Wisconsin Supreme Court upholds rejection of fracking permit

A divided state Supreme Court on Wednesday upheld a decision denying a permit for an Iowa-based company to open a new hydraulic fracturing sand mine in western Wisconsin.

AllEnergy Corporation and AllEnergy Silica wanted to open a 265-acre mine as part of a 550-acre project that includes a processing site in the town of Arcadia. But its application was rejected by a Trempealeau County environmental and land use committee in 2013.

The committee cited environmental and health concerns, adverse effects on the landscape and wildlife that could affect tourism and local residents and said the company's application was rushed and incomplete.

AllEnergy argued on appeal that its permit application was complete and met requirements set out by the committee necessary for approval. The company said the county committee didn't have the authority to judge its completeness.

Both a circuit court and a state appeals court also sided with Trempealeau County, saying the committee had the right to reject the permit. The Wisconsin Supreme Court agreed in a 4-3 decision.

Sand mining has taken off in western Wisconsin since 2008, as the mining technique, also known as fracking, takes hold. The process involves freeing petroleum and natural gas by cracking rock with injections of water, sand and chemicals. The region has high-quality silica sand that works well in the process, giving rise to dozens of fracking sites where Wisconsin sand is mined and then shipped to other states where drilling takes place.

But the proliferation of mines in western Wisconsin has led to a backlash over concerns about the environmental impact of the work. The AllEnergy project has been on hold pending the legal fight.

AllEnergy's attorney Gary Van Cleve said he was disappointed by the high court's decision Wednesday, but said he had not had time to thoroughly reviewing the reasoning.

"Clearly there is no unity of thought among the justices," he said.

The Trempealeau County committee was within its jurisdiction in denying the permit, and there was substantial evidence to support its decision, Justices Shirley Abrahamson and Anne Walsh Bradley wrote in the majority opinion Wednesday. Chief Justice Patience Roggensack and Justice Annette Ziegler concurred, but filed a separate opinion saying the high court's ruling improperly discussed the constitutionality of county ordinances, making the decision "potentially more far-reaching in effect than it should be."

Justices Dan Kelly, Michael Gableman and Rebecca Bradley dissented, arguing that the county committee improperly exceeded its jurisdiction in deciding whether a sand mine was an appropriate use of the property.

Groups representing Wisconsin county and town governments, as well as the Wisconsin Realtors Association and Wisconsin Builders Association, filed briefs in support of the county's right to limit land use.

Trempealeau County's attorney, Ronald Stadler, said he was pleased that the court recognized the importance of local control over zoning decisions.

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