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Cardinal-Hickory Creek: Judge rules 1 biased vote can invalidate unanimous decision
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Dane County Circuit Court | Cardinal-Hickory Creek project

Cardinal-Hickory Creek: Judge rules 1 biased vote can invalidate unanimous decision

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A Dane County judge says he will revoke the permit for a controversial power line through southwestern Wisconsin if opponents can prove one of the three regulators who approved it had a conflict of interest.

Circuit Court Judge Jacob Frost issued a preemptive ruling Tuesday in a case involving the $492 million project known as Cardinal-Hickory Creek.

At issue is whether former Commissioner Mike Huebsch’s interactions with one of the project’s owners tainted his approval of the line, which the Public Service Commission authorized with a 3-0 vote.

“The right to an impartial decision maker is fundamental to due process,” Frost wrote. “Violation of that right would taint the entire proceeding.”

Frost has not determined if there was a conflict of interest; that will be up to the plaintiffs to prove.

But without ruling on the question of whether one tainted vote can invalidate a unanimous decision, Frost said, allowing the plaintiffs to investigate and argue the issue “would have been an exercise in futility.”

Frost said if the plaintiffs can prove the alleged bias, he will throw out the permit and send the case back to the PSC, where Huebsch has since been replaced by Commissioner Tyler Huebner, a former renewable energy advocate.

Frost rejected arguments that commissioners independently decide cases prior to public meetings and therefore cannot influence one another. But even if the outcome were unchanged, bias could create “real harm” by undermining public trust in the process.

Dane County Circuit Judge Jacob Frost

Frost

“(I)t is essential to our democratic system, to our design of government, that we maintain the process as fair in appearance and in practice,” Frost wrote. “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.”

Howard Learner, lead attorney for the plaintiffs, called the ruling “a big win.”

Howard Learner

Learner

“Essentially the judge said there’s a lot of smoke,” Learner said. “And we’re entitled to make our case that there’s fire.”

Spokespeople for the PSC and the utilities declined to comment on the ruling.

The Driftless Area Land Conservancy and Wisconsin Wildlife Federation — along with Dane and Iowa counties — sued to stop the line, a joint venture of American Transmission Company, ITC Midwest and Dairyland Power Cooperative.

The groups alleged that Huebsch — and PSC Chair Rebecca Valcq — had perceived conflicts of interest that tainted the commission’s 2019 decision to grant a permit for the line.

Frost previously rejected arguments that Valcq’s prior employment with WEC Energy Group, the majority owner of ATC, somehow influenced her vote.

Through a separate federal case, the plaintiffs uncovered evidence that Huebsch applied to be CEO of Dairyland after leaving the commission in February 2020. He did not get the job.

Mike Huebsch

Huebsch

Frost gave the parties until the end of August to gather evidence regarding Huebsch’s communications with Dairyland and the Midwest grid operator, MISO, which was working with ATC to gain approval of the line. He plans to hold a hearing in September on the alleged bias.

The plaintiffs have also challenged the permit on other grounds, which could be considered if Frost does not agree that the vote was tainted by bias.

Construction of the line from Dubuque to Middleton is expected to begin in November.

While the plaintiffs have not sought an injunction, Learner said “it’s just common sense” that the utilities should not be allowed to start building before they can argue the merits of the case.

The project is also the subject of three separate federal lawsuits brought against the PSC, the U.S. Fish & Wildlife Service and the U.S. Army Corps of Engineers over permitting decisions.

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