On May 19, 2025, a Marathon County Circuit Court Judge granted the Towns of Brighton and the Eau Pleine (“Towns”) motion to dismiss a wind developer’s lawsuit seeking declaratory and injunctive relief from restrictive wind siting ordinances. The ordinances contained, among other things, an initial licensing period of 15 years with a renewal term of 10 years, and what the wind developer called “subjective criteria.” These include zoning or land-use designations, a determination of whether a project would be a “net economic liability” to a region, environmental and ecosystem concerns, interference with radar systems, and change in land character. 

Because of a procedural decision, the court did not receive an answer on the merits, which may have contributed to the ruling. 

The Marathon County court relied heavily on language from the Wind Siting Rules, published by the Public Service Commission of Wisconsin, giving local municipalities authority to determine whether an application to site a wind energy system is “complete.” The court explained that PSC 128.32 only imposed a “reasonableness” standard of review on application determinations. Because the review of the application comes before the application of the local municipalities' permitting conditions, the court explained, the municipality has the authority to impose those conditions despite the Wisconsin Statute limiting local ordinance review to ordinances that:

(a) Serve to preserve or protect the public health or safety.

(b) Does not significantly increase the cost of the system or significantly decrease its efficiency.

(c) Allows for an alternative system of comparable cost and efficiency.

Wis. Stat. §§ 66.0401(1m)(a)-(c). 

The wind developer is not without strong legal arguments to challenge this court order. While the decision rests on the “reasonableness” standard it finds in Wis. Admin. Code § PSC 128.32, it does not explain how or why a municipality would be allowed to issue any ordinance that does not satisfy the criteria of (a)-(c) above. For example—if the PSC’s ordinances are silent on a topic of regulation that is outside of a municipality’s authority in (a)-(c), it is unclear how a municipality could, or would, implement the ordinance reasonably.

This ruling highlights the intricate and evolving regulatory landscape governing energy development in Wisconsin. While the dismissal was grounded in procedural considerations and hinged on the “reasonableness” standard of PSC 128.32, significant legal questions remain. There is still considerable room for debate over the issue. 

Michael Best's energy team is closely monitoring this issue and its developments. If you are a developer, municipality, or stakeholder facing challenges related to wind energy siting or regulatory compliance, our experienced team is ready to provide tailored guidance and support.