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

No. 76-289 (Wis. July 1, 1977)

ELR Digest (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 Respondents subsequently moved for dismissal of the action on the grounds that the order was superseded by a subsequent order and that the commission had conducted proceedings that were functionally equivalent to the relief sought by petitioner.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Since the order in question has been superseded, a court decision concerning it would have no practical effect.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 However since gas curtailment orders are a continuing issue before the Commission and are constantly superseded, they will defy review if supersession renders challenges moot.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).

[End of ELR Digest; text of opinion, at p. 9, follows]

Mootness Based on Subsequent Compliance With § 1.12(2)(e)

The circuit court agreed with the respondents' contention that the controversy in this case is moot and should not be decided because the PSC has subsequently complied with the requirements of § 1.11(2)(e) of WEPA. In determining this issue the court is faced with the unusual situation of having to decide whether the PSC has complied with the statute before determining whether the statute is applicable to the proceedings sought to be reviewed by [Wisconsin's Environmental Decade's (WED)] petition.

Even though the issue of applicability remains contested, the question of compliance has been properly raised in the context of mootness. Therefore, an orderly discussion of the issues requires that this question of subsequent compliance be considered first assuming, for this purpose, the statute applies.

The interpretation of § 1.11(2)(e) of WEPA has not been previously considered by the court. The court is not, however, without guidance because the provisions of WEPA were patterned after those of § 102 of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332 (1970). Section 1.11(2)(e) of WEPA is identical to NEPA's § 102(2)(D), 42 U.S.C. § 4332(2)(D) (1970), as amended, § 102(2)(E), 42 U.S.C. § 4332(2)(E) (Supp. V 1975) (hereinafter referred to as § 102(2)(D) of NEPA). Therefore, federal law construing this section of NEPA is persuasive authority. See Wisconsin's Environmental Decade, Inc. v. Public Service Commission, supra at 19.

The requirement of § 1.11(2)(e) of WEPA and its counterpart in NEPA is less well known and has been considered much less often than the environmental impact statement requirement found in § 1.11(2)(C), Stats., and § 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C) (1970). Nevertheless, the federal courts have held that § 102(2)(D) of NEPA imposes an independent and affirmative obligation which must be fulfilled by state agencies regardless of whether under the circumstances an environmental impact statement is required under § 102(2)(C). Trinity Episcopal School Corp. v. Romney, 523 F.2d 88, 93 [5 ELR 20497] (2d Cir. 1975); Hanly v. Kleindienst, 471 F.2d 823, 834-35 [2 ELR 20216] (2d Cir. 1972), cert. denied, 412 U.S. 908 (1973); Environmental Defense Fund, Inc. v. Corps of Engineers, 470 F.2d 289, 296 [2 ELR 20740] (8th Cir. 1972), cert. denied, 412 U.S. 931 (1973). The same is true in the case of WEPA's § 1.11(2)(e).

Section 1.11(2)(e) basically requires the consideration of alternatives to a proposed action involving conflicts concerning uses of available resources. The obligation imposed is greater than the simple taking into account of alternatives by the agency in its decision making. The agency must "study, develop, and describe" alternatives. Thorough agency action is required. See Environmental Defense Fund, Inc. v. Corps of Engineers, 492 F.2d 1123, 1135 [4 ELR 20329] (5th Cir. 1974).

While the agency's consideration of alternatives is to be thorough, it need not be absolutely exhaustive, considering every conceivable alternative. The requirement of § 1.11(2)(e) is subject to a rule of reason. See Sierra Club v. Lynn, 502 F.2d 43, 62 [4 ELR 20844] (5th Cir. 1974), cert. denied, 421 U.S. 994 (1975). The range of alternatives that must be considered need not include those whose effect cannot be reasonably ascertained, whose implementation is deemed remote or speculative, or which are not reasonably related to the purposes of the proposed agency action. See Trout Unlimited v. Morton, 509 F.2d 1276, 1286 [5 ELR 20151] (9th Cir. 1974); Sierra Club v. Lynn. supra.

The purposes of this "study, develop and describe" requirement is to assure that alternatives are adequately explored in the initial decision-making process, to provide an apportunity for those removed from that process to evaluate the alternatives, and to provide evidence that the mandated decision-making process has taken place. See Trout Unlimited v. Mortion, supra at 1285-86; Calvert Cliffs' Coordinating Committee, Inc. v. Atomic Energy Commission, 449 F.2d 1109, 1114 [1 ELR 20346] (D.C. Cir. 1971).

In light of these purposes, the specific provision that the agency "describe" alternatives contemplates, and indeed mandates, that the agency's study and development of alternatives be incorporated in a written statement in adequate detail. In order to assure that the obligation to study and develop alternatives is performed and to provide a record for subsequent reviewers, written performance of the obligation in § 1.11(2)(e) is absolutely critical.

The record does not demonstrate that the PSC has satisfactorily complied with the requirement of § 1.11(2)(e). In its supplementary statement of position, filed with the circuit court, the PSC first asserted that it has met the requirements of the statute. The relevant portion of that statement of position states:

2. That the petition should, however, be dismissed on the merits on the grounds of mootness because:

(1) The order sought to be reviewed has been superseded and no longer has any force or effect.

(2) That the other relief requested, i.e., that the commission study and develop alternatives to the order, have been accomplished at the commission's own motion in proceedings which have taken place since the issuance of the order under review. These proceedings include:

a. Docket number 2-U-7643, which was a general inquiry into the energy requirements of gas and electric consumers in Wisconsin, and future available alternatives to meet those requirements.

b. Docket number 01-GI-3, which was an inquiry to update 2-U-7463 with respect to gas rements and to determine the current status of gas supply and the future outlook for gas supplies to customers in Wisconsin.

c. Docket number 2-U-7912, which was an inquiry into the need for, and means to achieve, gas conservation in Wisconsin. The result of that inquiry was a proposal for gas conservation rules and an order requiring all gas utilities to take certain steps aimed at promoting gas conservation.

d. Docket number 1-AC-4 is a rulemaking proceeding to promulgate the gas conservation rules proposed by the commission as a result of the inquiry in 2-U-7912. The proposed rules have been issued and four days of hearing have been held. This proceeding is still pending.

3. That a copy of the commission order in docket no. 2-U-7912, and the notice of hearing in docket no. 1-AC-4 is attached hereto, and that the court can take judicial notice of such notices and orders.

The PSC order in docket number 2-U-7912 and the notice of hearing in docket number 1-AC-4 certainly evidence that the PSC has considered numerous alternatives in the area of natural gas conservation. These documents, however, aside from the question of adequacy as to the scope of the PSC's consideration, do not satisfy the obligation to place the PSC's study and development of alternatives in written form. These documents do not "describe" alternatives as contemplated by the statute.

We do not ignore the fact that the notice of hearing in docket number 1-AC-4 includes a copy of a proposed rule, Wis. Adm. Code sec. PSC 134.09, which requires numerous measures for gas conservation.This document, which as noted above does show significant consideration of alternatives by the PSC, is simply not in the nature of a written description of alternatives studied and developed by the agency.

The respondents also contend that the fact the PSC has held various proceedings making inquiry into the subject of natural gas conservation evidences compliance with § 1911(2)(e). While such proceedings certainly indicate alternatives have been studied, and even developed, they accomplish nothing in the way of description. The collection of information in the transcripts of various inquires into the particular subject matter does not constitute description of alternatives.

Since it is concluded that the PSC has failed to describe alternatives within the meaning of § 1.11(2)(e), it would serve no purpose to attempt to determine if the PSC's study and development of alternatives was sufficient. It is concluded that the respondents have not shown the PSC has, subsequent to the entry of the order sought to be reviewed, complied with § 1.11(2)(e). Their contention that the case is moot upon that ground, therefore, is without merit.

Merits of the Case

Following the conclusions (1) that the case is not moot because of subsequent compliance by the PSC and (2) that although it is moot because the challenged order was superseded, it should nevertheless be decided, this case is ready for a determination on the merits. Having determined that there was no subsequent compliance with the statute, and there being no contention that compliance had been previously made, the only issue which remains is whether § 1.11(2)(e) applies to the agency action challenged by the petition. This is an issue of law, and, because of the frequency of PSC orders such as that under consideration, it is a recurring one. The circuit court is no better position than this court to decide the issue, and thus remand would serve no useful purpose. As a result, we have decided to consider the question of the applicability of § 1.11(2)(e).

The two respondents, the PSC and the corporation, have adopted differing positions upon appeal in respect to this issue. The PSC concedes that § 1.11(2)(e) is applicable in the instant case. However, the respondent corporation contends that since natural gas is not a natural resource of Wisconsin, its conservation is not subject to WEPA. Section 1.11(2)(e) is not limited in its scope to matters of state resources, but rather specifies that its application is in relation to "available" resources.

The order which is challenged by WED was made pursuant to a proposal for the setting of priorities, based upon the end uses of natural gas, for the curtailment of natural gas service. This falls squarely within the language of § 1.11(2)(e) referring to "any proposal which involves unresolved conflicts concerning alternative uses of available resources." The order challenged by WED, although no longer of any effect, was improperly entered for failure to comply with § 1.11(2)(e).

The WED requests that this case be remanded to the PSC with directions that it comply with § 1.11(2)(e). However, because the order has been superseded, the court can findno reason to perpetuate this proceeding for its review. This court, while agreeing with the circuit court that the case is moot because of the superseding order, has reached the merits and interpreted § 1.11(2)(e) in regard to a proceeding involving the authorization of priority systems for the curtailment of natural gas service. Such proceedings are frequently recurring before the PSC, and, therefore, the court decides the better resolution of this case is to affirm the trial court's judgment and direct the PSC to meet the requirements of § 1.11(2)(e) as stated in the decision in conjunction with future proceedings of this nature.

Judgment affirmed.

The full text of this opinion is available from ELR (14 pp. $1.75, ELR Order No. C-1125).

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]