The Wisconsin Supreme Court has agreed to consider whether a former regulator’s relationships with utility executives created a conflict of interest that could scuttle a controversial power line to be built across southwest Wisconsin.
In a split decision Tuesday, the high court agreed to hear Mike Huebsch’s challenge to subpoenas from power line opponents who sought to question him and inspect his phone for encrypted communications.
The Driftless Area Land Conservancy and Wisconsin Wildlife Federation – along with Dane County and other local governments – sued the Wisconsin Public Service Commission in an effort to block construction of the Cardinal-Hickory Creek line between Dubuque, Iowa, and Middleton.
The groups claim that Huebsch’s relationships with executives of the utilities seeking a permit for the $492 million project created an appearance of bias, which the judge overseeing the case has said would be enough to invalidate the permit.
Huebsch, a former state legislator and member of Gov. Scott Walker’s cabinet, asked the high court to intervene, arguing Dane County Circuit Judge Jacob Frost adopted an impossible and unlawful standard for public officials that could “have breathtaking implications for adjudicators of all kind(s).”
The court agreed, though in an unusual move the three liberal justices dissented.
Writing for the minority, Justice Jill Karofsky called the case “a procedural anomaly” in two regards: The case has yet to go to trial and was brought by a witness who is not a party to the case.
“I am aware of no precedent allowing witnesses to seek such expansive review,” Karofsky wrote.
But the conservative majority cited examples of other cases where the court has stepped in before lower courts have decided.
“This case is highly unusual, and worthy of this court’s attention,” Justice Rebecca Bradley wrote. “This case will, for example, resolve novel legal questions that will have a statewide impact.”
Huebsch’s attorney, Ryan Walsh, called the decision “excellent news” and said the order indicates his client is likely to win.
The court also granted Huebsch’s request to temporarily block a subpoena requiring him to testify in court, though the lead attorney for the plaintiffs said he expects to proceed with a two-day hearing next week based on evidence already gathered.
“We believe … we can show a due process violation even if we’re not allowed to call Commissioner Huebsch as a witness,” said Howard Learner. “The court could have stayed the trial. The court didn’t do that.”
Unanimously approved in 2019, the 102-mile line is a joint venture of American Transmission Company, ITC Midwest and Dairyland Power Cooperative.
The utilities, who have spent at least $126.4 million so far on the project, say it is “critical to ensuring Wisconsin can transition to a cleaner, more reliable, and more affordable energy future” by enabling the import of energy from wind turbines in Iowa.
The plaintiffs, who say the line is unneeded and would be a blight on the environmentally sensitive Driftless region, initially challenged the permit on the grounds that Huebsch served on an advisory board to the regional grid operator, which had supported the line before the commission, and that PSC Chair Rebecca Valcq previously worked as an attorney for the majority owner of ATC.
Frost dismissed claims against Valcq but said in May that he would revoke the permit if the plaintiffs could show even one commissioner had a legitimate conflict of interest.
The plaintiffs later discovered that Huebsch applied to be CEO of Dairyland after leaving the commission in February 2020, though he did not get the job.
In June, the project owners revealed that Huebsch had communicated with utility executives using the encrypted messaging app Signal and asked the PSC to revoke and reissue the permit. The PSC has not acted on that request.
Huebsch has testified he used Signal to send messages to longtime friends in the industry but never to discuss official commission business. He argues that such relationships do not constitute a conflict of interest.