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Justices could strike down wind siting rule

A case pending before the state Supreme Court will determine whether the Wisconsin Public Service Commission has to go back to the drawing board on a 2012 wind siting rule.

State justices on Thursday heard oral arguments debating whether the PSC followed a state statute’s requirements before submitting to the Legislature a proposal for a wind siting rule that went into effect March 16, 2012.

If the court rules in favor of the Wisconsin Realtors Association, a new rule must be created. A decision from the justices is expected by June.

The state rule at issue, PSC 128, sets a maximum limit on the restrictions local governments can put on wind power projects.

The case, Wisconsin Realtors Association vs. Public Service Commission of Wisconsin, centers on whether the PSC violated Wis. Stat. 227.115(2), which requires the commission to obtain a housing report from the Department of Administration if a proposed rule “directly or substantially affects the development, construction, cost, or availability of housing in this state.”

The WRA and other plaintiffs, including the Wisconsin Builders Association and Wisconsin Towns Association, filed suit June 6, 2012, claiming PSC 128 was invalid because it did not go through the proper rules procedure before it was sent to the Legislature. The circuit court and Court of Appeals both ruled in favor of the PSC.

In considering the case Thursday, Chief Justice Shirley Abrahamson noted that Stat. 227.115(2) has been revised since the lawsuit was filed and that rules directly or substantially affecting the construction, cost or availability of housing would have to be approved by the governor before going to the Legislature.

Other justices asked questions about how the PSC determined the wind siting rule did not have a “direct or substantial effect” on housing and could therefore bypass the state statute.

“It’s a stretch for me that wind turbines don’t directly and substantially affect housing,” Justice Annette Zeigler said.

Rob Kovach, aide to state Sen. Frank Lasee, R- De Pere, said such questions are valid.

“It’s about whether or not it’s safe,” he said, “for the people who are faced with living next to these wind turbines.”

Chris Kunkle, regional policy manager at Wind on the Wires, a St. Paul, Minn.-based advocacy group that includes companies in the wind industry, said he wants the justices to uphold the rule’s passage.

“It just doesn’t make a ton of sense for the courts to try to revisit whether or not wind farms have a direct or substantial effect on housing,” he said. “It seems like that ship has sailed. There have been a number of comprehensive studies on that issue.”

But Gov. Scott Walker does not seem to be convinced.

His budget proposal, released Tuesday, includes $250,000 for the PSC to conduct a study on “wind energy system – related health issues” and submit a report on the results. According to the budget bill briefs released the same day, the PSC must study “health issues related to wind energy systems” and may “consider, but not replicate” peer-reviewed research.

Kunkle said he found that language worrisome.

“The concern we have,” he said, “is that the language in the budget does not include the peer-reviews standard. This new proposed study would allow for all sorts of anecdotes, small sample studies; all of these things would be given the same weight as real, hard science.”

But Kovach said he supported the governor’s proposal, which he said stems from concerns brought up by the Wind Citing Council’s minority report.

“It’s always smart to have more data,” Kovach said. “To have more, I think that it’s a good thing so that he best practices can be put in place.”

About Erika Strebel, [email protected]

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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