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

287 N.W.2d 737, 93 Wis. 2d 650, 1980 Wisc. LEXIS 2476
CourtWisconsin Supreme Court
DecidedFebruary 7, 1980
Docket77-366
StatusPublished
Cited by14 cases

This text of 287 N.W.2d 737 (Wisconsin's Environmental Decade, Inc. v. Public Service Commission) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wisconsin's Environmental Decade, Inc. v. Public Service Commission, 287 N.W.2d 737, 93 Wis. 2d 650, 1980 Wisc. LEXIS 2476 (Wis. 1980).

Opinions

CONNOR T. HANSEN, J.

On February 3, 1977, the Public Service Commission (PSC) received a letter and complaint from Wisconsin’s Environmental Decade, Inc. (Decade) concerning the residential electric rates of Wisconsin Electric Power Company and Madison Gas & Electric Company. The complaint, considered a petition by the PSC, alleged that the winter rates of these two utilities for energy usage greater than 1000 kilowatt-hours per month tended to encourage use of electricity for space heating. Decade further stated that the utilities involved were predicting that winter peak demand would exceed summer peak demand within the next decade or so, and that the allegedly promotional winter rates would contribute to the greater winter peak demand. Decade alleged that such rates were “discriminatory, insufficient, preferential and unreasonable and unjust” and violated secs. 196.03, 196.37 and 196.60, Stats.1 Decade demanded that the PSC commence proceedings under secs. 196.28 and 196.29 for the purpose of changing the rates complained of in order to discontinue their promotional attributes and instead reflect their true marginal costs. The provisions of secs. 196.28 and 196.29 are set forth hereinafter. Responses to the complaint were filed by Madison Gas & Electric and Wisconsin Electric.

The PSC voted to deny Decade’s petition with respect-to both Madison Gas & Electric and Wisconsin Electric. An order was thereupon issued and set forth the following reasons for the denial of the petition:

“With respect to WEPCO, that company rightfully contends that objections to its rate design should be made in its present rate proceeding, Docket No. 6630-ER-2. On August 5, 1976, the Commission issued an order in [653]*653Docket No. 6630-ER-l authorizing an increase in electric rates through a surcharge but reserving rate design issues for resolution in Docket No. 6630-ER-2. Wisconsin’s Environmental Decade, Inc., is a party to the latter proceeding, and the issue raised in its petition may be adequately addressed in that proceeding.
“In the case of MG&E, that company points to the exhaustive proceedings which culminated in the recent November 9,1976, rate Order in MG&E Docket No. 3270-IJR-1. Cost studies were prepared in that docket by both the company and Commission staff, and rate structure alternatives were proposed by intervenors in that proceeding, including Wisconsin’s Environmental Decade, Inc. A thorough discussion of cost of service and residential rate structure is contained in the November 9, 1976, order. Additionally, petitioner sought judicial review of the order in the Circuit court for Dane county, but raised no issue with respect to the winter residential electric, rates authorized therein by the Commission. Initiating an investigation now would permit petitioner to collaterally attack a rate structure which it chose not to directly attack in its petition for judicial review.
“In light of the recently completed proceedings in Docket No. 3270-UR-l and the current proceedings in Docket No. 6630-ER-2, the Commission believes the investigation petitioned for by Wisconsin’s Environmental Decade, Inc., would constitute an unwarranted duplication of the time and efforts of all parties and the Commission.”

The three commissioners filed a concurring opinion.

Decade and Citizens for a Better Environment, Inc. (Citizens) then filed a petition in circuit court for a review of the order of the PSC pursuant to sec. 227.15, Stats. The petition prayed for review of the PSC order and all of the findings, inferences, conclusions of law and decisions contained therein; a determination that the order was null and void; and that the proceeding be remanded to the PSC with directions to comply with sec. 1.11, Stats.,2 before it took action on the petition Decade filed with the PSC on February 3,1977.

[654]*654In the circuit court the PSC moved to dismiss the petition for review on the ground that the order sought to be reviewed was not a decision reviewable under secs. 227.15 and 227.16, Stats. The PSC argued in the alternative that the order did not require preparation of an environmental impact statement or any other action under sec. 1.11, and the order should be affirmed. Wisconsin Electric and Madison Gas & Electric appeared in support of the position taken by the PSC.

The circuit court granted the motion of the PSC, dismissed the petition for review and an order was entered accordingly. The circuit court held that the order of the PSC was not reviewable under sec. 227.15, Stats., because the decision of the PSC not to conduct an investigation under secs. 196.28 and 196.29 was totally discretionary and was not a decision which adversely affected the substantial interests of any person, as is required for review under sec. 227.15.

The issue on this appeal is whether the order of the PSC denying a request that it exercise its investigative authority under secs. 196.28 and 196.29, Stats., is reviewable under secs. 227.15 and 227.16.

The appellants seem to take the position that any time a request is filed with the PSC for an investigation under secs. 196.28 and 196.29, Stats., the PSC must comply with the provisions of sec. 1.11 before it can exercise its discretion in determining whether to proceed with an investigation. Such a conclusion is illogical and would lead to an absurd result.

Thus, the appellants argue that the issue is whether the enactment of sec. 1.11, Stats., creates a “substantial interest” within the meaning of sec. 227.15, so as to make reviewable the alleged failure of the PSC to comply with sec. 1.11 prior to exercising its authority to dispose of a formal complaint under secs. 196.28 and 196.29. This question is not before this court. What was sought to be reviewed in the circuit court was not the alleged failure [655]*655of the PSC to comply with sec. 1.11 before it denied a request to exercise its authority under sec. 196.28, as appellants state. What was sought to be reviewed was the order of the PSC which denied the request that it take action under secs. 196.28 and 196.29.

The appellants alleged that the decision of the PSC not to exercise its authority under secs. 196.28 and 196.29, Stats., required the preparation of an environmental impact statement under sec. 1.11. Their petition requested the circuit court to remand the proceeding to the commission with directions to comply with sec. 1.11. However, the circuit court properly determined that it was without jurisdiction to review the order of the PSC; therefore it was not necessary for the circuit court to consider the issue of whether the PSC must comply; with sec. 1.11 before making a decision under sec. 196.28. Thus, any issue concerning noncompliance with sec. 1.11 is not before this court. The only issue is whether the commission’s order is reviewable under ch. 227.

We are of the opinion that the order of the PSC is not reviewable because it is not an administrative decision within the meaning of sec. 227.15, Stats. The decision of the PSC not to investigate this complaint against these utilities under secs. 196.28 and 196.29 is a nonreviewable, discretionary determination.

Secs. 196.28 and 196.29, Stats. 1975 (amended by ch. 29, sec. 1654(10) (c), Laws of 1977), provide:

“196.28 Summary investigations.

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Wisconsin's Environmental Decade, Inc. v. Public Service Commission
287 N.W.2d 737 (Wisconsin Supreme Court, 1980)

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Bluebook (online)
287 N.W.2d 737, 93 Wis. 2d 650, 1980 Wisc. LEXIS 2476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wisconsins-environmental-decade-inc-v-public-service-commission-wis-1980.