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Editorial | Mike Huebsch‘s 'appearance of bias' demands a full inquiry

Editorial | Mike Huebsch‘s 'appearance of bias' demands a full inquiry

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The notion that Mike Huebsch was going to serve as an impartial member of the state Public Service Commission was hard to swallow from the moment former Gov. Scott Walker announced in 2015 that he was appointing his longtime associate to the regulatory body.

A career politician, Huebsch, during two decades as a legislator, Assembly speaker and Walker’s secretary of administration, gave new meaning to former Wisconsin Supreme Court Chief Justice Edward Ryan’s warning to be on the watch for the entry into state government of “the feudal serfs of corporate capital.”

Huebsch had a reputation for never letting principles get in the way of stomping on the rights of workers, shredding protections for consumers or trashing the environment. When agents of influence at the Wisconsin Manufacturers & Commerce business lobby said “Jump!” Huebsch answered, “How high?”

Huebsch’s “qualification” to serve on the PSC was that he had the confidence of Walker, who for two disastrous terms as Wisconsin’s chief executive made it his business to fill state boards and commissions with corporate automatons.

So it is hardly surprising that a legal challenge to a PSC ruling on a major power line case turns on the question of Huebsch’s biases.

Indeed, the only thing that is surprising about the current controversy over the question of whether Huebsch abused his position as a commissioner when he voted to approve the controversial Cardinal-Hickory Creek power line is the energy with which his legal representatives are arguing that their client is a paragon of virtue.

Everyone is, of course, entitled to ardent representation. But some of the arguments for abandoning scrutiny of Huebsch make Rudy Giuliani’s bloviating on behalf of former President Donald Trump’s absurd allegations regarding the 2020 presidential election sound like reasoned legal arguments.

Huebsch’s lawyers are trying to upend a lawsuit brought by the Driftless Area Land Conservancy, the Wisconsin Wildlife Federation, Dane County and various local governments against the PSC. The suit seeks to block construction of the 102-mile Cardinal-Hickory Creek line from eastern Iowa to Middleton — which gained the approval of the PSC toward the close of Huebsch’s five-year tenure on the body — on the grounds that the former commissioner’s relationships with the utilities that seek to build the line created the appearance of bias.

A joint venture of Dairyland Power Cooperative, ITC Midwest and American Transmission Co. (ATC), the $492 million project has inspired intense opposition across southwest Wisconsin. That’s led to ongoing complaints about Huebsch’s role as a politically connected commissioner who joined the majority that gave the go ahead to the project.

Before the PSC’s final approval of the line, environmental groups urged Huebsch to recuse himself from deliberations because of what were politely described as his “entanglements” with the companies involved. “The process is contaminated, and the commission should be recused,” warned Environmental Law & Policy Center Executive Director Howard Learner in 2019.

Learner noted that Huebsch served on an advisory committee for MISO, the Midwest power grid operator that was working with ATC to secure approval of the Cardinal-Hickory Creek line. “Huebsch is meeting with and engaging in communications with an active party in this case, which has an agreement to strategize with ATC,” explained Learner.

Eventually, it was learned that Huebsch had communicated on a regular basis, via the encrypted messaging service Signal, with an executive of We Energies, a 60% owner of ATC. Still later it was revealed that, shortly after leaving the PSC in 2020, Huebsch applied to become CEO of Dairyland Power Cooperative.

While he did not get the job, news reports about the application raised even more concern regarding the “appearance of bias.”

In May, Dane County Circuit Court Judge Jacob Frost issued a preemptive ruling signaling that he would revoke the permit for the power line if critics could prove Huebsch had a conflict of interest. A key hearing in the case is set for later this month, but lawyers for Huebsch are now trying to throw a wrench in the process.

They are asking the state Supreme Court to block a subpoena seeking testimony from Huebsch and have raised the prospect that the high court should take the case away from Judge Frost.

Objecting to the inquiry into whether Huebsch’s actions create “an appearance of bias,” the former commissioner’s lawyers say, “Nothing in state or federal law suggests that these friendships (with executives of the companies involved) prevent Huebsch from impartially adjudicating matters in which their employers just so happened to be parties. Nor is there anything problematic about a former adjudicator, having developed expertise in an industry, applying for a job in that industry.”

The legal issues involved in this case are reasonably complex. The question of where the line between an appearance of bias and a conflict of interest may be drawn will necessarily inspire debate. We don’t relish the responsibility Judge Frost has taken on.

But it is absurd to suggest that there is something inappropriate or unwarranted about an examination of the appearance of bias on the part of a top regulator. That is especially the case with a regulator whose record raises so many long-term and immediate concerns. This is precisely the sort of case where Wisconsinites should want the courts to wrestle with questions of whether regulatory decisions have been fairly made.

The Supreme Court should not intervene against Frost. Rather, it should embrace and encourage his observation that “it is essential to our democratic system, to our design of government, that we maintain the process as fair in appearance and in practice. At least then the disappointment of the losing party is in having lost, not in being cheated by an unfair process or decision maker. Disappointment is acceptable. Distrust is dangerous.”

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