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

No. 140-284 (Wis. Cir. Ct. June 17, 1975)

ELR Digest

An environmental coalition challenges respondent's refusal to consider the need for an EIS under the Wisconsin Environmental Policy Act (WEPA), Wis. Stats. § 1.11, in connection with a rate increase that it granted to the Wisconsin Electric Power Co. The court has previously upheld petitioner's standing. This case is not mooted by the fact that the respondent has grante 1 further rate increases to the power company since the one under challenge. Like NEPA, 42 U.S.C. §§ 4321 et seq., WEPA at a minimum requires agencies to state reasons for classifying actions as "clearly" having no environmental effects and thus not requiring an EIS. On judicial review, absence of an EIS or impact analysis does not shift the burden from agency to challenger where, as here, the challenger's allegations of the environmental effects of rate increases are nonfrivolous. Petitioner might bear a heavier burden had the Public Service Commission carried out some preliminary environmental assessment. The indirect environmental impact of an agency's actions does not relieve it of the obligation to consider such impact. The fact that experts dispute the price elasticity of electricity is not sufficient to sustain the agency's conclusion that the environmental effects of its rate increase were "purely speculative" and "remote" at best. Like NEPA, WEPA requires reasonable forecasting of future events. Moreover, petitioners alleged substantial present effects, including increased air pollution. Nor do administrative delay and costs justify failure to observe WEPA. The court rejects respondents' additional arguments that the legislature intended WEPA, unlike NEPA, to be limited only to specific, tangible agency actions having direct effects on the environment, and that rate increases of less than 15 percent are not "major actions" under WEPA. The case is remanded for a WEPA investigation and evidentiary hearing on whether or not an EIS was required when the rate increase in question was granted; the increase will remain in effect pending the outcome of such examination.

The full text of this opinion is available from ELR (28 pp. $3.50, ELR Order No. C-1019).

Counsel for Petitioner
Melvin Goldberg
301 E. Johnson St.
Madison WI 53703

Counsel for Respondent
William Torkelson, Chief Counsel
Wisconsin Public Service Commission
Hill Farms State Office Building
Madison WI 53702
(608) 266-1264

Bardwell, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]