The embattled Cardinal-Hickory Creek transmission line’s reputation took another hit this week after owners American Transmission Co. and ITC Midwest discovered inappropriate communications between a former state commissioner and the companies’ employees.

ATC and ITC said they discovered former Wisconsin Public Service Commissioner Mike Huebsch was in regular contact with “an ATC employee and a former independent contractor for ITC” and other individuals for several years while Cardinal-Hickory Creek’s certificate of public convenience and necessity was pending before the commission.

According to the companies, Huebsch used the encrypted Signal software app to send messages, and it’s “presently uncertain whether these messages can be fully recovered.”

The companies filed a request Monday to rescind and reopen the certificate proceeding for the $492 million, 102-mile 345-kV line from Dubuque County, Iowa, to Dane County, Wis. (5-CE-146). Third minority owner Dairyland Power Cooperative also filed its support for the request.

In a joint press release the same day, the companies said they “have a shared interest in preserving transparency, fairness and integrity of all regulatory and judicial proceedings.” The two said they unearthed evidence of the encrypted messages during legal discovery for local conservation groups’ ongoing court case against the line in Dane County Circuit Court. ATC and ITC said they don’t know if the messages pertain to Cardinal-Hickory Creek.

“The individuals involved in this situation have maintained longstanding personal relationships with each other; however, we are aware this information raises concerns about one of the commissioners who granted approval of the Cardinal-Hickory Creek project,” ATC CEO Mike Rowe said. “We understand the speculation this presents, which is also why we have made this unique request to the PSC and are sharing this information with our employees, our stakeholders and Dane County Circuit Court.”

“The co-owners are committed to maintaining the highest ethical standards in all of our work, including proceedings before the PSC,” ITC Midwest President Dusky Terry said. “We are asking the PSC to rescind and reopen the Cardinal-Hickory Creek docket because we are committed to integrity and transparency in the regulatory process.”

ITC spokesperson Rod Pritchard said the company will not address “any further media questions at this time” regarding next steps for the line. ATC spokesperson Alissa Braatz said her company will send notifications only as new developments occur.

Conservation groups Wisconsin Wildlife Federation (WWF) and Driftless Area Land Conservancy (DALC) are fighting Cardinal-Hickory Creek’s construction in Dane County Circuit Court, alleging that Huebsch and PSC Chair Rebecca Valcq had perceived conflicts of interest when they voted to permit the line.

The conservancy has argued that the commissioners should have recused themselves on the grounds that Valcq  previously worked for WEC Energy Group, the parent company of line developer ATC, and that Huebsch, as a member of the Organization of MISO States, had communications with MISO. They also take note that Huebsch unsuccessfully applied to be CEO of Dairyland in February 2020, five months after he voted to approve the line. Huebsch now runs a government and regulatory consulting firm.

Huebsch Responds

Huebsch told RTO Insider that he had no improper discussions regarding the transmission project.  

“Like most people, I have used several different messaging apps over the years. Signal is one of them. I have described it as the ‘21st century coffee shop,’ where friends can get together, chat, and move on,” he said in a text message via LinkedIn. “The messages disappear, as they would if spoken at a lunch or on a conference call, and conveniently they do not jam up the phone’s storage capacity (like normal texts do).

“One of the groups of friends that I have discussions with over Signal I have known for over 25 years, some of them more than 30 years. Although some of them are connected to the utility industry, at no point have I discussed with them over Signal anything related to my work as a commissioner. That’s primarily because we are all aware of the law, and we know ex parte communication is not allowed. And frankly, the commission’s business is just not that interesting.

“We have discussed things like sports (the Packers and Bucks are very hot topics), health and family. We have bragged about our children and asked for advice and even prayer when things were tough, as longtime friends sometimes do. Some will try to make this appear to be more than it is for their own purposes, but as anyone who has friends knows, it’s not.”

The Cardinal-Hickory Creek line is the last unconstructed project of MISO’s 2011 Multi-Value Project (MVP) portfolio. With a decade behind the portfolio’s approval, MISO has already begun another long-term planning effort. The RTO last year predicted the line would be in service in 2023.

In late May, Dane County Circuit Court Judge Jacob Frost ruled that DALC and WWF could conduct discovery on whether Huebsch was biased “or had the appearance of bias” when he steered the Wisconsin PSC’s decision to approve the line.

“The right to an impartial decision-maker is fundamental to due process. Violation of that right would taint the entire proceeding and require I vacate the PSC decision and remand for further proceedings conducted in accordance with due process,” Frost wrote at the time when allowing discovery. A trial was initially set for September; that may be put on hold now.

DALC and WWF maintain that the line is unnecessary and “would cut a wide swath through the scenic Wisconsin Driftless Area communities, family farms and vital natural resources.” Public interest attorneys from the Environmental Law and Policy Center are representing the conservation groups.

ATC and ITC have argued that about 10 GW worth of renewable projects in the Upper Midwest are dependent on Cardinal-Hickory Creek’s construction and that the line is a “vital link to the future of our region’s renewable energy developments.”

Where There’s Smoke

Environmental Law and Policy Center attorney Howard Learner, representing DALC and WWF, said there’s no doubt that a biased process took place at the Wisconsin PSC.

“ATC and ITC’s revelations this week that their senior officials and representatives were engaged in secret texts reinforces that there were improper, ex parte communications with a commissioner, and it should invalidate the commission’s decision to grant a certificate of public convenience and necessity,” Learner said in a telephone interview with RTO Insider.

Learner said DALC and WWF already knew that Huebsch communicated extensively with ATC Manager of State Government Relations John Garvin, Dairyland Vice President of External and Member Relations Brian Rude and WEC Energy Group’s Executive Vice President of External Affairs Robert “Bert” Garvin. (WEC Energy Group is the majority owner of ATC.) Learner doesn’t know what the freshly discovered encrypted messages contain.

“We need to get of the bottom of the facts here and find out who was talking to whom and what they knew and when they knew it,” he said.

Learner said commissioners with pending cases on projects, especially controversial ones, “know better” than to communicate privately with project developers.

“As everyone knows, this is a hugely controversial line… In addition to smoke, there’s clearly some fire here,” Learner said. “The fact that ATC and acted this week to rescind and withdraw the certificate of public convenience and necessity basically speaks for itself. Why would they withdraw it unless they knew the state court would rule in our favor? One biased commissioner taints the others.”

Leaner said ATC, ITC and Dairyland now have the chance to reassess the line’s design and build a better project that more parties can agree on.

“We hope that this is an opportunity for state officials and ATC, ITC and Dairyland to not try to do the same flawed business-as-usual but look to better, less expensive, more environmentally friendly alternatives. ATC and ITC and other officials should seize this opportunity to do better… and reach common ground on better alternatives.”

Learner also said MISO itself probably needs to “step back and reassess the situation,” and pay more attention to the role that battery storage can play in easing major transmission needs.

“MISO’s decision to support the line was made a decade ago. The electric system world has changed as much in the last decade as the telecommunications world did when cell phones were replacing landlines. The world has changed enormously since MISO conceived of this project more than a decade ago. There should be a fresh start with a fresh look at the facts with a fresh set of eyes,” he said.

Learner said for example, ATC’s resource modeling for the line only contemplates 30 MW of solar development by 2019.

“There are thousands of megawatts of solar development in Wisconsin now,” he pointed out.