Dunn v. Wisconsin Public Service Commission

A Wisconsin Circuit Court dismissed 15 youth plaintiffs’ lawsuit challenging the constitutionality of Wisconsin statutes that they alleged limited the Wisconsin Public Service Commission’s (PSC’s) ability to consider air quality impacts when authorizing permits for fossil fuel-fired power plants and prohibited the PSC from requiring more electricity from renewable energy sources. The plaintiffs asserted that these statutes violated their rights to liberty, life, and a stable climate system as well as their rights to access, enjoy, and use navigable waters and their beds under Wisconsin Constitution Article I § 1. The plaintiffs also asserted a violation of the public trust doctrine codified in Wisconsin Constitution, Article IX § 1. The court wrote that it was “sympathetic to the youths and admires their willingness to access the courts in their quest to protect the planet” but concluded that their claims involved nonjusticiable political questions. Evaluating the plaintiffs’ claims under the U.S. Supreme Court’s framework for the political question doctrine in Baker v. Carr and looking to similar cases filed in Washington and Alaska, the Wisconsin court found that (1) the Wisconsin Constitution vested the legislature, not the courts, with the task of setting energy policy; (2) the court “is simply not in a position to formulate a judicially manageable standard to remedy air pollution and to achieve the renewable resource goals” for which the plaintiffs advocated; (3) this case presented an attempt by the plaintiffs to have the court “substitute its policy preferences for those of the legislature”; and (4) substituting the court’s judgment for the legislature’s policy choices “would show a blatant lack of respect for our elected officials and the agency defendants.”