The Wisconsin Supreme Court has upheld a rule that puts a maximum limit on the restrictions that local governments can place on wind-power projects.
Tuesday’s ruling stems from a 2012 lawsuit filed by the Wisconsin Realtors Association, Wisconsin Builders Association and Wisconsin Towns Association against the Wisconsin Public Service Commission, which regulates large utility companies in the state. The suit alleged that the commission had failed to follow state-mandated procedures before sending the rule, PSC 128, on to the Legislature.
PSC 128 places limits on the amount of sound and “shadow flicker” that wind farms can produce. It also requires that turbines be built a minimum distances away from houses and other residences and sets general construction standards for wind-energy projects. The rule was enacted in 2009, but did not take effect until 2012.
Chris Kunkle, regional policy manager at Wind on the Wires, a St. Paul, Minn.-based advocacy group that represents companies in the wind-farm business, said Tuesday that the court’s ruling brings certainty and regulatory stability to the industry.
Kunkle had previously noted that, while the lawsuit was ongoing, at least six projects that had been proceeding were put in limbo. Many wind developers, he said, left Wisconsin in the end.
“The rule being upheld is a good sign and a step in the right direction,” Kunkle said. “But is it a silver bullet? No. There’s still other roadblocks to develop more of these projects. I don’t think this will lead to a new rush of development.”
In the lawsuit, the Wisconsin Realtors Association argued that the PSC, according to state statute (Wis. Stat. 277.115(2)), should have obtained a housing report from the state Department of Administration before sending the proposed wind-siting rule to the Legislature. The report was required because of the likelihood that the rule would “directly or substantially (affect) the development, construction, cost, or availability of housing in this state.”
A circuit court judge ruled in favor of the PSC in 2013, and the Court of Appeals did the same the following year. The Supreme Court affirmed the Court of Appeals decision 5-2.
The court’s decision, written by Justice Shirley Abrahamson, noted that the realtors association did not show evidence that a housing-impact report was required by law.
According to Tuesday’s decision, the justices found the WRA’s interpretation of the statute to be “unconvincing” and “expansive.” For one, the court pointed out that the interpretation ignores the phrase “directly or substantially,” which suggests that only certain predicted effects on property values will trigger the requirement of the housing-impact report.
The court noted that while the WRA acknowledged that the wind-siting rule went through a lengthy legislative review, the association was pushing for the rule to be declared invalid. Invalidating the rule, according to the decision, would infringe on the role of the Legislature.
However, the court also noted that the WRA was justified in expressing concerns about the way the rule was passed. The court noted, as the WRA had pointed out, that no housing-impact report has ever been requested or produced under the statute that lays out the process for the promulgation of rules.
Chief Justice Pat Roggensack and Justice Annette Ziegler dissented from the majority opinion. The argues that the PSC should have request that a housing report be conducted.
The dissent was hinted at during the oral arguments that the court heard on the case on Feb. 5. Ziegler had said that she was skeptical that the wind-siting rule would have no “direct or substantial” effect on housing.
Critics of wind farms have agreed with Ziegler, saying that wind turbines are a safety and health concern for people living nearby.
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