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Proposed Wisconsin Legislation Important for the Future of EV Infrastructure

December 5, 2023
3 minute read

Proposed Wisconsin Legislation Important for the Future of EV Infrastructure

December 5, 2023
3 minute read

Authored By

Mark Bender

Mark C. Bender

Special Counsel

Practices

There are strong factors at work to create a technology revolution for mobility. All of the major car manufacturers have announced plans to significantly increase production of electric vehicles (EVs) during the next decade. President Biden has announced a goal to have EVs represent 50% of all new car sales by 2030. The 2021 Bipartisan Infrastructure Law that was passed includes $7.5 billion for deployment of charging stations for EVs throughout the United States. This program includes $5 billion allocated to the states to deploy EV charging infrastructure along the nation’s key highways, as well as making $2.5 billion available to municipalities, nonprofits, and private developers to help fill in the gaps (see $2.5 billion for EV Charging Infrastructure Grants Announced). Wisconsin is slated to receive just under $80 million for EV charging infrastructure deployment. In addition, the 2022 Inflation Reduction Act provides significant tax incentives for the purchase of qualified EVs and incentives for the installation and operation of charging stations required for the rapidly accelerating EV transition (see Electrified Vehicle Development is “Supercharged” by the Inflation Reduction Act).

Auto manufacturers, municipalities, public utilities, and private developers are poised to build out the infrastructure needed in Wisconsin to support this surging demand for EVs. However, a significant impediment to installing the necessary infrastructure is public utility law in Wisconsin. Under Wisconsin law, only public utilities are authorized to sell power either directly or indirectly to the public (Wis. Stat. sec. 196.01(5)(a)). Numerous cases decided over the last century have interpreted under what circumstances a person can sell power to third parties but not be classified as a public utility. However, all of these cases are based upon unique facts, and none have directly addressed selling power by the kilowatt hour (kWh) to EVs at public charging stations.

Wisconsin’s public utility law and the ability to sell power by the kWh has created a great deal of uncertainty for third parties providing infrastructure needed for charging EVs in this state. While a non-utility selling electricity by the kWh is largely interpreted as an illegal act in Wisconsin, the federal program allocating $80 million to Wisconsin for EV infrastructure will generally require that charging stations charge by the kWh.

Recently, proposed Wisconsin legislation, authored by Sen. Howard Marklein (R-Spring Green), the co-chairman of the powerful Joint Committee on Finance, and Rep. Nancy Vandermeer (R-Tomah), was introduced in the State Legislature. If enacted, the proposed legislation would clarify under what circumstance private parties can offer charging to EV owners without being classified as public utilities, and therefore avoid the accompanying strict state regulations.

According to a summary memo prepared by the bill's authors, the draft legislation includes the following elements:

  • The bill allows private sector businesses to construct EV chargers and sell electricity by the kilowatt hour without being classified as public utility.
  • The private sector businesses must purchase power for this type of re-sale from a utility or co-op.
  • The private sector can sell all levels of charging – Levels 1-3+.
  • The public sector (cities, counties, towns, and villages) may continue to provide free access to Level 1 and Level 2 charging.
  • The public sector is prohibited from constructing Level 3+ charging except to serve their own fleet.
  • The public sector may lease property to a private-sector entity to own and operate an EV charger.
  • Municipal electric utilities may construct Level 1-3+ charging stations and sell electricity as long as no taxpayer funding is used to construct the charging facilities.
  • The bill collects and distributes excise tax of $0.03 per kilowatt hour into the Transportation Fund.

This draft legislation has received input and support from many influential stakeholders in both the private and public sectors. With legislative activity winding down through the holidays, it is likely that substantial action on this legislation will not occur until 2024.

It is important for stakeholders interested in this topic to track the legislative process applicable to it. Clarity of the public utility issue for charging stations is a critical factor necessary to support the successful adoption of EVs in Wisconsin.

For more information on this topic, or to learn how Godfrey & Kahn can help, contact Mark Bender or Art Harrington.

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