Utilities seeking to build a controversial power line through southwest Wisconsin want regulators to reissue their permit as quickly as possible, while opponents say the project needs a complete re-evaluation in light of secret communications with utility executives.
American Transmission Company, ITC Midwest and Dairyland Power Cooperative have asked the Public Service Commission to rescind the permit for the Cardinal-Hickory Creek transmission line and hold a new vote “as expeditiously as reasonably possible” on the $492 million project, which is the subject of four separate court challenges.
The utilities made the request late last month after discovering that former Commissioner Mike Huebsch communicated privately with an ATC employee, a former ITC contractor, “and other individuals” over several years while the permit application was before the PSC.
A new vote without Huebsch, who stepped down last year, would “remove all questions of potential bias,” the utilities argue, and would render court challenges moot, allowing the utilities to begin construction as scheduled this fall.
Postponing construction, utilities say, would also delay thousands of megawatts of new clean energy projects and put constraints on existing generators.
“Time is of the essence,” they wrote in comments to the PSC.
A judge previously dismissed claims of bias against PSC Chair Rebecca Valcq, and there have been no such claims made against Commissioner Ellen Nowak. Commissioner Tyler Huebner, appointed by Gov. Tony Evers to fill Huebsch’s seat, has recused himself because of his prior work in support of the project.
Opponents are calling on the PSC to let the courts decide the fate of the line.
The Driftless Area Land Conservancy and Wisconsin Wildlife Federation, which have filed four separate lawsuits over the line, argue Valcq and Nowak “have been tainted by their participation” and should be disqualified from any further consideration of the permit.
The commission’s approval of the line “is fatally flawed and is no longer defensible,” the groups wrote. “This case needs a fresh start and a fresh set of eyes.”
Dane County Circuit Judge Jacob Frost said in May that he would revoke the permit if the plaintiffs could show even one commissioner had a legitimate conflict of interest.
The groups go on to call for a public review of private — or “ex-parte” — communications between commissioners and the entities they’re tasked with regulating.
“This case has revealed serious irregularities at the Public Service Commission that appear to extend far beyond the proposed Cardinal-Hickory Creek transmission line and cannot be simply swept under the carpet,” they wrote.
According to a court filing, Huebsch used the encrypted messaging service Signal and it’s unknown if the contents can be recovered. The utilities say they don’t know if the messages were related to the project but want to maintain “transparency in the regulatory process.”
Huebsch testified in court last week that he used Signal because it made it easier to carry on group chats with Android and iPhones and to keep from filling up his phone’s memory. He said he used the app to talk about sports, health and family with long-time friends.
“I’ve never had an ex-parte communication with anyone, ever,” Huebsch testified.
Other opponents say if the PSC does reconsider the 102-mile line between Dubuque and Middleton it should start the review process over and include new evidence.
Dane County, which has also sued to overturn the permit, argues that unless the PSC conducts an investigation to determine whether Huebsch’s private communications affected the evidence it must consider new evidence as of need and benefits.
“Doing so would erase any implication that ATC or ITC’s evidentiary support or argument was influenced by its questionable access to former Commissioner Huebsch,” deputy Corporation Counsel Carlos Pabellón wrote.
The utilities argue there’s no legal precedent for reopening the record and point out that Huebsch did not play a role in developing the official record. The PSC’s administrative law judge determined what evidence to include.
The PSC has issued a notice of intent to rescind the permit and reopen the docket “to consider next steps” but has given no indication what those steps might be.
The commission received more than 150 comments since issuing the notice July 1. Only two voiced support for reinstating the permit: one from the utilities, the other from a group of nonprofits that support renewable energy.
About a third of the comments were from those who simply oppose the line, but most called on the commission to leave it to the courts or start fresh in order to restore public trust.
“A full rehearing is called for. To do otherwise calls into question the integrity of the PSC as a whole,” said Robert Goonin, of La Farge. “Your reputation is on the line.”