Could ATC lose?

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In baseball they say you win some, you lose some and sometimes it rains. But if your business is building massive power lines through the Midwest countryside you only win. 

At least that has been the experience of the American Transmission Company. ATC has never been denied permission to build a power line from Wisconsin’s Public Service Commission. Until now. Maybe. 

The big fight is over the Cardinal-Hickory Creek line, which would extend, with some massive 17-story towers, from Iowa to Middleton, across the picturesque, rugged and environmentally sensitive Driftless area. Last year, despite opposition from local residents, environmental groups, and Iowa and Dane counties, the Public Service Commission approved the line on a 3-0 vote. 

In response, the Environmental Law & Policy Center filed a flurry of legal actions on behalf of its clients. One suit challenged the decision over conflicts of interest by two PSC members: Chair Rebecca Valcq (in illustration above), appointed by Gov. Tony Evers, and Commissioner Mike Huebsch, a Scott Walker appointee. 

A few weeks ago, Dane County Judge Jacob Frost issued a ruling, saying that if Huebsch truly had a conflict, then that would taint the entire decision, even if the other commissioners did not have conflicts. Frost noted that Huebsch led the discussion at which the decision was announced and that the other commissioners appeared to defer to him. 

There are two concerns about Huebsch, whose term expired soon after the decision was announced. First, he was the PSC’s representative to the Midcontinent Independent System Operator, a group that supports the line. Second, around the time of the decision, he was closely in touch with Dairyland Power, one of the utilities that is partnering in the project. Huebsch later applied to be Dairyland’s president, a job he didn’t get. 

It’s still up to the plaintiffs to show that Huebsch really did have a conflict significant enough to void the PSC’s decision. The judge will rule on that later this year. But if he did have a serious conflict, Frost has now said that the result would be enough to void the PSC’s action. 

What would happen next isn’t entirely clear, but it would set up a strange and unprecedented scenario. Huebsch is no longer on the PSC, but according to Frost’s ruling, Valcq and Commissioner Ellen Nowak (also a holdover Walker appointee) could not vote again on the ATC project. And the third commissioner, Tyler Huebner, has already recused himself because he advocated for the line in his previous job as director of RENEW, an alternative energy nonprofit that sees the line as being beneficial for wind energy generated in the Plains. 

So who would make the decision? Howard Learner, the lead lawyer on the case, says that it could be made by PSC staff or by a special master, perhaps a retired judge. 

Which brings me back to a point I’ve made a few times before as I’ve written about this case. Retired judges are exactly the kind of people who should be appointed to the PSC in the first place. 

Gov. Evers has made two appointments to the PSC, both of whom had glaring conflicts of interest over what is the most high-profile case before the commission. Heuebner did the right thing and recused himself, while Valcq stubbornly argues that her history as a lawyer for WE Energies, the state’s largest utility and the largest shareholder in ATC, presents not even an appearance of conflict. 

I think ATC should finally lose a case. The line would unnecessarily mar what is, in my view, the most beautiful part of the state. We can get along just fine without it, utility ratepayers don’t need to get saddled with the cost, and we’re better off generating wind and solar energy closer to home anyway. ATC only wants to build the line because they’re guaranteed a handsome profit. 

But, no matter your view on the merits. Gov. Evers has made a mess of all this by appointing two commissioners, who are fine people in their own right, but who have clear conflicts on the most important case before the commission right now. 

Evers, who only won by 30,000 votes last time, needs to get his share again in southwest Wisconsin, the most purple part of the state. Appointing two Cardinal-Hickory advocates to the PSC won’t help. And it was a needless mistake, an unforced error. He should have appointed a couple of retired judges, used to weighing evidence and applying the law, and without any skin in the game. 

ATC may be coming closer to losing its first case. Let’s hope that Evers hasn’t secured his first election loss.