On March 26, the Wisconsin Supreme Court is hearing a case that directly concerns the residents of Dane County and also puts a spotlight on the integrity of our highest court.
The case is called Enbridge Energy Co., Inc., v. Dane County.
Here’s the background. In 2015, Dane County required Enbridge to get an extra $25 million liability insurance policy in exchange for a permit to build a pump station that would expand the amount of oil the company pumps through its pipeline that runs through the northeast corner of the county.
A few months later, the Republican-dominated Joint Finance Committee pushed through a provision in the budget that said local governments can’t do that if a company already carried general liability insurance coverage for “sudden and accidental” spills.
Enbridge sued Dane County to strip the requirement from the permit.
On top of that, several Dane County property owners filed suit alleging that Enbridge was violating the requirements of the new state law and arguing that Dane County’s permit should be enforceable.
Last May, the 4th District Court of Appeals ruled against Enbridge, concluding that “Enbridge failed to demonstrate at any time that it carried sudden and accidental pollution liability.”
Enbridge appealed, and that’s how the case landed before the state’s highest court.
Then-Attorney General Brad Schimel filed a brief in favor of Enbridge, but fortunately, Josh Kaul, our new attorney general, withdrew that brief last week.
The Wisconsin Supreme Court ought to rule in favor of Dane County and the local landowners for three reasons.
First, Enbridge has an abysmal environmental record, so Dane County and local landowners have every right to be concerned. In 2010, an Enbridge pipeline burst near Kalamazoo, Michigan, spilling about 1 million barrels of oil into the Kalamazoo River. This was the worst inland oil accident in U.S. history, and Enbridge had been warned about the problem with that pipeline for years.
Second, the way the Legislature intervened on behalf of Enbridge smacks of corruption. During the last eight years, companies that weren’t happy with local governments had a habit of running to the Legislature to put the fix in. Enbridge, for its part, hired the well-connected lobbyist Bill McCoshen in early 2015. He was Commerce secretary in the 1990s and before that chief of staff and campaign manager for Tommy Thompson. While the Joint Finance Committee was meeting on the budget, McCoshen spent 18 hours lobbying for the company.
And now the biggest lobbyist in the state, Wisconsin Manufacturers & Commerce, has filed an amicus brief supporting Enbridge. That brief claims that local governments have been “unlawfully attempting to expand their authority to eviscerate private property rights.” For WMC, it’s easier to buy off the state government than local governments.
WMC, by the way, has also spent millions of dollars to help elect two of the justices on the Wisconsin Supreme Court.
Chief Justice Pat Roggensack has benefited from $500,000 of WMC’s funding, while Justice Annette Ziegler has benefited from $2,200,000 of WMC’s funding.
They both should recuse themselves from this case.
Third and finally, even if they don’t get off the case, they and the other justices are obliged to honor the facts of the case. They can’t create facts out of thin air. As the appellate court ruled, Enbridge couldn’t show that it had the required insurance for “sudden and accidental” pollution liability.
That should be case closed for Enbridge.
Matt Rothschild is the executive director of the Wisconsin Democracy Campaign.
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