In Town of Forest v. PSC (2018AP367), the Court of Appeals District III declined on the grounds of claim preclusion Forest’s petition for judicial review of the Public Service Commission’s (PSC) final approval of a wind farm application. The court also declined to hold PSC in contempt of court following a previous circuit court order.

The issue arose when PSC approved Highland Wind Farm, LLC’s application to construct a wind energy facility partly located in Forest. The approved application included provisions that:

1. Highland need only comply with noise limits in Wis. Amin. Code ch. PSC 128 95 percent of the time.
2. Highland would obligate itself to a lower nighttime noise limit for six residences in the area with sensitivities to sound.
3. Highland would implement a curtailment plan to reduce noise from the wind farm to levels below limits in PSC 128.

The Town of Forest petitioned for judicial review of the approved application. The reviewing circuit court ordered PSC to 1) hold a hearing on adopting a percentage compliance standard for noise limits in PSC 128; and 2) explain why it chose a lower nighttime noise limit for those six specific residences and determine whether to apply it to any other residences. The circuit court approved the curtailment plan.

In response to the circuit court order, PSC eliminated the 95 percent compliance provision altogether and declined to hold a hearing. PSC also eliminated the lower nighttime noise limits for any residences. With these amendments, PSC issued a final decision.

In the instant case, the Town of Forest sought to hold PSC in contempt of court for failing to comply with the circuit court orders and sought judicial review of the final PSC decision. The Court of Appeals District III held that PSC was not in contempt of court. Although PSC did not hold a hearing on the percent compliance provision nor did it explore extending the lower nighttime noise limit, PSC complied with the intent of the court order by altogether removing these two provisions that were not supported by substantial evidence and facts. On the question of judicial review, the appeals court declined the town’s petition on the grounds of claim preclusion. The court stated the town should have raised its argument that the curtailment plan is not allowed under PSC 128 in the judicial review of the first PSC application approval.