The Wisconsin Court of Appeals heard oral argument this morning in the case of Enbridge v. Dane County, and it went extremely well. You can find background on this page; here, a quick summary will suffice.
350 Madison won a significant victory in April 2015 when the Dane County Zoning and Land Regulation (ZLR) Committee required that Enbridge obtain spill cleanup insurance as a condition of expanding its Line 61. This victory was undercut just three months later when the company, or someone acting on its behalf, lobbied key legislators to insert a last-minute provision in the state budget to prevent counties from requiring a pipeline company to obtain such insurance if the company had coverage for “sudden and accidental pollution liability.”
The drafters made a serious mistake, however, in crafting the budget amendment, with the result that, upon examination, the company does not qualify for the statutory override provision. Consequently, the only chance Enbridge had to survive a court battle was to have a judge who did not understand the record—and then do everything to obfuscate. Enbridge succeeded in that strategy when the case came before the circuit court in September 2016.
Today, however, was a different story: The questions posed by the three appellate judges demonstrated that they understood everything about the case and would not be confused by irrelevancies. They focused like a laser on the fact that Enbridge has never shown anyone—the ZLR or its insurance expert; the county board; the circuit court judge; or the court of appeals—its insurance policy, making it impossible to determine if in fact the company has the “sudden and accidental” coverage required to void the county’s conditional use permit. That gave Enbridge’s attorney, Eric McLeod, little chance to make a credible case, and he was left hemming and hawing.
The precise form of the final decision will matter. That said, the general outcome seems almost certain to sustain the ZLR’s original insurance condition. I would expect that decision in the next six to eight weeks.