Environmental Groups Sue PSC in Federal & State Courts Over CHC Line

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MTT News's picture
Kevin Murphy

MADISON–Two environmental groups opposed to the Cardinal-Hickory Creek (CHC) powerline have filed lawsuits against the Public Service Commission (PSC) in state and federal courts seeking to reverse the decision to construct the Dubuque, IA-to-Town of Middleton, high voltage line.

The Driftless Area Land Conservancy (DALC) and the Wisconsin Wildlife Federation (WWF) contend in federal court that the PSC decision violates private property owners’ due process rights and uses eminent domain to take property for a private use in violation of the Fourteenth and Fifth amendments.

Other suits filed in Dane, Columbia, Iowa and Lafayette counties also contend the PSC’s decision allows private companies to improperly use eminent domain to condemn private property to accommodate a 150-foot-wide easement along most of the line’s 100-mile route. The state court suits also raise issues involving the illegality of the PSC granting authority to build the power line because it was needed and economically justified contrary to testimony of experts and PSC staff.

Howard Learner, executive director of the Environmental Law & Policy Center, which represents the DALC and WWF, said the suits raised different issues under state and federal law and needed to be filed in the respective courts. 

Dane County was the first entity to challenge the PSC decision and the state court cases will be consolidated in Dane County before Circuit Judge Richard Niess, Learner said.

The federal suit names Commissioners Michael Huebsch, Rebecca Valcq and Ellen Nowak as defendants. It contends they wrongly rejected testimony from the opponents’ expert witness that the costs of the $525 million line would exceed the benefits to utility customers, and that there are less costly, more flexible, more environmentally sound and cleaner energy alternatives.

The federal suit also alleged that:

Valcq and Huebsch had conflicts of interest and should have recused themselves from deciding the case. Shortly before Valcq was appointed PSC Chair, she worked as an attorney for WE Energies, which owns 60 percent of American Transmission Co. (ATC). ATC is building the line with its partners, ITC Midwest, of Iowa, and Dairyland Power Cooperative.  

Huebsch was the PSC liaison to Midwest Independent System Operator (MISO), an organization which backed the power line and was an intervenor in the case. Huebsch failed to disclose to the parties that he was meeting with and advising MISO, at a time when he leading PSC deliberations to decide the case.

Those ties created conflicts of interests and should disqualify them from participating in the decision to authorize construction of the line.

The commissioners previously rejected the plaintiffs’ motion to recuse and disqualify themselves.

In its unlawful takings claim, the federal suit contends the Fifth Amendment provides that private property cannot be taken for public use, without just compensation. However, the PSC decision allows ATC to use eminent domain to condemn and take private land for private use in violation of the Fifth Amendment.

Learner said that ATC isn’t contending that it’s building the power line to increase reliability or, “keep the lights on,” as it advertises.

“They’re private companies trying to move power generated from coal and gas plants from the west that are owned by private companies to the east, to somebody they haven’t made clear. It’s not to keep the lights on but so that ITC and ATC can make the 10 to 11 percent guaranteed rate of return on their investment,” said Learner.

The suit filed in Iowa County attacked the PSC for not complying with Certificate of Public Convenience and Necessity state statute that governs major utility infrastructure decisions. Instead, the decision was based “on a wide range of non-statutory ‘legal, factual, value, and public policy determinations’,” according to the complaint.

The complaint alleged that:

Citizens and industry experts testified and submitted statements during a week-long hearing in June including evidence that there was not a need for the ATC line because there wasn’t an anticipated demand for electricity in Wisconsin, now or in the foreseeable future. Instead, evidence showed that the ATC Line “would principally benefit private parties for private uses and would not serve the public’s interests.”

The transmission companies would earn an annual rate between 10 and 11.2 percent on their investment in the line plus charging utility customers for the companies’ operating and maintenance costs, despite not being able to demonstrate a need for it.

The line would also reduce economic, ecological and scenic value of private property along the route further showing that its cost outweigh its supposed benefits.

The Iowa County suit seeks a court order vacating the decision to authorize construction of the line due to numerous procedures and materials that violate state energy policy and environmental law.

The federal suit seeks a court order finding that:

• Huebsch and Valcq should have been recused and disqualified from the decision to approve the line and the decision be void.

• Construction of the line would deprive the plantiffs’ of their right to due process.

• Use of eminent domain to take private property violates the Fifth Amendment; voids the decision to approve the line; and prohibits the PSC from enforcing the order.

• Awards attorney fees and costs.

ATC’s announcement of its intent to the build the 345-kilovolt line in 2011 was greeted with unprecedented public opposition. During the time the PSC reviewed the request for a Certificate of Public Convenience and Necessity to build the line, opposition came from Dane County, Iowa County, the village of Montfort, the towns of Vermont and Wyoming and many other cities, towns and villages, the Citizens Utility Board, Wisconsin Farmers Union, Madison Audubon Society, Black Earth Watershed Conservation Association, Friends of Governor Dodge State Park, and many others. All of the state senators and state representative in the area crossed by the line requested that the PSC consider better alternatives to the line.

Even PSC staff testified that the proposed line results in a net economic loss to Wisconsin ratepayers in most likely future scenarios.

Citizens Utility Board (CUB) testified that the line’s benefits to customers “are largely dependent on speculative modeling input assumptions and are therefore not robust.”  CUB concluded that the line is not needed to meet anticipated electricity demand or ensure the reliable supply of electricity in the state as required by state statutes.

ATC mainly sought to meet their burden of proof by arguing the “need” for this transmission line on economic and policy grounds, claiming that the line will help Wisconsin access low-cost electricity from wind farms under development from states west of Wisconsin.

The former chair of the Federal Energy Regulatory Commission testified that there are less costly, more flexible, and more environmentally sound alternatives to achieve the claimed public policy benefits of the proposed CHC line which include advanced battery storage technologies and other “advanced transmission technologies” that can be used to defer or replace traditional transmission projects

However, the transmission companies did not attempt to design an alternative transmission solution that could provide the same services as the proposed line but instead, assigned two engineers, who had no experience with battery storage or solar energy technologies, with the task of developing a “non-transmission alternative.” 

A PSC spokesman hadn’t returned a call by deadline requesting comment on the suits.

An ATC spokesperson said the lawsuits would not delay the project.

ATC has said it would begin contacting affected landowners this fall and planned to begin construction in 2021 and energize the line in 2023.

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