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Wisconsin's Envtl. Decade v. Public Serv. Comm'n

Citation: 7 ELR 20578
No. No. 76-289, 255 N.W.2d 917/79 Wis. 2d 161, (Wis., 07/01/1977) aff'd as modified

(with excerpts from opinion)

The Wisconsin Supreme Court directs the Public Service Commission (PSC) to "study, develop, and describe" alternatives to proposed gas curtailment priority schemes as required by the Wisconsin Environmental Policy Act (WEPA). In 1973, the Commission authorized the Wisconsin Public Service Corporation to establish a priority scheme for curtailing natural gas services during shortages. Petitioner intervened in the hearings on this decision, seeking to require the Commission to comply with WEPA, which request was denied. The court, in an earlier decision on appeal from this refusal, held that petitioner had standing to seek judicial review of the Commission's decision. Wisconsin's Environmental Decade, Inc. v. Public Service Comm'n, 69 Wis. 2d 1, 230 N.W.2d 243 (1975). Respondents subsequently moved for dismissal of the action on the grounds that the order was superseded by a subsequent order and that the commission had conducted proceedings that were functionally equivalent to the relief sought by petitioner. The trial court granted the motion and denied petitioner's motion for summary judgment.

In the first issue on appeal, the court declares that summary judgment is not authorized in judicial review proceedings under the Administrative Procedure Act, Wis. Stat. ch. 227. Review under ch. 227 is on the administrative record and does not involve a determination of triable issues of fact. Universal Org. of Municipal Foremen, Supervisors and Administrative Personnel v. Wisconsin Employment Relations Comm'n, 42 Wis. 2d 315, 166 N.W.2d 239 (1969). Nevertheless, respondents' motion to dismiss for mootness is proper, even though it may raise matters outside the record, because it does not go to the merits of the case. Duel v. State Farm Mutual Automobile Ins. Co., 243 Wis. 172, 9 N.W.2d 593 (1943).

Since the order in question has been superseded, a court decision concerning it would have no practical effect. City of Racine v. J.T. Enterprises of America, Inc., 64 Wis. 2d 691, 221 N.W.2d 869 (1974). However since gas curtailment orders are a continuing issue before the Commission and are constantly superseded, they will defy review if supersession renders challenges moot. Joint School District v. Wisconsin Employment Relations Bd., 37 Wis. 2d 483, 155 N.W.2d 78 (1967).

Counsel for Petitioner
Kathleen M. Falk
Wisconsin's Environmental Decade, Inc.
114 E. Mifflin St., Madison WI 53703
(608) 251-7020

Counsel for Respondents
Stephen Schur
Public Service Commission
4802 Sheboygan Ave., Room 453, Madison WI 53702
(608) 266-1241

Allen W. Williams, Jr.
Foley & Lardner
777 E. Wisconsin Ave., Milwaukee WI 53202
(414) 271-2400

Hanley, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]