The Wisconsin Court of Appeals’ May 30, 2025 decision in Town of Christiana v. Public Service Commission of Wisconsin (Appeal No. 2023AP2230) offers important insights for developers of utility-scale solar, wind, or energy storage facilities—particularly for energy projects that are intended to be sold to a public utility.

Takeaways for Clean Energy Developers

1. Wholesale Merchant Plant Designation Upheld

The Public Service Commission of Wisconsin (PSC) correctly approved the Koshkonong Solar Energy Center’s application for a Certificate of Public Convenience and Necessity (CPCN) to construct a 300-MW solar generation facility and 165-MW battery energy storage system. The PSC correctly classified the project as a “wholesale merchant plant,” which means that the project was exempt from meeting some CPCN requirements, including: (a) proving a need for additional electric energy, (b) defending project economics, and (c) evaluating alternative energy sources under Wis. Stat. § 196.491(3)(d)2 and 3.

2. Transfer to Utility Buyers Allowed Post-Approval

Although the CPCN was granted to a non-utility developer (Koshkonong), the court affirmed that the later intended sale of the project to public utilities did not invalidate its classification as a wholesale merchant plant. The PSC’s review was based solely on the applicant’s status during the application, not on potential future transactions. With respect to any future transfer of the project to a public utility, the PSC would separately review that transaction under Wisconsin’s certificate of authority statute, Wis. Stat. § 196.49.

3. Environmental Impact Statement Not Required for Utility-Scale Solar

The court also affirmed the PSC’s decision not to prepare a full Environmental Impact Statement (EIS). Instead, the PSC correctly concluded that an Environmental Assessment (EA) was sufficient to comply with the Wisconsin Environmental Policy Act.

Implications for Developers

• Precedent-Setting for Merchant Developers: Non-utility developers can secure CPCNs under merchant plant rules even if the project is likely to be later sold to utilities.
• Streamlined Review: By qualifying as merchant plants, such projects may avoid more onerous review steps, particularly those assessing public need, project economics, and alternative supply sources, which will be analyzed separately under Wis. Stat. § 196.49, if a public utility seeks to acquire the project.
• Environmental Review: A CPCN application that fully and completely identifies the environmental impacts of a project may enable the PSC to streamline review by completing an EA instead of an EIS.

The Wisconsin Court of Appeals’ decision affirms that Wisconsin’s legal environment is generally favorable for the development and transfer of large-scale clean energy projects.

For more information on this topic, please contact a member of our Energy team.