Wisconsin Supreme Court Will Review Case Between Enbridge, Dane County

State's High Court Will Review County's Actions, Court's Remedies For Unlawful Conditions

Enbridge Energy building
Mack Male (CC-BY-SA)

The Wisconsin Supreme Court has agreed to review a case about a county that wanted special insurance for large pipeline operators.

Dane County required energy firm Enbridge to obtain special insurance as part of conditions for a permit to build a facility related to the company’s Line 61 pipeline expansion. The expansion allowed the company to transport up to 1.2 million barrels of oil per day from Enbridge’s terminal in Superior to the Illinois border.

Dane County issued the permit before lawmakers passed a provision in the last state budget to prevent counties from doing so if pipeline operators were already covered with comprehensive general liability insurance.

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Enbridge initiated a legal challenge of the county’s permit, citing the provision lawmakers passed under the 2015-17 budget that made insurance requirements unlawful. A Dane County Circuit Court judge ruled in the company’s favor, striking the insurance conditions from the county’s permit. The county appealed that decision. Earlier this year, a state appeals court sent the matter back to Dane County for review.

Now, the state Supreme Court will examine the county’s actions and whether courts can strike permit conditions that aren’t in line with state law. The county’s assistant Corporation Counsel David Gault argues it’s within their authority to make that call.

“That’s primarily going to be our argument with the Supreme Court, that the zoning committee here in Dane County is the appropriate body to decide whether a conditional use permit can be issued without those insurance conditions,” said Gault.

Patricia Hammel, a Madison attorney representing landowners in the case, said an appeals court ruled Enbridge failed to prove it had the coverage needed to trigger the exemption under the law.

“We hope that (the appeals court is) affirmed and that the citizens of Wisconsin are going to be able to protect themselves by requiring adequate insurance for hazardous liquid pipelines,” she said.

An Enbridge spokeswoman issued the following statement Thursday in response to the Supreme Court review:

Enbridge is pleased the Wisconsin Supreme Court will be reviewing the Wisconsin Appeal Court’s decision to remand the Conditional Use Permit issued for construction of our Waterloo Station back to the Dane County Zoning & Land Regulation Committee. Enbridge continues to believe the Dane County Circuit Court’s decision to strike the unlawful insurance requirements from the CUP is the correct course of action to be taken. The CUP continues to remain in effect during this appeal and this does not impact operations at the Waterloo Station which is fully constructed. The Waterloo pump station is critical infrastructure for the state of Wisconsin and for the region. Its construction along with the resulting increase in transportation capacity helps ensure a reliable source of energy for decades to come.

Enbridge petitioned the Wisconsin Supreme Court to review the case this year, and Wisconsin Manufacturers and Commerce supported the company’s request in a brief filed before the court in July. WMC argued the case is the latest in “an alarming trend of cases in which the courts have needed to step in because local governments were unlawfully attempting to expand their authority.”

WMC said the case is an opportunity for the courts to make clear that local governments can overrule the Legislature.