven to two (7-2) to authorize the withdrawal of the Verified Petition filed in this docket, finding that the loss of federal funding rendered the project infeasible as proposed and that continued prosecution of the petition would not serve the interests of MTDC or its constituents.
On June 19, 2023, MTDC, by and through its counsel Calderwood & Harkness LLP, filed a Motion to Withdraw Verified Petition Without Prejudice ("Motion to Withdraw") in this docket. The Motion to Withdraw set forth the factual and procedural grounds for withdrawal, described the circumstances surrounding the rescission of the FTA grant award, and represented that MTDC sought to preserve its right to refile a petition concerning the same or substantially similar subject matter upon restoration of federal funding or the securing of alternative financing sufficient to support the project. The Motion to Withdraw was accompanied by supporting documentation, including a copy of the FTA's Notice of Grant Rescission dated June 12, 2023, and a certified copy of the resolution adopted by the MTDC Board of Directors on June 14, 2023.
MTDC is represented in this proceeding by the law firm of Calderwood & Harkness LLP, with Patricia Dunmore serving as lead counsel and David Stanton serving as co-counsel, at 70 West Madison Street, Suite 5000, Chicago, Illinois 60602.
F. Responses to the Motion to Withdraw
The period for filing responses to MTDC's Motion to Withdraw has expired. No party of record has filed an objection to the Motion to Withdraw.
Specifically, ICC Staff Counsel Ellen R. Dempsey did not file an opposition to the Motion to Withdraw and has not otherwise indicated any objection to the requested relief.
Intervenor Prairie Shore Electric Company, by its counsel Andrew S. Peck of Hargrove, Peck & Tillotson LLP, did not file an opposition to the Motion to Withdraw and has not otherwise indicated any objection to the requested relief.
Intervenor Clean Air Transit Alliance, by its counsel Diane L. Rosenberg of Rosenberg & Dietrich LLP, did not file an opposition to the Motion to Withdraw and has not otherwise indicated any objection to the requested relief.
The Motion to Withdraw is therefore unopposed.
II. FINDINGS
Having reviewed the Verified Petition, the Motion to Withdraw Verified Petition Without Prejudice filed on June 19, 2023, the supporting documentation attached thereto, the procedural record of this docket, and all filings of record, and being otherwise fully advised in the premises, the ALJ hereby makes the following findings:
A. Jurisdiction. The Commission has jurisdiction over this matter pursuant to the Public Utilities Act, 220 ILCS 5/1-101 et seq., and under the authority conferred by the Metropolitan Transit Development Act, 70 ILCS 3615. The Verified Petition filed by MTDC on March 1, 2023 sought regulatory approvals that fall within the scope of the Commission's authority over the interconnection of new electrical loads to the distribution systems of regulated public utilities and over the terms and conditions of service between such utilities and their customers. This docket was properly opened upon the filing of the Verified Petition, and all procedural requirements for the institution of this proceeding were satisfied.
B. Grounds for Withdrawal
The ALJ finds that MTDC has demonstrated good cause for the withdrawal of the Verified Petition. The rescission of FTA Grant Award Number IL-2023-0067-00 on June 12, 2023 eliminated seventy-eight million five hundred thousand dollars ($78,500,000) in federal funding that constituted approximately eighty percent (80%) of the ninety-eight million one hundred twenty-five thousand dollar ($98,125,000) total estimated project cost. Without the federal grant, the electrification project as proposed in the Verified Petition is not economically feasible, and there is no present basis upon which to proceed with the regulatory approvals sought therein.
The ALJ further finds that the decision to seek withdrawal was duly authorized by the MTDC Board of Directors, which voted seven to two (7-2) at a properly convened emergency session on June 14, 2023, to authorize the withdrawal of the Verified Petition. The Board's decision reflects a considered exercise of institutional judgment in response to materially changed circumstances beyond MTDC's control.
C. No Prejudice to Parties
The ALJ finds that withdrawal of the Verified Petition without prejudice will not cause harm or prejudice to any party of record in this proceeding.
Prairie Shore Electric Company, as an intervenor in this docket, has incurred limited costs in connection with its participation in this proceeding. The proceeding did not advance beyond the pre-hearing stage, and Prairie Shore has not opposed the withdrawal. No evidentiary hearing was held, and the scheduled hearing date of June 28, 2023 had not yet occurred at the time the Motion to Withdraw was filed.
Clean Air Transit Alliance, as a supportive intervenor in this docket, does not oppose the withdrawal and has not identified any prejudice that would result from withdrawal without prejudice.
ICC Staff does not oppose the withdrawal. The Staff Report filed on May 15, 2023, while reflecting the expenditure of Staff resources, does not give rise to a basis for opposing withdrawal in light of the fundamental change in the project's financial circumstances.
No party has identified any reliance interest, sunk cost, or other form of prejudice that would counsel against granting the withdrawal without prejudice. The proceeding remains at a relatively early stage, and no substantive adjudicatory determinations have been made on the merits of the Verified Petition.
D. Right to Refile
The ALJ finds that withdrawal without prejudice is appropriate and that such withdrawal should preserve MTDC's right to refile a petition concerning the same or substantially similar subject matter. Specifically, MTDC should retain the right to seek Commission approval for the interconnection of battery-electric bus charging infrastructure to the Prairie Shore Electric Company distribution system and for the approval of a related power-purchase arrangement, upon restoration of federal funding under 49 U.S.C. § 5339(c) or upon MTDC's securing of alternative financing sufficient to support the project. Any such refiling shall be subject to all Commission rules and filing requirements then in effect, and shall be treated as a new proceeding for purposes of docketing and procedural scheduling.
III. ORDER
WHEREFORE, based upon the foregoing recitals and findings, and for good cause shown:
IT IS HEREBY ORDERED that the Motion to Withdraw Verified Petition Without Prejudice filed by Metropolitan Transit Development Corporation on June 19, 2023 is GRANTED.
IT IS FURTHER ORDERED that the Verified Petition for Approval of Electrification Infrastructure and Interconnection filed by Metropolitan Transit Development Corporation on March 1, 2023 in Docket No. 23-0214 is hereby WITHDRAWN WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Metropolitan Transit Development Corporation may refile a petition concerning the same or substantially similar subject matter — including but not limited to the interconnection of depot charging infrastructure at the North Garage, West Garage, and South Garage locations and the approval of a power-purchase arrangement with Prairie Shore Electric Company under a proposed tariff schedule — upon restoration of federal funding under the Low- and No-Emission Vehicle Program, 49 U.S.C. § 5339(c), or the securing of alternative financing sufficient to support the project, subject to all applicable Commission rules and filing requirements then in effect. Any such petition shall be docketed as a new proceeding and shall be subject to independent procedural scheduling.
IT IS FURTHER ORDERED that the evidentiary hearing previously scheduled for June 28, 2023 in this docket is hereby VACATED.
IT IS FURTHER ORDERED that Docket No. 23-0214 is hereby CLOSED.
IT IS FURTHER ORDERED that copies of this Order shall be served upon all parties of record in this proceeding, including the following:
(a) Metropolitan Transit Development Corporation, by its counsel Calderwood & Harkness LLP, Patricia Dunmore, 70 West Madison Street, Suite 5000, Chicago, Illinois 60602;
(b) Prairie Shore Electric Company, by its counsel Hargrove, Peck & Tillotson LLP, Andrew S. Peck, 120 South LaSalle Street, Suite 3100, Chicago, Illinois 60603;
(c) Clean Air Transit Alliance, by its counsel Rosenberg & Dietrich LLP, Diane L. Rosenberg, 33 North Dearborn Street, Suite 2200, Chicago, Illinois 60602; and
(d) ICC Staff Counsel Ellen R. Dempsey, Illinois Commerce Commission, 160 North LaSalle Street, Suite C-800, Chicago, Illinois 60601.
ENTERED this _ day of _____, 2023.
________________________________________
Hon. Marcus P. Lindquist Administrative Law Judge Illinois Commerce Commission
CERTIFICATE OF SERVICE
I, David Stanton, an attorney at Calderwood & Harkness LLP, counsel for Petitioner Metropolitan Transit Development Corporation, hereby certify that the foregoing Proposed Order Granting Withdrawal of Verified Petition Without Prejudice was submitted together with MTDC's Motion to Withdraw Verified Petition Without Prejudice on June 19, 2023, by electronic filing through the Illinois Commerce Commission's e-Docket system.
I further certify that on June 19, 2023, I caused true and correct copies of the foregoing Proposed Order to be served upon the following parties of record by electronic filing through the Commission's e-Docket system and by deposit in the United States Mail, first-class postage prepaid:
Ellen R. Dempsey ICC Staff Counsel Illinois Commerce Commission 160 North LaSalle Street, Suite C-800 Chicago, Illinois 60601
Andrew S. Peck Hargrove, Peck & Tillotson LLP 120 South LaSalle Street, Suite 3100 Chicago, Illinois 60603
Diane L. Rosenberg Rosenberg & Dietrich LLP 33 North Dearborn Street, Suite 2200 Chicago, Illinois 60602
Under penalties as provided by law pursuant to Section 1-109 of the Illinois Code of Civil Procedure, 735 ILCS 5/1-109, I certify that the statements set forth in this Certificate of Service are true and correct.
Dated: June 19, 2023
________________________________________
David Stanton CALDERWOOD & HARKNESS LLP 70 West Madison Street, Suite 5000 Chicago, Illinois 60602 Telephone: (312) 555-7800 Facsimile: (312) 555-7801
Email: dstanton@calderwoodharkness.com
Counsel for Petitioner Metropolitan Transit Development Corporation