Court may clarify agency review process for
out-of-state public utility sites
A stricter application process applies to “large electric
generating facility” proposals. The Wisconsin Supreme Court could
decide if the same application process applies for proposals to build
out-of-state facilities serving Wisconsin residents.
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
Nov. 28, 2011 – A state appeals court has asked the Wisconsin
Supreme Court to clarify the Wisconsin Public Service Commission’s
(PSC) review and approval process for public
utility proposals that seek to build out-of-state facilities serving
The PSC approved a public utility’s application to build a wind
farm facility in Minnesota after reviewing the proposal under Wis. Stat.
Consumer groups – including the Wisconsin Industrial Energy Group
– sued to require that PSC apply a more demanding application
process for larger facilities under section 196.491.
That statute contains additional criteria for assessing the
facilities’ impacts on Wisconsin ratepayers.
The parties don’t dispute that section 196.491 would apply if the
facility was built in Wisconsin. But PSC says application of that
statute is unreasonable because it would invoke issues of interest to
Minnesota, like land use and local ordinances. Section 196.49 does
Consumers say large facility applications contain certain ratepayer
protections to ensure that Wisconsin residents are not adversely
impacted by construction of large facilities, and the PSC cannot
circumvent protection requirements with out-of-state facilities serving
“[T]he question arises whether the legislature intended to give
the PSC the discretion to approve a large facility without considering
ratepayer-protection criteria,” the District IV Wisconsin Court of
Appeals wrote in its certification
to the Wisconsin Supreme Court.
The case is Wisconsin Industrial Energy Group Inc. v. Public
Service Commission of Wisconsin, 2010AP2762 (certification filed
Nov. 23, 2011). The appeals court noted that the interests of both
public utilities and large industrial and residential consumers are at
“Because it appears that all of the major interests are
represented in this case, and because the parties are in agreement that
the issue is likely to recur, this is an appropriate case for supreme
court review,” the appeals court wrote.