MADISON, Wis. (CN) — A Wisconsin federal judge heard arguments Friday in a suddenly urgent bid to halt a power line project that would run over 100 miles through the state’s Driftless Area, and made no bones about the fact that he would rather have more time.
U.S. District Judge William Conley, a Barack Obama appointee, oversaw a lengthy Zoom hearing in the U.S. District Court for the Western District of Wisconsin Friday afternoon in which environmental advocates pushed for an injunction halting construction on the proposed Cardinal-Hickory Creek high-voltage electrical transmission line, which would run 101 miles from Dubuque County, Iowa to Middleton, Wisconsin.
Environmental groups the Driftless Land Conservancy, Wisconsin Wildlife Federation, Defenders of Wildlife and the National Wildlife Refuge Association sued several federal agencies in twin lawsuits earlier this year, alleging that the $492 million line could cause serious environmental damage and that the regulators hadn’t adequately considered those impacts. They also alleged that two commissioners for Wisconsin’s Public Service commission should have recused themselves from the approval process because of their connections to companies set to profit from the project.
At its core, attorneys for the plaintiffs said, the dispute was about whether permits for the project had been adequately considered.
“Our strongest arguments are: they failed to consider the alternatives, both with regard to a route that would go outside the [Driftless Area Wildlife] Refuge, and they failed to rigorously explore and objectively evaluate all reasonable alternatives other than building this particular transmission line.” Howard Learner of the Environmental Law and Policy Center said.
Conley spent little time on those issues at the hearing, instead focusing on the harms he could enable by either granting or denying the environmentalists’ proposed injunction halting construction on the pipeline.
The companies building the line — the American Transmission Company, ITC Midwest and Dairyland Power Cooperative — announced their intent last month to begin construction on-schedule, before the end of October. Conley said that by putting him in a rush, the group hadn’t helped its chances of evading an injunction.
“You asked [the plaintiffs] not to precipitate a preliminary injunction, which could have been filed a year ago, or at least nine months ago when they filed suit, and you agreed with them that you would hold off. I haven’t heard you say that you told them all along, ‘we’re gonna stick to our construction schedule,'” he told attorney Stacey Bosshardt of Perkins Coie, who represented the companies at the hearing.
“Certainly we all had notice that this could suddenly come before the court, but there was a more orderly way we could have accomplished this,” he added.
Frequently cutting attorneys off to get to the substance of his questions, Conley worked his way through the harms on both sides.
“To the extent you’re making this as a statement to the press, you can issue that later,” he quipped at one point when Learner started waxing poetic while discussing environmental risks.
He estimated that a 30 to 60-day window would be sufficient to work through the merits of the case, and noted that the reduction in time from the plaintiffs’ proposed six-month timeframe would likely change the costs to the builders.
Bosshardt cited $2 million as the estimated costs for the six-month delay, but said she didn’t have an estimate for costs stemming from a shorter one.
“Mike Deggenhart’s declaration talks about direct financial harm to ATC that would be incurred as a result of an injunction,” she said. "And even though we’ve used 6 months as the baseline to calculate $2 million worth of damages, I’m sure that there’s a lower baseline.”
Learner and ELPC colleague Scott Strand agreed that the shorter period would be sufficient as long as Conley could decide the case on its merits. Learner himself leaned into the contention that the transmission companies were responsible for the injunction’s tight timeline.
“Every step of the way we asked the transmission companies ‘what’s your timing…. With construction?’” he said. “Because time and again they have accused us of being either too early or too late all the time.”
Conley also spent time plumbing the question of which portions of the line were and were not within his jurisdiction to rule on. The permits at issue, related to water impacts, govern only a few acres’ worth of the Wisconsin land set for clear-cutting to make way for the line. The parties disagreed, however, on exactly how much acreage that was — though the difference between the two figures was less than three acres.
Representatives for the parties did not respond to requests for comment, with the exception of the utilities. They declined to comment, but a spokeswoman advised that a statement would be forthcoming after Conley issued his ruling.
The hearing came on the heels of a Thursday night ruling in a similar case from the 7th Circuit Court of Appeals, which put a hold on a federal-court case before Conley regarding Public Service Commissioner Michael Huebsch’s connection to the utilities pending the resolution of a state-court case with substantially the same subject matter.
“The suits are not completely identical: the state litigation raises state-law issues in addition to the duplicative due-process claim. But perfect symmetry isn’t necessary. The cases are parallel in all the ways that matter,” Chief Judge Diane Sykes wrote.
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