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St. Croix County judge sends Highland permit back to PSC for additional hearings

By LeAnn R. Ralph

HUDSON  —  A St. Croix County judge’s decision remands parts of the Public Service Commission of Wisconsin’s decision for granting the Highland Wind Farm permit in the Town of Forest back to the PSC for further consideration.

Judge Edward Vlack, after deliberating on the issue since a hearing last October, issued his 118-page written decision August 27.

Judge Vlack’s decision sets aside portions of the PSC’s decision to grant a permit.

The Forest Town Board, with the encouragement of a citizens’ group opposed to the project called the Forest Voice, asked in January of 2014 for a judicial review of the PSC’s issuing of a Certificate of Public Convenience and Necessity for Highland Wind Farm to build up to 44 wind turbines in the Town of Forest.

Judge Vlack’s decision focused on several areas of the PSC’s decision to issue a permit, including whether the PSC had properly adopted a 95 percent compliance standard; whether the 95 percent standard is enforceable; how certain self-identified residences asking for a lower noise limit were selected; whether the PSC’s decision to accept the curtailment plan was valid; and whether PSC gave proper consideration to the Town of Forest’s comprehensive land use plan.

Highland Wind Farm’s application was the first wind turbine permit in the state to be considered under the new wind siting rules of Wisconsin Administrative Code Chapter PSC 128.

Highland Wind Farm’s proposed project also is the only current proposed wind turbine project under development in the state.

After Governor Scott Walker took office, several wind turbine developers stopped their projects because of policies that were not friendly to building wind farms for alternative energy sources.

PSC 128 was developed so that uniform rules for wind turbines exist rather than a patchwork of ordinances from a variety of municipalities.

According to PSC 128, local ordinances cannot be more restrictive than state regulations.

Emerging Energies/Highland Wind Farm had at first attempted to work with the Forest Town Board on obtaining permits.

Following a recall election in 2011, the new town board rescinded all of the permits issued by the previous town board.

Highland Wind Farm then increased the size of the project so that it came under the jurisdiction of the PSC rather than the jurisdiction of the Forest Town Board.

95 percent 

For the first time in Wisconsin, PSC 128 set maximum noise limits for wind farms, with a nighttime noise limit of 45 decibels and a daytime limit of 50 decibels.

Along with audible noise, wind turbines create inaudible noise, known as “infrasound” — which can also be created by natural environmental phenomena, such as wind, thunder and lightning, or other activities, such as electrical transmission lines or blasting with explosives.

Experts for the Town of Forest testified before the PSC that the inaudible sound created by wind turbines can cause health problems or make certain health problems worse.

A total of 17 residences in the Town of Forest were self-reported as being occupied by people with health conditions that could be made worse by noise.

The PSC initially denied a permit for Highland in March of 2013 because the wind turbine project would not meet the noise limits identified in PSC 128.

In April of 2013, Highland requested that the PSC reopen the proceedings so that Highland could present a curtailment plan that would show the wind turbines could meet the noise limits.

Highland’s curtailment plan included a proposal to limit nighttime sound to 40 decibels at six residences identified as having potentially sensitive individuals.

In May of 2013, the PSC approved reopening the proceeding, and in October of 2013, the PSC granted a permit to Highland.

The PSC reopened the proceedings on Highland’s permit for the limited purpose of determining if the project could comply with the noise standards in PSC 128.

In the final decision on the permit, the PSC indicated that Highland would have to comply with the noise limits 95 percent of the time and relied on Highland’s proposed curtailment and monitoring plans to approve the project.

Proper notice

Attorneys for the Forest Town Board argued that the PSC adopted the 95 percent standard without giving proper notice the PSC was considering a new standard, that the PSC adopted the standard without substantial evidence, that the 95 percent compliance standard is too vague and unenforceable, and that the PSC did not hold a full hearing on the selection of the six residences.

According to Judge Vlack’s decision, the PSC’s published hearing notice did not give any indication that a percentage compliance standard would be considered.

Judge Vlack’s decision set aside the PSC’s adoption of a 95 percent compliance standard and remanded the issue back to the PSC for the purpose of providing a proper notice and a hearing on the issue of adopting a percentage compliance standard.

Under state law, the PSC has the ability to set conditions for a particular project, and in this case, Judge Vlack concluded “the Commission’s adoption of a 95 percent compliance standard, as it applied to this particular case, is clearly not rulemaking. And though this case is being remanded back to the Commission as the 95 percent compliance standard applies to this case, that does not necessarily affect the Commission’s decision ‘to modify the Commission’s Noise Protocol so that this protocol is consistent with the Commission’s findings in this proceeding.’”

Farther on in the decision, Judge Vlack writes, “Thus, as noted, there can be an individual consideration in any case and specific requirements can be made for that individual case.”

It would appear that the PSC has the authority to set a standard as a condition for Highland Wind Farm, but the PSC does not have the authority to adopt a standard in general for all wind farms without going through the proper procedure for adopting the standard.

Not vague

Regarding whether the 95 percent standard is vague and unenforceable, Judge Vlack wrote, “This Court concludes that a percentage compliance standard is not, in and of itself, vague, ambiguous or impossible to enforce.”

Regarding the curtailment plan Highland submitted to the PSC to make sure the wind turbines stay within the noise limits set by PSC 128, Judge Vlack wrote, “This Court concludes that while there are differences of opinion on this issue, there is substantial evidence in the record for the Commission to conclude that Highland’s curtailment plan ensured compliance … the Town may not like the conclusion that was reached, but the conclusion the Commission reached was clearly supported by substantial evidence in the record.”

Sensitive residences

Highland Wind Farm voluntarily agreed to a lower noise limit of 40 decibels for six residents that were self-identified as having health conditions that could be affected by noise.

The 40 decibels compares to the 45 decibel nighttime noise limit required by PSC 128.

In the PSC’s final decision to grant a permit to Highland Wind Farm, the decision states, “out of an abundance of caution, (the PSC) accepts Highland’s voluntary agreement to obligate itself to a lower limit of 40 (decibels) for the six identified residences, but the Commission is unwilling to require Highland to extend this accommodation to others — especially where, as here, the sound modeling submitted in this reopened proceeding demonstrates that the estimated levels are at or below 40 (decibels) for the commenters’ residences identified in the reopened proceeding. As a result, the Commission finds that it is not necessary to extend the 40 (decibel) noise limit to the three additional affected residences identified in the reopened proceeding.”

The Forest Town Board argues that the six sensitive residences were identified by PSC staff and the PSC accepted Highland’s proposal to accommodate these six sensitive residences without a full hearing.

According to the PSC’s brief, the PSC is not “convinced that a causal link between audible or inaudible noise at a wind generating facilities and human health risks has been established to a reasonable degree of scientific certainty.”

Highland argues that the Forest Town Board “has not even attempted to demonstrate that Town residents who self-report a host of various ailments and maladies constitute a suspect class, or that Town residents have a fundamental right to a noise limit that the Commission has concluded is unnecessary for public health or safety reasons.”

The Forest Town Board argued that the township was not looking for equal treatment in “outcome” but for equal treatment in “process.”

Ample opportunity

Judge Vlack writes in his decision, “this Court concludes that the parties were given ample opportunity to present evidence of residents who may have been sensitive to noise and/or shadow flicker.”

Judge Vlack goes on to write, “There may be very good reasons already in the record for designating these six residences, but how can this Court begin to conceive of a rational basis, when this Court is not even fully aware of what the circumstances are for the six residents that were chosen.”

The Forest Town Board issued a news release September 9 that states, “Judge Vlack wrote  that ‘the Commission seems to have forgotten the PUBLIC part of  its name, because it simply argues  that because  it was not  under any obligation to grant any accommodation, then whether the evidence in the record is substantial or not is insignificant.’”

That particular part of Judge Vlack’s decision about “the PUBLIC part of its name” was referring to the selection of the six self-reported sensitive residences.

Judge Vlack writes in his decision that this section of the permit is remanded back to the PSC not to gather additional evidence on other residents who may be sensitive, but for the purpose of allowing the PSC to state why, if it can, based on the record that already exists, the six residences were selected and the other 11 were not.

If, based on the record that already exists, the PSC is not able to state why the six were selected and the other 11 were not, then the matter is reopened solely for the purpose of allowing the parties to state why the other already identified residences should be considered.

“The Commission can then decide if others, already identified, should be included with the six original residences,” Judge Vlack wrote.

None necessary

Judge Vlack also wrote in his decision, “this Court is fully aware that no accommodation needed to be ordered by the Commission for any of the 17 identified residences.”

The reopening of the proceeding for this section, then, is not to allow the Forest Town Board or residents in the Town of Forest to say that any other residences should be considered sensitive beyond those already identified.

The news release approved by the Forest Town Board states, “Although the Town of Forest will continue to push for a thorough review from the PSC, the town hopes that the PSC will take a cautious step back and look at the situation of Brown County’s Shirley wind farm very carefully. It would be a mistake for the PSC to keep pushing this project forward while creditable information exists that a smaller, nearby project has failed to gain (its) community’s support for significant, documented health reasons. Health issues at the Shirley wind farm cannot be overlooked by the PSC at this time and need to be included in the rehearing conversation.”

Regarding the Shirley wind study, late in 2012, the Commission approved a joint request from Clean Wisconsin and Forest Voice for intervenor compensation to fund the measurement of infrasound and low frequency noise at an existing wind energy facility in Brown County known as the Shirley Wind Farm.

The Town of Forest states that this study recommends that, to protect public health and safety from the effects of audible and inaudible noise, the Commission should adopt a 40 decibel noise limit for all residences.

Judge Vlack’s decision does not order the PSC to consider setting a different noise limit for PSC 128.

Comprehensive plan

The Forest Town Board formally adopted a Smart Growth Comprehensive Land Use Plan in December of 2009 after going through the proper procedure outlined in state law of surveying township residents, holding public meetings and holding a public hearing on the proposed plan.

The West Central Wisconsin Regional Planning Commission assisted the Town of Forest in developing the comprehensive plan.

Municipalities that wanted to continue to be able to make land use decisions were required to have a comprehensive plan in place by January of 2010.

Forest’s land use plan supported renewable energy projects, and on the surveys sent out to township residents, 75 percent of those who responded agreed or strongly agreed that wind energy should be used in an economic development strategy, and 70 percent agreed or strongly agreed that solar energy should be used in an economic development strategy.

The comprehensive plan also included objectives to support renewable energy, including Objective 5, “to adopt renewable energy policies and practices as part of a strategy to meet future energy needs,” which included working with the Wisconsin Office of Energy Independence in becoming a Wisconsin Energy Independent Community.”

After the Forest Town Board approved and adopted the township’s land use plan in December of 2009 following the procedures outlined in state law, residents who were opposed to the Emerging Energies proposal to construct a wind farm in Forest forced a recall election in early 2011 and replaced the entire town board.

In 2013, the “new” town board attempted to remove references to supporting wind energy from the comprehensive plan, without following the procedure outlined by state law, and presented the “new” comprehensive plan to the PSC as evidence that residents in the township did not support the Highland Wind Farm proposal.

Declining population

The Forest Town Board argued that the Town of Forest’s character as “a quiet residential community has generated considerable population growth.”

The township’s comprehensive plan, however, stated that the population in Forest declined from 1960 to 2000, making it the town with “the fastest decreasing population in St. Croix County during that period.”

The estimated population in 2007 was 640, which was 50 more than in 2000, but still less than the population in 1960.

Residential use

The Forest Town Board also stated that over the last 20 years, residential land use in Forest “has grown at a staggering rate of 3.5 percent per year,” and cites the comprehensive plan.

The comprehensive plan, however, states “increases in residential land have been significant in percentage, but with an increase of 69 parcels in the last 20 years, this is an increase of only 3.5 a year. Residential land accounts for under two percent of the total assessed land in the Town.”

Judge Vlack wrote in his decision, referring to the comprehensive plan adopted in 2009, “while this Court appreciates that the Town, as a party to this action, opposes the project, this Court cannot read into the Town’s Comprehensive Plan something that is not there. If the intent was to limit the renewable wind energy systems in any way, the Comprehensive Plan could have easily said that, but it doesn’t.”

The PSC’s final decision granting a permit states, “A wind project of this nature is typically placed in rural areas and is consistent with rural features and agricultural uses. In prior cases, the Commission has found that development of wind generation facilities in rural, agricultural projects did not unreasonably interfere with the land use and development plans at issue in those proceedings.”

Another issue regarding the township’s comprehensive plan is that the state legislature only allows a township to use a comprehensive plan that was in place prior to June 2, 2009, to deny a wind siting application “if the proposed site  … is in an area primarily designated for future residential and commercial development” on the then-existing land use map.

The PSC’s regulations also prevent a township from “establish[ing] long-term land use planning requirements or practices that preclude the construction of a particular type, or any type, of wind turbine or energy system” unless the relevant land use map was in place prior to June 2009.

The Town of Forest’s comprehensive plan was adopted almost six months after the deadline set by the state legislature and adopted by the PSC.