MADISON, Wis. (CN) — A Wisconsin federal judge decided on Friday to let environmentalists challenging a multistate power line corridor proceed with their claims against two state commissioners they claim were biased in approving the corridor in the face of conflicts of interest.
While allowing constitutional due process claims to proceed against the two commissioners in question, U.S. District Court Judge William Conley’s 36-page opinion did toss the environmental advocates’ Fifth Amendment takings claims because they did not meet the “daunting burden” to prove that the planned taking of private land for the public use of the transmission line amounts to a constitutional violation.
“At most, plaintiffs allege that the costs of the line will exceed the public benefits, and there are better alternatives available, but this argument invites judicial oversight over complicated policy considerations, rather than merely questioning whether the line advances a ‘conceivable public purpose,’” the Barack Obama appointee said.
The Driftless Area Land Conservancy and Wisconsin Wildlife Federation sued the Public Service Commission of Wisconsin and three of its commissioners last December over the PSC’s approval of a 345 kilovolt, 17-story-high transmission line that will run more than 100 miles through Wisconsin, cutting through several protected wildlife refuges.
Construction of the $492 million Cardinal-Hickory Creek transmission line would also entail the condemnation and taking of private property in rural Dane, Grant and Iowa counties in the Badger State. 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.
The groups’ lawsuit condemns the PSC for failing to force two of its commissioners to recuse themselves from the approval process due to entanglements with the private transmission entities involved with the project.
The two PSC commissioners particularly at issue, and the two Conley did not dismiss from the advocates’ lawsuit, are current commissioner Rebecca Valcq and Michael Huebsch, a former state lawmaker who served 16 years in the Wisconsin Assembly as a Republican and resigned from the PSC in January. Huebsch also served as secretary of Wisconsin’s Department of Administration under former Governor Scott Walker, a Republican.
Valcq, the environmentalists say, had conflicts of interest due to her connections with 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. Valcq was regulatory counsel for We Energies for nearly 15 years, then represented the utility company with nationwide firm Quarles & Brady before being appointed to the PSC in 2019.
Those bringing the lawsuit say Huebsch had conflicts as a member of the advisory committee of the Midcontinent Independent System Operator, a nonprofit grid operator partnered with public utilities and transmission companies involved with the Cardinal-Hickory Creek line.
After hearing the case last week, Conley ultimately found that, as a matter of law, the plaintiffs had alleged enough in these specific facts about Valcq and Huebsch to prevent ruling against them and dismissing the two commissioners outright at the pleadings stage.
The judge, however, did not feel these allegations were especially robust and cast doubt on the environmentalists’ success in the lawsuit’s next stages, saying “plaintiffs are on notice that they will ultimately face an uphill battle in actually proving their allegations.”
It takes substantial evidence with “specific foundation of prejudice or prejudgment” to disprove the presumed good faith, honesty and integrity of adjudicators such as Valcq and Huebsch, the judge said.
Ellen Nowak, the third PSC commissioner named as a defendant in the advocates’ complaint, was dismissed from the suit on Friday because the plaintiffs did not allege that she was personally involved in any perceived due process violations with relation to the Cardinal-Hickory Creek line. The PSC itself was also dismissed.
The three private entities awarded permits for the corridor—ATC, ITC Midwest and Dairyland Power Cooperative—were initially denied an opportunity to intervene in the lawsuit by Conley, but the Chicago-based Seventh Circuit reversed that decision in August, finding that the transmission companies could not be excluded from the case because their interests may not be adequately represented by the PSC or the commissioners.
The intervenors attempted to argue that state sovereign immunity and judicial immunity bar plaintiffs’ lawsuit and that the district court should abstain from the lawsuit because the groups have filed petitions for judicial review of the PSC’s decision in state court as well, none of which Conley felt were applicable in his Friday ruling.
Attorneys and representatives with the environmental groups, utility companies and PSC could not immediately be reached for comment on Friday.