In Enbridge Energy Co., Inc. v. Dane County (2019 WI 78), the Wisconsin Supreme Court held that counties may not include unenforceable permit conditions on conditional use permits.

Dane County issued Enbridge Energy a conditional use permit to expand the volume of oil pumped through a local Enbridge pipeline. The permit contained conditions requiring Enbridge to maintain two liability insurance policies. Shortly after Dane County issued the permit, the legislature passed in the 2015-16 state budget (2015 Act 55) a provision precluding counties from requiring pipeline operators to obtain insurance if the operators already carry general liability insurance including coverage for sudden and accidental pollution liability. After the law change, Dane County retained the previous insurance conditions in Enbridge’s permit, but added language indicating that the new state law made the conditions unenforceable.

Enbridge filed the instant lawsuit asking the court to remove the unenforceable insurance conditions. Additionally, several Dane County property owners filed a lawsuit asserting that Enbridge was not in compliance with the new state law insurance requirements, so they could enforce the conditions.

The Supreme Court determined that Enbridge did have the requisite insurance coverage, both comprehensive general liability and sudden and accidental pollution liability, to comply with the Act 55 requirements. Therefore, Act 55 applies and precludes Dane County and the landowners from enforcing additional insurance conditions. The Supreme Court then concluded that the circuit court properly struck the unlawful conditions from the permit, as courts can modify conditional use permits under Wis. Stat. § 59.694(10). The decision allows Enbridge to proceed with its pipeline activity without the unlawful permit conditions and without having to start over in the conditional use permit process.

In a dissent, Justice Ann Walsh Bradley argued that Enbridge did not carry the statutorily required sudden and accidental pollution liability insurance. Therefore, Act 55 preemption provisions did not apply, and Dane County could enforce the additional insurance conditions. The dissent argued Enbridge did not show it carried the proper insurance. Under a definition of “sudden” used in a previous case, the policy must cover both “abrupt and immediate” and “unexpected and unintended” pollution events. According to the dissent, the policy covered “abrupt and immediate” but not “unexpected and unintended” events. Without the requisite insurance, Dane County could enforce the additional permit conditions without state law preemption under Act 55.

Justice Abrahamson and Dallet did not participate in the case.