150 Public Comments: PSC must let Court Resolve Heubsch Bias Matter and Decide on Cardinal Hickory Creek Appeal Before the Commission can Invalidate its 2019 Approval of CHC.

Above Photo: Reading from her prepared notes at the Public Service Commission on July 1, Commissioner Ellen Nowak, encourages the Commission to, “move this along very quickly.” On the right is Bob Seitz, Nowak’ s Executive Assistant at the Commission since 2015. Seitz moved directly into this position from his work with Florida-based mining company, Gogebic Taconite.

Over the past few weeks, investigations in the Cardinal Hickory Creek transmission line (CHC) Appeal have begun digging deeper into allegations against former Public Service Commissioner Michael Huebsch. On June 26, facing court demands to reveal more information, the transmission owners made a highly unexpected maneuver. In a short letter1 to the Public Service Commission of Wisconsin, the transmission owners exposed that Commissioner Heubsch had, indeed, been sharing secret, encrypted emails with employees from American Transmission Company, the WEC Energy Group (who owns 60% of ATC) and other parties who would benefit financially from CHC approval. Exacerbating chances of bias they attested the communications had occurred at the same time Heubsch was considering his vote on the transmission line.

This compounded existing public concern as it was previously determined that Huebsch had applied for the top position Dairyland Power Cooperative, another utility owner of CHC, only a few months after he voted for the line and took early leave of his Commission seat.

The transmission owners’ letter proceeds to boldly ask Chair Valcq and Commission Nowak to rescind (invalidate) the state agency’s 2019 approval of the controversial CHC transmission line, to consider a quick re-review of it and re-approve it, this time, without the participation of Commissioner Michael Huebsch.

Despite the fact that such a request is unprecedented, Chairperson Valcq and Commissioner Nowak wasted no time in granting the transmission builders’ their wish. Within three days they announced their intent to rescind the project and consider the utilities’ requests for re-review by seeking comments from the public and utility parties. Initial Comments were received by the PSC on Monday, July 12.

In written comments closely resembling the verbal suggestions of Commissioner Nowak eleven days earlier, the Transmission Owners escalated their request to not only rescind the first approval of CHC but, “to expeditiously re-vote on the existing record without Commissioner Huebsch’s participation [to] resolve any questions of bias while also helping to ensure that the Project can be timely put into service if it is re-approved.”2

The parties opposing CHC in the Circuit Court appeal, anticipated this escalation. On very short notice, written comments submitted to the PSC by Dane County, Organizations and individual intervenors were joined by those from more than 150 citizens, 54% of them from communities that would not be directly impacted by the massive line. Of the 120 comments that addressed whether the PSC or Circuit Court should act to invalidate CHC, 97% said the court should continue with its crucial, factual inquiries and should wrong doings be found, the court, not the PSC, should define the remedies.

Of the 141 commenters addressing the question of how thoroughly the transmission line proposal should be re-reviewed (assuming the Commissioners chose this), 98% said the second review should be comprehensive with updated evidence. Many asked that re-review allow the addition of new intervenors, thorough assessment of non-transmission alternatives, low voltage transmission alternatives, and assure that PSC staff engineers would have ample time to evaluate the utility data in order to reach their own, independent conclusions. After their review of the public comments, CHC opponents Driftless Area Land Conservancy and Wisconsin Wildlife Federation (DALC/WWF) observed that, “The overwhelming majority of these comments express dismay about the wrongdoing that has already come to light and distrust of the fairness and integrity of the PSC going forward,”3

The Transmission Owners’ comments made their intentions to escape the Court’s inquiry into bias unabashedly clear: “[R]escinding the CPCN and then re-voting will moot the pending state court action and/or deprive the circuit court of jurisdiction over that action …”4 DALC/WWF’s July 14th Appeal Court filing cited legal precedent to the contrary, asserting that the PSC cannot escape the court’s jurisdiction and that with these actions, the PSC and utilities have commenced obstructions that Judge Frost warned he would not tolerate.

If the PSC ignores the overwhelming public majority opposing the PSC making a determination to rescind their approval of CHC, the Commission should have no reservations about conducting a full re-review. In their commitment, “to preserving the transparency, fairness, and integrity of all regulatory and judicial proceedings,”5 transmission owners should gladly submit their proposal for full re-test because they assure was, “continually studied for well over a decade and [] every time it has been studied, the need for the Project has increased.”6

Opposing intervenors state that any unwillingness by the Commission to proceed with a fair and transparent process would be a testament to collusion and bias on the part of regulators and utilities. This sentiment is clearly conveyed in Mark Mittelstadt’s public comment, “Any effort to ram a new CPCN through as quickly as possible, is another blatant display of commissioners’ bias for the developers.”7 To resolve the dark cloud of bias that has foreshadowed the project thus far, intervenor Chris Klopp suggests, “the public will be served much better by steps that, beyond question, lie above even the appearance of bias.”8

Despite only three days warning, there was a large public turnout for the Commission’s July 1, 2021 open meeting when PSC Chair Rebecca Valcq (left) and PSC Commissioner Ellen Nowak discussed the transmission owners stunning, unprecedented request. Commissioner Tyler Huebner recused himself for conflicts of interest, Valcq and Nowak skipped over filed party objections and discussed the matter for a total of 15 minutes before moving to appease the utilities’ request. On the right is PSC Commission Counselor, Cynthia Smith. [Video stills used by permission of videographer, Katie McGrath]

1 ATC and ITC Request to Reopen Record, https://apps.psc.wi.gov/pages/viewdoc.htm?docid=414396

2 At p.7, Applicants’ Initial Comments on Commission Notice of Intent to Rescind the Final Decision, https://apps.psc.wi.gov/pages/viewdoc.htm?docid=415806


4 At p. 4, Applicants’ Initial Comments on Commission Notice of Intent to Rescind the Final Decision, https://apps.psc.wi.gov/pages/viewdoc.htm?docid=415806

5 At p.2, ATC and ITC Request to Reopen Record, https://apps.psc.wi.gov/pages/viewdoc.htm?docid=414396

6 Id. at p. 7

7 Public Comment by Mark Mittelstadt, https://apps.psc.wi.gov/pages/viewdoc.htm?docid=415967

8 Intervenor Chris Klopp Initial Comments on Commissions Notice of Intent and Request for Comments, https://apps.psc.wi.gov/pages/viewdoc.htm?docid=415672

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