Posted by: Patricia Salkin | September 21, 2009

Wisconsin Appeals Court Finds Municipalities Preempted from Regulating Solar and Wind Energy Systems Where Such Actions Set Policy

The Ecker brothers are farmers who were seeking to expand their wind energy output by supplementing their one wind turbine with additional wind turbines. In order to get funding for the expansion, they needed an acknowledgement letter from Calumet County, which the County refused to grant. Instead, the County passed an ordinance restricting wind energy systems uniformly, based on whether the system was classified as large or small. The Ecker Brothers brought a facial challenge to the ordinance claiming the County had exceeded its authority under Wis. Stat. §60.0401 since the statutory scheme allows political subdivisions to restrict alternative energy systems only on a case-by-case basis through conditional use permits.

In considering the scope of regulatory authority delegated by the legislature in Wis. Stat. sec. 66.0401 and the validity of the County ordinance, the appeals court rejected the County’s assertion that the statute vested it with the power to make its own policy regarding wind energy systems within the three regulatory categories specified in that section. The court explained that “administrative powers involve the interpretation or application of law, and require the authority to carry a law into execution or implementation.” It further observed that the “[p]owers of an administrative character do not allow political subdivisions to make policy.”

In addition, the court noted that 66.0401 permits local regulation of a wind energy system not any wind energy system or even wind energy systems. The court explained that  “[w]hen a political subdivision creates restrictions without sufficiently developed facts about a particular wind energy system, it is impossible for it to determine if its ordinance is in conflict with the statute.” Accordingly, the court concluded that “Wis. Stat. sec. 66.0401(1) requires a case-by-case approach, such as a conditional use permit procedure, and does not allow political subdivisions to find legislative facts or make policy.”

The court found support for its conclusion in the legislative history of 66.0401. The court said the history showed that the “legislature determined it appropriate to give political subdivisions the power to assist in the creation of renewable energy systems and thus become an integral and effective factor in the State’s renewable energy goal.” However, the history did not “indicate that the State intended to delegate the power of policymaking.” Rather, the court observed “the evidence is that the State delegated the authority to execute and administer its established policy of favoring wind energy systems, and the statutory scheme was intended to create avenues for political subdivisions to assist the State.” The Court said that, “(L)ocalities may restrict a wind energy system only where necessary to preserve or protect the public health or safety, or where the restriction does not significantly increase the cost of the system or significally decrease its efficiency, or where the locality allows for an alternative system of comparable cost and efficiency.” 

Based on its conclusion that 66.0401 does not delegate the power to legislate, the court held that the County ordinance exceeded the County’s authority. The court thus reversed the trial court decision and remanded the matter for reconsideration in light of its decision.

Ecker Brothers v. Calumet County, 2009 WL 2032336 (WI Ct. of App. 7/15/2009)

The opinion can be accessed at: http://www.wisbar.org/res/capp/2009/2007ap002109.htm


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