Enbridge Energy Company, Inc. v. Dane County
929 N.W.2d 572
Wis.2019Background
- Enbridge applied for a conditional use permit (CUP) to expand a pump station in Dane County; the Dane County Zoning Committee approved the CUP with 12 conditions, including two (7 and 8) requiring additional insurance (EIL and specified CGL limits).
- An insurance consultant reviewed Enbridge’s summaries and certificates, reported Enbridge carried substantial CGL coverage with a ‘‘time‑element’’ pollution exception (coverage for pollution discovered within 30 days and reported within 90 days), and recommended additional EIL limits.
- While Enbridge’s appeal of the insurance conditions to the County Board was pending, the Legislature enacted 2015 Wis. Act 55, adding Wis. Stat. §§ 59.69(2)(bs) and 59.70(25), which preclude counties from requiring interstate hazardous liquid pipeline operators to obtain insurance if they ‘‘carry’’ CGL insurance that includes coverage for ‘‘sudden and accidental’’ pollution liability.
- Dane County reinserted conditions 7 and 8 in the CUP but added a note acknowledging Act 55 affected their enforceability; Enbridge sought certiorari relief and nearby landowners sought to enforce the insurance conditions by injunction.
- The circuit court struck conditions 7 and 8 as unenforceable under Act 55; the court of appeals reversed, finding Enbridge failed to show it carried the required ‘‘sudden and accidental’’ coverage and ordering remand; the Wisconsin Supreme Court granted review.
Issues
| Issue | Plaintiff's Argument (Enbridge) | Defendant's Argument (Dane County / Landowners) | Held |
|---|---|---|---|
| Whether Wis. Stat. § 59.70(25) precludes Dane County from imposing insurance conditions 7 & 8 | Enbridge: Act 55 bars county insurance requirements because Enbridge "carries" CGL with sudden-and-accidental pollution coverage (time‑element policy). | County/Landowners: Enbridge failed to prove it "carries" the required coverage; its time‑element policy is not equivalent to ‘‘sudden and accidental’’ coverage. | Held: Act 55 applies; record shows Enbridge carries CGL with time‑element pollution coverage that satisfies "sudden and accidental," so conditions 7 & 8 are unenforceable. |
| What "carries" means in § 59.70(25) (i.e., must coverage be perpetual or shown presently) | Enbridge: "carries" requires showing existing coverage; Enbridge presented credible evidence and certificate of insurance. | County/Landowners: "carries" should mean maintained or provable on demand; Enbridge’s coverage was lapsing/insufficient. | Held: "carries" does not impose a perpetual‑maintenance requirement; Enbridge presented uncontroverted evidence it carried the required coverage. |
| Meaning of "sudden and accidental" in the statute | Enbridge: industry usage of "sudden and accidental" includes time‑element policies; temporal meaning of "sudden" fits statute. | County/Landowners: Court precedent (Just) interprets "sudden" to include "unexpected and unintended," so Enbridge’s time‑limited coverage is narrower than statutory phrase. | Held: In statutory context, "sudden" is reasonably read temporally (quick/abrupt); combined with "accidental" the statute permits time‑element CGL coverage to qualify. |
| Proper remedy when conditions are unenforceable: sever/strike vs. remand/reverse permit | Enbridge: court may modify certiorari decision and strike illegal conditions, leaving permit in place. | County/Landowners: conditions were integral; court should reverse permit approval and remand so the zoning body can reconsider conditions consistent with law. | Held: Certiorari statute authorizes modification; circuit court properly struck conditions 7 & 8 rather than remanding, because County knowingly issued permit with unenforceable provisions. |
Key Cases Cited
- Oneida Seven Generations Corp. v. City of Green Bay, 362 Wis. 2d 290 (Wis. 2015) (scope of certiorari review of municipal decisions)
- Kalal v. Circuit Court for Dane Cty., 271 Wis. 2d 633 (Wis. 2004) (statutory interpretation principles)
- Just v. Land Reclamation, Ltd., 155 Wis. 2d 737 (Wis. 1990) (interpretation of "sudden and accidental" in insurance context)
- Adams v. State Livestock Facilities Siting Review Board, 342 Wis. 2d 444 (Wis. 2012) (agency authority to modify or strike unlawful permit conditions)
- Lamar Central Outdoor, Inc. v. Board of Zoning Appeals, 284 Wis. 2d 1 (Wis. 2005) (when remand to local board is appropriate after legal change)
- Ottman v. Town of Primrose, 332 Wis. 2d 3 (Wis. 2011) (certiorari review standards)
- Federal Power Comm'n v. Idaho Power Co., 344 U.S. 17 (U.S. 1952) (function of reviewing court when legal error is shown)