Wisconsin's Environmental Decade, Inc. v. Public Service Commission of Wisconsin

• Decision Date: 16 June 1975
• Docket Number: No. 490,490
• Parties: , 6 Envtl. L. Rep. 20,192 WISCONSIN'S ENVIRONMENTAL DECADE, INC., Appellant, v. PUBLIC SERVICE COMMISSION OF WISCONSIN et al., Respondents.
• Court: Wisconsin Supreme Court

Page 243

230 N.W.2d 243

69 Wis.2d 1, 6 Envtl. L. Rep. 20,192

WISCONSIN'S ENVIRONMENTAL DECADE, INC., Appellant, v. PUBLIC SERVICE COMMISSION OF WISCONSIN et al., Respondents.

No. 490

Supreme Court of Wisconsin.

June 16, 1975.

Melvin L. Goldberg, Madison, for appellant.

Robert W. Warren, Atty. Gen. by William E. Torkelson, Chief Counsel, Madison, for Public Service Comm. of Wisconsin.

Foley & Lardner, Milwaukee, for Wisconsin Public Service Corp.

WILKIE, Chief Justice.

The single narrow issue before us on this appeal is whether the petition for review or the proposed amendment thereto in the circuit court action commenced by the appellant-petitioner, Wisconsin Environmental Decade, Inc. (WED), state facts that show it is aggrieved and directly affected by the decision of the respondent, Public Service Commission of Wisconsin (PSC), sought to be reviewed under secs. 227.15 and 227.16(1), Stats. The trial court ruled against the petitioner and we reverse, remanding the case for further proceedings, and holding that, if the facts are true, then the petitioner has standing to commence the action which it brought in circuit court.

These proceedings grow our of a June 29, 1971, order of the PSC placing limitations on the sale of natural gas by the intervening respondent, Wisconsin Public Service Corporation. The PSC directed the Corporation to place in effect limitations on the sale of natural gas as follows:

'Limit the sale of gas to new residential, commercial or industrial customers or increased loads to existing residential, commercial or industrial customers to no more than 2,500 therms per day, 50,000 therms per month, or 250,000 therms per year.'

Two years later, on May 14, 1973, the Corporation made application to the Commission for an order authorizing the Corporation to establish a priority system placing restrictions on the end use of natural gas in accordance with the requirements adopted by the United States Federal Power Commission. The proposed priority system, eventually adopted by the PSC in an order of August 20, 1973, provided:

'To conserve the company's natural gas supply for the highest priority of firm use, the company may limit or deny the sale of gas to new customers and to existing customers requesting additional gas when the company concludes said supply is not adequate to provide service to all customers in any one of the following priority groups:

'First Priority Group:

'The use of natural gas for any purpose where the total use does not exceed 150,000 therms per year.

'Second Priority Group:

'The use of natural gas for any purpose except boiler or prime mover fuel up to 500,000 therms per year.

'Third Priority Group:

'The use of natural gas for any purpose except boiler or prime mover fuel in excess of 500,000 therms per year but less than 1,500,000 therms per year.

'Fourth Priority Group:

'The use of natural gas by any customer for boiler or prime mover fuel in excess of 150,000 therms per year and for any purpose in excess of 1,500,000 therms per year.'

WED intervened in the hearings on the proposed order and requested that the Commission make a study of appropriate alternatives to the proposed action pursuant to the requirements of sec. 1.11(2)(e), Stats., ¹ and further requested that the following conditions be incorporated into the first proposed priority group:

'After January 1, 1974, no new Rg--1 or Rg--2 service shall be extended unless prospective customers first submit a verified statement from an architect or engineer licensed under Chapter 443, Wis.Stats., certifying that the dwelling to receive service complies with the 'Minimum Thermal Insulation Requirement for New Single Family Residences' shown in sheet No. _ _.'

Both requests of the WED were denied by the Commission. WED filed a petition for rehearing which was also denied by the Commission by order dated September 14, 1973. Then in Dane County Circuit Court WED filed a petition for judicial review under ch. 227, Stats., of both the August 20th and the September 14th orders of the Commission.

The petition alleged in substance that WED was a nonprofit, nonstock corporation primarily engaged in public interest activities intended to maintain and improve the quality of the human and natural environment. The petition further alleged that WED had members who were residential users of natural gas in the area to be affected by the activities of the corporation; the name and address of three such members were listed. The petition then continued:

'6. That, in the natural gas restriction proceedings before respondent which culminated in the orders sought to be reviewed herein, petitioner asserted its interest and the interest of its members, which it continues to assert in this review proceeding, to-wit petitioner's interest and the interest of all petitioner's members and their descendents in the careful husbandry of the rapidly dwindling energy resources of our state, nation and planet, an interest threatened by an authorization to restrict the use of natural gas which fails to curb wanton and wasteful use of the limited supplies remaining.

'. . .

'8. That petitioner and petitioner's members, whose interests petitioner asserts herein, are directly affected and aggrieved by the orders sought to be reviewed herein because:

'a. Said orders harm the environment by prematurely devouring the last, dwindling reserves of natural gas, and by encouraging environmentally destructive practices such as strip mining to artificially and temporarily augment the supply of natural gas via coal gasification.

'b. Said orders unduly discriminate against their responsible use of natural gas in the future by allowing present profligate users of natural gas to prematurely exhaust the finite supply remaining.'

Both the PSC and the Corporation moved the circuit court to dismiss the petition on the ground that it failed to state facts sufficient to meet the requirements of secs. 227.15 and 227.16(1), Stats., and that, therefore, WED was not a proper party to bring the action under those sections.

Prior to the hearing on the motions to dismiss, WED filed a proposed amendment to the petition which contained two additional allegations as to injury, as follows:

'6A. That petitioner, on its own behalf, and on behalf of its members, has interests in a healthful environment, an interest threatened by this order which induces lower priority natural gas customers to switch to more environmentally damaging alternative sources of energy.'

and

'8. c. Said orders have the effect of inducing low priority natural gas customers to rely more heavily on more environmentally damaging alternative sources of energy.'

Judgment dismissing the petition was entered on January 11, 1974, and the reasons for the dismissal were stated to be:

'. . . that petitioner is not a person aggrieved whose legal rights, duties or privileges are directly affected by the orders of respondent Public Service Commission sought to be reviewed herein within the meaning of section 227.15, Wis.Stats., and that it is not a person aggrieved or directly affected by said orders within the meaning of section 227.16(1), Wis.Stats. . . ..'

The threshold question raised on this appeal concerns the function and effect of a motion to dismiss in a ch. 227, Stats., review proceeding. Sec. 227.19(3) recognizes the motion to dismiss as a pleading that challenges whether a petition on its face states 'facts fufficient to show that the petitioner named therein is aggrieved and directly affected by the decision sought to be reviewed.' In numerous cases this court has treated the motion to dismiss as equivalent to a general demurrer to a petition asserted to contain insufficient allegations to comply with the standing requirements of both secs. 227.15 and 227.16 ² We hold, therefore, that the motions to dismiss filed by the PSC and the Corporation in the instant case raise the question whether the petition alleges facts sufficient to show that WED has standing. In evaluating a ch. 227 motion to dismiss, the trial court as well as this court on appeal, should apply the normal rules relating to demurrers, including but not limited to the rules that the allegations of the petition are assumed to be true; that the allegations are entitled to a liberal construction in favor of the petitioner; and that this court is not concerned with the ability of the petitioner to prove the facts alleged at trial. ³

Standing to seek review of an administrative decision of the PSC is governed by both secs. 227.15 and 227.16(1), Stats. ⁴ Sec. 227.15 provides in pertinent part:

'Judicial review; orders reviewable. Administrative decisions, which directly affect the legal rights, duties or privileges of any person . . . shall be subject to judicial review as provided in this chapter . . ..'

Sec. 227.16(1) provides in pertinent part:

'Parties and proceedings for review. (1) Except as otherwise specifically provided by law, any person aggrieved by a decision specified in s. 227.15 and directly affected thereby shall be entitled to judicial review thereof as provided in this chapter. . . .'

We have held that a person must be 'aggrieved' and 'directly affected' by the agency decision, and also that the decision must 'directly affect the legal rights, duties or privileges' of the person seeking review. ⁵ Secs. 227.15 and 227.16 do not, however, create separate and independent criteria. It is clear that both sections essentially require the petitioner to show a direct effect on his legally protected interests. Thus, in Greenfield v. Joint County School Comm. ⁶ a person aggrieved is defined as 'one having an interest recognized by law in the subject matter which is injuriously affected by the judgment.'

The Wisconsin rule of standing envisions a two-step analysis conceptually similar to the analysis required by the federal rule. The first step under the Wisconsin rule is to ascertain whether the decision of the...