CLEAN WISCONSIN v. PUBLIC SERVICE COMM'N

No. 2004AP3179.

282 Wis.2d 250 (2005)

2005 WI 93

700 N.W.2d 768

CLEAN WISCONSIN, INC. p/k/a Wisconsin's Environmental Decade Institute, Inc., SC Johnson & Son, Inc. and Calpine Corporation, Petitioners-Respondents-Cross-Appellants-Cross-Respondents, TOWN OF CALEDONIA, Petitioner-Cross-Respondent, v. PUBLIC SERVICE COMMISSION OF WISCONSIN and Wisconsin Department of Natural Resources, Respondents-Co-Appellants-Cross-Respondents, WISCONSIN ELECTRIC POWER COMPANY, W.E. Power, LLC and Wisconsin Energy Corporation, Interested Parties-Appellants-Cross-Respondents, DAIRYLAND POWER COOPERATIVE, Interested Party-Cross-Respondent, MADISON GAS & ELECTRIC COMPANY and Wisconsin Public Power, Inc., Interested Parties-Co-Appellants-Cross-Respondents, CITY OF OAK CREEK, Interested Party-Respondent-Cross-Appellant, Robert H. OWEN, Interested Party-Respondent-Cross-Respondent. CALPINE CORPORATION, Petitioner, PUBLIC SERVICE COMMISSION OF WISCONSIN and Wisconsin Department of Natural Resources, Respondents, WISCONSIN ELECTRIC POWER COMPANY, Wisconsin Energy Corporation, W.E. Power, LLC, Dairyland Power Cooperative, Madison Gas & Electric Company, Robert H. Owen, Jr. and City of Oak Creek, Interested Parties. CLEAN WISCONSIN, INC. p/k/a Wisconsin's Environmental Decade Institute, Inc. and SC Johnson & Son, Inc., Petitioners, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Respondent, WISCONSIN PUBLIC POWER, INC., City of Oak Creek, Dairyland Power Cooperative, Madison Gas & Electric Company, Wisconsin Electric Power Company, Wisconsin Energy Corporation and W.E. Power, LLC, Interested Parties. CALPINE CORPORATION, Petitioner, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Respondent, CITY OF OAK CREEK, Dairyland Power Cooperative, Madison Gas & Electric Company, Wisconsin Public Power, Wisconsin Electric Power Company, Wisconsin Energy Corporation and W.E. Power, LLC, Interested Parties. CITY OF OAK CREEK, Petitioner, v. PUBLIC SERVICE COMMISSION OF WISCONSIN, Respondent. TOWN OF CALEDONIA, Petitioner, v. PUBLIC SERVICE COMMISSION OF WISCONSIN, Respondent, WISCONSIN ELECTRIC POWER COMPANY, Wisconsin Energy Corporation, W.E. Power, LLC, Dairyland Power Cooperative, Madison Gas & Electric Company, Robert H. Owen, Jr. and Wisconsin Public Power, Inc., Interested Parties.

Supreme Court of Wisconsin.

Decided June 28, 2005.


Attorney(s) appearing for the Case

For the respondents-co-appellants-cross-respondents, Public Service Commission of Wisconsin and Wisconsin Department of Natural Resources, there were briefs by David J. Gilles and Edward S. Marion, Madison, and oral argument by Edward S. Marion.

For petitioner-respondent-cross-appellant-cross-respondent, Calpine Corporation, there were briefs by Peter L. Gardon, Bryan K. Nowicki and Reinhart Boerner VanDeuren, S.C., Madison, and oral argument by Peter L. Gardon.

For the petitioners-respondents-cross-appellants-cross-respondents, Clean Wisconsin, Inc. and S.C. Johnson & Son, Inc., there were briefs by Carl A. Sinderbrand and Wickwire Gavin, P.C., Madison (on behalf of S.C. Johnson & Son, Inc.); and Pamela R. McGillivray and Garvey & Stoddard, S.C., Madison (on behalf of Clean Wisconsin, Inc.), and oral argument by Carl A. Sinderbrand.

For the interested parties-co-appellants-cross-respondents, Wisconsin Public Power, Inc. and Madison Gas & Electric Company, there were briefs by Richard K. Nordeng, Barbara A. Neider and Stafford Rosenbaum LLP, Madison, and oral argument by Richard K. Nordeng.

For the interested parties-appellants-cross-respondents, Wisconsin Electric Power Company, W.E. Power, LLC and Wisconsin Energy Corporation, there were briefs by Larry J. Martin, John A. Casey, Brian D. Winters and Quarles & Brady LLP, Milwaukee; Matthew W. O'Neill and Friebert, Finerty & St. John, SC, Milwaukee; Linda H. Bochert and Michael Best & Friedrich LLP, Madison; R. Ryan Stoll and Skadden, Arps, Slate, Meagher & Flom, LLP, Chicago, IL, and oral argument by R. Ryan Stoll.

For the interested party-respondent-cross-appellant, City of Oak Creek, there were briefs by William J. Mulligan, Tyson A. Ciepluch and Davis & Kuelthau, S.C., Milwaukee; and Lawrence J. Haskin, Oak Creek, and oral argument by William J. Mulligan.

For the interested party-cross-respondent, Dairyland Power Cooperative, there were briefs by Jeffrey L. Landsman, Janet L. Kelly and Wheeler, Van Sickle & Anderson, S.C., Madison.

An amicus curiae brief was filed by Lee Cullen, Kira E. Loehr and Cullen Weston Pines & Bach LLP, Madison, on behalf of the Wisconsin Energy Customers.

An amicus curiae brief was filed by Gerardo H. Gonzalez, J. Manuel Raneda and Gonzalez, Saggio & Harlan, L.L.P., Milwaukee, on behalf of The Hispanic Chamber of Commerce of Wisconsin, The African American Chamber of Commerce, Inc., and The Metropolitan Milwaukee Association of Commerce, Inc.

An amicus curiae brief was filed by Brady C. Williamson, Jennifer Cotner, and LaFollette Godfrey & Kahn, Madison, on behalf of American Transmission Company, LLC, Wisconsin Manufacturers and Commerce, and Wisconsin Merchants Federation.

An amicus curiae brief was filed by Lisa Madigan, Attorney General, Matthew Dunn, Chief, Environmental Enforcement/Asbestos Litigation Division, Ann Alexander, Assistant Attorney General, Chicago, IL and David C. Bender and Bender Law Offices, Madison, on behalf of the State of Illinois.

An amicus curiae brief was filed by Howard A. Learner, Shannon Fisk, Meleah Geertsma, and Environmental Law & Policy Center, Chicago, IL; and Bruce Nilles and Sierra Club, Madison, on behalf of Clean Air Task Force, Citizens for Responsible Power, Environmental Law and Policy Center, Lake Michigan Federation, Physicians for Social Responsibility of Madison, River Alliance of Wisconsin, Sierra Club, Union of Concerned Scientists, Wisconsin Interfaith Climate and Energy Campaign, and Wisconsin Public Interest Research Group.

An amicus curiae brief was filed by Dennis P. Birke and DeWitt Ross & Stevens S.C., Madison, on behalf of the Wisconsin Utilities Association.


¶ 1. JON P. WILCOX, J., DAVID T. PROSSER, J., PATIENCE DRAKE ROGGENSACK, J., and LOUIS B. BUTLER JR., J.

This case is before the court on a motion to bypass, pursuant to Wis. Stat. § (Rule) 809.60 (2001-02).1 It represents a consolidation of five separate actions seeking judicial review of a final decision and order of the Public Service Commission (PSC) that

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