Attorney General Cox joins Wolverine as plaintiff

by Richard Lamb, Advance Editor

Michigan Attorney General Mike Cox filed a motion in support of Wolverine Power Supply?s motion in circuit court to reverse the state?s denial in May of its air quality permit. In documents filed last week in Missaukee County Circuit Court, the attorney general entered the case as a plaintiff-intervenor, supporting Wolverine?s ?petition and motion for a summary disposition.? Cox agreed with Wolverine that the Department of Natural Resources and Environment?s (DNRE) denial of Wolverine?s application for a permit was ?unauthorized by law and thus seeks reversal and remand of the final agency action.?

THE LAWSUIT asking the court to reverse the action of the DNRE now rests in the hands of Missaukee Circuit Court Judge William Fagerman. Wolverine is asking the court to reverse the action taken when the DNRE 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. Jennifer Granholm?s executive order of 2009 unlawful, when she asked for input from the Michigan Public Service Commission (MPSC).

On Monday Judge Fagerman heard arguments on Wolverine?s motion for summary disposition, took the information under advisement and is expected to issue a ruling in the coming weeks. ?We can?t move forward until we get a permit. We are at a dead stop until we get a permit. So what we are hoping for, through the court process, is that we get the permit back on track and then we re-evaluate what the next steps are to move forward at that point,? Wolverine CEO Eric Baker said in a recent community update in Rogers City. The attorney general stated in his filing that the ?DNRE?s decision to deny Wolverine?s application for a permit to install based solely on a determination that there was not need for the electric generating capacity of the proposed coal-fired power plant was unauthorized by law.?

COX HAD similar words for Gov. Granholm?s executive directive to the MPSC in February, 2009 asking the agency to give its opinion on the need for Wolverine?s proposed 600-megawatt (MW) power plant in Rogers Township. He called that directive ?unconstitutional to the extent they attempt to effect substantive changes to the law.? ?As the chief law enforcement officer for the State of Michigan,? Cox said, ?the attorney general has a duty to ensure that the state?s laws are respected and followed by all entities, including state departments of public agencies. Thus, the attorney general seeks to file this brief in order to protect the public interest in this case and advance any additional meritorious arguments not raised in the plaintiff?s motion.?

In his motion Cox said that the DNRE was persuaded by the MPSC report and concluded that Wolverine did not demonstrate a need for the new facility. Using what Cox called an ?invalid report? should not have been part of the decision making process for the DNRE. Cox sited several court cases which makes it clear that the MPSC does not have the authority to make management decisions on behalf of a utility.

?By engaging the MPSC to make a determination regarding whether there is a need for a proposed power plant the MPSC has m

ade an end-run around the state utility regulatory scheme by effectively making a management decision for that utility as to whether the plant should be built,? Cox said. EVEN THOUGH Baker said the draft permit, approved by the state Sept. 8, 2008 was essentially correct, it took nearly 1,000 days for the DNRE to stamp ?denied? on the air permit application. The current administration?s delay in rendering a decision worked into the plans of those opposed to the project. Stringing the project along is ?part of the strategy used on how to block a power plant,? the stated goal of many national environmental groups.

?Without the air permit, our prospects are doubtful.? he said. ?When we first came to the area some five or years ago, we wanted you to be the first to know what we had planned. We didn?t even tell our employees before we told you (through an article in the Advance May, 2006). Our intentions have been well communicated the same way.? Even given recent developments, Wolverine continues to be optimistic about the future of the project and northern Michigan. The company remains focused on providing reliable and affordable power for its member-owners. The proposed 600-MW power plant fits that goal.