PLATTEVILLE — The developers of the Cardinal—Hickory Creek power transmission line project have won a legal victory in state courts and a partial victory in the federal courts.
A three-judge panel in the U.S. Court of Appeals for the Seventh Circuit Wednesday overturned a federal district court ruling from earlier this year that the power line could not cross the Mississippi River.
The panel ruled that a judicial decision was “premature” because the U.S. Fish and Wildlife Service had not made a final decision on whether the power line can cross the Upper Mississippi National Fish and Wildlife Refuge near Cassville, nor a proposed land swap in exchange for approval to cross the refuge.
That left open the possibility of legal appeals after the USFWS decides those two issues.
That decision, which was expected last fall, comes after a Dane County circuit judge affirmed a 2019 state Public Service Commission decision to approve the power line project.
Circuit Judge Jacob Frost affirmed the PSC’s Certificate of Public Convenience and Necessity for the 102-mile project, whose costs have grown from the original $492 million to beyond $500 million due to growing materials prices and legal costs.
A joint news release Thursday from American Transmission Co., ITC Midwest and Dairyland Power Cooperative said the three companies were “very pleased” in the federal decision and that they “prevailed on all key points.”
The statement also said the builders “look forward to working with the federal agencies so they can now move expeditiously to complete their decision making.”
“The four conservation group plaintiffs are disappointed by the Court’s decision that delays addressing the federal agencies’ fundamental environmental law violations that were recognized by the District Court,” said Howard Learner, executive director of the Environmental Law & Policy Center. “The Seventh Circuit’s opinion says that we’re raising these issues too early and that we have to wait until the U.S. Fish and Wildlife Service issues a final decision to have our claims fully heard by the Court.
“The Seventh Circuit’s opinion does not authorize the transmission line companies to continue their illegal plans to plow through the protected national wildlife refuge. We are considering going to the District Court to establish a scheduling framework for next steps in this case.”
U.S. District Judge William Conley ruled March 1 that the project could not be built through the Upper Mississippi National Fish and Wildlife Refuge, calling U.S. Fish and Wildlife Service approval through the wildlife refuge was “arbitrary and capricious.”
Conley’s decision held up construction of the project across the Mississippi River while construction west and east of the river is nearly complete, according to the three utilities.
The appeals court decision reverses a ruling in which Conley said he would not allow the power line to be built in protected areas “simply because the transmission companies plowed ahead with ground-clearing without assurance that the fish and wildlife crossing will be approved.”
A joint news release from the three builders said Frost’s decision affirmed that PSC approval “was supported by substantial evidence while applying appropriate statutory criteria.”
Jennifer Filipiak, executive director of the Driftless Area Land Conservancy, said her group was “disappointed in this state court decision upholding the flawed Public Service Commission process that failed to fully and fairly consider less damaging alternatives to the Cardinal—Hickory Creek transmission line.”
Mark LaBarbera, executive director of the Wisconsin Wildlife Federation, said his group was “disappointed that the Public Service Commission did not look more seriously at potential alternatives to this massive new transmission line, especially now that the costs have ballooned much higher than originally estimated. The company reported it has spent more than $530 million on this unfinished project, already exceeding its original $492 million total estimate. The dramatic cost increase makes clear why it’s essential to thoroughly study and consider alternatives before starting to build large projects that will damage Wisconsin’s natural environment.”
“We are carefully reviewing the judge’s decision and considering next steps, including an appeal on behalf of the conservation groups,” said ELPC staff attorney Brad Klein.
Frost’s and the appeals court’s decisions are the latest in a series of court rulings that have mostly favored the power line developers.
Conley decided against stopping construction of Cardinal—Hickory Creek while his decision stopping the power line from crossing the Mississippi River was appealed.
Conley said he has no authority over what the developers of the project, including ITC Midwest, which is building the power line in Grant County and Iowa, and ATC, which is building the project in Iowa and Dane counties, do on private land.
The state Supreme Court ruled 4—3 against an attempt by, among other plaintiffs, Iowa County and the Village of Montfort to invalidate the PSC’s unanimous 2019 approval of the power line project on the grounds of a conflict of interest of two PSC commissioners.
The majority opinion noted that CHC opponents tried to disqualify both former commissioner Michael Huebsch and PSC chair Rebecca Cameron Valcq because Huebsch previously worked for the Midwest Independent System Operator, which operates power transmission lines, and Valcq because she formerly worked for We Energies.
The PSC rejected the DALC’s claim of bias by Valcq and Huebsch, saying that “There is a presumption of honesty and integrity in those serving as adjudicators in state administrative proceedings” — a position the Supreme Court decision affirmed.
Construction has been continuing on the Iowa and Wisconsin sides of the 101-mile-long project despite the ruling about the wildlife refuge. Neither the PSC nor the Iowa Utilities Board ordered work to be stopped, nor have courts in Wisconsin or Iowa.
Both developers’ news releases said Cardinal—Hickory Creek is “a critical, backbone project for the regional power grid within the Upper Midwest. The need has increased over time and currently, 115 renewable generation projects totaling more than 17 gigawatts are dependent upon its construction to deliver at full capacity—enough to power millions of homes with clean energy.”
Those “clean energy” projects include two wind farm projects currently in development, the Uplands Wind project in Lafayette and Iowa counties and the Whitetail Wind project in eastern Grant County, that are the object of organized opposition.
Uplands Wind opponents’ efforts include a webpage, www.no-uplands.com. Electors in the Town of Clifton, where most of the Whitetail Wind project would be located, approved village powers, after which the town board passed a six-month moratorium on wind projects in the township, May 30.
ATC is building the eastern part of Cardinal—Hickory Creek from the Cardinal Substation in the Town of Middleton to the future Hill Valley Substation in Montfort. ITC Midwest is building the Grant County part of the project from the Hill Valley Substation to the Nelson Dewey Substation north of Cassville.
In Southwest Wisconsin, the project starts at the Nelson Dewey Substation on Grant County VV northwest of Cassville and goes near the U.S. 61/Wisconsin 81/Wisconsin 129 south intersection in Lancaster, heads northeast to the new substation in Montfort, then roughly follows U.S. 18 to Dodgeville and U.S. 18/151 around Mount Horeb before going northeast to the Cardinal substation.
Most of the project is along existing power line corridors.
The project was expected to be complete by the end of this year.
— The Wisconsin State Journal in Madison contributed to this story.