The owners of a highly contested power line through southwestern Wisconsin are seeking a new permit after discovering a former regulator who approved the project exchanged encrypted messages with utility employees, potentially tainting the project’s approval.
American Transmission Co. and ITC Midwest filed a request Monday with the Public Service Commission to rescind the permit for the $492 million Cardinal-Hickory Creek transmission line and reopen the proceedings “to consider next steps.”
The companies say they discovered last week that former Commissioner Mike Huebsch had regular communications with an ATC employee, a former ITC contractor, “and other individuals” over several years while the permit application was before the PSC.
The permit for the line is already facing legal challenges that hinge in part on private communications Huebsch had with minority partner Dairyland Power Cooperative.
According to a court filing by ATC, Huebsch exchanged texts using the encrypted messaging service Signal, and it’s unknown if the contents can be recovered.
The utilities say they don’t know if the messages were related to the project but want to maintain “transparency in the regulatory process.”
“The individuals involved in this situation have maintained longstanding personal relationships with each other; however, we are aware this information raises concerns about one of the Commissioners who granted approval of the Cardinal-Hickory Creek Project,” ATC president and CEO Mike Rowe said in a prepared statement. “We understand the speculation this presents, which is also why we have made this unique request to the PSCW and are sharing this information with our employees, our stakeholders and Dane County Circuit Court.”
The previous explanation that the records were "transitory" has come into question after a state board reversed itself.
In a written statement, Huebsch defended his use of Signal, which he likened to a “21st-century coffee shop, where friends can get together, chat, and move on” without filling up the phone’s hard drive.
He said he used the app to talk sports, health and family with a group of friends he’s known for more than 25 years.
“Although some of them are connected to the utility industry, at no point have I discussed with them over Signal anything related to my work as a commissioner,” Huebsch wrote. “That’s primarily because we are all aware of the law, and we know ex parte communication is not allowed. And, frankly the commission’s business is just not that interesting.”
Huebsch informed a federal court Monday that PSC attorneys will no longer represent him, saying the commission had informed him that “his interests and those of the Commission ‘may be adverse’ in light of new information that it had not yet reviewed.”
A PSC spokesperson said the agency is reviewing the request to rescind and reopen the proceedings, which would require a vote by the commission.
The Signal messages came to light through legal discovery in one of four lawsuits seeking to stop the 102-mile line between Dubuque and Middleton.
The Driftless Area Land Conservancy and Wisconsin Wildlife Federation — along with Dane and Iowa counties — sued to stop the line, alleging that Huebsch — and PSC Chair Rebecca Valcq — had perceived conflicts of interest that tainted the 2019 decision to grant a permit for the line.
Through legal discovery, they uncovered evidence that Huebsch applied to be CEO of Dairyland after leaving the commission in February 2020. He did not get the job. The plaintiffs later discovered Huebsch exchanged personal text messages with Dairyland executives.
Developers of the Cardinal-Hickory Creek transmission line are proposing eight modifications to the 102-mile route between Dubuque and Middleton.
In a separate filing Monday, an attorney for Dairyland said the new communications do not involve Dairyland employees, but the La Crosse-based cooperative agrees with the decision to seek reconsideration.
“As a cooperative responsible to its membership, Dairyland strives to conduct business and operations with integrity, impartiality, and accountability,” wrote attorney Justin Chasco. “Dairyland supports the efforts of the other Co-Owners to ensure that those values are reflected in the permitting for this critical project.”
Judge speaks out
Last month Dane County Circuit Judge Jacob Frost said he would revoke the permit if the plaintiffs could show even one commissioner had a legitimate conflict of interest. Frost previously rejected arguments that Valcq’s prior employment with WEC Energy Group, the majority owner of ATC, somehow influenced her vote.
Gov. Tony Evers appointed Sandy Naas and Sharon Adams to the policy board on April 28 to replace Frederick Prehn and Julie Anderson, who were appointed by former Gov. Scott Walker and whose six-year terms expired May 1.
The utilities have asked Frost to put that court case on hold while the PSC considers the request for a new permit, which they argue would render the current lawsuit moot.
In their request to the commission, the owners reiterated their commitment to the project, but a spokesperson for ATC declined to say if it would delay construction, which had been scheduled to begin in October.
“While we are disappointed by these recent developments, they have no bearing on the state’s need for the Project, which is vital to ensuring a cleaner, more reliable, and more affordable energy future for Wisconsin,” the utilities wrote.
What’s the buzz?
Howard Learner, lead attorney for DALC and WWF, said the evidence points to a due process violation, which would preclude the other commissioners from voting again on the permit.
He said it’s important to determine “who was talking to whom, about what and when, and who knew about it.”
“Even if all they were talking about was golf, social plans, health concerns and Peloton, when you have hundreds of calls and messages that calls into question the integrity of the process,” Learner said.
“The broader question is should a public official in Wisconsin be using Signal as a means of hiding their text messages with interested parties? This isn’t just about the transmission case ... This calls into question all kinds of decisions.”