Jan 26 - McClatchy-Tribune Regional News - Thomas Content Milwaukee Journal Sentinel


A Green Bay utility says state regulators overstepped their bounds and violated its free-speech rights by requiring that the company lobby the Legislature in support of Gov. Jim Doyle's global warming task force.

The bill reflecting the findings of the task force has not yet been drafted. But language in a Public Service Commission decision that set electricity rates for customers of Wisconsin Public Service Corp. tells the utility that it "should" support a proposal adopted by the Global Warming Task Force last year to expand the amount of renewable energy used in the state by 2025.

"This is kind of like a police officer picking up someone for speeding on I-43 and saying, 'If you write a check to the Police Benevolent Association, we'll forget about this whole speeding deal,' " said Rep. Phil Montgomery, (R-Ashwaubenon), the leading voice in the Republican caucus on energy issues.

Business groups concerned about the cost of global warming mandates chimed in against the commission's decision.

"In trying to force a regulated utility to lobby on behalf of the task force provisions, we think the agency clearly was overreaching here and sending us down a very slippery slope," said Todd Stuart, executive director of the Wisconsin Industrial Energy Group.

Along with the other state utilities on the task force, WPS had voted in favor of the recommendations last year when the panel was considering a menu of proposals -- including a proposal to increase the amount of renewable energy that state utilities supply to Wisconsin residents. But that's far different from agreeing to support a bill, Montgomery said.

Montgomery was a co-author of a bill that required utilities to get 10% of their energy from wind turbines and other sources of renewable energy by 2015. But he worries that a 25% mandate by 2025 would drive up electricity rates.

The fact that the language requiring the utility to lobby for the bill was included in a rate case decided by the PSC, a quasi-judicial body, irked Montgomery.

"The two are not connected. Since when is it the job of a government agency to tell you that you must lobby for a piece of legislation that has not even been written yet?" Montgomery asked. "This is unheard of."

Case still pending

PSC spokesman Tim LeMonds said his agency could not comment on the matter because the case remains pending. The three-member commission is expected to weigh in on the issue during its next meeting next month.

During its deliberations on the rate case last month, one commissioner, Lauren Azar, urged the commission to soften the language it was planning to use, saying it is "a little awkward for the commission to be requiring somebody to support legislation."

WPS had agreed to support some of the provisions of the global warming task force package -- those related to energy efficiency -- as part of a settlement with the Citizens' Utility Board, a customer group that represents residential electricity customers. But during its deliberations, commissioner Mark Meyer suggested adding a provision that the utility also support the proposal to require 25% of the state's electricity to come from renewable sources of energy by 2025.

"The provision was unilaterally inserted in the order by the PSCW without a proper basis," said Earl Gustafson, vice president of the Wisconsin Paper Council. "Freedom of speech includes a right to speak -- and a right not to be forced to speak or advocate."

A key bone of contention in the case is the renewable energy expansion language.

WPS has been active on the renewable energy issue in recent years in Madison, expressing concern about the cost of wind power projects and seeking to amend state law to permit large hydroelectric projects such as dams in Manitoba for utilities seeking to comply with a green-power mandate.

The global warming task force recommended that by 2025, most of the renewable energy that would be used in Wisconsin could come from outside Wisconsin -- including from dams in Manitoba. But because a global warming bill hasn't yet been written or introduced, it's unclear whether it will include that language.

In its response to the commission, WPS lawyer Bradley Jackson said the commission has sent WPS "a mixed message." Some of the language in the commission's decision can be interpreted as permitting -- and not mandating the utility to lobby a certain way. However, he added, "the commission included this 'suggestion' as a condition of its approval" of the utility's agreement with CUB. Such a condition can be interpreted to be a mandate.

"A requirement to support legislation would constitute a violation of WPSC's rights under the First Amendment to the United States Constitution," Jackson wrote.

The Citizens' Utility Board and WPS also want other changes made to an agreement that would change how the utility earns its profit as an incentive for WPS customers to cut back on their energy use. But CUB also agreed with "free speech" arguments being made by WPS and other customer groups.

"Utilities cannot be forced to speak," CUB said in its filing.

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