NEW HEIGHTS RECOVERY & POWER, LLC v. BOWER

Nos. 1-02-3557, 1-02-3688, 1-02-3894.

806 N.E.2d 1156 (2004)

347 Ill. App.3d 89

282 Ill.Dec. 568

NEW HEIGHTS RECOVERY AND POWER, LLC, formerly known as CGE Ford Heights LLC; and CGE FULTON, LLC, Plaintiffs-Appellees and Cross-Appellants, v. Glen BOWER, as Director of the Department of Revenue, and The Department of Revenue, Defendants-Appellants and Cross-Appellees (Commonwealth Edison Company, Defendant; U.S. Bank Trust National Association, formerly known as First Trust of Illinois, National Association, as Liquidating Trustee of the CGE Ford Heights Liquidating Trusts, formerly as Indenture Trustee, Intervening Plaintiff). The Village of Robbins and Robbins Resource Recovery Partners, L.P., Plaintiffs-Appellees and Cross-Appellants, v. Kevin Wright, Mary Frances Squires, Ruth Kretschmer, Terry Harvill, Edward Hurley, Richard Mathias, and Richard Kolhauser, as Commissioners of the Illinois Commerce Commission; Glen Bower, as Director of the Department of Revenue, Defendants-Appellants and Cross-Appellees (Commonwealth Edison Company, Defendant-Appellant). New Heights Recovery and Power, LLC, formerly known as CGE Ford Heights LLC; CGE Fulton, LLC; The Village of Robbins; and Robbins Resource Recovery Partners, L.P., Plaintiffs-Appellees, v. Commonwealth Edison Company; Richard Mathias, Richard Kolhauser, Ruth Kretschmer, Terry Harvill, and Edward Hurley, as Commissioners of the Illinois Commerce Commission, Defendants-Appellants (U.S. Bank Trust National Association, formerly known as First Trust of Illinois, National Association, as Liquidating Trustee of the CGE Ford Heights Liquidating Trusts, formerly as Indenture Trustee, Intervening Plaintiff-Appellee; The Department of Revenue, Intervenor).

Appellate Court of Illinois, First District, Second Division.

March 9, 2004.


Attorney(s) appearing for the Case

Lisa Madigan, Attorney General, and Steven B.Varick, Richard A. Redmond and Malcolm H. Brooks, Special Assistant Attorneys General, of Holland & Knight LLC, Chicago, for Appellants/Cross-Appellees Glen Bower; the Department of Revenue; Kevin Wright, Mary Frances Squires, Ruth Kretschmer, Terry Harvill, Edward Hurley, Richard Mathias and Richard Kolhauser.

David M. Stahl and Jonathan I. Flaum, of Eimer Stahl Klevorn & Solberg, Chicago, for Defendant Commonwealth Edison.

Gino L. DiVito of Tabet DiVito & Rothstein LLC; Robert G. Black of Law Offices of Robert G. Black; David Berten, Rhett Dennerline, Greg Smith and Kelly J. Eberspecher, of Competition Law Group LLC; John Blim of Blim & Edelson LLC; Christopher G. Walsh, Jr. and Daniel Cummings, of Rothschild, Barry & Myers, Chicago; and Mark H. Sterk of Odelson & Sterk, Ltd., Evergreen Park, for Appellees/Cross-Appellants New Heights Recovery; CGE Fulton,LLC; Robbins Resource Recovery; and the Village of Robbins.

Howard A. Learner and Ann Alexander, of Environmental Law and Policy Center, Chicago, for Amici Curiae Environmental Law and Policy Center; American Lung Association of Metropolitan Chicago; Sierra Club-Illinois Chapter; South Cook County Environmental Action Coalition; Illinois Environmental Council; and Citizens Utility Board.


Justice CAHILL delivered the opinion of the court:

The issue in this case is whether plaintiffs have a constitutionally protected interest in the continuation of a specific rate of reimbursement for electricity generated and sold to a public utility company. The trial court concluded that such rights existed and prohibited application of a legislative enactment abolishing that rate. Because we conclude that a specific rate of reimbursement once mandated by the legislature...

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