Clean Wisconsin, Inc. v. Public Service Commission

The Wisconsin Court of Appeals upheld a Certificate of Public Convenience and Necessity (CPCN) granted for construction of the Nemadji Trail Energy Center (NTEC), a natural gas-fired electric generating facility. The court found that the Commission did not err in not assigning a burden of proof to the applicants or in its understanding that its decision would have to survive review under a “substantial evidence” standard. The court also found that the Commission correctly interpreted the statutory standards that applied to its determinations and that substantial evidence supported its findings. In addition, the Court of Appeals found that the Commission reasonably determined under Wisconsin’s Energy Priorities Law that “higher priority” renewable sources were intermittent and that “lower priority” energy sources such as NTEC were needed “to complement and sustain” the higher-priority resources. The court also rejected the claim that the environmental impact statement for the project did not sufficiently address greenhouse gas emissions, including indirect impacts from hydraulic fracturing.

Clean Wisconsin and Sierra Club filed a lawsuit challenging the Wisconsin Public Service Commission’s decision approving a Certificate of Public Convenience and Necessity (CPCN) for the Nemadji Trail Energy Center, a proposed 625-megawatt natural gas-powered generating facility. The petitioners alleged that they had standing because they and their members “have an interest in reducing greenhouse gas emissions, are affected by global climate change, and will be further adversely affected if additional sources, such as the gas plant in this case, are allowed to add even more CO2-equivalent to the atmosphere” and also because petitioners’ members included individuals who would be affected by other environmental impacts and who would be responsible for paying the costs of the proposed facility. The petitioners asserted that the Commission made errors of law, fact, procedure, and discretion when it determined that the statutory standards for approving a CPCN were met. The petitioners also asserted that the Commission failed to comply with obligations under Wisconsin’s Energy Priorities Law and the Wisconsin Environmental Protection Act.