2019 WI 78
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP2503 & 2017AP13
COMPLETE TITLE: Enbridge Energy Company, Inc. and Enbridge
Energy, Limited Partnership,
Petitioners-Respondents-Petitioners,
v.
Dane County,
Respondent-Appellant,
Dane County Board of Supervisors, Dane County
Zoning and Land Regulation Committee and Roger
Lane Dane County Zoning Administrator,
Respondents.
------------------------------------------------
Robert Campbell, Heidi Campbell, Keith Reopelle,
Trisha Reopelle, James Holmes, Jan Holmes and
Tim Jensen,
Plaintiffs-Appellants,
v.
Enbridge Energy Company, Inc., Enbridge Energy,
Limited Partnership and Enbridge Energy Limited
Partnership Wisconsin,
Defendants-Respondents-Petitioners.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 382 Wis. 2d 830,917 N.W.2d 232
(2018 – unpublished)
OPINION FILED: June 27, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 26, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Peter Anderson
JUSTICES:
CONCURRED:
DISSENTED: A.W. BRADLEY, J. dissents. (opinion filed).
NOT PARTICIPATING: ABRAHAMSON, J. and DALLET, J. withdrew from
participation.
ATTORNEYS:
For the defendants-respondents-petitioners (2016AP2503) and
petitioners-respondents-petitioners (2017AP13), there were
briefs filed by Eric M. McLeod, Jeffrey L. Vercauteren, Joseph
S. Diedrich, and Husch Blackwell LLP, Madison. There was an oral
argument by Eric M. McLeod.
For the respondent-appellant, there was a brief filed by
David Gault, assistant corporation counsel. There was an oral
argument by David Gault.
For the plaintiffs-appellants, there was a brief filed by
Patricia Hammel and Herrick & Kasdorf LLP, Madison; and Thomas
R. Burney and Law Office of Thomas R. Burney LLC, Crystal Lake,
Illinois. There was an oral argument by Patricia K. Hammel.
An amicus curiae brief was filed on behalf of State of
Wisconsin by Sopen B. Shah, deputy solicitor general, with whom
on the brief was Misha Tseytlin, solicitor general, and Brad D.
Schimel, attorney general.
An Amicus curiae brief was filed on behalf of Wisconsin
Manufacturers & Commerce by Corydon J. Fish and Wisconsin
Manufacturers and Commerce.
2
2019 WI 78
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP2503 & 2017AP13
(L.C. No. 2016CV8 & 2016CV350)
STATE OF WISCONSIN : IN SUPREME COURT
Enbridge Energy Company, Inc. and Enbridge
Energy, Limited Partnership,
Petitioners-Respondents-Petitioners,
v. FILED
Dane County,
JUN 27, 2019
Respondent-Appellant,
Sheila T. Reiff
Clerk of Supreme Court
Dane County Board of Supervisors, Dane County
Zoning and Land Regulation Committee and Roger
Lane Dane County Zoning Administrator,
Respondents.
Robert Campbell, Heidi Campbell, Keith
Reopelle, Trisha Reopelle, James Holmes, Jan
Holmes and Tim Jensen,
Plaintiffs-Appellants,
v.
Enbridge Energy Company, Inc., Enbridge Energy,
Limited Partnership and Enbridge Energy Limited
Partnership Wisconsin,
Defendants-Respondents-Petitioners.
No. 2016AP2503 & 2017AP13
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 REBECCA GRASSL BRADLEY, J. Enbridge Energy Company1
operates an interstate pipeline transporting liquid petroleum.
Dane County issued to Enbridge a conditional use permit ("CUP")
including two conditions requiring Enbridge to procure
additional insurance prior to expanding its pipeline pump
station. After Dane County initially approved the CUP with
these insurance conditions, but pending Enbridge's appeal to the
Dane County Board of Supervisors, the Wisconsin Legislature
passed 2015 Wisconsin Act 55, which prohibits counties from
requiring an interstate pipeline operator to obtain additional
insurance when the pipeline operating company carries
comprehensive general liability insurance with coverage for
"sudden and accidental" pollution liability. Although Dane
County recognized the impact of Act 55 on the enforceability of
the insurance conditions, it nevertheless issued the CUP with
the invalid conditions.
¶2 In response, Enbridge filed a petition for writ of
certiorari, which the Dane County Circuit Court granted. The
circuit court struck the two insurance conditions from the CUP
as unenforceable under Act 55. The court of appeals reversed,
concluding that Enbridge failed to show it carried the requisite
1
The petitioners are Enbridge Energy Company, Inc.,
Enbridge Energy, Limited Partnership, and Enbridge Energy
Limited Partnership Wisconsin. For ease of reference, we will
refer to them collectively as "Enbridge."
2
No. 2016AP2503 & 2017AP13
coverage triggering the statutory prohibition barring Dane
County from imposing additional insurance procurement
requirements. Enbridge maintains that because it carries the
requisite insurance, Act 55 rendered Dane County's extra
insurance conditions unenforceable, and the proper remedy is to
strike the illegal conditions, leaving the remainder of the
permit in place. We agree with Enbridge, reverse the court of
appeals decision, and reinstate the circuit court's order.
I. BACKGROUND
¶3 In 2014, Enbridge applied for a zoning permit to
expand the pumping capacity at its Waterloo Pump Station ("Pump
Station") in the Town of Medina. The Pump Station is part of a
pipeline that runs from Douglas County in northern Wisconsin,
through Dane County, and into Illinois. The Dane County Zoning
Administrator issued the permit on April 29, 2014, and Enbridge
agreed to comply with all Dane County Ordinances.
¶4 On June 12, 2014, however, the Zoning Administrator
revoked the zoning permit because the expansion and other
improvements required a CUP. Enbridge applied for a CUP on
August 19, 2014, which the Town Board of Medina approved on
October 1, 2014. The Town Board attached two conditions
requiring Enbridge to sign an agreement for the use of the
Town's roads and to construct a spill basin, respectively.
¶5 On November 11, 2014, the CUP application came before
the Dane County Zoning and Land Regulation Committee ("Zoning
Committee"), which directed its staff to "pursue a condition
requiring a surety bond for assurances of spill clean up due to
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No. 2016AP2503 & 2017AP13
the increase[d] pressure that the pumping station will create on
the existing line," and requested that Enbridge produce
documentation of its insurance for catastrophic events.2 The
Zoning Committee considered the CUP again on January 27, 2015,
and voted to retain an insurance expert "for the purposes of
determining the insurance needs of the proposal." The insurance
expert, David Dybdahl, prepared an insurance and risk management
report for the Zoning Committee. He recommended:
• That Enbridge agree to indemnify and hold
harmless Dane County for pollution losses Per the
terms as outlined in Enbridge's proposal titled
"CONDITIONAL USE PERMIT ("CUP") CONDITIONS";
• That Enbridge procures and maintains liability
insurance, including Environmental Impairment
Liability Insurance, making Dane County an
Additional Insured to a level equal to 10% of the
Line 6 B loss costs, $125,000,000;
• As part of this overall liability insurance
requirement, Enbridge should purchase $25,000,000
of EIL [Environmental Impairment Liability]
Insurance on the proposed pumping station in Dane
County.
¶6 Dybdahl noted that in preparing his report, "Enbridge
declined to provide the actual insurance policies (42 of them in
total) to [him] for review, claiming that the documents contain
trade secrets." Instead, Enbridge gave him summaries of the
policies. Although he did not review the actual policies,
Dybdahl "found [Enbridge's] summary of their insurance program
2The CUP application first came before the Zoning Committee
on October 28, 2014. Due to significant opposition, the Zoning
Committee postponed action until the November 2014 meeting.
4
No. 2016AP2503 & 2017AP13
to be credible," and he additionally observed that reading the
policies "was not necessary to evaluate the insurance coverage
parameters of concern."
¶7 Dybdahl determined that Enbridge had $700,000,000 of
general liability insurance coverage for bodily injury, property
damage, personal injury, and defense costs. His report noted
that this coverage was "confirmed by a certificate of insurance
prepared by [Enbridge's] insurance broker." The policy period
ran through May 1, 2015. Dybdahl also wrote that Enbridge's
general liability policy had an exception to the standard
pollution exclusion:
"Sudden and accidental pollution liability" is what
Enbridge shows for insurance coverage in their
financial statements today. However, the pollution
exclusion exemption in the Enbridge policy is not
limited to sudden or quick events. A Property Damage
or Bodily Injury claim arising from a pollution event
that begins and is discovered within 30 days and is
reported to the insurance company within 90 days is
not excluded by the Pollution Exclusion in the primary
Enbridge General Liability insurance policy. Hence
the words "sudden and accidental" carry no weight in
the current pollution exclusion. A more accurate term
to describe the limited coverage for pollution events
within the current General Liability Insurance policy
is "Time Element Pollution" coverage.
(Emphasis added.) Enbridge did not have separate environmental
impairment liability insurance, also known as pollution
insurance. Dybdahl acknowledged that "it is very possible that
Enbridge is already purchasing all of the General Liability
insurance capacity available in the world for their operations.
Therefore, I do not recommend the purchase of higher G[eneral]
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No. 2016AP2503 & 2017AP13
L[iability] limits for the operation of the . . . Pumping
Station."
¶8 Dybdahl appeared before the Zoning Committee on April
14, 2015. When asked by a Zoning Committee member to describe a
"time element" exception, he explained:
So the total pollution release from the time it begins
to the time it is discovered, in the Enbridge policy
must transpire in 30 days. That's the time element,
and then there's 90 days to report it to the insurance
company. It used to be referred to as sudden and
accidental pollution insurance, but the words sudden
and accidental were removed from the insurance
coverage in 1986. So it doesn't——no one really could
define what sudden meant, so they went to we're not
going to argue whether it's sudden, because nobody can
figure out how darn quick that needs to be, so we'll
just say [it] has to happen within 30 days start——
start to the time it's discovered. That's the time
element.
(Emphasis added.)
¶9 After reviewing the report and hearing Dybdahl's
testimony, the Zoning Committee considered the CUP with twelve
conditions. Two of those conditions imposed insurance coverage
requirements and are the subject of this appeal:
7. Enbridge shall procure and maintain liability
insurance as follows: $100,000,000 limits in General
Liability Insurance with a time element exception to
the pollution exclusion (currently in place), and
$25,000,000 of Environmental Impairment Liability
insurance. Enbridge shall list Dane County as an
Additional Insured on the total of $125,000,000 of
combined liability insurance.
8. The required General Liability Insurance and
Environmental Impairment Liability insurances shall
meet the technical insurance specifications listed in
Appendix A of the insurance consultant's report, which
is incorporated herein by reference.
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No. 2016AP2503 & 2017AP13
(Emphasis added.) The Zoning Committee unanimously approved the
CUP with the twelve conditions. The Town of Medina then re-
approved the CUP with the additional requirements on April 20,
2015. On May 4, 2015 Enbridge appealed to the Dane County Board
of Supervisors ("County Board"), challenging the two insurance
requirements.
¶10 Before the appeal was heard, however, the Legislature
passed Act 55. Two sections of the Act addressed CUPs and
insurance, respectively. First, § 1922am created Wis. Stat.
§ 59.69(2)(bs) (2017-18),3 which states:
As part of its approval process for granting a
conditional use permit under this section, a county
may not impose on a permit applicant a requirement
that is expressly preempted by federal or state law.
(Emphasis added.) Second, § 1923e created Wis. Stat.
§ 59.70(25), which states:
A county may not require an operator of an interstate
hazardous liquid pipeline to obtain insurance if the
pipeline operating company carries comprehensive
general liability insurance coverage that includes
coverage for sudden and accidental pollution
liability.
¶11 Because "the county cannot enforce the insurance
requirements of [the] CUP . . . that were the subject of the
Enbridge appeal," the County Board removed the CUP appeal from
its July agenda. A few days later, the Dane County Assistant
Corporation Counsel wrote to the Zoning Administrator:
3 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
7
No. 2016AP2503 & 2017AP13
A recent enactment of the legislature that was
included in the Budget Bill prohibits counties from
requiring an operator of an interstate hazardous
liquid pipeline to obtain insurance if the company
carries comprehensive general liability coverage that
includes sudden and accidental pollution liability.
Since Enbridge has the required general liability
coverage, the CUP condition requiring additional
insurance is unenforceable by the county.
. . . .
[Wisconsin Stat. §] 59.70(25) expressly prohibits
a county from requiring a pipeline operator to obtain
insurance if they have the required coverage.
Therefore, Dane County has no authority to require
Enbridge to obtain additional insurance coverage.
There is no issue of retroactive application of the
statute. By the express language of the statute,
effective July 14, 2015 the county is prohibited from
requiring the insurance coverage. When the CUP was
approved is irrelevant. The insurance conditions are
rendered unenforceable prospectively by the language
of § 59.70(25).
¶12 The Zoning Administrator then notified Enbridge by
letter that the CUP "has been revised to reflect" new
legislation prohibiting counties from "requiring additional
insurance of an operator of an interstate hazardous liquid
pipeline beyond" its CGL insurance. On that basis, the Zoning
Administrator removed conditions 7 and 8 from Enbridge's CUP.
The Zoning Committee, however, concluded that the "Zoning
Administrator did not have the authority to revise the
conditions of approval." On September 29, 2015, the Zoning
Committee directed the Zoning Administrator to restore the
insurance requirements in the CUP as originally approved by the
Zoning Committee on April 14, 2015. Instead of removing the
requirements, the Zoning Committee commanded that "[a] note
8
No. 2016AP2503 & 2017AP13
shall be added to the conditional use permit which identifies
that [Dane] County's ability to enforce conditions 7 & 8 [is]
affected by the State Budget Bill, 2015 Wisconsin Act 55." On
October 9, 2015, the Zoning Administrator sent a letter
informing Enbridge that the Zoning Committee had instructed him
to include the insurance conditions in the CUP exactly as
initially approved. The letter also notified Enbridge that
"[a]s part of the Committee's direction, a note has been added
to the conditional use permit which identifies that conditions 7
& 8 are unenforceable by [Dane] County due to the State Budget
Bill[.]"
¶13 Enbridge appealed the Zoning Committee's decision to
reinsert the insurance conditions with the added note to the
County Board, which held a hearing on December 3, 2015. After a
summary of the CUP by the Zoning Administrator, Enbridge's
counsel affirmed that at the time Dane County issued the CUP,
"Enbridge had $700 million worth of general liability insurance
which included sudden and accidental pollution coverage" that
"has since been raised to $860 million." Following questions
from several supervisors, and numerous comments from the public,
the County Board voted 27-2 to deny the appeal and keep the CUP
with conditions 7 and 8 intact along with the note regarding
their unenforceability.
¶14 In January 2016, Enbridge filed a petition for a writ
of certiorari under Wis. Stat. § 59.694(10) in Dane County
Circuit Court. Enbridge argued that the County Board's decision
affirming the Zoning Committee should be reversed because the
9
No. 2016AP2503 & 2017AP13
insurance conditions were unenforceable under Act 55. In
February 2016, Robert and Heidi Campbell, Keith and Trisha
Reopelle, James and Jan Holmes, and Tim Jensen——all of whom
owned property near the Pump Station (collectively,
"Landowners")——filed a complaint for injunctive relief pursuant
to Wis. Stat. § 59.69(11), which allows an "owner of real estate
within the district affected by the [zoning] regulation" to
enforce a zoning ordinance. The Landowners asked "the Court to
exercise its injunctive powers to enforce and compel compliance
with Condition 7 of the Conditional Use Permit."
¶15 The circuit court consolidated the Landowners' case
and Enbridge's certiorari action, and issued an oral ruling on
July 11, 2016. The circuit court concluded that Act 55 rendered
the insurance conditions void and unenforceable and adjourned
the matter for a later hearing on the appropriate remedy. After
the parties briefed the issue, the circuit court determined the
appropriate remedy was to strike the two unenforceable
conditions from the CUP:
I don't think you can put conditional uses that will
come into effect upon some contingency years in the
future that we don't know whether or not it will
occur. We can't create contingent future conditions
is my understanding of conditional use permits. You
can't just do that.
. . . .
But in my view, those circumstances really,
really counsel against authorizing the [Zoning
Committee] or the county board to start again on the
conditional use permit even independent of the vested
rights issue, but the vested rights issue is not
insubstantial. Like I said, a lot of water has flowed
10
No. 2016AP2503 & 2017AP13
under the bridge or tar sands through the pipeline
since the legislation a year ago, and the time for the
county to have acted was last fall, and rather than
take the action that they now want me to authorize
them to do, they instead affirm the issuance of the
conditional use permit as is with unenforceable
provisions.
(Emphasis added.) The circuit court also dismissed the
Landowners' injunction action under Wis. Stat. § 59.69(11)
because the conditions the Landowners sought to enforce were
unenforceable, and they "wouldn't be enforcing anything."
¶16 Dane County and the Landowners appealed the circuit
court's decision, and the court of appeals consolidated the
appeals and reversed. See Enbridge Energy Co. v. Dane Cty.,
Nos. 2016AP2503 & 2017AP13, unpublished slip op. (Wis. Ct. App.
May 24, 2018). In part, the court of appeals held that
"Enbridge failed to show to the zoning committee that, as
required to trigger the Act 55 insurance limitation, it
'carries' insurance that 'includes' any particular coverage, and
also failed to show that it carries coverage 'for sudden and
accidental pollution liability.'" Id., ¶41. The court of
appeals construed Act 55 to mean "that the insurance limitation
is triggered only after it is shown that an operator has the
specified insurance, and it is not sufficient to show that the
operator has carried this insurance in the past or might obtain
it in the future." Id., ¶71. According to the court of
appeals, "Enbridge failed to show to the zoning committee that
it would maintain the coverage delineated in Act 55, but instead
pointed only to coverage that was, at best, lapsing." Id., ¶75.
The court of appeals additionally concluded that "Enbridge
11
No. 2016AP2503 & 2017AP13
failed to demonstrate at any time that it carried sudden and
accidental pollution liability insurance." Id., ¶78. Relying
on Just v. Land Reclamation, Ltd., 155 Wis. 2d 737, 456
N.W.2d 570 (1990)——an insurance contract interpretation case——
the court of appeals interpreted "sudden and accidental" to
include "pollution that causes either 'abrupt or immediate' or
'unexpected and unintended damages.'" Enbridge Energy Co., Nos.
2016AP2503 & 2017AP13, unpublished slip op., ¶82 (quoting Just,
155 Wis. 2d at 760; see also Just, 155 Wis. 2d at 741-42, 745-
46). The court of appeals held that Enbridge failed to show
that its policy covered "unexpected and unintended" pollution
liability. Enbridge Energy Co., Nos. 2016AP2503 & 2017AP13,
unpublished slip op., ¶96.
¶17 The court of appeals rejected Enbridge's proposed
remedy to strike conditions 7 and 8 because it
"would . . . improperly deprive the zoning committee of the
opportunity to consider what valid permit conditions, insurance
or otherwise, may be adequate to satisfy the permitting
standards established by ordinance . . . with the benefit of a
correct understanding of the Act 55 insurance limitation." Id.,
¶98. Instead, Dane County persuaded the court of appeals to
apply a rule adopted by Connecticut, the District of Columbia,
and Hawaii "that the appropriate judicial remedy, when a court
holds permit conditions invalid and the conditions were integral
to approval of the permit, is to reverse permit approval and not
to sever the invalid conditions." Id., ¶103. Enbridge filed a
petition for review with this court, which we granted.
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No. 2016AP2503 & 2017AP13
II. DISCUSSION
A. Standard of Review
¶18 In this certiorari case, we review the decision of the
County Board rather than the decisions of the lower courts. See
Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50,
¶¶41-42, 362 Wis. 2d 290, 865 N.W.2d 162. Our inquiry is
limited to determining:
(1) whether the municipality kept within its
jurisdiction; (2) whether it proceeded on a correct
theory of law; (3) whether its action was arbitrary,
oppressive, or unreasonable and represented its will
and not its judgment; and (4) whether the evidence was
such that it might reasonably make the order or
determination in question.
Ottman v. Town of Primrose, 2011 WI 18, ¶35, 332 Wis. 2d 3, 796
N.W.2d 411. The focus of this appeal is whether the County
Board proceeded on a correct theory of law and whether Wis.
Stat. §§ 59.69(2)(bs) and 59.70(25) render conditions 7 and 8
unenforceable. We must also decide whether the Landowners may
enforce conditions 7 and 8, which requires us to interpret Wis.
Stat. § 59.69(11). Finally, we determine the proper remedy on
certiorari, which requires us to interpret Wis. Stat.
§ 59.694(10).
¶19 Statutory interpretation is a question of law we
review de novo. CED Props., LLC v. City of Oshkosh, 2018 WI 24,
¶20, 380 Wis. 2d 399, 909 N.W.2d 136. "[S]tatutory
interpretation 'begins with the language of the statute,'" and
"[i]f the meaning of the statute is plain, we ordinarily stop
the inquiry." State ex rel. Kalal v. Circuit Court for Dane
13
No. 2016AP2503 & 2017AP13
Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoted
source omitted). We give statutory language "its common,
ordinary, and accepted meaning, except that technical or
specially-defined words or phrases are given their technical or
special definitional meaning." Id. Context and structure are
both important to meaning, and "statutory language is
interpreted in the context in which it is used; not in isolation
but as part of a whole; in relation to the language of
surrounding or closely-related statutes; and reasonably, to
avoid absurd or unreasonable results." Id., ¶46. "Statutory
language is read where possible to give reasonable effect to
every word, in order to avoid surplusage." Id.
B. Analysis
1. The County Board's Decision
¶20 The first issue is whether Wis. Stat. §§ 59.70(25) and
59.69(2)(bs) (collectively, "Act 55") render conditions 7 and 8
in the CUP unenforceable. Section 59.70(25) provides that "[a]
county may not require an operator of an interstate hazardous
liquid pipeline to obtain insurance if the pipeline operating
company carries comprehensive general liability [CGL] insurance
coverage that includes coverage for sudden and accidental
pollution liability." Section 59.69(2)(bs) provides that "a
county may not impose on a permit applicant a requirement that
is expressly preempted by . . . state law." The text of each
statute is straightforward: if an operator of an "interstate
hazardous liquid pipeline" (the parties agree that Enbridge fits
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No. 2016AP2503 & 2017AP13
this category) carries CGL insurance that includes coverage for
"sudden and accidental pollution liability," then a county may
not require the operator to obtain additional insurance.
Therefore, if Enbridge carries CGL insurance for "sudden and
accidental pollution liability," conditions 7 and 8 requiring
Enbridge to obtain additional insurance are unenforceable.
¶21 Dane County concedes that conditions 7 and 8 are
unenforceable under Act 55. The Landowners, however, contend
that Wis. Stat. § 59.70(25) does not apply for two reasons: (1)
Enbridge failed to prove that it carried any insurance, and (2)
Enbridge's "time element" pollution insurance, as Dybdahl
characterized it, is not the same as "coverage for sudden and
accidental pollution" under § 59.70(25). The Landowners rely on
Just, 155 Wis. 2d 737, to define "sudden and accidental" as
including "coverage for both 'abrupt or immediate' and
'unexpected and unintended' casualty events." Consistent with
the court of appeals decision, the Landowners contend that
§ 59.70(25) applies only if Enbridge provides coverage for all
"unexpected and unintended" pollution events, regardless of when
the pollution damage is discovered or reported to the insurer.
We reject both arguments.
¶22 The certiorari record contained ample and
uncontroverted evidence that Enbridge carried the requisite
insurance. Dybdahl's report and testimony establish that
Enbridge carried CGL insurance covering pollution events
provided they are discovered within 30 days and reported to the
insurance company within 90 days. During the December 2015
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No. 2016AP2503 & 2017AP13
hearing when the County Board issued its final decision on the
CUP, Enbridge reaffirmed that it continued to carry insurance,
with increased policy limits. Nothing in the certiorari record
contradicts Enbridge's summary of insurance coverage presented
to Dybdahl, who found Enbridge's representations satisfactory
and confirmed by the certificate of insurance furnished by
Enbridge's insurance broker. Nor did the Landowners introduce
any contrary evidence as part of their injunction action.
Therefore, we reject the Landowners' argument that Enbridge
failed to show it carried insurance.4
¶23 The Landowners assert that Enbridge must not only
carry insurance but also must maintain it in perpetuity in order
to be exempt from Dane County's imposition of additional
insurance requirements. Setting aside the unlikelihood that a
hazardous liquid pipeline operator would go uninsured and expose
itself to catastrophic liability, the statutory text does not
require an operator to "maintain" the specified insurance
coverage. Wisconsin Stat. § 59.70(25) precludes a county from
requiring additional insurance provided the operator "carries"
CGL coverage for sudden and accidental pollution. Nothing more
is required of the operator in order to avail itself of the
statutory exemption from additional, county-imposed insurance
requirements. We decline to add words to the statute, as the
4
The Landowners' insistence that we must remand so Dane
County can verify Enbridge's insurance also fails because
Enbridge did present evidence of its insurance. Wisconsin Stat.
§ 59.70(25) requires nothing more.
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No. 2016AP2503 & 2017AP13
Landowner's argument would necessitate. "Under the omitted-case
canon of statutory interpretation, '[n]othing is to be added to
what the text states or reasonably implies (casus omissus pro
omisso habendus est). That is, a matter not covered is to be
treated as not covered.'" State ex rel. Lopez-Quintero v.
Dittman, 2019 WI 58, ¶18, ___ Wis. 2d ___, ___ N.W.2d ___
(quoting Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 93 (2012)); see also Wisconsin
Ass'n of State Prosecutors v. WERC, 2018 WI 17, ¶45, 380
Wis. 2d 1, 907 N.W.2d 425 ("Nothing is to be added to what the
text states or reasonably implies" (quoting Scalia & Garner,
Reading Law at 93)). "One of the maxims of statutory
construction is that courts should not add words to a statute to
give it a certain meaning." Fond du Lac Cty. v. Town of
Rosendale, 149 Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App. 1989).
¶24 We reject the Landowners' second argument as well.
Enbridge's "time element" pollution insurance is congruent with
the "sudden and accidental" coverage referenced in Wis. Stat.
§ 59.70(25). Contrary to the Landowners' construction of the
statute, it does not require coverage for all unexpected and
unintended pollution regardless of when the pollution event is
discovered or reported to the insurer. The text of § 59.70(25)
requires only that the pipeline operator carry CGL insurance
with coverage for "sudden and accidental" pollution liability.
As Dybdahl confirmed, the term "sudden and accidental" is
"commonly used" in reference to CGL policies covering pollution
events that "happen in certain timeframes." Indeed, Dybdahl
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No. 2016AP2503 & 2017AP13
explained "because nobody can figure out how darn quick
["sudden"] needs to be . . . we'll just say [it] has to happen
within 30 days start . . . to the time it is discovered. That's
the time element." The statute contains no language requiring
the pollution coverage to apply regardless of when the pollution
is discovered or when it is reported to the insurer in order for
a county to be precluded from imposing additional insurance
requirements on the pipeline operator. According to Dybdahl,
the meaning of "sudden" within this insurance context has
morphed into a pollution event that is discovered within 30
days.
¶25 The statute does not define "sudden" or "accidental."
According to Dybdahl, the insurance industry abandoned these
terms nearly 30 years before the Legislature enacted Wis. Stat.
§ 59.70(25) because "no one really could define what sudden
meant." Accordingly, we give these words their "common,
ordinary, and accepted" meanings. Kalal, 271 Wis. 2d 633, ¶45.
¶26 "Accidental" means something unexpected, unintended,
or that happened by chance rather than intentionally. Common
dictionary definitions support this meaning. See Accidental,
Black's Law Dictionary (10th ed. 2014) (defining "accidental" as
"[n]ot having occurred as a result of anyone's purposeful act;
esp., resulting from an event that could not have been prevented
by human skill or reasonable foresight"); Accidental, Shorter
Oxford English Dictionary (6th ed. 2007) (defining "accidental"
in part as "[h]appening by chance, undesignedly, or
unexpectedly"); Accidental, American Heritage Dictionary (5th
18
No. 2016AP2503 & 2017AP13
ed. 2011) (defining "accidental" as something "[o]ccurring
unexpectedly, unintentionally, or by chance").
¶27 "Sudden" may be used both in this sense as well as in
a temporal sense. See Sudden, Black's Law Dictionary (6th ed.
1990) (defining "sudden" as "[h]appening without previous notice
or with very brief notice," "occurring unexpectedly,"
"unforeseen," or "unprepared for");5 Sudden, Shorter Oxford
English Dictionary (6th ed. 2007) (defining "sudden" in both a
temporal sense, as in "without delay," "speedy," or "immediate"
and to describe the unexpected, unintended, or unforeseen nature
of something); Sudden, American Heritage Dictionary (5th ed.
2011) (defining "sudden" as both "[h]appening without warning"
or "unforeseen" and "[h]appening without delay; hasty or
immediate"); see also Just, 155 Wis. 2d at 745-46.
¶28 While the court of appeals correctly deduced that
"sudden" can signify something that is "unexpected and
unintended" (as we confirmed in Just), the more reasonable
interpretation of "sudden" in the context of Wis. Stat.
§ 59.70(25) applies a temporal meaning, such as something
happening quickly, abruptly, or immediately. Interpreting
"sudden" to mean "unexpected and unintended," as the court of
5
The Tenth Edition of Black's Law Dictionary does not
define "sudden," but it does describe a "sudden-and-accidental
[pollution] clause" as "contain[ing] an exception [to the
pollution exclusion] under which the damages are
covered . . . if the discharge or other release was sudden and
accidental." See Pollution Exclusion, Black's Law Dictionary
(10th ed. 2014).
19
No. 2016AP2503 & 2017AP13
appeals did below,6 creates an avoidable surplusage problem: it
is redundant of the word "accidental," which also means
unexpected or unintended. Such an interpretation needlessly
leaves "sudden" and "accidental" with the same meaning, which
our rules of statutory interpretation counsel against. "If
possible, every word and every provision is to be given effect
(verba cum effectu sunt accipienda). None should be ignored.
None should needlessly be given an interpretation that causes it
to duplicate another provision or to have no consequence."
Scalia & Garner, supra ¶23, at 174; see also Donaldson v. State,
93 Wis. 2d 306, 315, 286 N.W.2d 817 (1980) ("A statute should be
construed so that no word or clause shall be rendered surplusage
and every word if possible should be given effect.").
¶29 While the temporal sense of "sudden" can have "an
elastic temporal connotation that varies with expectations[,]"7
given the inclusion of "accidental"——which already means
unexpected and unintended——in Wis. Stat. § 59.70(25), the
temporal connotation is the most reasonable meaning for "sudden"
within the context of this statute. Whenever possible, "courts
avoid a reading that renders some words altogether redundant."
Scalia & Garner, supra ¶23, at 176. Interpreting "sudden" in a
6
See Enbridge Energy Co. v. Dane Cty., Nos. 2016AP2503 &
2017AP13, unpublished slip op., ¶82 (Wis. Ct. App. May 24,
2018).
7
Just v. Land Reclamation, Ltd., 155 Wis. 2d 737, 745-46,
456 N.W.2d 570 (1990) (quoting Claussen v. Aetna Cas. & Sur.
Co., 380 S.E.2d 686, 688 (Ga. 1989)).
20
No. 2016AP2503 & 2017AP13
temporal sense gives each word meaning, and is consistent with
the absence of any statutory language limiting the qualifying
coverage to only those CGL policies without time limits on the
discovery and reporting of pollution events.
¶30 Contrary to the Landowners' position, which the court
of appeals adopted, Just did not hold that coverage for "sudden
and accidental pollution liability" necessarily includes
"pollution that causes either 'abrupt or immediate' or
'unexpected and unintended damages.'" See Enbridge Energy Co.,
Nos. 2016AP2503 & 2017AP13, unpublished slip op., ¶82 (emphasis
added; quoted source omitted). In Just we observed that
"recognized dictionaries differ on the meaning of the term
'sudden,'" and we acknowledged that the term can mean either
something that is "unexpected and unintended" or something that
is "abrupt and immediate." Just, 155 Wis. 2d at 745-46.
Because the word has multiple meanings, and under insurance
interpretation rules we "construe the ambiguity in favor of the
insured and against the insurance company that drafted the
ambiguous language," we gave the term a meaning favoring the
insured——"unexpected and unintended." Id. at 746-47.
Significantly, Just interpreted an insurance contract, not a
statute. See id. at 744-45. In this case, we interpret
statutes, not an insurance contract. Accordingly, we assign the
most reasonable meaning given the statutory context, favoring
neither party. See Kalal, 271 Wis. 2d 633, ¶54.
¶31 According to Dybdahl, Enbridge's CGL insurance covered
bodily injury or property damage resulting from pollution as
21
No. 2016AP2503 & 2017AP13
long as it "is discovered within 30 days and is reported to the
insurance company within 90 days." As Dybdahl explained,
Enbridge's insurance coverage for pollution events "is not
limited to sudden or quick events." Enbridge's policy provides
coverage for claims "arising from a pollution event that begins
and is discovered within 30 days" after its occurrence "and is
reported to the insurance company within 90 days." In other
words, Enbridge's policy includes coverage broader than the
statutorily-described insurance. Therefore, Wis. Stat.
§ 59.70(25) applies and precludes Dane County from requiring
Enbridge to obtain additional insurance.
¶32 Conditions 7 and 8 of the CUP required Enbridge to
obtain additional insurance that met certain technical
specifications, which went beyond the statutorily-described
insurance.8 Wisconsin Stat. § 59.69(2)(bs) prohibits counties
8 Condition 8 is not merely a proof-of-insurance
requirement, as the Landowners maintain. It provides "[t]he
required General Liability Insurance and Environmental
Impairment Liability insurances shall meet the technical
insurance specifications listed in Appendix A." It thereby
dictates the specifics of the insurance coverage required by
condition 7. Therefore, it is unenforceable under Act 55.
Furthermore, during oral argument, Enbridge repeatedly
stated it would provide proof of insurance to Dane County, and
the record supports that Enbridge carried the requisite
insurance. Accordingly, the Landowners' and Dane County's
argument that Dane County could require proof of insurance as a
condition in the CUP is a red herring. Significantly, Dane
County never included a CUP condition requiring Enbridge to
prove it had a CGL policy that satisfied Wis. Stat. § 59.70(25)
nor did it require anything more than the summary provided by
Enbridge before it issued the CUP. In fact, Dane County
proceeded on the assumption that Enbridge carried insurance
(continued)
22
No. 2016AP2503 & 2017AP13
from imposing on a permit applicant any requirement expressly
preempted by state law. Wisconsin Stat. § 59.70(25) preempts
county-imposed insurance requirements for pipeline operators
that carry CGL insurance policies including pollution liability
coverage. We therefore conclude that conditions 7 and 8 are
unenforceable under Act 55.
¶33 Our conclusion that conditions 7 and 8 are
unenforceable disposes of the Landowners' attempt to enforce
them under Wis. Stat. § 59.69(11) as well. Under that statute,
compliance with county zoning ordinances "may also be enforced
by injunctional order at the suit of the county or an owner of
real estate within the district affected by the regulation."
§ 59.69(11). Enbridge disputes the Landowners' characterization
of a CUP or its conditions as "ordinances." We need not resolve
whether a CUP or its conditions constitute "ordinances" within
the meaning of § 59.69(11) because Wis. Stat. § 59.70(25)
renders these conditions unenforceable and nothing in
§ 59.69(11) reanimates void conditions. The Landowners
therefore enjoy no better footing than Dane County in their
attempts to enforce the unlawful conditions 7 and 8 nor do they
explain why they should be able to enforce conditions Dane
County cannot.
consistent with its representations. We therefore do not
address what additional conditions——such as proof of insurance——
that counties may include in CUPs even if § 59.70(25) bars them
from requiring a pipeline operator to obtain additional
insurance.
23
No. 2016AP2503 & 2017AP13
2. The Remedy
¶34 We next consider whether the circuit court properly
struck conditions 7 and 8 from the CUP as the appropriate
remedy, as Enbridge maintains, or whether the CUP should be
remanded to the Zoning Committee, as the Landowners and Dane
County propose. Dane County argues that the Zoning Committee
"is the agency charged with making findings as to whether
issuance of a CUP is in the public interest," and it "never
considered issuing the [CUP] without the insurance conditions."
Dane County maintains that striking the conditions usurps the
Zoning Committee's authority to determine whether issuing a CUP
is appropriate under Dane County's ordinances. Dane County
contends that "the function of the reviewing court ends when an
error of law is laid bare." See Federal Power Comm'n v. Idaho
Power Co., 344 U.S. 17, 20 (1952).
¶35 The Landowners also urge remand as the proper remedy
because the Zoning Committee "never had the opportunity to
determine whether Enbridge has Sudden and Accidental Insurance
and if not, whether [it] would approve the CUP
without . . . Conditions No 7 and 8." Like Dane County, the
Landowners insist the insurance conditions were integral to the
CUP, and "[t]he Act 55 Insurance Limitations were clearly not
anticipated" by the Zoning Committee. In the Landowners' view,
the Zoning Committee must be allowed to reconsider the CUP in
order to confirm that Enbridge will maintain insurance coverage
sufficient to protect the residents of Dane County or "craft
additional conditions" to do so. The Landowners are incorrect.
24
No. 2016AP2503 & 2017AP13
We reject remand as the remedy and conclude the circuit court
properly struck the unlawful CUP conditions because Wis. Stat.
§ 59.694(10) expressly permits such modification.
¶36 The Zoning Committee had authority to attach
conditions to the CUP to ensure compliance with Dane County's
zoning ordinances and standards for issuing CUPs, but not
conditions violative of Wisconsin law. County ordinances may
provide for "conditional uses by virtue of a special use or
conditional use permit" in addition to permitted uses under the
applicable zoning ordinances. Town of Rhine v. Bizzell, 2008 WI
76, ¶20, 311 Wis. 2d 1, 751 N.W.2d 780. "A conditional use
permit allows a property owner 'to put his property to a use
which [an] ordinance expressly permits when certain conditions
[or standards] have been met.'" Id., ¶21 (quoted source
omitted; second alteration in original). Under Dane County's
ordinances, the Zoning Committee must find that the standards
set forth in Dane Cty. Or. § 10.255(2)(h)9 have been met prior to
9 Dane County Ordinance § 10.255(2)(h) provides:
(h) Standards. No application for a conditional use
shall be granted by the town board or zoning committee
unless such body shall find that all of the following
conditions are present:
1. That the establishment, maintenance or
operation of the conditional use will not be
detrimental to or endanger the public health, safety,
comfort or general welfare;
2. That the uses, values and enjoyment of other
property in the neighborhood for purposes already
permitted shall be in no foreseeable manner
(continued)
25
No. 2016AP2503 & 2017AP13
issuing a CUP. See Dane Cty. Or. § 10.255(2)(b) ("No permit
shall be granted when the zoning committee . . . determines that
the standards are not met[.]").
¶37 Neither the Zoning Committee's obligation to ensure
the standards in Dane County Ordinance § 10.255 have been met,
nor its authority to impose CUP conditions, however, precludes a
reviewing court from modifying a CUP by striking unlawful
conditions. On certiorari review under Wis. Stat. § 59.694(10),
"[t]he court may reverse or affirm, wholly or partly, or may
modify, the decision brought up for review." § 59.694(10)
(emphasis added). This statutory language expressly authorizes
the reviewing court on certiorari to modify the decision under
review. In this case, the circuit court acted well within its
statutory authority to modify the County Board's decision to
substantially impaired or diminished by establishment,
maintenance or operation of the conditional use;
3. That the establishment of the conditional use
will not impede the normal and orderly development and
improvement of the surrounding property for uses
permitted in the district;
4. That adequate utilities, access roads,
drainage and other necessary site improvements have
been or are being made;
5. That adequate measures have been or will be
taken to provide ingress and egress so designed as to
minimize traffic congestion in the public streets; and
6. That the conditional use shall conform to all
applicable regulations of the district in which it is
located.
26
No. 2016AP2503 & 2017AP13
issue the CUP with what the County Board knew were illegal
insurance conditions.
¶38 Our decision in Adams v. State Livestock Facilities
Siting Review Board, 2012 WI 85, 342 Wis. 2d 444, 820
N.W.2d 404, supports modifying a CUP by striking conditions as
an appropriate remedy. In that case, Wisconsin law allowed the
Town of Magnolia to impose more stringent conditions on a CUP
for a livestock facility than those prescribed by State law, but
only if the Town made certain factual findings. Id., ¶¶53-56.
The Town failed to do so, rendering the challenged CUP
conditions improper. Id., ¶56. Wisconsin Stat. § 93.90(5)(d)
required the State Livestock Facilities Siting Review Board
("Siting Board") to "reverse the decision of the political
subdivision" if it determined that a challenge to permit
conditions was valid. Adams, 342 Wis. 2d 444, ¶61. We held
that the Siting Board properly modified the CUP by striking the
invalid conditions rather than simply reversing the Town's
decision to impose those conditions on the CUP and returning the
applicant to the beginning of the permitting process. Id.,
¶¶60, 64-65. We concluded that § 93.90(5)(d) granted the Siting
Board the "implied power" to modify the CUP by removing the
invalid conditions. Adams, 342 Wis. 2d 444, ¶62. Our
conclusion was "compelled by the unusual circumstances of the
case," including the "absurd[ity]" of requiring the permit
applicant "to return to the beginning of the application
process"——which had taken over four years——"because of the
Town's mistake." Id., ¶¶63-65.
27
No. 2016AP2503 & 2017AP13
¶39 The court of appeals, Dane County, and the Landowners
all highlight the procedural and statutory differences between
Adams and the present case. These distinctions are irrelevant.
Under Adams, striking CUP conditions——a statutorily-authorized
remedy——does not encroach upon the authority of a municipality
that chose to impose unlawful conditions. In this case, a
court's authority to strike unlawful conditions on certiorari
review is even clearer than in Adams; the circuit court here had
explicit authority under Wis. Stat. § 59.694(10) to "modify" the
County Board's decision, in addition to the option of simply
affirming or reversing. The circuit court exercised that
authority by striking conditions 7 and 8 from the CUP in order
to conform it to the law. Contrary to the court of appeals'
characterization of the circuit court's action, by striking
conditions 7 and 8, the circuit court did not "usurp[] the
authority of the zoning committee." See Enbridge Energy Co.,
Nos. 2016AP2503 & 2017AP13, unpublished slip op., ¶104. Rather,
the circuit court corrected the Zoning Committee's improper
imposition of unlawful CUP conditions.
¶40 There may be circumstances in which reversing a CUP
and remanding to allow the municipal authority to reconsider its
decision would be appropriate. For example, in Lamar Central
Outdoor, Inc. v. Board of Zoning Appeals, 2005 WI 117, 284
Wis. 2d 1, 700 N.W.2d 87, we remanded a decision denying a
zoning variance because the law had changed, and the "Board
should . . . have the opportunity to reevaluate the facts under"
the new legal standard. Id., ¶23. In this case, Dane County
28
No. 2016AP2503 & 2017AP13
knew that Act 55 rendered the conditions unenforceable but it
issued the CUP with those conditions anyway. At oral argument,
Dane County conceded the County Board could have sent the CUP
back to the Zoning Committee to conduct "meaningful review" of
the CUP without the invalid insurance conditions and to consider
whether the CUP should be issued without them. The County
Board, however, decided not to send the CUP back to the Zoning
Committee to reconsider the standards in Dane County Ordinance
§ 10.255(2)(h) in light of Act 55. Instead, the County Board
affirmed the issuance of the CUP knowing that two of its
conditions were unlawful and therefore unenforceable. It would
be senseless to give the Zoning Committee the opportunity to
reevaluate its decision under these circumstances. As the
circuit court recognized, "the time for the County to have acted
was last fall [2015], and . . . they instead affirm[ed] the
issuance of the conditional use permit as is with unenforceable
provisions." In Lamar Central Outdoor, Inc., remand was the
only available remedy because the zoning board denied the
variance. Id., ¶12. As a result, unlike this case, there was
nothing to modify.10
10
Dane County and the Landowners additionally rely on cases
in Connecticut, the District of Columbia, and Hawaii holding
that striking individual CUP conditions is inappropriate when
those conditions were "essential" or "integral" to the decision
to issue the permit. See e.g., Vaszauskas v. Zoning Bd. of
Appeals, 574 A.2d 212, 215-16 (Conn. 1990); President & Dirs. of
Georgetown Coll. v. District of Columbia Bd. of Zoning
Adjustment, 837 A.2d 58, 82 (D.C. 2003); Department of Envtl.
Servs. v. Land Use Comm'n, 275 P.3d 809, 821-22 (Haw. 2012). We
decline to adopt the integral-to-the-permit analysis applied in
(continued)
29
No. 2016AP2503 & 2017AP13
¶41 By affirming the issuance of the CUP, rather than
remanding it to the Zoning Committee for reconsideration in
light of Act 55, the County Board issued the CUP with two
unenforceable insurance requirements——conditions 7 and 8. As
Dane County conceded at oral argument, the County Board
effectively issued the CUP without conditions 7 and 8 by
deciding to issue the permit after Act 55 invalidated them. In
Adams, we determined it would be absurd to force the permit
applicant to repeat the permitting process due to the Town's
mistake. Adams, 342 Wis. 2d 444, ¶65. In this case, it would
be even more absurd to force Enbridge to repeat the permitting
process when the County Board knowingly issued a CUP with
unlawful conditions. Remanding the case to the Zoning Committee
would not remedy the County Board's inclusion of unlawful
conditions so much as it would reward Dane County for imposing
"impermissible, extra-legal conditions." Id. at ¶63. Because
Dane County chose to condition the CUP in disregard of Act 55,
the circuit court properly struck the invalid conditions in
accordance with its express authority under Wis. Stat.
§ 59.694(10) to grant this remedy.
III. CONCLUSION
¶42 The insurance conditions imposed by Dane County in the
CUP issued to Enbridge were rendered unenforceable by Act 55.
three foreign jurisdictions and instead apply our analysis in
Adams v. State Livestock Facilities Siting Review Board, 2012 WI
85, 342 Wis. 2d 444, 820 N.W.2d 404.
30
No. 2016AP2503 & 2017AP13
Enbridge carried the requisite insurance under Wis. Stat.
§ 59.70(25) including coverage for "sudden and accidental
pollution liability." The statute barred Dane County from
requiring Enbridge to obtain additional insurance. The circuit
court properly remedied Dane County's imposition of unlawful
insurance conditions by striking them from the CUP. A remand
would be inappropriate given that Dane County knew when it
approved the CUP that Act 55 rendered the insurance conditions
invalid.
By the Court.——The decision of the court of appeals is
reversed.
¶43 SHIRLEY ABRAHAMSON and REBECCA DALLET, J.J., withdrew
from participation.
31
No. 2016AP2503 & 2017AP13.awb
¶44 ANN WALSH BRADLEY, J. (dissenting). In 2010 an
Enbridge oil spill in Michigan cost $1.2 billion and has
resulted in "ongoing insurance coverage litigation."
¶45 The Dane County Board of Supervisors was mindful that
running an oil pipeline is a dangerous business and sought to
avoid such a result. Accordingly, to ensure that Enbridge
provides adequate coverage in the event of a catastrophe, it
included certain insurance conditions in Enbridge's conditional
use permit for expansion of a pipeline through the County.
¶46 However, the legislature stepped in and passed Wis.
Stat. §§ 59.69(2)(bs) and 59.70(25). These new provisions have
preemptive effect on county action. They prohibit a county from
requiring that an oil pipeline operator obtain additional
insurance if the operator "carries comprehensive general
liability insurance coverage that includes coverage for sudden
and accidental pollution liability." § 59.70(25).
¶47 The majority determines that Enbridge maintains the
requisite insurance, and that therefore Dane County can require
of it no more. Majority op., ¶2. In doing so, the majority
endorses an unreasonable result through its interpretation of
the word "carries" and departs from this court's precedent that
defined "sudden and accidental."
¶48 I agree with the unanimous court of appeals that
"Enbridge failed to demonstrate at any time that it carried
sudden and accidental pollution liability insurance." Enbridge
Energy Co., Inc. v. Dane Cty., No. 2016AP2503 & 2017AP13,
1
No. 2016AP2503 & 2017AP13.awb
unpublished slip op., ¶78 (Wis. Ct. App. May 24, 2018).
Accordingly, I respectfully dissent.
I
¶49 The majority errs in its interpretation of two key
statutory terms——"carries" and "sudden and accidental."
Accordingly, its determination that Enbridge "carries" the
requisite insurance to trigger Act 55's preemption provisions is
in error. As the court of appeals unanimously determined,
Enbridge made no such showing.
¶50 Pursuant to Wis. Stat. § 59.70(25), "[a] county may
not require an operator of an interstate hazardous liquid
pipeline to obtain insurance if the pipeline operating company
carries comprehensive general liability insurance coverage that
includes coverage for sudden and accidental pollution
liability." In other words, if the pipeline operating company
carries CGL insurance that includes coverage for "sudden and
accidental" pollution liability, then a county may not require
it to "obtain" additional insurance.1
¶51 Our essential task in this case is therefore to
determine if Enbridge "carries" such insurance. To answer this
question, we must look to the words of the statute. State ex
rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271
1
See also Wis. Stat. § 59.69(2)(bs) ("As part of its
approval process for granting a conditional use permit . . . , a
county may not impose on a permit applicant a requirement that
is expressly preempted by federal or state law.").
2
No. 2016AP2503 & 2017AP13.awb
Wis. 2d 633, 681 N.W.2d 110. If the meaning is plain, we need
not inquire further. Id.
¶52 Two statutory terms are of particular note: "carries"
and "sudden and accidental." With regard to the term "carries,"
the majority draws a distinction between "carrying" and
"maintaining" insurance. Majority op., ¶23. In the majority's
view, "the statutory text does not require an operator to
'maintain' the specified insurance coverage[,]" and thus
Enbridge need not demonstrate that it "carries" the requisite
insurance at any time other than the discrete point in time at
which the conditional use permit was issued. Id.
¶53 Such an interpretation leads to an absurd result.
Interpreting "carries" to indicate a discrete moment in time
appears to allow Enbridge to have no insurance at all provided
that it previously carried insurance at the moment the
conditional use permit was granted. Unlike the majority, I
agree with the court of appeals that "when as here a county
issues a conditional use permit that includes a produce-proof-
on-demand requirement, then the operator must produce, on
demand, proof of the insurance that triggers the insurance
limitation." Enbridge Energy Co., Inc., unpublished slip op.,
¶73.
¶54 Here, Enbridge has made no showing that it "carries"
the requisite insurance. As the court of appeals wrote,
Enbridge "pointed only to coverage that was, at best, lapsing."
Id., ¶75.
3
No. 2016AP2503 & 2017AP13.awb
¶55 Turning to the phrase "sudden and accidental," the
majority determines that "'sudden' in the context of Wis. Stat.
§ 59.70(25) applies a temporal meaning, such as something
happening quickly, abruptly, or immediately." Majority op.,
¶28. Applying this definition, it concludes that Enbridge's
"time element" policy fulfills this requirement because its
policy "provides coverage for claims 'arising from a pollution
event that begins and is discovered within 30 days' after its
occurrence 'and is reported to the insurance company within 90
days.'" Id., ¶31. In the majority's view, such coverage "is
not limited to sudden or quick events" and is therefore "broader
than the statutorily-described insurance." Id.
¶56 This case, however, is not the court's first go-round
with the term "sudden and accidental." In Just v. Land
Reclamation, Ltd., 155 Wis. 2d 737, 456 N.W.2d 570 (1990), this
court exhaustively examined the term in the context of an
insurance policy. The Just court determined that "sudden and
accidental" can reasonably be interpreted to mean both "abrupt
or immediate" and "unexpected and unintended." Id. at 741-42,
745-46.
¶57 The legislature is presumed to act with full knowledge
of existing case law when it enacts a statute. Strenke v.
Hogner, 2005 WI 25, ¶28, 279 Wis. 2d 52, 694 N.W.2d 296.
Accordingly, the legislature presumably enacted Act 55 with the
knowledge that this court had previously interpreted the phrase
"sudden and accidental" in Just.
4
No. 2016AP2503 & 2017AP13.awb
¶58 However, the majority departs from the definition we
provided in Just, reasoning that the term has a different
meaning in the context of a statute than it does in an insurance
policy. Majority op., ¶30. But why should this be the case
when the court has provided a clear and workable definition of
which the legislature is presumed to have full knowledge?
¶59 Why is the plain language of an insurance policy to be
defined differently than the plain language of a statute? When
we encounter undefined terms in both a statute and an insurance
policy, we apply the plain language of the term. See Kalal, 271
Wis. 2d 633, ¶45 (explaining that "statutory interpretation
'begins with the language of the statute. If the meaning of the
statute is plain, we ordinarily stop the inquiry.'") (citations
omitted); Acuity v. Bagadia, 2008 WI 62, ¶13, 310 Wis. 2d 197,
750 N.W.2d 817 (setting forth that unambiguous policy language
is interpreted "in accordance with the plain meaning of its
provisions") (citation omitted).
¶60 Again, I would follow the lead of the unanimous court
of appeals and apply the plain meaning definition of "sudden and
accidental" we set forth in Just, 155 Wis. 2d 737. See Enbridge
Energy Co., Inc., unpublished slip op., ¶92.
¶61 Applying Just, Enbridge must demonstrate that the
insurance it carries covers pollution events that are both
"abrupt or immediate" and "unexpected and unintended."
Enbridge's policy does not cover all events of these types. The
"time element" nature of the policy means that pollution is only
covered if it is discovered within 30 days and reported to the
5
No. 2016AP2503 & 2017AP13.awb
insurer within 90 days. Pollution discovered on the 31st day
after it happened would not be covered, even if the pollution
was "abrupt or immediate" or "unexpected and unintended." The
statute requires that all "sudden and accidental" events be
covered, yet Enbridge's "time element" policy constrains covered
events based on when they are discovered and reported.
¶62 In sum, I determine that Enbridge did not demonstrate
that it "carries" insurance that includes "sudden and
accidental" coverage. The condition precedent to trigger the
preemptive provisions of Wis. Stat. §§ 59.69(2)(bs) and
59.70(25) are therefore not fulfilled. Accordingly, I would
affirm the court of appeals.
¶63 For the foregoing reasons, I respectfully dissent.
6
No. 2016AP2503 & 2017AP13.awb
1
Enbridge Energy Company, Inc. v. Dane County
Court: Wisconsin Supreme Court
Date filed: 2019-06-27
Citations: 929 N.W.2d 572, 2019 WI 78, 387 Wis. 2d 687
Copy CitationsCombined Opinion