[Trees-executive] <fwd> Joe Phebus comments on 1776

[j-beauch at ux1.cso.uiuc.edu]

Joe Phebus, a Champaign attorney who gave a speech at the 3/12 hearing,
sent me these comments. Perhaps they are of most value to the legal
committee, but I thought I'd send it to the entire ExCom in case anyone
else is interested. Mr. Phebus asks that these comments not be made
publically available.

Jim

On Tue, 10 Apr 2001 "JOE PHEBUS" <jwphebus at phebuslaw.com> wrote:
>Jim: 
>
>Representative Berns has been gracious enough to allow me to read and
>comment up on the latest draft of the proposed amendment to House Bill
>1776. I have just e-mailed to him my comments and authorization to
>publicly disclose them should he wish to do so. As we wish to do our best
>to obtain and keep the good will of representative Berns, I tell you the
>above in confidence and suggest you not disclose the foregoing.
>
>I have the following points that should be made:
>
>A tariff is not an acceptable way to go. This must be done by rules and
>regulations. In that manner, if there is a violation of the rules and
>regulations, the utility may be sued in court and, if found to have violated 
>the rules and regulations, liable for damages and attorneys fees. If the
>violation is willful, punitive damages may be assessed. 220 ILCS 5/5-201.
>This will provide real protection for the property owner.
>
>Any rules and regulations and, god forbid tariffs, and any future
>legislation need not expressly provide that the rules, regulation or tariff
>does not give the power company any rights it did not already possess by
>way of private easement or public franchise or easement. For the Commerce
>Commission or the power company to take the position that additional rights
>are obtained by the power company would be an unconstitutional taking of
>property in violation of the Fifth Amendment to the Constitution of the
>United States (which is applicable as to a state by virtue of the 14th
>Amendment) and Article I, Section 15, of the Constitution of the State of
>Illinois.
>
>The Commerce Commission needs to adopt specific rules and regulations. It
>is foolish and an improper delegation of authority to simply provide that
>vegetation will be managed in accordance with a private pronouncement such
>as American National Standards Institute Standard ANSI A300.
>
>Keep up the good work.
>