Legal Memorandum: Retirement of Utilities in WI

Issue: What are the legal obligations for a company upon the retirement of power plants, transmission lines, and gas pipelines used in Wisconsin?

Chapter 196 of the Wisconsin Statutes addresses public utility regulation in general.  Section 196.81 requires the Wisconsin Public Service Commission’s approval before abandonment or discontinuance of lines or extensions.  Wis. Stat. § 196.81(1) (2012). Any approval of the abandonment of a right-of-way by an electric utility must be predicated on the removal of any pole at ground level and the removal of any other structure extending more than three feet above ground level.  Id. § 196.81(2).  If the right-of-way is located in a rural area and was acquired by condemnation, the right-of-way must be disposed of within three years of the abandonment in the absence of a showing of undue hardship.  Id.

This statutory authority has led to some administrative regulation on the same topic.  A regulation requires a public hearing prior to the abandonment of facilities or discontinuance of service unless a map is included with the application and the prior consent of all affected customers is obtained.  Wis. Admin. Code PSC § 2.11 (2012).  The regulation is phrased in the disjunctive (“abandon facilities or discontinue service”), which would suggest that the hearing is required even if the abandonment does not disrupt service.  Another regulation addresses the removal of facilities located on right-of-ways within railroad property.  This provision allows the utility to leave the facilities on the property unless the Commission orders removal.  Id. § 132.09.  Gas utilities are separately regulated under Chapter 133 of the Wisconsin Administrative Code, but the abandonment of gas facilities […]