Rules on wind energy limitations in Wisconsin will stand because they were properly promulgated, the state Supreme Court ruled Tuesday.
Former Chief Justice Shirley S. Abrahamson wrote for the five-judge majority in Wisconsin Realtors Association v. Public Service Commission, declaring the trade association had failed to show the necessity of a housing impact report prior to the passage of PSC 128.
“We further conclude that invalidating [the rule] under the circumstances presented in the instant case would infringe on the role of the legislature, which we decline to do,” Abrahamson wrote.
The association (WRA) is the lead plaintiff in the action over PSC 128, the commission’s answer to the demand for uniform regulations defining what local governments could require of wind energy systems.
With the commission finding “insufficient evidence” of negative effects by wind turbines on nearby property values, it proposed a rule preventing the requirement by local governments of setbacks greater than 1,250 feet, among other regulations, according to a case summary from the court’s public information office.
PSC 128 took effect on March 16, 2012, after the rule’s approval from the Wisconsin Legislature. The lawsuit by the Wisconsin Realtors Association followed in June 2012, and the appeals court in March 2014 affirmed the lower court’s judgment in favor of the commission. The Supreme Court heard arguments on the case in February 2015.
A housing impact report is required by law when a proposed new regulation “directly or substantially affects the development, construction, cost, or availability of housing in this state,” according to the decision. No such report was ordered by the commission in this case, nor was it requested by the legislature or any outside groups.
However, a judicial presumption that administrative rules are properly promulgated weighs in the commission’s favor, Abrahamson writes, and the plaintiff does not in this case meet its burden of proving impropriety via proof a requirement was not met.
The Wisconsin Realtors Association makes an “unconvincing” argument, negated by statutory language, that any rule having an effect on housing, and any rule involving wind energy, must be preceded by a housing impact report, according to Abrahamson.
Further, she writes, there is no requirement for an explicit ruling on whether such a report is necessary, a point the plaintiff argued before the court in February.
“We decline to read a procedural requirement into the statutes that the legislature opted not to impose,” the decision states.
Finally, Abrahamson addresses the plaintiff’s argument that the commission “usurped the legislature’s power” in promulgating a rule meant to protect the public without a report.
“Like WRA, we are concerned about usurpation of the legislative function,” she writes. “We conclude, however, that if we granted WRA its requested relief in the instant case, we would be usurping the legislative function by striking down rules that survived the legislature’s scrutiny.”
PSC 128 underwent more than a year of scrutiny at the legislature, after which it was allowed to stand.
“In sum, the legislature had ample opportunity to express reservations about the proposed wind energy rules, to request changes to the proposed rules, to prevent promulgation of the proposed rules, and to suspend and even repeal the rules after they were promulgated,” Abrahamson writes. “The fact is, after a lengthy and active period of review, the legislature allowed” the law to go into effect.
Chief Justice Patience Drake Roggensack, the victor in a recent contested ouster of Abrahamson from her seat at the head of the state’s high court, wrote a dissent joined by Justice Annette Kingsland Ziegler.
Roggensack wrote that the rule directly affects housing in that it limits setback requirements by local governments, which may regulate wind turbine placement for public health reasons. This creates a “nexus” between the law and the people potentially affected by it, making the effects of the law direct.
Further, Roggensack wrote, the majority of the Supreme Court and the Court of Appeals misunderstood and mischaracterized the Wisconsin Realtors Association’s argument.
John Kassner, the attorney for the Wisconsin Realtors Association, said he had not discussed the matter with his client and declined to comment.
The Public Service Commission is “elated” with the ruling, spokesman Nathan Conrad said. Conrad declined to comment on whether the commission expects future challenges to the rule.
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