Fight Over Massive Wisconsin Power Line Returns to Seventh Circuit

Federal appellate judges heard debate over whether claims of bias against two commissioners who approved the power line’s construction are enough to halt the project.

Howard Creek in the Driftless Area National Wildlife Refuge. (Photo by Brandon Jones/U.S. Fish and Wildlife Service)

CHICAGO (CN) — The tug-of-war over a major electric transmission corridor proposed to run through two Midwest states arrived back before a Seventh Circuit panel on Wednesday, where attorneys and judges raised questions over past approval of the project.

Environmental groups fighting construction of the power line say two members of the Public Service Commission of Wisconsin with ties to transmission companies involved with the project were biased in approving the corridor and that the line’s approval is doing ongoing harm. The commissioners and transmission companies say there is no cognizable harm being created by the finished deal and that the allegations of bias are not supported by fact.

The Driftless Area Land Conservancy and Wisconsin Wildlife Federation sued the PSC and three of its commissioners in December 2019 over the approval of a 345 kilovolt, 17-story-high transmission line that will run more than 100 miles through Wisconsin and into Iowa, cutting through several protected wildlife refuges.

Private property in Wisconsin’s rural Dane, Grant and Iowa counties would be condemned in construction of the $492 million Cardinal-Hickory Creek transmission line. The counties are in what is known as the Driftless Area, a rugged swath of forested ridges unaffected by glaciation that once spread across parts of Wisconsin, Minnesota, Iowa and Illinois.

The environmental groups say the project could cost Midwest taxpayers more than $2.2 billion over the next 40 years and could have catastrophic environmental impacts. Cardinal-Hickory Creek’s website says construction is planned to start in fall 2021.

The groups’ lawsuit claims the PSC failed to force commissioners Michael Huebsch and Rebecca Valcq to recuse themselves from the approval process due to entanglements with the private transmission entities involved with the project.

Valcq is a current PSC commissioner the environmentalists say had conflicts due to her nearly two decades of legal work for one of the brands of the WEC Energy Group, a large Midwest energy firm that owns a 60% interest in the American Transmission Company, or ATC, a private energy company headquartered in Pewaukee, Wisconsin, and one of the transmission companies attached to the project.

Huebsch, a former Wisconsin lawmaker and Department of Administration secretary who resigned from the PSC in January 2020, allegedly had conflicts as a member of the advisory committee of the Midcontinent Independent System Operator, or MISO, a nonprofit grid operator partnered with public utilities and transmission companies involved with the Cardinal-Hickory Creek line.

U.S. District Judge William Conley ruled in November that the constitutional due process claims against Huebsch and Valcq can proceed, but he tossed the environmental advocates’ Fifth Amendment takings claims. The commissioners and transmission companies appealed, seeking to dismiss the advocates’ action.

The Seventh Circuit previously reversed Conley’s decision denying the three entities awarded permits for the corridor—ATC, ITC Midwest and Dairyland Power Cooperative—from intervening in the case.

Christianne Whiting, counsel for the commissioners, argued Wednesday that the groups are taking the wrong legal path to fight what she called fictional ongoing harm of a past agency decision and said their claims of bias are speculative and overstated.

U.S. Circuit Judge Ilana Rovner, a George H.W. Bush appointee, resisted the characterization of Valcq’s alleged bias as unworthy of raising eyebrows, calling WEC’s 60% stake in one of the companies attached to the project “quite a percentage.”

Responding to Whiting’s remarks that Huebsch—whom she argued should not even be a party to the case because he is no longer a PSC commissioner—only is alleged to have gone to some MISO meetings, Rovner called it “a little unusual” that someone presiding over the approval process for the power line would regularly meet with MISO board members and senior executives when MISO has an interest in the project.

“Whether they’ll be able to show actual bias on the part of the commissioners or not, I don’t know,” Rovner conceded, but noted the only question before the court is whether federal case law allows for exceptions to state officials’ sovereign immunity. Whiting charged that the environmental groups “ignored the presumption of impartiality” in alleging bias.

Chief U.S. Circuit Judge Diane Sykes, a George W. Bush appointee, and Howard Learner, counsel with the Environmental Law & Policy Center in Chicago, went back and forth over whether the completed permit decision approving construction of the power line is causing ongoing due process violations under the letter of the law.

Learner posited that the commission explicitly retained jurisdiction and has ongoing enforcement authority over the corridor that it has already used to alter the route. He said that decision is the only reason the power line moved forward, so there is prospective harm.

Sykes was unconvinced, charging there is no concrete, ongoing violations of federal law. She said that under Learner’s logic, “every action of a state organization could be seen as an ongoing violation.”

Sykes pressed Learner on why Huebsch—whom Learner alleges had hundreds of phone calls and regularly socialized with MISO members during deliberations over the transmission line—is still a party to the case if he is no longer with the commission. The attorney argued that the PSC cannot be allowed, in theory, to substitute a commissioner between a constitutionally inappropriate decision and a lawsuit over that decision such that the commissioner in question is protected, a notion Rovner seemed sympathetic to.

U.S. Circuit Judge Joel Flaum, appointed to the Chicago-based appeals court by Ronald Reagan, rounded out the three-judge panel on Wednesday.

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