CapX2020 opponents file suit in Wisconsin appeals court

Opponents of the Hampton-Rochester-La Crosse line are appealing the Public Service Commission of Wisconsin’s (PSCW) approval of the Wisconsin portion of the proposed CapX2020 transmission line (Docket No. 05-CE-136).

NoCapX2020 and the Citizens Energy Task Force (CETF) filed an appeal Aug. 16 with Dane County (Wis.) Circuit Court in response to the PSCW’s July 17 order declining more than a dozen petitions that it reconsider its May 30 approval of the 345-kV line. That number included a petition for rehearing filed by NoCapX2020 and the CETF.

In denying the requests for rehearing, the PSCW cited the Wisconsin statute that allows a rehearing to be granted only on the basis of a material error of law, a material error of fact, or the discovery of new evidence sufficiently strong to reverse or modify the order, and which could not have been previously discovered by due diligence.

“While the petitions express disagreement with the final decision, the petitions, including the late-filed petition, do not demonstrate any material error of law or fact, nor do they present new evidence sufficiently strong to require a reopening,” the PSCW said in its July 17 ruling denying the request for rehearing. “The petitions do not meet the statutory criteria to require a rehearing.”

In their appeal to the circuit court, NoCapX2020 and the CETF are asking the court to review, set aside, or remand the PSCW’s approval of the certificate of public convenience and necessity (CPCN) for the project based on what it claims are four errors of law, an error of fact, and an error of due process.

The appeal has been assigned to circuit court judge Amy Smith, who will review it and decide whether to accept the appeal, a court clerk told TransmissionHub Aug. 20.

The petition claims the PSCW’s procedure regarding public comments was neither fair nor correct. It charges that the notices of public hearing were insufficient and inadequate, and that restrictions placed on the scope of pubic comments was contrary to statue and rule.

Opponents also claim the commission’s interpretation of Wisconsin Department of Transportation’s (WisDOT) scenic byway easements was erroneous because the PSCW did not defer to the WisDOT’s interpretation of its easement language.

The appeal also charges that the commission erred when it considered the cost of the Wisconsin portion of the project instead of the cost of the entire project, as it will be apportioned to Wisconsin ratepayers. Opponents charge the commission should have used the total $507m cost of the entire project instead of the $211m it used.

In addition, the appeal says the PSCW should have considered the effects of the proposed La Crosse-Madison line, which will connect to the Alma-La Crosse line. Without the La Crosse-Madison line, the appeal states, “the line as approved is useless in isolation and instead increases the problems it is ostensibly meant to [alleviate].”

The petition also charges that the PSCW’s exercise of discretion is inconsistent with commission rules and state energy policy by determining that the project provides regional benefits, while Wisconsin law requires the commission to address “regional reliability benefits.”

Opponents charge the commission’s order “did not address the statutory criteria for transmission need and siting.” In addition, the PSCW “made conclusory statements with ‘findings of fact’ that did not reference facts in the record, and which are contrary to the record.”

“A reviewing court would have no basis to affirm the commission’s decision because there are no fact citations associated with the findings and no way to tell what in the voluminous record supports the order,” according to the petition.

Finally, opponents say the commission made an error of law because it did not properly address or evaluate alternatives in Wisconsin’s “energy hierarchy,” including conservation, energy efficiency and renewable options.

Requests for additional comment from the attorney for the groups were not responded to by press time Aug. 20.