Groups seeking to block a proposed power line through southwestern Wisconsin scored a victory Friday when a federal judge allowed them to proceed with a lawsuit against state regulators.
Judge William Conley partially denied the Public Service Commission’s motion to dismiss the case brought by the Environmental Law & Policy Center on behalf of the Driftless Area Land Conservancy and the Wisconsin Wildlife Federation.
In an order released Friday, Conley dismissed the PSC itself and Commissioner Ellen Nowak as defendants but found the plaintiffs have standing to argue their constitutional due process rights were violated by the PSC’s decision to authorize construction of the $492 million project known as Cardinal-Hickory Creek.
The groups claim two commissioners had perceived conflicts of interest that tainted the decision to grant the permit, which ultimately gives the utilities the right to take private property through eminent domain.
The PSC sought to have the case dismissed on the grounds that the Eleventh Amendment protects states and state agencies acting in their official capacity, but Conley found the commissioners play a direct role in defending and enforcing the permit, which he said precludes the claim of sovereign immunity.
He also rejected an argument brought by the utilities that commissioners should have judicial immunity.
Conley dismissed the plaintiffs’ claim that the line would result in an unjust taking of land for private benefit.
“At most, plaintiffs allege that the costs of the Line will exceed the public benefits, and there are better alternatives available,” Conley wrote. “(B)ut this argument invites judicial oversight over complicated policy considerations, rather than merely questioning whether the Line advances a ‘conceivable public purpose.’”
Howard Learner, an attorney representing the plaintiffs, said the groups “are pleased that the U.S. District Court’s opinion today allows us to go forward in making our legal and factual case that the probability of actual bias by the PSC commissioners is too high to be constitutionally tolerable.”
A spokesman for the PSC did not respond to a request for comment, though the agency typically does not comment on litigation.
A joint venture of American Transmission Co., ITC Midwest and Dairyland Power Cooperative, the line will run between Dubuque, Iowa, and Middleton. The costs will be passed on to ratepayers in 12 states, with about $67 million falling to Wisconsin.
The plaintiffs have asked the court to invalidate the PSC’s decision and nullify the construction permit and will be allowed to make a case that Chairperson Rebecca Valcq and then-Commissioner Mike Huebsch had outside entanglements that create perceived conflicts of interest.
Huebsch, who left the commission in February, served on an advisory committee to the Midwest grid operator, MISO, which was working with ATC to gain approval of the line. In his role with MISO, the opponents argue, Huebsch met with and advised a party to a case over which he was presiding and did not disclose the outside communications.
The plaintiffs have since discovered that Huebsch later applied to be CEO of Dairyland Power Cooperative, a minority owner of the line.
Prior to her appointment in 2019, Valcq spent 15 years as an attorney for the WEC Energy Group, the majority owner of ATC.
All three PSC members objected to the recusal requests before unanimously approving the line in September 2019, with Valcq calling the allegations “opportunistic at best and at worst contemptible.”
The PSC argued the accusations of bias, brought after the initial vote to approve the project, are unfounded and that no one’s land has been taken, rendering their due process claim moot.
The plaintiffs did not claim any conflict of interest by Nowak, but argued the PSC itself should be barred from ruling on the project because the process was “contaminated.”
The Driftless Area Land Conservancy and Wisconsin Wildlife Federation, along with Dane and Iowa county governments and several municipalities along the proposed route, have also challenged the permit in state courts, where Dane County Circuit Judge Jacob Frost has asked for arguments on whether he should consider text messages and emails between Huebsch and leaders of MISO and Dairyland.
A high profile
The project, the latest in a string of high-voltage transmission lines proposed by utilities, drew unprecedented interest, with dozens of groups and individuals participating in the evaluation process, which drew hundreds of public comments, almost all of them opposed to the line.
The utilities and clean energy advocates said the line is needed to bring power from the west to population centers and numerous existing and planned wind and solar projects are depending on it to deliver their full output.
Opponents — including conservation groups, the Citizens Utility Board, Dane and Iowa counties and local governments along the route — questioned the public value, saying it would enable little new renewable energy, damage important conservation areas, and result in minimal ratepayer savings.
Construction on the line is expected to start in 2021 barring a court injunction.