Three utility companies have the right to intervene in a lawsuit over a proposed $500 million high-voltage power line in southwestern Wisconsin, the Seventh Circuit Court of Appeals ruled on Tuesday.
American Transmission Company, ITC Midwest and Dairyland Power Cooperative attempted to intervene in the lawsuit against the Wisconsin Public Service Commission over approval of the 100-mile power line, but a judge in the Western District of Wisconsin rejected intervention of right in February.
The three companies first filed an application with the PSC in April 2018 to build the Cardinal-Hickory Creek high-voltage power line from Madison through southwestern Wisconsin to Dubuque County, Iowa.
After an almost 18-month administrative proceeding, the PSC approved the $500 million project and issued a permit to begin construction and the acquisition of easements through eminent domain.
In December 2019, the Driftless Area Land Conservancy and the Wisconsin Wildlife Federation, two Wisconsin environmental groups, sued the commission to invalidate the permit.
The lawsuit made three constitutional claims under 42 U.S.C. § 1983. It alleged the appearance of bias because two of the three commissioners had apparent conflicts of interest. The groups also challenged the authorization to use eminent domain as an unlawful taking of private property in violation of the Fifth Amendment’s takings clause.
The commission filed a motion to dismiss in January, and a week later, the three power companies moved to intervene. The district judge rejected intervention as of right in February, concluding the transmission companies and the commission had the same goal of dismissing the lawsuit, and the commission would adequately represent their shared objective.
The judge also declined to authorize permissive intervention, saying that adding the companies would “almost certainly and needlessly complicate and delay this case.”
The power companies appealed, and the Seventh Circuit took up the case. The permit holders moved for an expedited review without oral argument because the case continues without them in the district court. The Seventh Circuit granted the motion, and the court published its decision on Tuesday.
“In many respects this is a paradigmatic case for intervention as of right,” Seventh Circuit Chief Judge Diane Sykes wrote in the opinion.
Sykes, Judge Joel Flaum and Judge Ilana Rovner reviewed the denial of intervention as of right. The opinion said the transmission companies’ motion met the basic criteria under Rule 24(a)(2) of the Federal Rules of Civil Procedure.
The rule also requires a contextual, case-specific analysis about existing representation and comparison of interest, which the judges said did not happen in this case. They wrote that it wasn’t enough that the commission and the transmission companies shared the same goal.
“Needless to say, a prospective intervenor must intervene on one side of the ‘v.’ or the other and will have the same general goal as the party on that side,” Sykes wrote. “If that’s all it takes to defeat intervention, then intervention as of right will almost always fail.”
The opinion said when contextual analysis is applied, it’s clear that the transmission companies are entitled to participate to protect their private investments.
“The basic prerequisites for intervention under Rule 24(a)(2) are unquestionably satisfied, and the transmission companies have carried their burden to show that the Commission’s representation may be inadequate to protect their interests,” Sykes wrote.
The Seventh Circuit reversed the district court’s order and remanded with instructions to permit the transmission companies to intervene.
A telephone status conference for the lawsuit is schedule for Aug. 27 in light of the ruling. The transmission companies have until Aug. 18 to meet with the other parties to make any revisions to the current court schedule.
The Cardinal-Hickory Creek power line is faced with a number of other lawsuits as well. In 2019, Iowa County, along with two municipalities, and Dane County filed two separate lawsuits in state court against the power line, and the Chicago-based Environmental Law & Policy Center also sued the commission, arguing the PSC had run afoul of its own rules when it approved the project in September. Follow @WLJReporter