Wis. Realtors Ass'n v. Pub. Serv. Comm'n of Wis.

• Decision Date: 30 June 2015
• Docket Number: No. 2013AP1407.,2013AP1407.
• Citation: 363 Wis.2d 430,867 N.W.2d 364
• Parties: WISCONSIN REALTORS ASSOCIATION, Wisconsin Builders Association, Wisconsin Towns Association, John E. Morehouse, Sr. and Ervin E. Selk, Plaintiffs–Appellants–Petitioners, v. PUBLIC SERVICE COMMISSION OF WISCONSIN, Defendant–Respondent.
• Court: Wisconsin Supreme Court

363 Wis.2d 430

867 N.W.2d 364

WISCONSIN REALTORS ASSOCIATION, Wisconsin Builders Association, Wisconsin Towns Association, John E. Morehouse, Sr. and Ervin E. Selk, Plaintiffs–Appellants–Petitioners

v.PUBLIC SERVICE COMMISSION OF WISCONSIN, Defendant–Respondent.

No. 2013AP1407.

Supreme Court of Wisconsin.

Argued Feb. 5, 2015.

Decided June 30, 2015.

For the plaintiffs-appellants-petitioners, there were briefs by John A. Kassner and von Briesen & Roper, S.C., Madison and oral argument by John Kassner.

For the defendant-respondent, there was a brief by Cynthia E. Smith, Justin W. Chasco, and Public Service Commission of Wisconsin, and oral argument by Cynthia E. Smith.

Opinion

SHIRLEY S. ABRAHAMSON, J.

¶ 1 This is a review of an unpublished decision of the court of appeals affirming a summary judgment of the Circuit Court for Brown County, William M. Atkinson, Judge, in favor of the defendant (the Public Service Commission of Wisconsin) and against the plaintiffs (the Wisconsin Realtors Association, the Wisconsin Builders Association, the Wisconsin Towns Association, John E. Morehouse, Sr., and Ervin E. Selk).¹ We refer to the plaintiffs collectively as the Wisconsin Realtors Association, or WRA.

¶ 2 The issue presented is whether Wis. Admin. Code ch. PSC 128,² titled “Wind Energy Systems” and sometimes referred to herein as “the wind energy rules” or “the rules,” is invalid because it was promulgated by the Public Service Commission “without compliance with statutory rule-making procedures.”³

¶ 3 WRA asserts that in promulgating the wind energy rules, the Public Service Commission failed to comply with the procedural requirement set forth at Wis. Stat. § 227.115(2). Under Wis. Stat. § 227.115(2), if any rule proposed by an agency (including the Public Service Commission) “directly or substantially affects the development, construction, cost, or availability of housing in this state,” then the Department of Commerce shall prepare a report, referred to by the parties and herein as a “housing impact report,” before that rule is submitted to the Legislative Council staff.⁴ WRA asserts that a housing impact report was required for Wis. Admin. Code ch. PSC 128 as a matter of law.

¶ 4 Thus, the more specific issue presented is whether under Wis. Stat. § 227.115(2), the Department of Commerce was required as a matter of law to prepare a housing impact report before Wis. Admin. Code ch. PSC 128 was submitted to the Legislative Council staff for review. To decide this issue, the court must determine based only on the texts of the governing statutes and the wind energy rules themselves whether the rules directly or substantially affect the development, construction, cost, or availability of housing in this state.

¶ 5 The circuit court granted summary judgment to the Public Service Commission on its motion, concluding that Wis. Admin. Code ch. PSC 128 does not directly or substantially affect the development, construction, cost, or availability of housing in this state and thus that a housing impact report was not required.

¶ 6 The court of appeals affirmed, stating: “We must presume PSC 128 was duly promulgated, and [WRA] has not cited any evidence to rebut that presumption.”⁵

¶ 7 We conclude that WRA has not demonstrated that a housing impact report was required as a matter of law for Wis. Admin. Code ch. PSC 128. The texts of the governing statutes and the wind energy rules do not demonstrate as a matter of law that the rules directly or substantially affect the development, construction, cost, or availability of housing in this state.

¶ 8 We further conclude that invalidating Wis. Admin. Code ch. PSC 128 under the circumstances presented in the instant case would infringe on the role of the legislature, which we decline to do.

¶ 9 Accordingly, WRA's challenge to Wis. Admin. Code ch. PSC 128 fails.

¶ 10 Our analysis will proceed as follows. First, we set forth the relevant facts and procedural history. We then recite the applicable standard of review. Next, we examine the statutory framework underlying this dispute. Finally, we determine that WRA has not demonstrated that a housing impact report was required as a matter of law for Wis. Admin. Code ch. PSC 128.

I

¶ 11 The relevant facts are not in dispute.

¶ 12 The Public Service Commission is an independent regulatory agency with “jurisdiction to supervise and regulate every public utility in this state....”⁶

¶ 13 On September 30, 2009, the legislature enacted Wis. Stat. § 196.378(4g)(b), which provides that “the [Public Service Commission] shall, with the advice of the wind siting council, promulgate rules that specify the restrictions a political subdivision may impose on the installation or use of a wind energy system....”⁷

¶ 14 The statute further provides that the rules to be promulgated by the Public Service Commission shall include setback requirements for wind turbines and may include requirements for other aspects of wind energy systems, such as their visual appearance, lighting, and electrical connections to the power grid; the shadow flicker they produce; the noise they produce and the proper means of measuring that noise; and their interference with radio, telephone, or television signals. The statute also states that the setbacks established by the Public Service Commission shall “provide reasonable protection from any health effects....”⁸

¶ 15 Wisconsin Stat. § 196.378(4g)(b) provides in full as follows:

The commission shall, with the advice of the wind siting council, promulgate rules that specify the restrictions a political subdivision may impose on the installation or use of a wind energy system consistent with the conditions specified in s. 66.0401(1m)(a) to (c). The subject matter of these rules shall include setback requirements that provide reasonable protection from any health effects, including health effects from noise and shadow flicker, associated with wind energy systems. The subject matter of these rules shall also include decommissioning and may include visual appearance, lighting, electrical connections to the power grid, setback distances, maximum audible sound levels, shadow flicker, proper means of measuring noise, interference with radio, telephone, or television signals, or other matters. A political subdivision may not place a restriction on the installation or use of a wind energy system that is more restrictive than these rules.⁹

¶ 16 The enactment of Wis. Stat. § 196.378(4g)(b) began a three-year process that culminated in the promulgation of Wis. Admin. Code ch. PSC 128.

¶ 17 Shortly after Wis. Stat. § 196.378(4g)(b) was enacted, the Public Service Commission appointed the members of the Wind Siting Council. The Wind Siting Council was created by the legislature to provide research and advice to the Public Service Commission on the regulation of wind energy systems.¹⁰

¶ 18 Between March 29, 2010, and August 4, 2010, the Wind Siting Council met 20 times to discuss the restrictions a political subdivision should be permitted to impose on wind energy systems. At three of these meetings, the Wind Siting Council spent all or a substantial portion of its time considering the impact of wind energy systems on property values.

¶ 19 The Wind Siting Council ultimately concluded that there is no causal relationship between the siting of wind turbines and a measurable change in property values.

The Wind Siting Council set forth this conclusion (along with various other findings and recommendations) in its final recommendations to the Public Service Commission dated August 9, 2010.

¶ 20 In developing the wind energy rules, the Public Service Commission considered the Wind Siting Council's findings and recommendations in conjunction with information gathered from various other sources, including:

• Wind-siting regulations and guidelines from a variety of states, including those immediately adjacent to Wisconsin;

• A wide variety of local ordinances and community agreements from throughout the state;

• Various white papers and best practices;

• Papers from a conference on wind-siting effects;

• Commission experience and precedent in wind-siting decisions;

• Environmental impact statements prepared for wind energy projects in Wisconsin;

• Technical and scientific research and writing on wind siting;

• Presentations and lectures given on wind-siting issues;

• Research by non-profit organizations and educational institutions on wind siting;

• Expert testimony on wind-siting issues;

• Other states' investigations and precedent on wind siting;

• Advice from consulting professionals with public health experience in Wisconsin;• Court cases on wind-siting issues;

• Joint development agreements between wind energy developers and political subdivisions;

• Lease agreements for wind energy developments;

• Complaint resolution documentation from past complaints about wind energy projects;

• The Public Service Commission's noise measurement protocols, stray voltage protocols, and application filing requirements;

• Federal regulations and Federal Aviation Administration processes, standards, and provisions;

• Other state agencies' processes regarding political subdivision decision-making; and

• Research, writing, and presentations by the federal government and national energy labs on wind-siting issues.

¶ 21 On May 17, 2010, the Public Service Commission submitted the first draft of its proposed wind energy rules to the Legislative Council staff.¹¹ On June 14, 2010, after reviewing the Public Service Commission's proposal, the Legislative Council submitted a report to the Public Service Commission suggesting specific changes to the rules. The Public Service Commission incorporated many of the Legislative Council's suggestions.

¶ 22 The Public Service Commission then held three public hearings around the state on its proposed wind energy rules: one in Fond du Lac on June 28, 2010; one in Tomah on June 29, 2010; and one in Madison on June 30, 2010. Written comments from the public were accepted until...