Wisconsin Appellate Court Reverses Green Bay’s Cancellation of Oneida Corporation’s Waste-to-Energy Project
In Oneida Seven Generations Corporation v. City of Green Bay (WI App. 2014), Oneida Seven Generations Corporation (OSG), a wholly owned subsidiary of the Oneida Tribe of Wisconsin, had obtained a conditional use permit (CUP) and building permit to build and operate a waste-to-energy facility on fee land in an industrial area of the City of Green Bay (City). The facility would convert municipal solid waste and other waste materials to energy by pyrolysis, a process that involves heating waste to very high temperatures in a sealed, oxygen-free chamber until chemical decomposition produces a clean-burning synthetic gas. OSG’s financing package included a $5.2 million US Department of Energy grant, loans and grants from the Wisconsin Department of Commerce and a $21.7 million loan guaranteed by the Department of Interior’s Indian Loan Guaranty program.
After the City Council (City) had approved the CUP, project opponents erroneously asserted that the project involved incineration of waste materials and complained that OSG had misrepresented certain project features. The City directed its Plan Commission to review the complaints. The Plan Commission held a hearing and reported unanimously OSG had made no misrepresentations. The City ignored the Plan Commission and revoked the CUP.
OSG, represented by Godfrey & Kahn, challenged the revocation by filing a certiorari action in state court. On March 25, in a strongly worded decision, the Wisconsin Court of Appeals reversed, holding that the City had abused its discretion when it revoked the CUP: "Fickle and inconstant fairly describe the City’s action here. … We are disappointed the City did not so much as mention the Plan Commission’s conclusions in its decision. … Even more dismaying than the City’s failure to mention the findings of its own Plan Commission, though, is its failure to articulate any rationale for its revocation decision. The City generically stated that Cornelius had made ‘false statements’ while responding to questions and concerns about ‘the public safety and health aspect of the Project and the Project’s impact upon the City’s environment.’ The City claimed these misrepresentations were made by Seven Generations representatives while answering questions about ‘emissions, chemicals, and hazardous materials.’ But none of these findings identify the supposedly false statements with any specificity."