RESPONSIBLE USE OF RURAL AND AGRICULTURAL LAND (RURAL), Petitioner-Appellant, Daniel GOMEZ-IBANEZ, Wendy Lynn Lein, Lynn Needham, and Kathryn A. Nekola, Petitioners, v. PUBLIC SERVICE COMMISSION OF WISCONSIN and Wisconsin Department of Natural Resources, Respondents-Respondents, ROCKGEN ENERGY LLC, Polsky Energy Corporation, and Alliant Energy-Wisconsin Power and Light Company, Intervenors-Respondents-Respondents. VILLAGE OF ROCKDALE, Petitioner-Co-Appellant, v. PUBLIC SERVICE COMMISSION OF WISCONSIN, Respondent-Respondent, ROCKGEN ENERGY LLC, Polsky Energy Corporation, and Alliant Energy-Wisconsin Power and Light Company, Intervenors-Respondents-Respondents.
No. 99-2430
Supreme Court of Wisconsin
September 6, 2000.—Decided December 19, 2000
2000 WI 129 | 619 N.W.2d 888 | 239 Wis. 2d 660
For the petitioner-co-appellant, Village of Rockdale, there were briefs (in the court of appeals) by Allen D. Reuter, Kim I. Moermond and Reuter & Whitish, S.C., Madison, and oral argument by Allen D. Reuter.
For the respondent-respondent, Public Service Commission of Wisconsin, there was a brief (in the court of appeals) by Kevin B. Cronin, assistant general counsel, Madison, and oral argument by Kevin B. Cronin.
For the respondent-respondent, Wisconsin Department of Natural Resources, the cause was argued by Frank D. Remington, assistant attorney general, with whom on the brief (in the court of appeals) was James E. Doyle, attorney general.
For the intervenors-respondents-respondents, Rockgen Energy LLC and Polsky Energy Corporation, there was a brief (in the court of appeals) by Peter L. Gardon, Raymond M. Roder, Stephanie L. Mott and Reinhart, Boerner, Van Deuren, Norris & Rieselbach, S.C., Madison, and oral argument by Peter L. Gardon.
An amicus curiae brief was filed by Terrence C. Thom, Rocke A. Calvelli, William P. Croke and Quale, Feldbruegge, Calvelli, Thom & Croke, S.C., Milwaukee, on behalf of the Wisconsin Utilities Association.
An amicus curiae brief was filed by Frank J. Jablonski and Porter, Jablonski & Associates, S.C., Madison, on behalf of Wisconsin‘s Environmental Decade, Citizens Utility Board, Senators Fred A. Risser and Charles Chvala, and Representative Tom Hebl.
An amicus curiae brief was filed by Cal W. Kornstedt, corporation counsel, and Maureen A. Plunkett, assistant corporation counsel, on behalf of the County of Dane.
¶ 1. N. PATRICK CROOKS, J. This appeal is before the court on bypass from the court of appeals pursuant to
¶ 2. The circuit court determined that the PSC and the DNR properly applied an expedited review process contained in the nonstatutory provision of § 96 of 1997 Wisconsin Act 204 to the application for the certif-
¶ 3. A certificate of public convenience and necessity is a statutory prerequisite for the construction and operation of a facility that generates 100 MW or more of electricity.
¶ 4. In 1997, Act 204 modified the application process for certificates of public convenience and necessity. Act 204 eliminated over a year from the process. 1997 Wis. Act 204, §§ 63-67; compare also
¶ 5. The facts surrounding the application for a certificate of public convenience and necessity at issue here are not in dispute. Beginning in the summer of 1997, concerns arose regarding the reliability of Wisconsin‘s supply of electricity. “Wisconsin faced unprecedented power supply problems due to extended unexpected generating plant outages, a delay in the online availability of a new power plant, and a seriously constrained transmission system.” Order at 4.6 During this time, the PSC determined that there was an unacceptable level of risk in the current electric generating capacity in eastern Wisconsin and concluded that there was an immediate need for 500 MW of additional electric generation capacity. In September 1997, the PSC issued a report to Governor Tommy G. Thompson recommending that 500 MW be added to Wisconsin‘s electric generation capacity on an expedited basis.
¶ 6. Also in September 1997, the PSC directed utilities that supply electricity to eastern Wisconsin, Wisconsin Electric Power Company (WEPCO), Wiscon-sin Power and Light Company, and Madison Gas and Electric Company (MGE), to submit detailed supply plans indicating how they intended to secure the elec-
¶ 7. On December 4, 1997, Alliant-WPL issued a request for proposals or bids for additional electric generation capacity in order to comply with the PSC‘s mandate. According to Alliant-WPL‘s request for proposals, Alliant-WPL had an immediate need for 150 MW peak capacity.8 Alliant-WPL‘s request also pointed to the larger need for 500 MW of capacity in eastern Wisconsin and indicated that one of its sites between Janesville and Beloit could support an electric generation plant of that size and should be considered. The proposals were due on February 27, 1998.
¶ 8. On July 30, 1998, Alliant-WPL informed the PSC that it had entered into an agreement in principle with RockGen Energy LLC and Polsky Energy Corporation (collectively, RockGen) for the construction of a new electric generation power plant in conformance with the requirements of § 96 of Act 204. On August 10, 1998, Alliant-WPL entered into a Power Purchase Agreement with RockGen. On August 13, 1998, the PSC notified Alliant-WPL of its finding that the contract between Alliant-WPL and RockGen met the conditions of § 96(1)(b)3.
¶ 10. On August 31, 1998, RockGen submitted an application to the PSC for a certificate of public convenience and necessity to construct and operate a wholesale merchant plant.9 The 770-page application proposed a 525 MW plant at a site in the Town of Christiana in Dane County, or, alternatively, a 350 MW plant at a site in Johnstown Township in Rock County.
¶ 11. The PSC reviewed RockGen‘s certificate application, and the DNR reviewed the engineering plan for the proposed plant. On September 10, 1998, the DNR notified RockGen of the permits needed from the DNR for the construction and operation of the proposed plant, which included a high capacity well permit and an air pollution control permit; RockGen
¶ 12. The PSC and DNR also prepared an Environmental Impact Statement (EIS) evaluating the environmental impact of RockGen‘s proposed facilities at both the Christiana and Johnstown sites. The DNR issued the EIS on October 31, 1998, and it remained open for public comments until November 20, 1998. According to the EIS, the impact of the construction and operation of the proposed facility on human environment in Christiana—air quality, water quality, vegetation, wetlands, as well as property values, recreation, aesthetics, zoning, traffic, etc.—would be minimal.
¶ 13. On October 16, 1998, the PSC issued a public notice of RockGen‘s pending application and upcoming public hearings. The PSC held public hearings both during the day and in the evening in Cambridge and Janesville, on November 16 and November 17, 1998, respectively. The PSC also held hearings during the day on November 18, 19, and 20, 1998, in Madison. Over 185 individuals testified at the hearings.
¶ 14. RURAL and Rockdale, as well as Alliant-WPL and RockGen, participated as full parties in RockGen‘s certificate application process.10 RURAL‘s interest arose from its purpose to maintain the rural
¶ 15. On December 15, 1998, the DNR notified the PSC that its review of two outstanding permits would be concluded shortly. Also on December 15, 1998, the DNR issued its Record of Decision, concluding that RockGen‘s proposed 525 MW plant in Christiana could comply with all regulatory requirements and that the DNR complied with the applicable provisions of the Wisconsin Environmental Protection Act in reviewing the proposed project. The next day, the DNR issued one of the outstanding permits. The DNR subsequently issued the other, an air pollution control permit, on January 25, 1999.
¶ 16. On December 18, 1998, the PSC issued its Order on RockGen‘s certificate application, which included Findings of Fact, Conclusions of Law, Decision, and Certificate of Public Convenience and Necessity. The Order issued a certificate for a plant at the Christiana site and explained that “[s]everal factors establish the reasonableness of the Project at the Christiana site.”
A large electric substation is approximately 0.25 mile from the site. [A] natural gas transmission pipeline is located approximately eight miles from the site. The town planning committee recom-
mended overwhelmingly (5-0-1) to permit the Facility in an area otherwise zoned agricultural. Construction at the Christiana site will require far less disruption of the surrounding areas than would be required in Johnstown. Greater environmental impacts would arise from construction in Johnstown, including impacts to the extensive wetlands adjacent to the Mukwonago River and Lulu Lake and damage to natural areas, including the Young Prairie and the Kettle Moraine State Forest with a large southern oak forest.
Order at 5. The Order also imposed a number of conditions to address environmental, aesthetic, land use, and permitting concerns.
¶ 17. Two of the three PSC commissioners voted in favor of the project. The third dissented, expressing his belief that § 96 was intended to apply to an application for a plant with a capacity of no greater than 170 MW based upon the PSC‘s September 1997 directive that Alliant-WPL obtain 170 MW of firm capacity.
¶ 18. In January 1999, RURAL and Rockdale each petitioned Dane County Circuit Court for review of the PSC‘s Order and the DNR‘s Record of Decision pursuant to
¶ 19. On September 20, 1999, RURAL and Rockdale appealed the circuit court‘s order dismissing their petitions. Pending the appeal, RURAL asked the circuit court for a stay of the plant construction. The circuit court denied the motion; RURAL renewed it in the court of appeals. Meanwhile, RockGen moved this court to bypass the court of appeals. We granted the motion for bypass. RURAL then moved this court for a stay pending the appeal. The court denied the motion,
“noting, [in its Order], that the respondents have acknowledged that by proceeding with construction during the pendency of this appeal, they are proceeding at their own risk, that they have a duty and capability to remediate, and that they can and will remediate the site should the certificate authorizing this construction be vacated on appeal.”
The parties informed us at oral argument that construction had begun.
II
¶ 20. An administrative agency‘s statutory construction and application thereof to the presented facts involve questions of law that are subject to judicial review. Brauneis v. LIRC, 2000 WI 69, ¶ 15, 236 Wis. 2d 27, 612 N.W.2d 635. Correspondingly, although we ultimately affirm the circuit court‘s decision, the focus of our review is the PSC‘s Order and the DNR‘s Record of Decision, not the circuit court‘s decision. Id. at ¶ 14. Insofar as the PSC‘s and the DNR‘s statutory construction depend upon their factual findings, we review those findings to determine whether there is substan-
¶ 21. Even though the court is not bound by the agencies’ statutory interpretation here, circumstances may warrant according some level of deference to their interpretation. Brauneis, 2000 WI 69, ¶ 15. Depending upon the circumstances of the case, we will review an agency‘s statutory interpretation according to one of three levels: great weight deference, due weight deference and de novo review. Id.
¶ 22. For divergent reasons, RURAL and Rockdale contend that no deference should be accorded to the PSC and DNR‘s decisions, and the court should review them de novo. De novo review is appropriate where there is no evidence that the agency used any special knowledge or expertise, the issue is clearly one of first impression, or the agency‘s position on an issue has been inconsistent. Id. at ¶ 18. De novo review is not appropriate here because both the DNR and the PSC relied upon their special knowledge and expertise to process RockGen‘s certificate application. The PSC and the DNR each have responsibilities for processing applications for certificates of public convenience and necessity.
¶ 23. Alliant-WPL and RockGen contend that the PSC and DNR‘s statutory interpretations should be accorded great weight deference.
Great weight deference is appropriate once a court has concluded that: (1) the agency was charged by the legislature with the duty of administering the statute; (2) that the interpretation of the agency is one of long-standing; (3) that the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) that the agency‘s interpretation will provide uniformity and consistency in the application of the statute.
Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 660, 539 N.W.2d 98 (1995). We disagree. Even though the PSC‘s and DNR‘s interpretation of the provisions governing the substantive review of certificate applications in
¶ 24. The standard of review that the DNR advocates, due weight deference, is the appropriate standard of review. Due weight deference, the middle ground between great weight deference and de novo review, is warranted where an agency has some experience in the area, but has not developed any particular expertise in interpreting and applying the statute at
The deference allowed an administrative agency under due weight is not so much based upon its knowledge or skill as it is on the fact that the legislature has charged the agency with the enforcement of the statute in question. Since in such situations the agency has had at least one opportunity to analyze the issue and formulate a position, a court will not overturn a reasonable agency decision that comports with the purpose of the statute unless the court determines that there is a more reasonable interpretation available.
UFE, Inc. v. LIRC, 201 Wis. 2d 274, 286-87, 548 N.W.2d 57 (1996).12 Even though the DNR and PSC are charged with, and have substantial experience in, processing certificate applications and related environmental impact statements, they had not yet developed any particular expertise in processing certificate applications under § 96‘s expedited procedures, or applications involving wholesale merchant plants, as of the time they reviewed RockGen‘s application. Consequently, “[t]his is precisely the situation that
warrants due weight deference.” Brauneis, 2000 WI 69, ¶ 19.¶ 25. Due weight deference accords an agency‘s statutory interpretation and application some weight; however, the agency‘s interpretation and application are not conclusive. UFE, Inc., 201 Wis. 2d at 286-87. If the agency‘s interpretation complies with the statutory purpose and is reasonable, we will not overturn it. Id. Accordingly, we now turn to RURAL‘s and Rockdale‘s challenges to determine whether the PSC and DNR‘s interpretation of § 96 and other provisions necessary to process RockGen‘s certification application was not only reasonable, but also fulfilled the purpose of Act 204, generally, and § 96, specifically.
III
¶ 26. RURAL makes four challenges to the PSC‘s and the DNR‘s interpretation and application of § 96 to RockGen‘s certificate application: (1) RockGen was not a contractor as defined by § 96; (2) because of its size, the project did not qualify for § 96‘s accelerated procedures; (3) because of the Power Purchase Agreement, the project did not qualify for treatment under § 96; and, (4) because § 96 did not apply here, the PSC and DNR violated the Wisconsin Environmental Protection Act. We address each argument in turn.
A.
¶ 27. RURAL contends that RockGen is not a contractor under § 96(1) because the PSC did not find that the contract between Alliant-WPL and RockGen was entered into by July 31, 1998, or officially approve a later date. Section 96 defines contractor as a “person specified in paragraph (b)3. that enters into a contract with an eastern Wisconsin utility for the construction
¶ 28. RURAL‘s contention is without merit. The PSC plainly could, and did, approve of the date that RockGen entered into the contract with Alliant-WPL, August 10, 1998, even though it was after July 31, 1998. On August 13, 1998, the PSC notified Alliant-WPL that it had reviewed the contract and specifically found that it met the conditions of § 96(1)(b)3. In addition, the PSC made a finding of fact in its Order that “[o]n August 10, 1998, Alliant-WPL and RockGen...entered into a contract for the construction of a combustion turbine (CT) electric generating facility...and into a Power Purchase Agreement.” Order at 1. The PSC‘s approval of the contract, evident from its notification to Alliant-WPL and subsequent finding of fact is sufficient to show compliance with § 96(1)(a)3. of Act 204.
B.
¶ 29. RURAL next contends that RockGen‘s proposed facility did not qualify for § 96‘s expedited review because of § 96‘s reference to “request[s] for proposals.” 1997 Wis. Act 204, § 96(1)(b). According to RURAL, that term limited § 96 to, in Alliant-WPL‘s case, projects with a capacity of 170 MW or less, based upon the PSC‘s mandate to Alliant-WPL in September 1997 to procure 170 MW of additional electric generation capacity.
¶ 30. Whether the PSC correctly interpreted and applied § 96 here turns on the purpose of § 96. Discerning the purpose or intent of the legislature is the lodestar of statutory interpretation. Brauneis, 2000 WI 69, ¶ 21. We start with the language of the statute in discerning the intent of the legislature and look no further if that intent is self-evident. UFE, Inc., 201 Wis. 2d at 281; Kelley Co. v. Marquardt, 172 Wis. 2d 234, 247, 493 N.W.2d 68 (1992). “While it is true that statutory interpretation begins with the language of the statute, it is also well established that courts must not look at a single, isolated sentence or portion of a sentence, but at the role of the relevant language in the entire statute.” Alberte v. Anew Health Care Serv., Inc., 2000 WI 7, ¶ 10, 232 Wis. 2d 587, 605 N.W.2d 515 (citation omitted). Accordingly, we look at § 96 with regard to its role in 1997 Wisconsin Act 204.
¶ 31. From the language of Act 204, we find that its unambiguous purpose is to facilitate the increased reliability of Wisconsin‘s electric generation. This purpose, which the parties do not dispute, is evident from the changes Act 204 made to
¶ 32. Act 204 obviously intended to bolster Wisconsin‘s electric generation reliability not only by streamlining the new electric generation construction process, but also by providing for independent and
¶ 33. Wholesale merchant plants cannot provide service to any retail customer in Wisconsin, ensuring that the plants will first serve the utilities.
¶ 34. Section 96, albeit with limited application, was intended to further the purpose of Act 204 to strengthen Wisconsin‘s electric generation reliability
¶ 35. Similar deadlines—approximately half the time allotted for applications for certificates of public convenience and necessity after Act 204‘s streamlining—applied to the PSC. The PSC had 15 days to determine whether the certificate application was complete; if the PSC did not make a determination within the 15-day limit, the application was deemed complete. 1997 Wis. Act 204, § 96(1)(e)1.17 The PSC had to hold hearings on the application, again, within a shortened
¶ 36. Even though § 96 provided for an accelerated certificate application review process, § 96 had limited duration and application. First, § 96 applied only to the eastern Wisconsin utilities. 1997 Wis. Act 204, § 96(1)(a)5., (b). Second, to qualify for the accelerated procedures under § 96, those eastern Wisconsin utilities had to have “issued a request for proposals soliciting bids for contracts for the construction of new electric generation capacity” before May 12, 1998. 1997 Wis. Act 204, §§ 96(1)(b)(intro.); 98m. Third, the eastern Wisconsin utilities had to evaluate and select a bid from those submitted and then enter into a contract with the winning bidder by July 31, 1998, or by a later date that the PSC approved. 1997 Wis. Act 204, § 96(1)(b).
¶ 37. RURAL would further limit § 96 by reading into the term “request for proposals,” a limit on the construction of new electric generation capacity to, in the case of Alliant-WPL, 170 MW. “[W]e will not read extra words into a statute to achieve a specific result.” Lang v. Lang, 161 Wis. 2d 210, 224, 467 N.W.2d 772 (1991) (citing Noack v. Noack, 149 Wis. 2d 567, 576, 439 N.W.2d 600 (Ct. App. 1989)). On its face, § 96 uses the phrase that “each eastern Wisconsin utility that, before
¶ 38. Even if such limit could be read into § 96, and we find that it cannot, Alliant-WPL‘s request for proposals contained no such limitation. Alliant-WPL‘s request offered bidders to consider a site between Janesville and Beloit that could support an electric generating plant with a capacity of 500 MW, referring to the capacity deficit that the PSC recommended be added on an expedited basis.19
¶ 39. We trust that had the legislature intended to further limit the applicability of § 96 by restricting the capacity of new electric generation construction for
¶ 40. In sum, we find that the language of Act 204, generally, and § 96 thereof, specifically, clearly indicates a legislative purpose to increase the reliability of Wisconsin‘s electric generation capability, and, in
¶ 41. It is not necessary to look to the legislative history of Act 204 because the language of the statute is unambiguous.
The well established tenets of the plain meaning rule preclude courts from resorting to legislative history to uncover ambiguities in a statute otherwise clear on its face. No canon, however, prevents this court from examining legislative history “to reinforce and demonstrate that a statute plain on its face, when viewed historically, is indeed unambiguous.”
State ex rel. Cramer v. Schwarz, 2000 WI 86, ¶ 37, 236 Wis. 2d 473, 613 N.W.2d 591 (quoting State v. Martin, 162 Wis. 2d 883, 897 n.5, 470 N.W.2d 900 (1991), and citing State v. Sample, 215 Wis. 2d 487, 508-09, 573 N.W.2d 187 (1998) (Abrahamson, C.J., concurring)).
¶ 42. Here, the legislative history reinforces our conclusion that the purpose of § 96 of Act 204 was to expedite the construction of new sources of electric generation for eastern Wisconsin, without also limiting the capacity of that new construction to the capacity the PSC determined to be an unmet need in September 1997. In response to the problems during the summer of 1997, a number of State Senators introduced the initial electric reliability legislation, 1997 Senate Bill 418, in January 1998. According to the Analysis of the Legislative Reference Bureau, Senate Bill 418 would have required the PSC to “issue an order that is designed to ensure, to the extent practicable, that the aggregate total electric generating capacity that is available...in a specified area of the state [that area served by east-
¶ 43. The Governor‘s Drafting Instructions also made no reference to a 500 MW limit. The Drafting Instructions indicate that the legislation was to direct
¶ 44. Our due weight deference review, as well as the legislative intent underlying public utility law, requires that we determine whether the PSC acted reasonably here. “[I]f we look to the entire act we discover some indication of a legislative intent that all orders of the commission shall be subject to the test of reasonableness.” Union Coop. Tel. Co. v. Public Serv. Comm‘n, 206 Wis. 160, 163, 239 N.W. 409 (1931) (referring to the public utility law, ch. 196, Stats.). Even though § 96 did not specifically limit the capacity of the construction of new electric generation facilities, we do not read § 96 to present a carte blanche for the construction of new electric generation facilities with
¶ 45. We are further convinced that the PSC reasonably applied § 96 because the PSC specifically found in its Order that “the public convenience and necessity require the Project.” There is substantial evidence in the record to support this finding. There existed an immediate need in eastern Wisconsin for at least 500 MW in electric generation capacity. The proposed facility was situated so that three eastern Wisconsin utilities, WEPCO, MGE and Alliant-WPL, would have access to the electricity generated there because all three were or could be connected to the substation through which the electricity is to be transmitted. As the PSC concluded, “the 525 MW Facility will be a valuable addition to Wisconsin‘s electric energy portfolio, enhancing not only generation available to serve native load, but bolstering the
¶ 46. The PSC‘s interpretation and application of § 96 here to expedite the processing of RockGen‘s application for a certificate of public convenience and necessity was not only reasonable, it also furthered the purpose of Act 204 generally, and § 96 specifically, to “streamline the regulatory process, increase generation and improve the transmission system,” in the Governor‘s words. Governor Thompson‘s Reliability Proposal, Drafting Instructions (March 12, 1998) at 5. The due weight deference standard requires that the “court will not overturn a reasonable agency decision that comports with the purpose of the statute unless the court determines that there is a more reasonable interpretation available.” UFE, Inc., 210 Wis. 2d at 286-87 (emphasis added). The petitioners have not provided a more reasonable interpretation. Id. at 288. And, we have not found a more reasonable interpretation. Consequently, we will not overturn the PSC‘s decision here.
¶ 47. If, however, there was any error in applying § 96‘s expedited procedures considering the date or terms of the Power Purchase Agreement, or the capacity of the proposed project, that error would have been harmless procedural error. Only if “the fairness of the proceedings or the correctness of the action has been impaired by a material error in procedure or a failure to follow prescribed procedure,” will this court remand the case to the agency.
¶ 48. The burden is on RURAL to establish that a claimed procedural error is prejudicial. Nu-Roc Nursing Home, Inc. v. DHSS, 200 Wis. 2d 405, 418, 546 N.W.2d 562 (Ct. App. 1996). In Nu-Roc, the nursing
Nu-Roc fails to establish that “either the fairness of the proceedings or the correctness of the action” was impaired by shortening the reply date so as to warrant remand under § 227.57(4), Stats. Further, it fails to suggest how its reply would have been different had it been given the additional time.
Id. at 418. Here, too, RURAL has failed to establish that either the fairness of the PSC‘s proceedings or the correctness of its decision was impaired by following § 96. RURAL voiced concerns about the possible environmental impact of the proposed facility and purported deficiencies in the Environmental Impact Statement (EIS) that the PSC and DNR prepared. But RURAL only raised questions about the procedure followed, not concrete defects.25 This is insufficient to establish how the PSC‘s use of § 96‘s expedited procedure prejudiced RURAL. Consequently, remand is not warranted here.
C.
¶ 50. Because the Agreement involves a wholesale merchant plant, the PSC could not consider whether “the proposed facility satisfies the reasonable needs of the public for an adequate supply of electric energy,” or whether the “design and location or route is in the public interest considering...economic factors.”
¶ 51. The Agreement also furthered the purpose of Act 204 and § 96 to increase the reliability of Wisconsin‘s electric generation supply because it facilitated Alliant-WPL‘s acquisition of the peaking capacity it needed. In addition, under the Agreement, Alliant-WPL has the first right to electricity generated at the facility, increasing the reliability of Alliant-WPL with the capability of supplying its customers with electricity when needed. The Agreement facilitated, by bringing the project within § 96‘s expedited process, the construction of a plant that will add to in-state electric generation capacity—“a valuable addition to Wisconsin‘s electric energy portfolio.” Order at 5.
¶ 52. RURAL contends, however, that when Alliant-WPL is not in need of the facility‘s electricity, RockGen intends to sell it to out-of-state customers, thereby undermining reliability. The law does not prohibit those sales. More importantly, the record does not support RURAL‘s contention. Alliant-WPL would have the first right to that electricity. As testified to before the PSC, the other utilities—those with access to the substation attached to the proposed project, WEPCO and MGE—could also purchase electricity from RockGen. (R. at 27:1220.). WEPCO and MGE could purchase electricity without incurring “wheeling” charges or surcharges for transmitting electricity across another utility‘s transmission system. Id. The overall arrangement here bolsters, rather than undermines, the reliability of electric generation in Wisconsin.
D.
¶ 53. RURAL‘S final argument is that, because § 96 did not apply to RockGen‘s application, the DNR did not comply, and could not have complied, with the timeline established in the Wisconsin Environmental Protection Act.
¶ 54. WEPA,
¶ 55. The DNR also had to operate within the 90-day window set by § 96(1)(e)3. Accordingly, the DNR reasonably interpreted its authority to shorten the public comment timeline to accommodate § 96‘s timeline. The DNR may shorten the public comment period for an EIS in order to comply with other statutory time
¶ 56. It is noteworthy that RURAL does not make any substantive challenges to the EIS, and only contends that a longer time frame should have been followed. Here, also, RURAL has failed to establish any resulting prejudice, and the error, if any, by the PSC and the DNR, would be harmless procedural error. Accordingly, there is no reason to vacate the DNR‘s Record of Decision certifying compliance with WEPA.
IV
¶ 57. We now turn to Rockdale‘s objections to the PSC‘s Order: (1) the PSC improperly placed conditions on its Order; (2) the PSC improperly excluded Rockdale from land use considerations; and, (3) the PSC erred in its finding that the proposed project would not unreasonably interfere with land use and development plans. We address each in turn.
A.
¶ 58. Rockdale contends that the PSC had no authority to issue a certificate to RockGen before the DNR had issued all the permits it identified that RockGen must obtain prior to construction. One of the conditions the PSC imposed is that “RockGen Energy shall obtain from [the] DNR all permits and approvals
¶ 59. According to
The commission may not issue a certificate of public convenience and necessity until the [DNR] has issued all permits and approvals identified in the listing...that are required prior to construction.
We disagree, given the particulars of this case. Where the PSC has before it an application to process according to the longer timeline in
¶ 60. The PSC deemed RockGen‘s application to be complete on September 22, 1998. The PSC thus had until December 21, 1998 to take final action on the certificate application.
¶ 61. We believe that the PSC took an approach that not only harmonized the conflicting mandates of
¶ 62. Rockdale contends that the PSC also improperly placed conditions on the certificate that delegated the PSC‘s authority over land use considerations to RockGen. For example, the PSC ordered that “RockGen Energy shall confer, consult and work with the town of Christiana to develop and execute a landscape plan that reasonably harmonizes the Facility landscaping with the surrounding area.” Order at 9. Rockdale points to no authority, and we know of none, suggesting that such a condition is improper. There is no applicable statutory mandate, like
¶ 63. If, however, the PSC made a procedural error by issuing RockGen a certificate before the DNR issued all the required permits, that error, like the error, if any, the PSC made by applying
B.
¶ 64. Rockdale also contends that other conditions the PSC imposed pertaining to what Rockdale describes as zoning-type controls had the effect of wrongfully excluding Rockdale from its extra-territorial zoning authority over the Town of Christiana. As an example, Rockdale points to the PSC‘s condition that “RockGen Energy shall seek from the town of Christiana and, if applicable, the village of Rockdale, rezoning to deed restricted, exclusive agriculture, any Carpenter property lands not used for the construction and operation of the Facility.” Order at 9.
¶ 65. We find that the PSC reasonably interpreted and applied statutory authority that precludes zoning or other local ordinances from inhibiting the construction or operation of a facility.
¶ 66. Although it is unnecessary to look to the history of prior legislation regarding certificates of
(1) [A certificate of public convenience and necessity] allows the utility to commence construction of the facility;
(2) It allows the utility to condemn land for the facility and operates as the determination of necessity of taking those lands described in the [certificate of public convenience and necessity]; and
(3) It overrides all local zoning and other ordinances inhibiting the construction of the facility.
Chapter 68, Laws of 1975, Wisconsin Legislative Council Staff‘s Summary and Analysis 10 (emphasis added).
¶ 67. The PSC cannot ignore land use considerations, however.
[T]he commission shall approve an application for a certificate of public convenience and necessity only if the commission determines: . . .
3. The design and location or route is in the public interest considering alternative sources of supply, alternative locations or routes, individual hardships, engineering, economic, safety, reliability and environmental factors, except that the commission may not consider alternative sources of supply or engineering or economic factors if the application is for a wholesale merchant plant. . . .
4. The proposed facility will not have undue adverse impact on other environmental values such as, but not limited to, ecological balance, public health and welfare, historic sites, geological formations, the aesthetics of land and water and recreational use. . . .
6. The proposed facility will not unreasonably interfere with the orderly land use and development plans for the area involved.
¶ 68. Even though
12. The design and location of the Project at Christiana is in the public interest considering alternative sources of supply (except with respect to the Facility), alternative locations or routes (including Johnstown), individual hardships, safety, reliability, and environmental factors (other than the impact of air pollution).30
13. The Project at Christiana will not have undue adverse impacts on other environmental values such as, but not limited to, ecological balance, public health and welfare, historic sites, geological formations, the aesthetics of land and water, and recreational use.
14. The Project at Christiana will not unreasonably interfere with the orderly land use and development plans for the area involved.
Order at 2.
C.
¶ 69. Rockdale contends that the record does not support the PSC‘s finding that the proposed project would not unreasonably interfere with land use and development plans. Rockdale specifically contends that the PSC did not consider the Town of Christiana Land Use Plan and the Dane County Farmland Preservation Plan. To the contrary, the record reflects substantial evidence and reasoning that supports the PSC‘s findings and shows that the PSC considered land use plans.
¶ 70. The record reflects that the PSC considered the Town of Christiana Land Use Plan insofar as the Town of Christiana‘s planning committee approved of the project. Order at 5. Although not identified by name, the record also reflects that the PSC did consider the purpose of the Dane County Farmland Preservation Plan—to preserve agricultural land in Dane County—even though the property was not under any farmland preservation agreements. According to the jointly-issued Environmental Impact Statement, the project would use less than 15 acres of agricultural land; land not used for the project would be re-zoned as exclusively agricultural. The EIS specifically considered the agricultural uses of the land surrounding the project site, and found that the project “would not interfere with farming on adjacent properties” and “would not impair the ability of the zoning authority to prohibit development incompatible with agriculture.”
¶ 72. The PSC further developed its analysis of the proposed site at Christiana during the public hearing held there on November 16, 1998. For example, two dairy farmers who live near the Christiana site testified that they expected no significant impact from the plant. The EIS, as well as testimony at the public hearings, reasonably and sufficiently support the conclusion that RockGen‘s proposed project would only minimally impact the surrounding environment. Contrary to the view of the dissent, legitimate community and environmental concerns were adequately considered within the framework of the expedited procedure provided by the legislature.
V
¶ 73. We conclude, in giving due weight deference to the PSC‘s and the DNR‘s experience with issuing certificates of public convenience and necessity and related environmental impact statements, albeit not under the novel circumstances presented here, that the PSC and DNR reasonably interpreted and applied
By the Court.—The judgment of the circuit court is affirmed.
¶ 74. JON P. WILCOX, J., did not participate.
¶ 75. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (dissenting). The flaws in the majority opinion allowing the expedited process under
¶ 76. First,
¶ 77. Second, the majority opinion errs in its standard of review. The majority opinion concludes that the PSC‘s interpretation of the law is entitled to due weight deference but sometimes applies the great
¶ 78. Third, the majority opinion‘s approval of the PSC‘s actions in this case undermines a legislative process designed to enable the PSC to consider legitimate community and environmental concerns.
I
¶ 79.
- “each eastern Wisconsin utility“;
- “that before the effective date of this paragraph“;
- “has issued a request for proposals soliciting bids for contracts for the construction of new electric generation capacity” (emphasis added).1
¶ 80. The first phrase is defined in 1997 Act 204 and is not the subject of dispute. The effective date mentioned in the second phrase is May 12, 1998, and is not the subject of dispute.
¶ 82. The legislature has told the reader that the expedited process applies only to utilities that have issued specified requests for proposals for facilities. If we want to know the facilities covered by the law, we must turn to the requests for proposals to which the legislature refers. It is these requests for proposals that limit the capacity of the new electric generation facilities.
¶ 83. In sum, because the statute expressly incorporates the utilities’ already issued requests for proposals, these documents must be considered as part of
¶ 84. The question then is do the already issued requests for proposals to which the legislature refers envision new facilities with specified capacities? We can easily locate these requests in the documents available to the drafters and the legislature. The documents point to Alliant-WPL‘s request for proposals being for a 150-170 megawatt (MW) facility.
¶ 85. We begin with Governor Thompson‘s drafting instructions to the Legislative Reference Bureau, to
¶ 86. Next we review Alliant-WPL‘s request for proposals issued before May 12, 1998, to determine whether the request can reasonably be interpreted to refer to a 525 MW project, as the majority opinion concludes.
¶ 87. The only reasonable interpretation of the request is that Alliant-WPL was requesting proposals for a facility in the 150-170 MW range. First, the opening sentence of Alliant-WPL‘s request for proposals calls “for contracts totaling 150 MW (net).” This call for contracts totaling 150 MW appears in the first section of the request for proposals entitled “Purpose.” Based on the stated purpose of Alliant-WPL‘s request for proposals, the most reasonable interpretation of the legislature‘s reference to requests for proposals in
¶ 88. Additional language in Alliant-WPL‘s request for proposals supports this interpretation. The request for proposals stated that the resulting contracts “will satisfy the need for new electric generating capacity identified by the Public Service Commission of Wisconsin (PSCW) in its September 24, 1997 Letter Order to WP&L.” Turning to the PSC‘s letter of September 24, 1997, we read that the PSC informed Alliant-WPL “that a reasonable assessment of WPL‘s resource requirements indicates a need for approximately 170 MW of firm capacity.” Indeed, the PSC ordered Alliant-WPL to file an updated supply plan that would address the identified 170 MW need. Alliant-WPL responded by issuing the very request for proposals that is referred to above. In its response letter to the PSC dated December 5, 1997, Alliant-WPL described its issued request for proposals to the PSC as calling for sources with a “total generating capacity of 150 MW.” Finally, in March 1998, the PSC approved each of the three utilities’ plans to procure its share of the 500 MW total. Specifically, the PSC approved Alliant-WPL‘s plan to procure 170 MW of new capacity.3 The PSC records clearly show that the
¶ 89. The majority opinion ignores the language of the request for proposals and also ignores the PSC actions leading up to the request for proposals and the adoption of
¶ 90. In light of the language in Alliant-WPL‘s request for proposals and the PSC history behind this request, with which everyone was familiar, the only reasonable interpretation is that
¶ 91. Finally, the fiscal estimate accompanying A.B. 940, enacted as 1997 Act 204, further confirms the legislature‘s intentions. The fiscal estimate, prepared by the Department of Natural Resources (DNR), one of the agencies to apply
¶ 92. The governor (who sponsored this legislation), the Legislative Reference Bureau (which reviewed the utilities’ requests for proposals) and the legislature (which enacted legislation that specifically referred to the existing requests for proposals), intended to refer to the requests for proposals explained herein. If they did not, the terms of the requests would have to be set forth in the law. Instead the legislature took a permissible shortcut and incorpo-
¶ 93. Despite the request for proposals and the underlying PSC documents contemplating a total of 500 MW of new energy resources to be built by three Wisconsin utilities, the majority opinion asserts that the PSC‘s interpretation of
¶ 94. The 525 MW power plant proposal is Wisconsin‘s largest power plant proposal in over 20 years. It is hard to believe that the legislature created a narrowly tailored exception for a giant power plant. Applying the due weight deference standard proposed by the majority, the only reasonable reading of the language of
¶ 95. I agree with Commissioner Farrow of the PSC who dissented from the PSC‘s order granting the certificate of public convenience and necessity. Commissioner Farrow properly read
II
¶ 96. The majority opinion sometimes confuses two standards of review: (A) the majority opinion adopts the due weight deference standard but its rea-
A.
¶ 97. The majority opinion acknowledges that the PSC has been inconsistent in its application of the expedited review provisions of
¶ 98. I disagree with the majority opinion that the PSC‘s inconsistent approach to statutory interpretation argues against de novo review. However, I do agree with the majority opinion that the PSC‘s inconsistent approach argues against giving the PSC‘s interpretation of the statute great weight deference.
¶ 99. I suggest that when an agency has taken inconsistent approaches the court might very well undertake a de novo review. In UFE, Inc. v. LIRC, 201 Wis. 2d 274, 286, 548 N.W.2d 57 (1996), the court concluded that when an agency is consistent in its treatment of an issue, it is not appropriate to apply a de novo interpretation. The implication from UFE, Inc. is therefore that the opposite must also be true: when an agency is inconsistent in its treatment of an issue, it is appropriate for a reviewing court to apply a de novo approach. Indeed, in Brauneis v. LIRC, 2000 WI 69, ¶ 18, 236 Wis. 2d 27, 612 N.W.2d 635, this court stated that “[d]e novo review also applies . . .‘when the agency‘s position on an issue has been so inconsistent so as to provide no real guidance’ ” (quoting UFE, 201 Wis. 2d at 285). In the present case, the PSC has apparently had only two opportunities to interpret the relevant laws and those two interpretations are inconsistent. Under these circumstances neither of the agency‘s interpretations provides real guidance to the courts.
¶ 100. Upon reexamining our cases, I observe that the difference between the due weight standard and a de novo review seems slight indeed. Under the due weight deference standard, ” ‘a court need not defer to an agency‘s interpretation which, while reasonable, is not the interpretation which the court considers best and most reasonable.’ ” UFE, Inc. v. LIRC, 201 Wis. 2d 274, 286 (quoting Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 660 n.4, 539 N.W.2d 98 (1995)).7 Thus under both the due weight deference standard and the de novo standard, a court will overturn an agency‘s interpretation in favor of an interpretation that the court concludes to be more reasonable than the agency‘s.
B.
¶ 101. In any event, although the majority opinion correctly states the due weight deference standard, it sometimes applies the great weight deference standard. The majority opinion concludes in several places that the PSC‘s interpretation is reasonable and will therefore be upheld. Majority op. at ¶¶ 25, 44, 45, 49 and 73. The majority then shifts to the due weight deference standard, stating that no more reasonable
III
¶ 102. By approving the PSC‘s action in this case, the majority opinion has undermined a legislatively mandated process that would ensure adequate consideration of legitimate community and environmental concerns. I offer two examples.
¶ 103. First, the majority opinion allows the PSC to issue a conditional certificate of public necessity and convenience before the DNR issues all necessary permits, contrary to
¶ 104. When all is said and done, the majority opinion falls back on “harmless error” to justify its conclusion, which is contrary to the express language of the statute. Majority op. at ¶ 63. The majority‘s conclusion that the PSC‘s failure to follow the proper procedures is harmless error misses the point of the legislatively mandated procedures.
¶ 105. A major aspect of
¶ 106. Second, the PSC‘s expedited time frame for the environmental impact statement reduced the time frame for public comment to a mere twenty days. RURAL argues that a twenty-day comment period is simply not enough time for adequate environmental review.
¶ 107. The majority opinion faults RURAL for not making “any substantive challenges” to the environmental impact statement and for “failing to establish any resulting prejudice.” Majority op. at ¶ 56. I disagree with the majority opinion. RURAL‘s brief identifies numerous deficiencies in the environmental impact statement, including specific areas where additional data and analysis were necessary.
¶ 108. Moreover, I find it relevant that the PSC denied RURAL the intervenor compensation that would enable RURAL to hire experts to evaluate the environmental impact statement and conduct fieldwork to supplement the record where necessary. The majority opinion correctly states that the decision to deny intervenor funding is not before this court. Majority op. at ¶ 48 n.25. However, this decision substantially reduced the possibility of meaningful public comment within the expedited time frame.
¶ 109. Viewed in their entirety, the PSC‘s actions in approving the RockGen project undermined the legislative process to enable the PSC to consider legitimate community and environmental concerns. The PSC‘s failure to follow legislatively mandated procedures casts doubt on its ultimate result.
¶ 111. For the reasons set forth, I dissent.
¶ 112. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.
Notes
All subsequent references to the Wisconsin Statutes are to the 1997-98 text unless otherwise noted.The supreme court may take jurisdiction of an appeal or other proceeding in the court of appeals upon certification by the court of appeals or upon the supreme court‘s own motion.
By July 31, 1998, or a later date approved by the commission, each eastern Wisconsin utility that, before the effective date of this paragraph, has issued a request for proposals soliciting bids for contracts for the construction of new electric generation capacity shall do each of the following:
1. Complete its evaluation of the bids that were submitted in response to its request for proposals.
2. Select the bids for which it intends to award the contracts.
3. Enter into contracts with the persons who submitted the bids specified in subdivision 2. for the construction of the new electric generation capacity.
See Public Service Commission and Department of Natural Resources, RockGen Energy Center Environmental Impact Statement v, 1 (October 1998), R.102, Item 90. At the same time it approved Alliant-WPL‘s plan for 150-170 MW, the PSC also approved MG&E‘s plan to procure 100 MW and WEPCO‘s plan to procure 250 MW. See id. at 1. Ultimately, the PSC issued certificates of public convenience and necessity to MG&E and WEPCO for facilities that bore a close resemblance to their approved requests for proposals. On December 22, 1998, the PSC approved MG&E‘s plan to build an 83 MW facility. On February 2, 1999, the PSC approved WEPCO‘s plan to build a 300-360 MW facility in Neenah.
The majority suggests that the approximately one-third increase in size from WEPCO‘s initial authorization compares meaningfully to the more than threefold increase in size from Alliant-WPL‘s initial authorization for 150-170 MW. Majority op. at ¶ 44 n.24. The difference between an increase of one-third and an increase of more than threefold is obvious; the latter exceeds anyone‘s bounds of reasonableness.
The bracketed references to “contractor” reflect an amendment that substituted the term “contractor” for the term an “eastern Wisconsin utility” in subdivisions (1)(c), (d) and (e). 1997 Wis. Act 306, §§ 7d – 7f. The PSC‘s own procedures reinforce the conclusion that the only reasonable interpretation of Alliant-WPL‘s request for proposals is that it called for a 150 MW facility. The PSC‘s public notice announcing Alliant-WPL‘s proposal to construct the RockGen facility only referred to 150 MW of new electric generation capacity. The absence of any other mention of the size of the planned facility in the PSC‘s public notice undermines the majority opinion‘s interpretation of the law. See PSC Notice of Proceeding, Investigation, Assessment of Costs, and Hearing, Dockets 9335-CE-101, 6680-CE-155, 6630-CE-263 (October 16, 1998).Section 96. Nonstatutory provisions.
(1) REQUESTS FOR PROPOSALS FOR ELECTRIC GENERATION CAPACITY:
(a) In this subsection:
1. “Certificate” means a certificate issued by the commission under section 196.49 of the statutes or under section 196.491(3) of the statutes, as affected by this act.
2. “Commission” means the public service commission.
3. “Contractor” means a person specified in paragraph (b) 3. that enters into a contract with an eastern Wisconsin utility for the construction of electric generation capacity.
4. “Department” means the department of natural resources.
5. “Eastern Wisconsin utility” has the meaning given in section 196.377(2)(a)1. of the statutes, as created by this act....
(b) By July 31, 1998, or a later date approved by the commission, each eastern Wisconsin utility that, before the effective date of this paragraph, has issued a request for proposals soliciting bids for contracts for the construction of new electric generation capacity shall do each of the following:
1. Complete its evaluation of the bids that were submitted in response to the request for proposals.
2. Select the bids for which it intends to award the contracts.
3. Enter into contracts with the persons who submitted the bids specified in subdivision 2. for the construction of the new electric generation capacity.
(c) Notwithstanding section 196.491(3)(a)1. of the statutes, as affected by this act, no later than August 31, 1998, each [contractor] specified in paragraph (b) (intro.) shall apply to the commission for any certificate that is required for construction of new electric generation capacity under the contracts into which it enters under paragraph (b)3. and, if required under section 196.491(3)(a)3.a. of the statutes, as affected by this act, submit an engineering plan to the department as specified in section 196.491(3)(a)3.a. of the statutes, as affected by this act.
(d) Notwithstanding section 196.491(3)(a)3.a. and b. of the statutes, as affected by this act, if [a contractor] specified in paragraph (b) (intro.) submits an engineering plan to the department under paragraph (c), the [contractor] and the department shall satisfy each of the following:...
4. The department shall complete action on an application submitted under subdivision 2. or re-filed under subdivision 3. within 45 days after the date on which the application is determined or considered to be complete under subdivision 3.
(e) Notwithstanding section 196.491(3)(a)2., (b) and (g) 1. and 2. of the statutes, as affected by this act, the commission and [a contractor] specified in paragraph (b) (intro.) that applies for a certificate under section 196.491(3) of the statutes, as affected by this act, shall satisfy each of the following:...
3. The commission shall take final action on the application within 90 days after the application is determined or considered to be complete under subdivision 1. If the commission fails to take final action within the 90-day period, the commission is considered to have issued a certificate with respect to the application. 1997 Wis. Act 204, § 96(1)(a)1.-5., (b), (c), (d)4., (e)3.
Within 15 days after the eastern Wisconsin utility provides the engineering plan, the department shall provide the eastern Wisconsin utility with a listing of each department permit or approval which, on the basis of the information contained in the engineering plan, appears to be required for the construction or operation of the facility
Within 10 days after the department provides a listing specified in subdivision 1., the [contractor] shall apply for the permits and approvals identified in the listing.
The department shall determine whether an application under subdivision 2. is complete and, no later than 15 days after the application is filed, notify the applicant about the determination. If the department determines that the application is incomplete, the notice shall state the reason for the determination. A [contractor] may supplement and refile an application that the department has determined to be incomplete. There is no limit on the number of times that an applicant may refile an application under this subdivision. If the department fails to determine whether an application is complete within 15 days after the application is filed, the application shall be considered to be complete.
1. The commission shall determine whether the application is complete and, no later than 15 days after the application is filed, notify the applicant about the determination. If the commission determines that the application is incomplete, the notice shall state the reason for the determination. A [contractor] may supplement and refile an application that the commission has determined to be incomplete. There is no limit on the number of times that a [contractor] may refile an application under this subdivision. If the commission fails to determine whether an application is complete within 15 days after the application is filed, the application shall be considered to be complete.
The commission shall hold a public hearing on an application that is determined or considered to be complete under subdivision 1. in the area affected pursuant to section 227.44 of the statutes and, at least 15 days prior to the hearing, shall give a class 1 notice regarding the hearing under chapter 985 of the statutes.