WI Supreme Court Holds Remand Would Be Inappropriate Given that County Knew When It Approved the Conditional Use Permit That Act 55 Rendered the Insurance Conditions Invalid

This post was authored by Matthew Loeser, Esq.

Enbridge Energy Company operated an interstate pipeline to transport liquid petroleum. Dane County issued Enbridge a conditional use permit (“CUP”) that included two conditions requiring Enbridge to procure additional insurance prior to expanding its pipeline pump station. After Dane County initially approved the CUP with these insurance conditions, but pending Enbridge’s appeal to the Dane County Board of Supervisors, the Wisconsin Legislature passed 2015 Wisconsin Act 55, which prohibited counties from requiring an interstate pipeline operator to obtain additional insurance when the pipeline operating company carries comprehensive general liability insurance. Nevertheless, the CUP was passed with the invalid conditions, and Enbridge filed a petition for writ of certiorari, which the Dane County Circuit Court granted. The circuit court struck the two insurance conditions from the CUP as unenforceable under Act 55. The court of appeals reversed, holding that Enbridge failed to show it carried the requisite coverage triggering the statutory prohibition barring Dane County from imposing additional insurance procurement requirements.

On appeal, Dane County conceded that conditions 7 and 8 were unenforceable under Act 55. Specifically, Conditions 7 and 8 of the CUP required Enbridge to obtain additional insurance that met certain technical specifications, which went beyond the statutorily-described insurance. The court found that Wisconsin Stat. § 59.69(2)(bs) prohibited counties from imposing on a permit applicant any requirement expressly preempted by state law, and Wisconsin Stat. § 59.70(25) preempted county-imposed insurance requirements for pipeline operators that carried CGL insurance policies including pollution liability coverage. As such, the court found that it did not need to resolve whether a CUP or its conditions constitute “ordinances” within the meaning of §59.69(11) since Wis. Stat. § 59.70(25) rendered these conditions unenforceable and nothing in §59.69(11) reanimated void conditions.

The court next analyzed whether the circuit court properly struck conditions 7 and 8 from the CUP as the appropriate remedy, or whether the CUP should be remanded to the Zoning Committee. The court determined it would be “absurd” to compel Enbridge to repeat the permitting process when the County Board knowingly issued a CUP with unlawful conditions. Furthermore, remanding the case to the Zoning Committee would not remedy the County Board’s inclusion of unlawful conditions, but would instead reward Dane County for imposing “impermissible, extra-legal conditions.” Since Dane County chose to condition the CUP, in disregard of Act 55, the court held that the circuit court properly struck the invalid conditions in accordance with its express authority under Wis. Stat. § 59.694(10).

Enbridge Energy Company, Inc. v. Dane County, 2019 WL 2621062 (WI 6/27/2019)