State asks judge to strike Wolverine’s appeal of denial

by Richard Lamb, Advance Editor

The state has filed a response to Wolverine?s petition in Missaukee County Circuit Court to appeal the denial of Wolverine?s air quality permit. The document, a motion to strike and for more definite statement, was filed last week in Missaukee County Circuit Court by Assistant Attorney general Neil D. Gordon. Gordon said several reasons should be considered to strike, a legal procedure done at the discretion of the court. First, he said, is ?plaintiff?s combination of an appeal and a complaint for declaratory judgment is not in conformity with the Michigan rules,? and should be stricken.

WOLVERINE SHOULD not be allowed to appeal a decision made by a state agency, the Michigan Department of Natural Resources and Environment (DNRE) while merging ?an appeal of an agency decision.? ?The Michigan Court Rules do not allow for plaintiff?s hybrid pleading,? Gordon stated. He also said the appeal proposed is ?unlawful for several other reasons.? An appeal and an original action, he stated, are governed by different court rules, having different procedures and schedules.

?There is no discovery or new evidence. By contrast, an original civil action involves discovery and new evidence. In this case, a fact question exists as to the legal authority the DNRE applied in reaching its decision on the plaintiff?s permit application. ?The DNRE identified the legal authority for its permit decision in its denial letter (a portion of the Clean Air Act). Plaintiff, however, alleges the DNRE based its decision on certain unidentified provisions in (a Feb. 2009 executive order from Gov. Jennifer Granholm),? Gordon said. MIXING THE appeal with the complaint in one court action ?contravenes the court rules,? Gordon stated.

The remedy for this, Gordon contends, is to strike Wolverine?s complaint for judgment, but to let the appeal of the DNRE permit decision to proceed. Point two of the state?s answer calls Wolverine?s complaint ?vague and ambiguous because it fails to identify the purportedly unlawful requirements and procedures? in the governor?s directive which Wolverine believes caused the DNRE to deny the permit application.

?In light of the plaintiff?s failure to identify the purportedly invalid requirements and procedures in the executive directive that supposedly caused the (DNRE) to deny the permit, (Wolverine) has not informed the DNRE of the claims the agency is called on to defend, the DNRE cannot be expected to respond to plaintiff?s vague pleading,? Gordon said in the state?s answer to Wolverine?s appeal. After nearly 1,000 days of consideration by the state, the DNRE issued the denial to Wolverine May 21. Those opposed to the project lauded the decision, as they did when the state denied a permit for the Holland Board of Public Works (HBPW) Aug. 20. In its suit, Wolverine insisted the state denied the permit for the wrong reasons, using input from the Michigan Public Service Commission (MPSC) instead of ?science and the law? as required.

G. Vinson Hellwig, the MDNRE ?decision maker? for both the Wolverine permit and the HBPW permit application, used similar wording in each denial letter. Input from

the MPSC in the Holland matter said, ?HBPW failed to adequately demonstrate the need for the proposed facility as the sole source to meets its projected capacity requirements.? HELLWIG — USED that report as the basis of his denial of the Holland project, a 78-megawatt (MW) facility, which would eventually replace an 11.5-MW plant in Holland. ?In assessing the HBPW submittal, and the findings of the MPSC, the DNRE is persuaded by the MPSC report. HBPW has not adequately demonstrated that the proposed new boiler is necessary to meet its projected capacity requirements,? Hellwig wrote in the denial letter.

Hellwig?s denial letter to Wolverine concluded that ?the MPSC estimated that building Wolverine?s proposed coal plant would increase the rates of its customers by approximately 60 percent to over 20 cents per kilowatt hour,? an assertion denied by Wolverine. The lawsuit asks the court to reverse the action of the DNRE when it denied the permit and send it back to the state for reconsideration based on science and the law. Secondly, it asks the judge to declare Gov. Granholm?s executive order of 2009 unlawful, when she asked for input from the MPSC. Reasons for denial were not air quality reasons, Wolverine contends, and business and political considerations were used to deny the permit instead of science and the law as they claim is the DNRE?s calling.