May 26, 2021
Madison, WI — A Dane County Circuit Court judge ruled that two Wisconsin conservation groups can conduct discovery on whether Commissioner Michael Huebsch was biased or had the appearance of bias in leading the Public Service Commission’s decision to approve the huge and unneeded Cardinal-Hickory Creek transmission line, which would cut a wide swath through the scenic Wisconsin Driftless Area communities, family farms and vital natural resources.
Dane County Judge Jacob Frost ruled yesterday that Petitioners Driftless Area Land Conservancy (DALC) and Wisconsin Wildlife Federation (WWF) are entitled to conduct proper discovery through document productions and depositions to establish the facts regarding Commissioner Huebsch’s partiality or appearance of partiality. The Circuit Court’s Opinion states: “I agree with Petitioners. The right to an impartial decision maker is fundamental to due process. Violation of that right would taint the entire proceeding and require I vacate the PSC decision and remand for further proceedings conducted in accordance with due process.”
Public interest attorneys at the Environmental Law & Policy Center represent the Petitioners DALC and WWF. The Court set a schedule for Petitioners to conduct discovery to obtain additional information and documents to support their claims, and for a trial in September 2021. The Court’s Opinion concludes that the “right to an impartial decision is fundamental to due process. Violation of that right would taint the entire proceeding” and therefore invalidate the Commission’s approval of a certificate of public convenience and necessity for the proposed huge transmission line.
Jennifer Filipiak, Executive Director of the Driftless Area Land Conservancy, said:
“We are pleased that Judge Frost agrees that the public has a right to an impartial decision maker. Now we have the green light to continue with discovery, and the right to present our case that Commissioner Huebsch had a conflict of interest in deciding to approve the line. And we look forward to doing so.”
George Meyer, Executive Director of the Wisconsin Wildlife Federation, said:
“We’re very pleased Judge Frost has recognized that it’s vital that the public has confidence that agency decisions are made fairly, especially when it comes to massive and damaging infrastructure projects like the Cardinal-Hickory Creek transmission line that will alter the Driftless Area’s unique landscape and threaten wildlife habitats and the economic vitality of the region.”
Howard Learner, Executive Director of the Environmental Law & Policy Center and lead attorney representing DALC and WWF, said:
“We’re pleased that the Court’s Opinion concludes that the Petitioners are entitled to move forward with discovery to establish the facts demonstrating the biased process that tainted the Commission’s decision-making in approving this costly and unneeded huge transmission line case. The public deserves a fair decision-making process, and the Court correctly concluded that the lack of impartiality or appearance of bias constitutes a due process violation, which invalidates the Commission’s flawed approval of this transmission line. A fair review of the evidence would also show that there are better, more cost-effective, more environmentally sound, and more flexible alternatives for reliable clean energy in the Wisconsin Driftless Area.”
The $492 million Cardinal-Hickory Creek transmission line will cut a wide swath through the Driftless Area’s scenic landscapes, conservation lands, key waters and other natural resource treasures. The companies building the transmission line are Dairyland Power Cooperative, American Transmission Co., and ITC Midwest.
Commissioner Huebsch was a member of the formal Advisory Committee of the Midcontinent System Operator (MISO), which initially proposed the high-voltage transmission line, and was an active party litigating in support of the Cardinal-Hickory Creek transmission line in the contested case and adjudicatory proceedings before the PSC. Huebsch also unsuccessfully applied for the CEO position at Dairyland in February 2020 after he approved the transmission line five months earlier as a PSC Commissioner.