State Supreme Court Says Regulators Not Biased For Transmission Project

A former regulator’s relationships with employees of utilities building the Cardinal-Hickory Creek transmission line didn’t create a serious risk of bias when the Public Service Commission unanimously approved the project, the state Supreme Court ruled on Thursday.

In a 4-3 ruling, the court’s conservative majority undermined a lawsuit challenging the commission’s approval of the project in 2019. The Driftless Area Land Conservancy, Wisconsin Wildlife Federation and local governments filed that challenge to block construction of the more than $500 million transmission line across southwestern Wisconsin. The line is being built by American Transmission Company, ITC Midwest and Dairyland Power Cooperative.

Conservation groups claimed PSC Chair Rebecca Valcq and Commissioner Mike Huebsch should have recused themselves from the case because of their ties to supporters of the project. They pointed to Huebsch’s participation on an advisory board for the Midcontinent Independent System Operator, which is the regional grid operator that supports the project. Groups also highlighted Huebsch’s application for a top job with Dairyland Power soon after leaving the commission. Huebsch didn’t land the position.

The project’s opponents had issued a subpoena to inspect Huebsch’s cellphone after discovery of encrypted messages with utility employees while the case was pending before the commission. But the Supreme Court ruled that Huebsch didn’t have to turn over his phone, and said no serious risk of bias was shown.

Justice Patience Roggensack wrote the majority opinion reversing a ruling from the Circuit Court for Dane County.

“We further conclude that the circuit court did not clearly apply the correct legal standard when evaluating whether a due process violation had been stated,” Roggensack wrote. “And we conclude the circuit court erroneously denied Huebsch’s request for a stay pending appeal. Accordingly, we reverse the circuit court.”

Huebsch’s attorney Ryan Walsh called the high court’s decision a “resounding victory.”

“His years-long nightmare is finally over. The Court makes clear that plaintiffs ‘did not come close’ to alleging a claim of bias,” Walsh wrote in an email to Wisconsin Public Radio. “To the contrary, as Justice (Brian) Hagedorn notes, their claims were ‘borderline frivolous.’ That is unusually strong language from the Court, and it sends an unmistakable message that campaigns of slander and innuendo against adjudicators and judges by unhappy litigants will not be tolerated.”

Dane County Judge Jacob Frost had previously ruled opponents could gather evidence on whether Huebsch acted impartially, saying the appearance of bias would be enough to taint the commission’s review and revoke the line’s permit. The state Supreme Court overturned the judge’s use of that standard.

Huebsch’s attorney and the Public Service Commission had argued the group’s allegations were based on speculation, accusing the project’s opponents of mounting a fishing expedition to uncover evidence in support of their theory.

Walsh had argued his client and other decision-makers enjoy a presumption of impartiality and honesty that protect them from “baseless discovery and fact finding.” Walsh had noted Huebsch wasn’t barred from talking to those who appeared before the commission as long as no improper ex parte communications took place.

PSC spokesperson Matt Sweeney said the agency is currently reviewing the decision, but offered no additional comments.

Liberal justices had opposed the court hearing the case. They said Huebsch’s petition for the court to review the case should have been first challenged in lower courts.

Thursday’s ruling specifically looked at allegations of bias against Huebsch. The ruling did not address the merits of the PSC’s approval of the Cardinal-Hickory Creek transmission line project.

Construction of the 101-mile line from Dane County to Dubuque County, Iowa is ongoing. However, conservation groups have called on the commission, state environmental regulators and the courts to halt construction of the project after a federal judge blocked the line’s Mississippi River crossing as part of a separate lawsuit filed against federal agencies. Utilities have appealed that judge’s decision, and an appeals court panel is set to hear arguments in that case this fall.

Listen to the WPR report here.

Editor’s note: WPR’s Jenny Peek contributed reporting to this story. American Transmission Company is an underwriter of Wisconsin Public Radio.

Wisconsin Supreme Court sides with former utility regulator accused of bias in power line case was originally published by Wisconsin Public Radio.