Insurance – Conditional Use Permit

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WI Supreme Court

Case Name: Enbridge Energy Company, Inc., et al. v. Dane County, et al.

Case No.: 2019 WI 78

Focus: Insurance – Conditional Use Permit

Enbridge Energy Company operates an interstate pipeline transporting liquid petroleum. Dane County issued to Enbridge a conditional use permit (“CUP”) including two conditions requiring Enbridge to procure additional insurance prior to expanding its pipeline pump station. After Dane County initially approved the CUP with these insurance conditions, but pending Enbridge’s appeal to the Dane County Board of Supervisors, the Wisconsin Legislature passed 2015 Wisconsin Act 55, which prohibits counties from requiring an interstate pipeline operator to obtain additional insurance when the pipeline operating company carries comprehensive general liability insurance with coverage for “sudden and accidental” pollution liability. Although Dane County recognized the impact of Act 55 on the enforceability of the insurance conditions, it nevertheless issued the CUP with the invalid conditions.

In response, Enbridge filed a petition for writ of certiorari, which the Dane County Circuit Court granted. The circuit court struck the two insurance conditions from the CUP as unenforceable under Act 55. The court of appeals reversed, concluding that Enbridge failed to show it carried the requisite coverage triggering the statutory prohibition barring Dane County from imposing additional insurance procurement requirements. Enbridge maintains that because it carries the requisite insurance, Act 55 rendered Dane County’s extra insurance conditions unenforceable, and the proper remedy is to strike the illegal conditions, leaving the remainder of the permit in place. We agree with Enbridge, reverse the court of appeals decision, and reinstate the circuit court’s order.

Reversed

Concur:

Dissent: A.W. BRADLEY, J. dissents. (opinion filed).

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.