Wisconsin Supreme Court to weigh whether regulator’s communications with utilities amount to bias

The Wisconsin Supreme Court has agreed to consider whether a former regulator’s communications with utility executives tainted his approval of a nearly $500 million transmission line to be built between Dane County and Dubuque, Iowa.

Environmental groups are accusing former Wisconsin Public Service Commissioner Mike Huebsch of being biased when he voted in late 2019 in favor of the 100-mile Cardinal-Hickory Creek Transmission line. As part of their legal action, the groups are seeking to question Huebsch and inspect his personal cell phone, noting that court documents uncovered last spring showed he had been secretly communicating for years with various utility executives who were pushing to have the power line built.

The Driftless Area Land Conservancy, the Wisconsin Wildlife Federation and other groups are also seeking to have the Wisconsin Public Service Commission’s decision on the Cardinal-Hickory Creek line overturned. The project, they argue, will be outdated as soon as it’s finished and will cause disruptive harm to the Driftless Region in Southwest Wisconsin.

In its split decision on Tuesday, the Wisconsin Supreme Court agreed to take up a challenge Huebsch had mounted against subpoenas previously filed in Dane County Circuit Court. Huebsch then argued that the relationships he had with utility executives were purely personal in nature. Huebsch’s attorneys, in a brief to the court, said allowing a circuit court to investigate his personal relationships could lead to other public officials coming under undue scrutiny.

The four conservative justices on the supreme court sided with Huebsch not only by agreeing to take the case but also by temporarily blocking a subpoena that would have forced Huebsch to testify in Dane County circuit court. Judge Jill Karofsky, one of three liberal justice on the court, noted in a dissent that the case has yet to go to trial.

Environmental groups have long argued Huebsch and other members of the Wisconsin Public Service Commission had in fact been biased, or had at least had the appearance of bias, when they approved the Cardinal-Hickory Creek project.

Documents uncovered in a separate case in federal court showed Huebsch had sought to become CEO of the La Crosse-based utility company Dairyland Power Cooperative shortly after his leaving the commission and his approvals of both the Cardinal-Hickory creek line and another large project the Dairyland is seeking to have built: the Nemadji Trail natural gas plant in Superior. In May, Dane County Judge Jacob Frost said he’d revoke a permit for the transmission line if opponents could show Huebsch was biased, or at least appeared to be biased, when he approved the project.

In June, the utilities American Transmission Co. and ITC Midwest alerted the PSC that documents in another court case showed Huebsch had communicated with utility executives using the encrypted messaging app Signal. The revelation prompted the utilities to ask the commission to revoke its previous approval of the Cardinal-Hickory Creek project and issue a new permit. Instead, the PSC deadlocked on the request, leaving it up to the courts to decide the project’s fate.

The utilities hoped to have construction begin on the transmission line this fall, saying they have already spent about $125 million on the project.