CHICAGO (CN) — Wisconsin utility companies appealed a lower court’s orders to the Seventh Circuit on Tuesday, the latest development in a legal challenge by Wisconsin environmentalists who oppose a large power line built across a wildlife refuge on the upper Mississippi River.
But as the judges noted repeatedly Tuesday afternoon, proceedings in the case face a major hurdle: the power line has already been built across the protected stretch of the Mississippi, and has been in service since September.
The District Court of Western Wisconsin issued two orders blocking a land swap between the utilities and the U.S. Fish and Wildlife Service in March for land where the line’s towers are, but the Seventh Circuit stayed that order on appeal in May.
The stay allowed construction to move forward — and it did — but the utilities still wanted the federal court’s injunction on closing the land swap deal to be vacated outright. Six months later, the Seventh Circuit panel wondered why.
U.S. Circuit Judge Frank Easterbrook, a Ronald Reagan appointee, wondered aloud Tuesday if the whole case might be moot.
“One might think that preliminary injunctive relief is no longer on the table,” Easterbrook said.
The underlying issue goes back to 2019, when the Cardinal-Hickory Creek Transmission Line project began in earnest. The 345-kilovolt, 102-mile power line, supported by towers up to 200 feet tall, extends from Dubuque County, Iowa, to Dane County, Wisconsin.
The line crosses the Mississippi near Iowa’s Turkey River Mounds State Preserve, which besides being home to wildlife contains dozens of mounds indigenous Americans built before European contact. Environmental groups are also concerned about the line’s impact on the Driftless Area, a region of forested ridges unaffected by ancient glaciation that stretches across parts of Wisconsin, Minnesota, Iowa and Illinois.
The arguments on Tuesday didn’t breach these substantive issues too deeply, with the appellate judges instead more focused on where the case was procedurally.
“Why would you vacate an order that speaks only to things that have already happened?” Easterbrook asked the power utilities’ attorney Stacey Bosshardt. “It’s like vacating an order that talks about not holding last year’s Super Bowl. It was held. It’s over.”
Easterbrook’s questions echoed those of U.S. Circuit Judge David Hamilton, a Barack Obama appointee who also wondered just what it was the appellate court needed to do here.
The attorney, of the Washington, D.C. law firm Perkins Coie, argued in response that workers still needed to access the site to maintain and repair the power lines. She said that the utilities risked court action if the lower court’s injunction orders weren’t vacated.
“The utilities are continuing to do work in the refuge. They should not bear the risk of being hailed into court because someone interprets on-the-ground activity as being violative of that order,” Bosshardt said.
Easterbrook had similar questions for the Wisconsin Wildlife Federation and National Wildlife Refuge’s attorney Howard Learner with the Environmental Law & Policy Center. Learner agreed the utilities’ appeal is moot “as a matter of law” and “as a matter of practicality,” but argued his client’s case was still live.
This prompted Easterbrook to argue that a case is moot when no relief is possible for the plaintiffs, and asked Learner what relief the court could provide in this case now that the power line is up and running.
Both Hamilton and Easterbrook grew annoyed when the attorney initially didn’t give a direct answer, instead cleaving to a more narrow procedural argument.
“First of all, this particular appeal of those two orders … is moot and should be dismissed,” Learner said.
Easterbrook, sighing loudly and raising his voice, wasn’t satisfied with that answer.
“Address my question! What relief is possible in this lawsuit?” the judge asked, speaking over Learner.
The environmental attorney eventually suggested removing the now-built power lines, or pursuing compensation from the power lines’ backers, in between continued chiding from Easterbrook and Hamilton.
“First, the court could require that the transmission lines and towers be taken out,” Learner said.
A few minutes later and after enduring more of Easterbrook’s frustration, he added, “we believe that the district can order an alternative remedy that in effect acts like sometimes in wetlands cases, where there are offsets made and there is compensatory action that is done by the federal defendants and the transmission companies.”
Easterbrook and Hamilton were joined on the appellate panel by U.S. Circuit Judge Michael Brennan, a Donald Trump appointee. The panel took the case under advisement but didn’t say when they’d issue a ruling.
The Cardinal-Hickory Creek line has been tangled in federal and state lawsuits for years — the National Wildlife Refuge Association, Wisconsin Wildlife Federation and Driftless Area Land Conservancy filed this specific case this past March.
The environmental groups challenged the U.S. Fish and Wildlife Service, the Army Corp of Engineers and the U.S. Rural Utilities Service over a land swap with three private developers to build the power line. Two of those developers, the Wisconsin energy utility Dairyland Power Cooperative and energy transmission company ITC Midwest LLC, joined the suit as intervenor defendants. The environmental groups also name the Wisconsin-based American Transmission Company in their complaint.
While the power companies and investors backing the project — including the government of Singapore — argue the power line “supports renewable energy policy and improves electric system reliability,” opponents say it’s unnecessary and expensive.
In May 2022, the transmission companies involved with the project said it was going to exceed its projected $492 million price tag by around 10%, or nearly $50 million.