Dunn v. Wisconsin Public Service Commission

A Wisconsin Circuit Court dismissed 15 youth plaintiffs’ lawsuit challenging the constitutionality of Wisconsin statutes that they alleged limited the Wisconsin Public Service Commission’s (PSC’s) ability to consider air quality impacts when authorizing permits for fossil fuel-fired power plants and prohibited the PSC from requiring more electricity from renewable energy sources. The plaintiffs asserted that these statutes violated their rights to liberty, life, and a stable climate system as well as their rights to access, enjoy, and use navigable waters and their beds under Wisconsin Constitution Article I § 1. The plaintiffs also asserted a violation of the public trust doctrine codified in Wisconsin Constitution, Article IX § 1. The court wrote that it was “sympathetic to the youths and admires their willingness to access the courts in their quest to protect the planet” but concluded that their claims involved nonjusticiable political questions. Evaluating the plaintiffs’ claims under the U.S. Supreme Court’s framework for the political question doctrine in Baker v. Carr and looking to similar cases filed in Washington and Alaska, the Wisconsin court found that (1) the Wisconsin Constitution vested the legislature, not the courts, with the task of setting energy policy; (2) the court “is simply not in a position to formulate a judicially manageable standard to remedy air pollution and to achieve the renewable resource goals” for which the plaintiffs advocated; (3) this case presented an attempt by the plaintiffs to have the court “substitute its policy preferences for those of the legislature”; and (4) substituting the court’s judgment for the legislature’s policy choices “would show a blatant lack of respect for our elected officials and the agency defendants.”

Fifteen youth plaintiffs filed an action against the Wisconsin Public Service Commission (PSC) and Wisconsin Legislature challenging Wisconsin laws that allegedly “perpetuate a fossil fuel-based electricity system” and violate the plaintiffs’ rights under the Wisconsin Constitution. In particular, the plaintiffs challenged laws (1) prohibiting the PSC from considering air pollution when deciding whether to approve or deny applications for a Certificate of Public Convenience and Necessity for construction of electric generation facilities and (2) setting limits on the PSC’s authority to impose renewable energy development and procurement requirements on electric providers that exceed the level mandated by Wisconsin’s Renewable Portfolio Standard. The complaint alleged that each plaintiff was suffering “significant injuries from Defendants’ conduct that results in harmful air pollution and is exacerbating climate change, injuries that worsen with each additional ton of GHG emissions authorized by Defendants because of the laws challenged herein.” They asserted violations of rights to liberty, life, and a stable climate system as well as the right to access, enjoy, and use navigable waters and their beds under Wisconsin Constitution Article I § 1. They also asserted a violation of the public trust doctrine codified in Wisconsin Constitution, Article IX § 1. The plaintiffs requested declaratory and injunctive relief, as well as attorneys’ fees and costs.