913 N.W.2d 914
Wis. Ct. App.2018Background
- Companies applied to the Public Service Commission of Wisconsin (PSC) for a Certificate of Public Convenience and Necessity to build the 345 kV Badger Coulee line to improve reliability for La Crosse and environs; substantial routing lies within the Town of Holland.
- The PSC prepared a statutorily required Environmental Impact Statement (EIS), held public hearings, and after evidentiary hearings issued the CPCN approving the Project.
- Town of Holland intervened and challenged the Project before the PSC and later in circuit court, arguing lack of need, legal insufficiency of the EIS (failure to analyze alternatives), and that an eight-mile segment should be co-located with the existing CapX line per WIS. STAT. § 1.12(6).
- PSC approved co-location for only one mile of the CapX corridor, citing NERC reliability criteria and Companies’ studies concluding triple-circuiting longer segments would create unacceptable risks absent an adequate outage/contingency plan.
- The circuit court affirmed PSC on need and (after supplementation of the record) EIS sufficiency, but remanded the CapX co-location issue because it found the PSC’s NERC-based rationale unsupported; it enjoined construction on the contested seven-mile portion but stayed that injunction pending appeal.
- The Court of Appeals affirmed PSC’s findings on need and EIS adequacy, reversed the remand as to the CapX co-location (finding a rational basis for PSC’s one-mile limit), held the rehearing-denial order by PSC is judicially reviewable, and affirmed the PSC’s denial of rehearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Project was "needed" under §196.491(3) | Town: Not needed; prior CapX approval already provided adequate supply and slow growth means excess capacity. | PSC/Companies: "Reasonable needs" includes reliability improvements, economic benefits, policy goals; broader statutory interpretation. | Affirmed: PSC had rational basis for need; great-weight deference applies to PSC interpretations under Clean Wisconsin. |
| Whether the PSC's EIS was legally sufficient under §1.11(2)(c) | Town: EIS failed to study viable alternatives and merely adopted Companies' analyses. | PSC: EIS was thorough, addressed statutory factors, and reasonably concluded alternatives and impacts were evaluated. | Affirmed: under narrow "rule of reason" review and great-weight deference, PSC reasonably found EIS adequate. |
| Whether PSC rationally limited co-location with CapX to one mile (NERC issues) | Town: Entire eight-mile segment could be triple-circuited in existing corridor per §1.12(6); PSC gave no NERC-supported basis to limit overlap. | PSC/Companies: Studies showed triple-circuiting longer segments would create unacceptable reliability risks and NERC-contingency demonstration requirements could not be satisfied. | Reversed circuit court: PSC provided a rational, expertise-based basis to limit co-location to one mile; remand and injunction vacated. |
| Whether PSC's denial of rehearing is judicially reviewable and properly decided | Town: Denial should be reviewable; new growth/electricity-use studies warranted rehearing. | PSC: Denial is discretionary; alternatively, even if reviewable, new evidence does not justify rehearing. | Held: Rehearing denial is judicially reviewable; PSC rationally concluded new evidence was not sufficiently strong to reverse or modify its order and denial was affirmed. |
Key Cases Cited
- Clean Wisconsin, Inc. v. Public Service Commission of Wisconsin, 282 Wis. 2d 250 (2005) (PSC entitled to great-weight deference in applying ch.196 criteria for CPCNs)
- Milwaukee Symphony Orchestra, Inc. v. Department of Revenue, 324 Wis. 2d 68 (2010) (substantial-evidence standard for agency factual findings)
- Hill v. Labor & Industry Review Commission, 184 Wis. 2d 101 (1994) (review the agency decision, not the circuit court; scope of review principles)
- Village of Prentice v. Transportation Commission of Wisconsin, 123 Wis. 2d 113 (1985) (distinguishing reviewable administrative "decisions" from non-reviewable orders)
- Schwartz v. Wisconsin Department of Revenue, 258 Wis. 2d 112 (2002) (judicial review of rehearing-denial treated as reviewable where statute permits review of orders)