Suit Commenced Over Highland Wind Farm CPCN

January 27, 2014

The Town of Forest has sued the Public Service Commission of Wisconsin (PSCW), asking the court to reverse the decision of the PSCW granting the Highland Wind Farm a Certificate of Public Convenience and Necessity (CPCN) for the development of a wind project in St. Croix County. In an earlier post I described the steps taken, and contemplated, by the Town of Forest in St. Croix County to fight the construction of the project. Last November, the town filed a motion asking the PSCW to reconsider the decision. That motion was denied on December 16, 2013, triggering a 30-day time period during which the town could appeal the decision.

The town filed the appeal on January 10, 2014, in St. Croix County Circuit Court. The unusually detailed allegations in the complaint set forth the somewhat complicated factual and procedural background, the distillation of which into a paragraph or two is difficult. But here are the legal claims the town has made, and a very brief description of the factual allegations supporting them:

  1. The Commission made procedural errors which compromised the fairness and due process of the proceedings–by deciding that it is sufficient to comply with the noise limits established in PSC 128.14(3) only 95 percent of the time, and the Commission did not give the other parties any notice of that issue to allow them to present evidence relating to it. In fact, the PSCW actually prohibited the introduction of such evidence;
  2. The Commission did not have jurisdiction to issue a CPCN for the Project–because pursuant to § 196.491(1)(g), the PSCW only has authority to grant CPCNs for projects that will produce 100 megawatts (MW) or more, and this project would only produce about 92 MW;
  3. The Commission made material errors of law–again, because compliance only 95 percent of the time is contrary to law;
  4. The Commission based its decision on findings of fact not supported by substantial evidence in the record–because there was no evidence (1) defining what the 95 percent compliance with the noise limits actually means, (2) supporting the PSCW’s determination that the project would not unreasonably interfere with the town’s Comprehensive Plan, (3) supporting the finding that the was no basis to apply a 40 dBA noise limit to more than the six properties identified by Commission staff, and (4) supporting the finding that the Highlands Curtailment Plan and post-construction sound monitoring plan were sufficient to ensure compliance with the noise limits;
  5. The Commission’s determinations and the approval of Highland’s CPCN application are not in the public interest–because the Commission did not adopt the recommendation of experts that a 40 dBA noise limit should be imposed with respect to all affected residential properties; and
  6. The Commission abused its discretion.

The standard applied by the circuit court will likely be the “great weight deference,” as opposed to the lesser levels of “due weight deference,” or no deference (de novo review), although the level of deference given can vary depending on the issue involved. For a good discussion of the standard for review, and the oft-stated principle that the court cannot substitute its own judgment for that of the PSCW, see Clean Wisconsin, Inc. v. Public Service Commission of Wisconsin, 2005 WI 93.

The bottom line is that, generally, given the legal framework the court is required to use when deciding to reverse the decision of the PSCW, the town has a daunting challenge ahead. It is very difficult to win a case like this. We will see what happens.