September 28, 2022
Utilities assert critical infrastructure project has met federal law requirements to cross the Upper Mississippi River National Wildlife and Fish Refuge
Today American Transmission Co., ITC Midwest and Dairyland Power Cooperative, the co-owners of the Cardinal-Hickory Creek Transmission Line Project, argued that the U.S. Court of Appeals for the Seventh Circuit should reverse a Federal District Court’s ruling that the U.S. Fish and Wildlife Service (USFWS) may not approve the proposed crossing of the project in the Upper Mississippi River National Wildlife and Fish Refuge (Refuge) and that the environmental impact statement for the project by the U.S. Department of Agriculture’s Rural Utilities Service (RUS) requires changes. The federal agencies fully complied with the National Environmental Policy Act (NEPA) and the USFWS has multiple sources of authority to allow the project to cross the Refuge with appropriate environmental conditions.
Joining the utility co-owners in court to defend the lawful actions of the U.S. Department of the Interior and the U.S. Department of Agriculture was an attorney representing the U.S. Department of Justice (DOJ). The DOJ’s arguments about the central role of regional transmission planning under the Federal Power Act, the Federal District Court’s erroneous interpretation of the Refuge Act and strongly defended the federal government’s actions supporting the project.
In their appeal, the co-owners explained that an exhaustive environmental review was completed to select the crossing of the Refuge and the Mississippi River. The route will reduce environmental impacts in the Refuge by removing and relocating an existing 161,000-volt (161 kV) line that currently crosses wetlands in the Refuge and co-locating it with the new 345-kV Cardinal-Hickory Creek line that will be sited along an existing road. The project scope includes removing an existing 69-kV line that also crosses the Refuge. All land under both removed lines will be restored to its natural state. The net impact will be to reduce the electric transmission footprint in the Refuge and replace existing structures with shorter structures using an avian-friendly design.
“We believe strongly that the Court of Appeals will reverse the District Court order, will allow project construction to move forward in the Refuge, and will clarify the law so that the project can be placed in-service,” said Tom Jensen of Perkins Coie, who represents the case on behalf of the utility co-owners.
Specifically, during today’s oral argument before the Seventh Circuit and in legal briefs, the co-owners reiterated:
- The Cardinal-Hickory Creek transmission line is a critical, backbone project for the Midwest’s regional power grid that is necessary to improve grid reliability, lower consumer electricity costs, and provide 127 renewable energy projects in six states with greater access to the regional grid. The project is vital for the co-owners and for energy consumers, generators and utilities.
- The Midcontinent Independent System Operator (MISO), the regional grid planning organization, proposed the project in 2011 as one of 17 Multi-Value Projects to fulfill pressing regional transmission needs as it and only it is authorized to do under the Federal Power Act. Wisconsin and Iowa regulators determined the project to be necessary and approved its siting within their respective boundaries.
- Less than two percent of the 102-mile route (about 1.3 miles) is on federal land, which is already crossed by transmission lines. By locating the line along the preferred route through the Refuge, the project will reduce environmental impacts by relocating and consolidating existing transmission infrastructure along a transportation corridor in a more bird-friendly manner. The project will reduce environmental impacts in the Refuge by removing and relocating an existing 161-kV line that currently crosses wetlands in the Refuge, co-locating it with the new 345-kV Cardinal-Hickory Creek line along an existing road, and retiring and removing the existing 69-kV line that crosses the Refuge wetlands.
- The co-owners have worked cooperatively with the federal agencies to develop a Refuge crossing at a location (Nelson-Dewey) that collocates the line with an existing road and therefore has fewer environmental impacts than crossing at the current Stoneman location. Based on extensive review, the federal agencies have concluded that crossing at Nelson-Dewey minimizes habitat fragmentation and reduces impacts to the Village of Cassville on the Wisconsin side of the river. Notwithstanding the benefits of the Nelson-Dewey crossing, the DOJ confirmed the co-owners have existing rights for their transmission lines to be located in the Refuge using the Stoneman route without additional Refuge Act approval.
- The relief the Federal District Court granted puts the project’s in-service date of December 2023 in jeopardy. That’s because the court didn’t just rule on the decisions that were actually before it. It overreached to declare a range of hypothetical future agency actions illegal. That ruling has caused the federal agencies to stop all review of a land exchange application the co-owners submitted over a year ago.
- The co-owners vigorously object to the decision by the Federal District Court because it:
- misinterprets NEPA and Refuge law to undermine Federal Power Act-based transmission planning and policy;
- impedes the region’s transition to renewable forms of energy that has been mandated by politically accountable policymakers; and
- allowed the plaintiffs to make a forum-shopping end-run around robust public involvement processes led by MISO and state utility commissions in which the plaintiffs’ policy preferences were considered and rejected.
- In addition to the issues covered by the government, the lower court’s judgment must be reversed because:
- The plaintiffs’ challenges to USFWS’s right-of-way and compatibility determinations were moot, and the court should have dismissed those claims on that basis rather than reaching the merits; and
- The remedy ordered by the Federal District Court, which appears to declare that any crossing at the same location would be illegal, exceeded the court’s authority under the Administrative Procedure Act.
- In addition, Plaintiffs’ cross-appeal should be denied because the Federal District Court properly determined that it lacked authority under the Administrative Procedure Act to enjoin purely private activity on non-federal land, the vast majority of which requires no further federal approvals to proceed.
The U.S. Court of Appeals for the Seventh Circuit will rule on the case on an undetermined future date. Project construction began in April 2021, and substantial progress has been made on most of the 102-mile, 345-kV transmission line stretching from Dubuque County, Iowa to Dane County, Wisconsin. Although the legal proceedings continue, the utility co-owners have regulatory authorization to move forward with construction activities for the vast majority of the project.
Additional project information is available at www.cardinal-hickorycreek.com. For detailed information concerning the project’s environmental impacts in the Upper Mississippi Wildlife and Fish Refuge, click on the “Refuge and River Crossing” tab.
The Cardinal-Hickory Creek Transmission Line Project was identified in 2011 as part of a set of Multi-Value Projects (MVPs) by the MISO, the independent, not-for-profit regional transmission grid planning agency and transmission system operator that oversees the regional electric transmission grid in portions of the Upper Midwest. As an MVP, the project is designed to improve transmission system reliability and provide a wide range of benefits, including relieving congestion on the transmission system to reduce energy costs and providing greater access to renewable generation.
Following years of study and thorough environmental review, including extensive opportunities for public input, state and federal regulatory agencies granted approvals for the project based on the benefits it provides. The project was approved by the Public Service Commission of Wisconsin in September 2019, by the federal agencies in January 2020, and by the Iowa Utilities Board in May 2020.
Generation and distribution utilities are depending on the Cardinal-Hickory Creek project to facilitate the region’s transition away from fossil fuels. Traditional baseload generating plants are being retired throughout Wisconsin and the Upper Midwest at an unprecedented pace, especially coal plants. Requests to interconnect new renewable generation sources with the transmission system are at an all-time high while new projects are backlogged due to a lack of transmission capacity.
The Cardinal-Hickory Creek Transmission Line Project is the essential bridge that enables renewable energy to be brought to market, resulting in a significant reduction in carbon emissions. Currently, 127 renewable generation projects totaling more than 19 gigawatts are dependent upon its construction – enough to power millions of homes with clean energy.
Governments, corporations and other organizations pursuing sustainability goals are fueling the demand for clean, renewable energy. The federal government and states including Wisconsin, Iowa, and Minnesota have all adopted policies to promote the development of renewable energy resources. These goals can only be accomplished by building the necessary electric transmission infrastructure to connect renewable energy production with consumers, notably the Cardinal-Hickory Creek project. The project is expected to reduce regional carbon dioxide emissions by approximately 150,000 to 1.2 million tons per year.
The Cardinal-Hickory Creek transmission line will help ensure the cost-effective, renewable and reliable energy that consumers are seeking is available and affordable. The project will reduce energy costs, improve the reliability and flexibility of the region’s transmission system, and support the interconnection of renewable generation in the Upper Midwest.
Formed in 2001 as the nation’s first multi-state transmission-only utility, American Transmission Co. is a Wisconsin-based company that owns and operates 10,081 miles of electric transmission lines and 582 substations in portions of Wisconsin, Michigan, Minnesota and Illinois. Our transmission network enables the movement of electricity produced from all forms of generation resources to areas where it is needed – helping to keep the lights on, businesses running and communities strong. Visit our website at www.atcllc.com.
About ITC Midwest
ITC Midwest LLC is a subsidiary of ITC Holdings Corp., the largest independent electricity transmission company in the U.S. ITC Midwest operates more than 6,600 circuit miles of transmission lines in Iowa, Minnesota, Illinois and Missouri, and holds utility status in Wisconsin. ITC Midwest is headquartered in Cedar Rapids, Iowa, and maintains regional operating facilities in Dubuque, Iowa City and Perry, Iowa; and Albert Lea and Lakefield, Minnesota. For further information visit www.itc-holdings.com. ITC is a subsidiary of Fortis Inc., a leader in the North American regulated electric and gas utility industry. For further information visit www.fortisinc.com.
About Dairyland Power
Dairyland Power Cooperative, with headquarters in La Crosse, Wisconsin, provides wholesale electricity to 24-member distribution cooperatives and 17 municipal utilities. A Touchstone Energy Cooperative, Dairyland’s service area encompasses 62 counties in Wisconsin, Minnesota, Iowa and Illinois. For more information, please visit www.dairylandpower.com.