Dane County is running out of options in its quest for authority over three state-approved transmission line projects.
Either the county will admit defeat, conceding it has no say over a project approved by the state, or the county will take its case to the Wisconsin Supreme Court.
“It’s very frustrating to have our ordinances and permits undermined by the fact that a power company does not have to receive our approval,” said Dane County Supervisor John Hendrick, a member of the county’s Zoning & Land Regulation Committee. “But from the point of view of a county supervisor concerned about our budget, it’s probably a waste of money to keep fighting.”
The Wisconsin District IV Court of Appeals on Thursday affirmed a circuit court decision that American Transmission Co. LLC does not need county environmental permits to build the lines because the Public Service Commission of Wisconsin already approved the projects.
Dane County Corporation Counsel Marcia MacKenzie said she has not made up her mind about appealing the case to the Supreme Court.
“We’ve lost twice,” she said. “But if the Supreme Court were to look at the case, it would be new review.”
MacKenzie said the county asked ATC in spring 2008 to register for environmental permits for the projects.
The company sued in June 2008, arguing PSC approval overrides county approval. A Dane County Circuit Court judge in August 2008 agreed with ATC, and the appellate court backed up the call.
Fighting any project with PSC approval is an automatic uphill battle, said Madison City Attorney Michael May, who recently persuaded Madison Mayor Dave Cieslewicz and some Common Council members not to challenge ATC’s 345-kilovolt Rockdale to West Middleton line.
“The PSC is the big dog on utility projects, and cities and counties are little dogs with limited authority,” May said. “There’s a great deference courts show to administrative agencies, and that’s because judges are generalists. They know the law, but not utilities.”
MacKenzie agreed, but said the county’s case is not about trying to stop projects with PSC approval, but rather to get support for state-required county ordinances.
“The court can give deference on projects, but it does not on the construction of law,” she said. “This is about finding out what the law means. Two courts have said they see it one way, and I see it differently.”
The problem, MacKenzie said, is if the court decisions stand, it could open the door for any PSC-approved utility project to bypass county approval.
“It never worked like that until ATC challenged it,” she said. “All other companies get permits.”
Dane County has legitimate concerns about protecting water quality and natural resources during construction, Hendrick said. And that is why the county enacts erosion-control and environmental policies.
“We give out conditional-use permits to businesses looking to build here, we fund agricultural projects, and we help with downtown revitalization plans,” Hendrick said. “Why don’t power line companies have to play by the same rules?”
The answer, May said, is the PSC already said yes, so there is little to stop a project.
“You’re just making an uphill battle a lot steeper,” he said. “Sometimes it’s not worth the time and effort.
That’s not to say you should never fight a project or PSC decision because it depends on the individual case.
“But sometimes you’ve got to step back and take an objective look at something.”