MADISON, Wis. (CN) — A Wisconsin circuit court judge on Monday ruled in favor of a state regulator in a lawsuit challenging its issuance of an important certificate for the construction of a massive multistate power line opponents have been fighting tooth and nail for years.
Environmentalists and others opposing construction of the Cardinal Hickory-Creek transmission line – a high-voltage 345 kilovolt, 17-story-high, 102-mile-long power line being built in Iowa and Wisconsin – started suing in state and federal courts in late 2019 when the ball started rolling on the project, including with initial approvals from the Public Service Commission of Wisconsin, a public utilities regulator that approves major projects like the power line.
The opponents say, in part, that the power line extending from Dubuque County, Iowa, to Dane County, Wisconsin, is unnecessary, too expensive and will have catastrophic environmental impacts, in particular on what’s known as the Driftless Area, a rugged swath of forested ridges unaffected by ancient glaciers that once spread across parts of Wisconsin, Minnesota, Iowa and Illinois.
Dane County filed a lawsuit in Dane County Circuit Court in December 2019 claiming the PSC violated statutes when it granted a certificate of public necessity and convenience, or CPNC, for the project, a crucial point of approval allowing American Transmission Company, Dairyland Power Cooperative and ITC Midwest to break ground. The county was later joined in its challenge by Iowa County, the town of Wyoming, the village of Montfort and the Driftless Area Land Conservancy.
Overall, Judge Jacob Frost felt the evidence in the record supported the PSC’s decision to grant the CPNC along the appropriate legal guidelines, opining that the judiciary has a limited role to play in reviewing agency decisions, including those regarding energy policy.
“This court does not decide whether to grant a CPCN or whether a CPCN is in the public interest. That determination is the exclusive province of the PSC,” Frost explained in Monday's decision.
The judge felt the petitioners challenging the CPCN approval couched arguments against the PSC’s conclusions and mistrust of the transmission companies’ proposals by saying they lacked substantial evidence. But “the court cannot second-guess the PSC as to weight and credibility of evidence,” he said, finding the agency had done its due diligence, including with regard to potential environmental impacts, and adequately explained its decision.
“This court understands and respects the massive impacts a major project of this nature holds for the state and the serious concerns its opponents raise. However, applying the legal standards, the PSC properly conducted itself in granting the CPCN at issue,” Frost concluded, affirming the agency’s decision.
The PSC declined to comment on the judge’s decision on Monday.
Dane County Corporation Counsel Carlos Pabellon disagreed with Frost’s ruling and said the court had taken a “very, very deferential stance” to the PSC. He said an appeal of the decision is possible but not a certainty at this time.
Though it was filed in 2019, the court and parties only arrived at arguments on the merits of the lawsuit this past October, in large part because it was waylaid for years by fighting over alleged biases and conflicts of interest of a former PSC commissioner and a current commissioner who approved the project but were allegedly too cozy with the utilities and transmission companies building the power line and should have recused themselves. That issue reached the Wisconsin Supreme Court, which last summer ruled in favor of the commissioners.
Two lawsuits have been filed in federal court in Madison over the Cardinal Hickory-Creek line as well. One filed in 2019 was stayed by the district court while the Dane County Circuit Court lawsuit played out; another filed in 2021 by environmental groups specifically challenged a proposed land swap for the project with the U.S. Fish and Wildlife Service and others involving contested land in the Upper Mississippi River National Wildlife Refuge. Both have found an audience at the Chicago-based Seventh Circuit, where the latter is again currently pending.
A joint statement from ATC, ITC Midwest and Dairyland Power Cooperative, co-owners of the power line, said they were “extremely pleased” with Frost’s decision, reaffirming that they and the PSC fully complied with statutory requirements in approving the “critical, backbone project” needed to support the Upper Midwest’s regional power grid. This includes, they say, 115 renewable generation projects reliant on Cardinal Hickory-Creek’s construction to bring clean energy power to millions of homes.
In May 2022, the transmission companies involved with the project said it was going to exceed its projected $492 million price tag by around 10%, or nearly $50 million, due to increases in material prices partially caused by inflation and the escalating costs of litigation.
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