• DALC Staff

Good News in the fight against the Cardinal Hickory Creek transmission line!

It’s time to celebrate!! But then keep working…

On Tuesday, May 25, 2021, Circuit Court Judge Jacob Frost issued his decision on whether a finding that Commissioner Huebsch should have recused himself taints the entire proceeding of the Public Service Commission. In short, IF Commissioner Huebsch had a perceived or actual conflict of interest, then the decision to approve the Cardinal Hickory Creek Transmission line is compromised regardless of the fact that the two other commissioners (a majority of the three) voted to approve it. That’s the bottom line.

We still have to prove there was a conflict of interest, but we now have the green light to go forth with discovery. In our attorney Howard Learner’s words, the judge agrees that “there’s a lot of smoke, and we’re entitled to make our case that there is fire.”

This ruling has many implications for our case. Recall that our primary rationale for opposing this line is that the environmental and social costs of the line are not worth the gains – energy demand is flat or declining in Wisconsin, the line would be “open access” and as such would carry fossil fuel energy. There are green energy solutions currently available that are less expensive and less environmentally detrimental. We will continue to provide good research for the courts to rule on the merits of the approval.

However this decision was specifically about what happens if the court agrees that Commissioner Huebsch had a conflict of interest and therefore should have recused himself. It is public record that Commissioner Huebsch became a member of the MISO (Midcontinent Independent System Operator) Advisory Committee in January 2019, which advises the MISO Board and senior staff. MISO is a private entity with “members” that are public utilities and transmission companies, including ATC, Dairyland Power, ITC Midwest, and We Energies. MISO intervened in the PSC proceeding and actively litigated in favor of the CHC line. Commissioner Huebsch engaged in regular meetings and ex parte communications with MISO Board members and staff outside of the PSC hearing process. In addition, Commissioner Huebsch applied to be CEO of Dairyland Power, one of the developers of the Cardinal-Hickory Creek transmission line, just months after approving the transmission line and another major Dairyland project (a new natural gas plant). We have sought to uncover additional evidence through discovery in a federal court case and requests for public records. Judge Frost’s rulings means we can now pursue discovery in the state court case as well.

Judge Frost has ruled that this process of discovery shall proceed and should be completed by August of this year. In his words “The importance of a fair and impartial decision maker must not be understated.” He elaborates::

People often dislike decisions, whether made by judges, local tribunals make or the PSC. That is the natural and unavoidable consequence of our system, as generally someone “loses”. Knowing this, it is essential to our democratic system, to our design of government, that we maintain the process as fair in appearance and in practice. At least then the disappointment of the losing party is in having lost, not in being cheated by an unfair process or decision maker. Disappointment is acceptable. Distrust is dangerous.

Judge Frost also commented on “the extensive public participation in this PSC proceeding and the judicial review” and acknowledged that “[t]his high level of public participation surely reflects that the PSC’s decisions affect us all.”

So let’s celebrate that the judge agrees with our position that the perceived conflict of interest by Commissioner Huebsch is truly a big problem – and if it’s true, the whole process is tainted. But now we must work to fairly and completely gather the evidence to prove this conflict of interest did exist.

We are so grateful to our attorneys at the Environmental Law & Policy Center and their diligent and persistent attention to this case, their expertise in clean energy law, and their passion for environmental justice.

Ultimately we are most grateful for the persistence, passion, and grassroots support of the southern Wisconsin Driftless community. Your letters to editors, appearance at public hearings and rallies, and monetary support over the last 7 years are the foundation to this work!

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