and CROSS-APPEALS from orders of the circuit court for La
Crosse County, Cir. Ct. Nos. 2015CV219, 2015CV379 TODD W.
BJERKE, Judge. Affirmed in part, reversed in part, and cause
remanded with directions.
Brennan, P.J., Brash and Dugan, JJ.
The Town of Holland (the "Town") appeals an order
of the circuit court, as changed and modified by a
supplemental order, regarding a decision of the Public
Service Commission of Wisconsin ("PSC") relating to
the construction of a high voltage transmission line in the
La Crosse area. The circuit court affirmed the PSC's
decision that the transmission line was necessary to provide
an adequate supply of electricity to the La Crosse area. The
circuit court further held, contrary to the Town's
assertion, that the Environmental Impact Statement
("EIS") the PSC prepared was not legally
However, the circuit court found that the PSC had not
provided a rational basis for its determination that it was
not practicable to utilize an existing transmission line for
a seven-mile portion of the proposed new line located in the
Town. The court therefore remanded the matter to the PSC for
reevaluation of the siting of that seven-mile portion. The
court initially enjoined the continuation of work on that
contested portion, but subsequently stayed that injunction in
its supplemental order pending the resolution of this appeal.
The Town also appeals the circuit court's determination
that it did not have jurisdiction to review the PSC's
order denying a petition for rehearing on its decision.
The PSC cross-appeals on whether the circuit court properly
remanded the issue regarding the contested seven-mile
portion, and whether the court erred in enjoining work in
that specific area. The companies involved in the
construction of the transmission line, which are intervenors
in this matter, also cross-appeal on that issue: American
Transmission Company LLC; Northern States Power Company;
Dairyland Power Cooperative; WPPI Energy; SMMPA Wisconsin
LLC; and ATC Management, Inc. (collectively the
We conclude that the PSC properly determined that
construction of the new transmission line is necessary, and
that the EIS prepared by the PSC was not legally
insufficient. We therefore affirm the circuit court on those
However, we find that the PSC did provide a rational basis
for its determination relating to the contested seven-mile
portion of the transmission line, and therefore we reverse
the circuit court's order to remand that issue to the
PSC. Consequently, we remand this matter to the circuit court
to vacate the injunction.
Additionally, we determine that the PSC's order denying
the petition for rehearing is judicially reviewable, contrary
to the circuit court's determination that it did not have
jurisdiction to review that order. We therefore reviewed the
denial order by the PSC, and hold that the PSC properly
denied the petition for rehearing.
In October 2013, the Companies applied to the PSC for a
Certificate of Public Convenience and Necessity
("CPCN") to construct and operate a 345 kilovolt
high voltage transmission line known as the Badger Coulee
Project. The purpose of the Project is to improve
the reliability of electrical power for the City of La Crosse
and its surrounding area, extending to Winona, Minnesota.
Substantial portions of the Project are located in the Town.
The Town, among others, was opposed to the Project, and
intervened in the proceedings with the PSC. The Town asserted
that the Project was not necessary because transmission lines
had recently been constructed in the same general area, and
additional lines were not warranted due to slow growth
projections for that area. The Town also cited concerns
relating to potential health impacts from the new
transmission lines, as well as the condemnation of private
property for transmission line easements. The Town further
contended that construction of the Project would adversely
impact its land use plan. Due to this opposition, the
proceedings surrounding the CPCN application were considered
to be a Class 1 contested case, requiring the PSC to hold
public hearings on the application and to provide the
opposing parties with the opportunity to present and rebut
evidence. See Wis. Stat. § 227.44 (2015-16).
See also Wis. Stat. §§ 227.01(3)(a) and
In the meantime, the PSC, upon receiving the CPCN application
from the Companies, was statutorily required to prepare an
EIS to determine the potential effects of the Project on the
"quality of the human environment." See
Wis. Stat. § 1.11(2)(c). A draft of the EIS for the
Project as prepared by the PSC was published in August 2014;
the PSC accepted comments on the draft EIS for forty-five
days after its publication. The PSC reviewed the comments its
received and incorporated additional information based on
those comments. In November 2014 it released the finalized
EIS, which contained over six hundred pages.
After the release of the EIS, the PSC held a hearing on the
CPCN application over several days in January 2015. At that
time, the intervening parties, who had pre-filed written
briefs and exhibits, were permitted to present and rebut
expert testimony. Prior to that, in December 2014, the PSC
held a number of hearings regarding the Project, taking both
oral and written testimony from the public. Public comments
were also accepted on the PSC's website.
The PSC released its final decision on the matter on April
23, 2015. It found that "[a]pproval of the [P]roject is
in the public interest and is required by the public
convenience and necessity." Accordingly, the PSC issued
the CPCN authorizing the Companies to commence construction
of the Project.
Two petitions for rehearing and a request for clarification
were filed in May 2015. The rehearing petition at issue here
was brought by Citizen's Energy Task Force, Inc. and Save
Our Unique Lands of Wisconsin, Inc. The petition asserted that
there was newly-discovered evidence relating to growth trends
that was not available at the time that the PSC made its
decision. The PSC denied that petition.
The Town subsequently filed a petition for judicial review of
the PSC's decision. In that petition, the Town argued
that the EIS was legally insufficient because it failed to
"study, develop and describe" alternatives to the
Project as statutorily required. See Wis. Stat.
§ 1.11(2)(e). The Town further asserted that the Project
was "unreasonably in excess of probable future
requirements" for energy use based on growth trends, and
therefore is not necessary and not in the public interest.
Additionally, the Town contended that the Project will
"unreasonably interfere with the orderly land use and
development plans" for the Town.
On review, the circuit court first addressed jurisdictional
issues. It found that although it did have jurisdiction over
the Town's petition for review of the PSC's final
decision, it did not have jurisdiction to review the
PSC's denial of the petition for rehearing. The court
reasoned that the denial was a discretionary decision on the
part of the PSC and thus was not reviewable, citing
Village of Prentice v. Transportation Commission of
Wisconsin, 123 Wis.2d 113, 121, 365 N.W.2d 899 (Ct. App.
Next, the circuit court found that the PSC had "properly
determined that [the] BadgerCoulee Project … was
needed to provide an adequate supply of energy to the La
Crosse area." However, the court pointed out that the
EIS was not included in the record, and it therefore could
not address its sufficiency. Thus, the matter was remanded to
the PSC to rectify the incomplete record. The PSC
subsequently supplemented the record by submitting the EIS,
which the circuit court found to be legally sufficient,
resolving that remanded issue.
The circuit court also remanded this matter for reevaluation
of an issue relating to the use of an existing transmission
line for a portion of the Project. That existing line is
known as "CapX, " and had been approved for the La
Crosse area a few years earlier; it also runs through the
Town. Use of the CapX line for this Project would require
triple-circuiting to accommodate the overlap. The Town
identified an eight-mile portion of the Project that it
asserted could be located with the CapX line, and asserted
that this would be the proper course of action under
Wis.Stat. § 1.12(6), which requires electric
transmission facilities to be sited in existing utility
corridors "to the greatest extent feasible" before
establishing new corridors. Id.
In its final decision, the PSC found that only one mile of
the existing line could be triple-circuited under standards
set forth by the North American Electric Reliability
Corporation (NERC), as opposed to the entire eight-mile
portion proposed by the Town. However, the circuit court
found that the PSC's determination was not supported by
the NERC standards upon which it had relied. Without that
support, the court found that the PSC had not established a
rational basis for limiting the overlap with the existing
transmission line to one mile. As a result, the court ordered
the PSC "to reevaluate the siting of the Project through
the seven-mile portion of the Project" that the Town
proposed be sited with the CapX line.
Furthermore, the circuit court initially issued an injunction
that precluded any work on that contested seven-mile portion
from continuing until that issue was rectified by the PSC to
the satisfaction of the court. However, the PSC moved for
relief from that order, citing the excessive costs associated
with delays in the completing the Project. The court then
stayed the injunction, pending an appeal. This appeal
I.Standard of Review and Level ...