Enbridge Energy Co. v. Dane Cnty.
917 N.W.2d 232
Wis. Ct. App.2018Background
- Enbridge (operator of an interstate crude-oil pipeline) applied for a Dane County conditional use permit (CUP) in 2014 to increase pumped volume; the County zoning committee approved the CUP in April 2015 with 12 conditions including two insurance conditions (Conditions 7–8) requiring Enbridge to "procure and maintain" $100M CGL with a time-element exception plus $25M environmental impairment liability and to list Dane County as additional insured.
- While administrative review was pending, the Wisconsin Legislature enacted 2015 Act 55 (effective July 14, 2015), which provides that a county may not require an interstate hazardous liquid pipeline operator to obtain insurance if the operator "carries comprehensive general liability insurance coverage that includes coverage for sudden and accidental pollution liability."
- After Act 55, the county zoning administrator attempted to strike Conditions 7–8; the zoning committee instead retained them but added an end note quoting Act 55 (indicating the conditions would be unenforceable while Act 55 remains law). The county board sustained the committee.
- Enbridge filed a certiorari petition asking the circuit court to sever Conditions 7–8 (or declare them void); seven pipeline-area landowners filed a separate injunction action to enforce Conditions 7–8; the circuit court consolidated the actions and allowed landowners to intervene.
- The circuit court held Act 55 applied (finding Enbridge had shown it "carries" the specified insurance), voided and severed Conditions 7–8, and dismissed the landowners’ injunction suit; the County and landowners appealed.
Issues
| Issue | Plaintiff's Argument (Enbridge) | Defendant's Argument (County/Landowners) | Held |
|---|---|---|---|
| Whether intervening landowners may challenge Enbridge's claim that it "carries" Act 55 insurance in the certiorari proceeding | Landowners lack standing / should not be allowed to relitigate the insurance showing in the certiorari action | Consolidation and court order made landowners intervenors with full participation; they may challenge the insurance showing and pursue injunction | Landowners may fully participate as intervenors in the certiorari action and may pursue the injunction action; court reversed exclusion of their challenges |
| Whether Act 55 is triggered by Enbridge's showing that it "carries" the specified insurance (meaning and timing of "carries/includes") | "Carries" need only reflect coverage around the time of committee action; once shown, county cannot require additional insurance; Enbridge relied on Dybdahl's report and past policies | "Carries" requires an affirmative, continuing demonstration that the operator maintains the specified coverage for as long as the permit's uses are exercised; the county may require proof on demand | The statute requires a present and continuing showing that the operator actually maintains the specified insurance; Enbridge failed to show it carried the coverage (policies cited were time-limited/expiring) |
| Meaning of "sudden and accidental" pollution coverage in Act 55 | The phrase should be read narrowly (e.g., time-element/abrupt-only) consistent with Dybdahl’s characterization | Under Wisconsin precedent, "sudden and accidental" can reasonably mean either "abrupt or immediate" or "unexpected and unintended," so Act 55 contemplates both meanings | Applying Just, the court held "sudden and accidental" covers both interpretations; Enbridge did not show it carried coverage that encompassed both types of pollution exposure |
| Proper remedy when the zoning body proceeded under incorrect legal theory | Severance of Conditions 7–8 is appropriate and efficient; Enbridge relied on the zoning administrator’s July revised permit | Because insurance conditions are integral to the CUP decision, the proper remedy is remand so the zoning committee can reconsider the permit under correct legal standards; severance usurps the committee’s discretion | Court reversed the severance, reinstated landowners' right to seek enforcement, vacated circuit court order, and remanded to zoning committee for reconsideration applying the correct interpretation of Act 55 |
Key Cases Cited
- Just v. Land Reclamation, Ltd., 155 Wis. 2d 737 (Wis. 1990) (interpreting "sudden and accidental" in pollution-exclusion context to include either "abrupt or immediate" or "unexpected and unintended")
- Town of Rhine v. Bizzell, 311 Wis. 2d 1 (Wis. 2008) (valid conditional-use conditions must control permitted uses; permits authorize uses only in a controlled manner)
- Lamar Cent'l Outdoor, Inc. v. Bd. of Zoning Appeals, 284 Wis. 2d 1 (Wis. 2005) (agency error in applying law justifies remand for agency factfinding rather than judicial substitution)
- Adams v. State Livestock Facilities Siting Review Bd., 342 Wis. 2d 444 (Wis. 2012) (discusses scope of board authority and when modification, rather than full reversal, may be appropriate)
- Kraus v. City of Waukesha Police & Fire Comm'n, 261 Wis. 2d 485 (Wis. 2003) (standard of review on certiorari limited to jurisdiction, correct legal theory, and reasonableness)