Wisconsin Constitution-based Attack On Utility-scale Solar Projects Destined For Defeat

• Published date: 22 February 2022
• Subject Matter: Real Estate and Construction, Energy and Natural Resources, Energy Law, Oil, Gas & Electricity, Landlord & Tenant - Leases, Renewables
• Law Firm: Godfrey & Kahn S.C.
• Author: Bryan Cahill, John L. Clancy, Arthur J. Harrington and Maxted Lenz

This week, opponents of Wisconsin utility-scale solar projects launched a last-ditch attack on renewable energy projects in Wisconsin. They argue that an application pending before the Public Service Commission of Wisconsin (PSC) for a Dane County solar farm, Koshkonong Solar, should not be approved. They also argue that approvals for other solar farms in Iowa and Grant counties should be withdrawn even though the Iowa County solar farm is already operational because the long-term leases for these projects supposedly violate the Wisconsin Constitution.

The solar-farm opponents argue that because the projects depend on legally void, long-term leases, they cannot be approved. Their argument rests on the Wisconsin constitutional provision that reads: "All lands within the state are declared to be allodial, and feudal tenures are prohibited. Leases and grants of agricultural land for a longer term than fifteen years in which rent or service of any kind shall be reserved . are declared to be void."¹

Assuming the solar-farm opponents have standing to make this argument, it is destined for defeat because it ignores the intent of the constitutional framers as well as caselaw applying similar constitutional provisions in other states. The Wisconsin framers copied the 15-year agricultural lease provision from the New York Constitution. The framers of the New York Constitution sought to prevent abusive practices by large landowners who imposed unreasonable rental terms on impoverished tenant farmers that caused economic stagnation and properties to be underdeveloped and rundown.² So, too, the Wisconsin Constitution prohibits principals of feudal property law, thereby inhibiting the rise of a landed aristocracy built on the backs of feudal serfs.³

Like Wisconsin, many states in the Midwestern and Western U.S. adopted constitutional provisions modeled on New York's prohibition against long-term agricultural leases. Courts have interpreted these other states' constitutions and have uniformly rejected arguments like those made by...