On Thursday, February 5, 2015, the Wisconsin Supreme Court heard oral arguments on the case Wisconsin Realtors Ass’n v. PSC (2013AP1407).  The Court will decide whether the PSC followed state statute when promulgating the PSC 128, relating to wind turbine siting restrictions.

Background

The Legislature passed Wis. Stat. §196.378(4g)(b) which authorized the PSC to promulgate rules that limited the restrictions political subdivisions may impose on the installation of wind energy systems (wind turbines). Included in this statute was a requirement for the PSC to promulgate rules that create setback requirements (how far a wind turbine must be placed from a residence) that provide reasonable protection from health effects associated with wind energy systems. The PSC promulgated Wis. Admin. Code Ch. PSC 128, which concluded that 1,250 feet as a minimum setback between non-participating residences and wind energy systems.

Wis. Stat. §227.115 requires that an agency promulgating a rule that directly or substantially affects the development, construction, cost, or availability of housing in Wisconsin must obtain a housing impact report and include a copy of the report with the proposed rule when it is given to the legislature. The PSC did not have this report prepared or submitted to the Legislature when they promulgated PSC 128.

The Court of Appeals, Dist. III found that the PSC must make the initial determination whether a housing impact report is required. The PSC reasonably concluded that wind energy systems did not directly or substantially affect housing and therefore a housing impact report was not required.

The Wisconsin Realtors Association argues that the PSC usurped the Legislature’s power when it violated Wis. Stat. §227.115 by promulgated PSC 128 without sending a housing impact report to the Legislature with the proposed rule. Because PSC 128 was promulgated without following §227.115 the rule is invalid.

The PSC argues that there was not a direct or substantial effect on development, construction, cost, or availability of housing and therefore they did not have to comply with Wis. Stat. §227.115. Furthermore they argue that they receive the presumption under Wis. Stat. §227.20(3) (a) that their rule was duly promulgated the WRA has not rebutted the presumption. Therefore, the PSC says the court of appeals ruling should be affirmed.

A decision in this case is expected by the end of July 2015.