The state Supreme Court on Tuesday affirmed the state Public Service Commission in a case involving rules the agency wrote to govern construction of wind farms in the state.
In a 5-2 decision, the court upheld lower court rulings that determined a housing impact report did not need to be prepared before the PSC submitted its wind tower siting rules to the Legislature.
State law requires agencies to prepare reports for any agency rules that “directly or substantially” affect development, construction or cost of housing.
The Wisconsin Realtors Association and Wisconsin Builders Association filed the suit, contending that the report was needed in the case of rules developed by the Public Service Commission governing the siting of wind turbines.
The PSC disagreed, saying studies it reviewed were inconclusive regarding the impact of wind farms on property values.
The state Legislature directed the PSC in 2009 to create a wind siting council to create the rules, which provided setbacks between turbines and homes in order to shield homeowners from shadow flicker and noise created by the turbines.
The Realtors association said a report was required because of the potential for wind farms to affect property values. But the Supreme Court agreed with a lower court finding that reports are needed only when a rule is expected to “directly or substantially” affect housing.
In addition, the court noted that the PSC and Legislature engaged in extensive give-and-take before the rules were finalized. After Republicans took control of the Legislature in the 2010 elections, the lawmakers had suspended the rules and asked the PSC to rework them, but ultimately allowed the rules to take effect.
If the court sided with the Realtors group, Justice Shirley Abrahamson wrote, “we would be usurping the legislative function by striking down rules that survived the legislature’s scrutiny.”
But Chief Justice Patience Roggensack, joined by Justice Annette Ziegler, disagreed, saying the impact of wind turbines on nearby homes “directly” affected housing.
The state has “the task of assessing whether proposed rules are adequate to protect the housing of people who reside near wind turbines. The legislature did not give that task to persons whose health and property values are impacted by the proposed rule. That was a burden for government to shoulder, which the court of appeals and the majority opinion have mistakenly placed on those Wisconsin residents who live near wind turbines,” Roggensack wrote.
The decision comes at a time when no wind farms are under construction in the state, in part because of how contested the projects are and in part because Wisconsin utilities have no mandate to add more wind power to their power supply mix.
As of 2013, Wisconsin utilities already were in compliance with a state law that requires utilities to supply 10% of the state’s electricity from renewable power sources by 2015.
One wind farm, the Highland Wind Farm in the Town of Forest, has been approved by state regulators in recent years. Opponents sued last year in St. Croix County Court to block construction of the project.
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