Utility regulators declined to reissue a permit Thursday for a controversial power line across southwest Wisconsin, defending their approval of the $492 million project.
Two voting members of the Public Service Commission deadlocked on a request from the owners of the Cardinal-Hickory Creek line to rescind and reapprove a construction permit that is the subject of four separate court challenges but left the issue open for future consideration.
American Transmission Company, ITC Midwest and Dairyland Power Cooperative asked the commission to reissue the permit after discovering that former Commissioner Mike Huebsch had secret communications with utility executives while considering the permit application. They argued a new vote without Huebsch, who stepped down last year, would render legal challenges moot and allow construction to begin as scheduled this fall.
Opponents said the commission should let the courts decide the fate of the 102-mile line between Dubuque, Iowa, and Middleton, or at least reevaluate the need and economic benefits.
Commissioner Ellen Nowak said she favored a quick revote to expedite construction, but chair Rebecca Valcq opposed the request, saying there was nothing wrong with the original permit.
“I stand by the procedure we followed. I stand by the record,” Valcq said. “If we rescind it … I’m abandoning my decision that it was in the public interest.”
Both rejected claims that Huebsch was biased or that the permit was flawed.
“I will not concede that our process was tainted,” Nowak said.
Commissioner Tyler Huebner, appointed by Gov. Tony Evers to fill Huebsch’s seat, has recused himself because of his prior involvement with the case.
Valcq agreed to revisit the request after an Aug. 5 court hearing on the utilities’ request to put legal proceedings on hold.
“If on the basis of that we feel it’s necessary, all we need is 24 hours notice,” Valcq said.
‘An existential crisis’
The Driftless Area Land Conservancy and Wisconsin Wildlife Federation, which have sued the PSC and other agencies over the line, argued Valcq and Nowak “have been tainted by their participation” and should be disqualified from any further consideration of the permit.
The commissioners say they made their decisions independently based on evidence assembled by the commission’s administrative law judge.
“I was not swayed one bit by Commissioner Huebsch,” Valcq said. “I also don’t believe he was biased in any way, shape or form.”
Dane County Circuit Judge Jacob Frost said in May that he would revoke the permit if the plaintiffs could show even one commissioner had a legitimate conflict of interest. Frost previously dismissed claims of bias against Valcq, while a federal judge dismissed Nowak as a defendant.
Dane and Iowa counties, which have also challenged the permit, said the request to reissue the permit is an attempt to circumvent the judicial process.
“What is unfolding before the Commission is nothing short of an existential crisis,” wrote Dane County assistant corporation counsel Carlos Pabellon. “Rescinding the (permit) in order to ram through a revote would only serve as a way for the Commission to avoid accountability.”
The Citizens Utility Board has also urged the commission not to take any further action, saying a decision to reissue the permit while the court cases are pending “would come across as an attempt to ‘paper over’ the issues still surrounding this case.”
The utilities, which have spent $126.4 million so far on the project to import electricity from Iowa, say the project is “critical to ensuring Wisconsin can transition to a cleaner, more reliable, and more affordable energy future” and that legal challenges could delay thousands of megawatts of new clean energy projects and put constraints on existing generators.
Commissioners have indicated they have no interest in revisiting arguments for and against the line. But opponents say any reconsideration of the permit must include a fresh review of the need and economic benefits in light of more than 2,000 megawatts of solar and battery storage projects approved, which could lessen the need to import electricity.
“(T)he past 22 months have seen the applicants’ assumptions regarding the future of these technologies to be proven very wrong,” wrote Corey Singletary, CUB’s director of regulatory affairs. “Utility-scale battery storage systems, which the applicants represented as uneconomic during the proceeding, have been proposed by three Wisconsin utilities, including one of the applicants.”
Howard Learner, lead attorney for the environmental groups, said the data used to justify the project is “at odds with today’s reality.”
“The courts are concerned about legal errors that the commissioners are refusing to reconsider,” Learner said. “The commission can’t issue a new order that relies on clearly outdated information. That would violate both core legal principles and common sense.”
Phone records sought
According to documents filed with the courts and the PSC, Huebsch used the encrypted messaging service Signal and it’s unknown if the contents can be recovered. The utilities say they don’t know whether the messages were related to the project but want to maintain “transparency in the regulatory process.”
Huebsch testified in court that he used Signal because it made it easier to carry on group chats with Android and iPhones and to keep from filling up his phone’s memory. He said he used the app to talk with longtime friends about sports, health and family — but not commission business.
“I’ve never had an ex parte communication with anyone, ever,” Huebsch testified.
Frost has scheduled a hearing Friday to consider an emergency motion from Huebsch to block a subpoena from power line opponents, who are seeking to examine his personal cellphone.
“I was not swayed one bit by Commissioner Huebsch. I also don’t believe he was biased in any way, shape or form.”
Rebecca Valcq, Public Service Commission chair
“The commission can’t issue a new order that relies on clearly outdated information."
Howard Learner, lead attorney for environmental groups opposing the power line