Judge will revoke PSC approval of $500M Cardinal-Hickory line if critics prove bias

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A Dane County judge says he will revoke a permit for the nearly $500 million Cardinal-Hickory Creek transmission line if various groups challenging the project can show that a former member of the Wisconsin Public Service Commission was biased in his approval of the project.

In a ruling last week, Circuit Court Judge Jacob Frost allowed various conservation groups to examine whether former PSC Commissioner Mike Huebsch had a conflict of interest when he had contact with proponents of the Cardinal-Hickory line before voting in 2019 with his fellow commission members in favor of the project.

In his ruling, Frost wrote that he would throw out the PSC’s approval if opponents could show Huebsch was biased, or appeared to be biased. Frost scheduled a hearing on the charges of bias for September, after giving conservation groups until the end of August to dig up evidence. Construction on the $492 million project is scheduled to begin in November.

“The right to an impartial decision maker is fundamental to due process,” Frost wrote. “Violation of that right would taint the entire proceeding and require I vacate the PSC decision and remand for further proceedings conducted in accordance with due process.”

Utilities American Transmission Co., ITC Midwest and Dairyland Power have earned approval from the PSC and federal agencies to build the 100-mile, 345-kilovolt line from Dane County to Dubuque, Iowa. Opposed to them are various conservation groups, including the Driftless Area Land Conservancy, the Wisconsin Wildlife Federation and the Environmental Law & Policy Center.

The groups sued the U.S. Army Corps of Engineers last month in federal court, arguing it had failed to fully consider alternatives to the line, which is planned to go through the Driftless region in southwest Wisconsin and the Upper Mississippi River National Wildlife Refuge. The environmental groups have also sued the Wisconsin Public Service Commission and the U.S. Army Corps of Engineers in federal court.

Frost’s ruling came in a state court proceeding brought by the environmental groups along with Dane and Iowa counties and several municipalities.

Project opponents have alleged Huebsch and PSC Chair Rebecca Valcq had a conflict of interest when they voted to approve Cardinal-Hickory Creek. In a previous ruling, Frost dismissed an argument contending that Valcq was biased because she had once worked as an attorney representing WEC Energy Group, which owns a majority stake in ATC.

Documents revealed in a federal court case also showed Huebsch sought to become CEO of Dairyland five months after resigning from the PSC in early 2020. Before then, Huebsch had voted to approve Cardinal-Hickory and another large Dairyland Project, the Nemadji Trail natural gas plant in Superior.

Critics also accused Huebsch of demonstrating bias in his decision to provide advice to the Midcontinent System Operator, or MISO, which regulates the electric grid in the Midwest. Huebsch led the PSC’s deliberations on the Cardinal-Hickory project even as MISO intervened in the case.

Environmental groups praised Frost’s ruling in the case and argued emerging renewable-energy technology such as solar and battery storage could invalidate the need for a transmission line.

“The public deserves a fair decision-making process, and the Court correctly concluded that the lack of impartiality or appearance of bias constitutes a due process violation, which invalidates the Commission’s flawed approval of this transmission line,” said Howard Learner, the lead attorney representing the environmental groups and executive director at the Environmental Law & Policy Center.

Meanwhile, Katie Thomson, a spokeswoman for Dairyland, declined to comment specifically on Frost’s rulingbut said the transmission line is “vital” to the region’s renewable-energy economy.

“Requests to interconnect new renewable generation sources with the transmission system are at an all-time high while new projects are backlogged due to a lack of transmission capacity.” Thomson said. “The Cardinal-Hickory Creek line is needed to allow low-cost, renewable resources to connect to electric consumers.”