Opponents of a proposed Dane County solar farm say utilities should not be allowed to buy the project because it depends on leases that may violate the Wisconsin Constitution.
Invenergy, a Chicago-based developer, is seeking a permit to build a solar-plus-storage facility on about 2,400 acres west of Cambridge, which three utilities, including We Energies and Madison Gas and Electric, want to purchase for $649 million.
The town of Christiana and two residents who are against the project filed a motion Tuesday asking the Public Service Commission to dismiss the utilities’ application on the grounds that the leases are void under a little-known clause in the state Constitution that limits leases on agricultural land to 15 years.
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According to the application, Invenergy secured land for the project with 25-year leases that can be extended for another 25 years.
The opponents argue projects “that depend on legally void leases cannot be in the interest of the ratepayers, or anyone else” and should be stopped.
“Now that the issue has been exposed, it makes no sense for the PSC to approve solar facilities,” said Frank Jablonski, an attorney representing town residents Roxann Engelstad and Edward Lovell.
The language in question comes from Article 1, Section 14, which states in part, “Leases and grants of agricultural land for a longer term than fifteen years in which rent or service of any kind shall be reserved, and all fines and like restraints upon alienation reserved in any grant of land, hereafter made, are declared to be void.”
In support of their argument, the opponents submitted a one-page primer on agricultural lease law prepared by a UW-Extension professor who died in 2018 that says a lease of agricultural land for more than 15 years is void.
Jablonski said the provision was brought to his attention by people “not happy with their communities being overrun by energy sprawl.”
After researching it and confirming his reading with two other attorneys, Jablonski said he’s confident the UW-Extension summary is accurate and that the leases for the project, known as the Koshkonong Solar Energy Center, are void, which he contends invalidates the application.
But there could be other legal interpretations of the 174-year-old document, and there are no court rulings to offer guidance.
UW-Madison law professor Heinz Klug said opponents may be misreading the clause, which was designed to prevent feudal tenure, a system of servitude, rather than restricting a landowner’s ability to lease out land.
The past two decades have been the warmest on record, and the 2010s the wettest, with sharp increases in extreme storms that lead to loss of life, property and agricultural production.
It’s unclear how a constitutional ban might affect other recently approved solar projects, such as the 300-megawatt Badger Hollow farm in Iowa County, that have employed similar 25-year leases with extension options.
Spokespeople for MGE and We Energies, which jointly own Badger Hollow, said they were still reviewing the motion Wednesday. An Invenergy spokesperson had not responded to a request for comment.
“Even if the developers and the utilities argue otherwise, there is just too much risk for ratepayers,” Jablonski said. “At this point, with the issue exposed, there may be too much risk for developers too.”
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Tuesday’s motion marks the opponents’ second effort to derail the Koshkonong project, which has sparked fierce opposition from neighbors and the nearby village of Cambridge, which wants to develop some of the farmland for future housing.
In November, the commission rejected a motion to dismiss the permit application on the grounds that Invenergy and the utilities were exploiting a legal loophole to avoid regulatory scrutiny.
That’s because unregulated companies like Invenergy don’t have to justify the need or cost of a project or show that it is the most cost-effective solution. Utilities like MGE, which pass on the costs to their ratepayers, are held to a higher standard.
Invenergy and the utilities insist the so-called “site and acquire” method, which has been used in eight of the 11 large-scale solar projects approved by the PSC, follows the letter of the law.
[Correction: In an earlier version of this story, who attorney Frank Jablonski represents was wrong.]