The Town of Christiana’s lawsuit over the proposed Koshkonong solar farm saw its first oral arguments in court last week, with the town winning an initial victory in defining the terms of the suit.
Both residents and the local government in Christiana have spoken out against the project, a 300-megawatt solar array and accompanying 165-megawatt battery system, since its first proposal in 2020. If it moves forward, construction of the plant is expected to see solar panels installed on about 2,300 acres of mostly agricultural land across the towns of Christiana and Deerfield.
The company behind the project, Koshkonong Solar Energy Center LLC, is an affiliate of Chicago developer Invenergy. Koshkonong has secured lease contracts with property owners for the land that it plans to build on.
The lawsuit, brought by Christiana against the Public Service Commission of Wisconsin (PSC), aims to reverse the commission’s decision last April to issue a certificate of public convenience and necessity for the project, without which it cannot move forward.
Christiana’s case hinges on its claim that Koshkonong will not be a wholesale merchant plant, as the PSC determined it would.
Under state law, wholesale merchants are those that sell produced electricity to other energy companies, rather than directly to consumers as a utility would. Also under state law, wholesale merchant plants are subject to lesser scrutiny by the PSC before awarding a certificate of public convenience and necessity.
The commission awarded the project its certificate under the assumption that it was a wholesale merchant plant. But the PSC is also currently reviewing an application to purchase the Koshkonong plant, filed in April 2021, by three utility companies—Wisconsin Electric Power Company, Wisconsin Public Service Corporation and Madison Gas and Electric.
The township asserts that records in that PSC case could be key evidence for the town to make its case that the commission should not have considered the project as a wholesale plant.
At the March 10 hearing, Judge Diane Schlipper said she would take judicial notice of that PSC docket.
“Invenergy, in coordination with the utilities … are attempting to abuse the merchant plant CPCN process to establish a facility contemplated from before any docket was opened, to be owned and operated as a utility-owned facility, not a merchant plant,” the town’s comments to the PSC read.
In its response to the suit’s initial filing, the PSC argues that its decision was legal and supported by “substantial evidence.” Koshkonong, an intervenor in the case, wrote in its own response that the commission has “on multiple occasions confirmed” that the circumstances of the decision are appropriate.
Judge Schlipper said at the hearing she would take judicial notice of the utility’s application to buy the plant, meaning that it can be considered in addition to the record of documents that the PSC used to make its initial decision.
The town, and residents acting as intervenors in the suit, also allege that the PSC violated its own procedural rules in awarding the certificate of public convenience and necessity, as well as that the project “imposes undue adverse impact on environmental values” of the town, the petition from the town said. The petition also says the project would interfere with Christiana’s “orderly land use” and plans for development.
The project was subject to an environmental assessment during its PSC review process, but the commission found that a more stringent environmental impact study was not required.
Tara Vasby, one of the resident intervenors, told Judge Schlipper that the project as designed would surround her family’s property on three sides with solar panels. Vasby was concerned about the attention Koshkonong would give to her and other residents unhappy with the designs.
“The PSC basically told the developer, work with the landowners because we trust you to do the right thing,” Vasby said. “That’s the same as me telling the coyotes and foxes I see that I trust them to do the right thing around my chickens.”
Judge Schlipper declined to take judicial notice of a number of other documents that the town and intervenors had requested her to, including a preliminary environmental assessment and a letter from Vasby.
With the set of documents up for review in the lawsuit finalized, the core arguments of the case can now begin. Judge Schlipper set a deadline of May 19 for attorneys to file their initial briefs.
