Wolverine wins appeal sending permit back to state for reconsideration
With a 10-page ruling issued Friday, Missaukee County Circuit Judge William Fagerman breathed a breath of air into the Wolverine Clean Energy Venture (WCEV). The judge determined the ?action of the Michigan Department of Natural Resources and Environment (DNRE) exceeded its statutory authority by denying the permit to install (PTI) base upon need,? and sent the matter back to the state for reconsideration.
As a result of the ruling, the judge has ordered the state to take no more than 60 days ?for further consideration of the PTI ? to make a determination.? The ruling is against the DNRE and the Natural Resources Defense Council and the Sierra Club, which joined the suit as defendants-interveners. Although favorable to Wolverine, it is no guarantee that the cooperative will eventually secure the PTI or, if that is granted, that its board of directors will vote to proceed with the project. It is, however, the best Wolverine could have hoped for out of the Missaukee County court at this time, giving supporters of the project new hope that it will come to fruition.
Wolverine Power announced its plans in May of 2006 for construction of a 600-megawatt power plant project, planned for land within the Calcite quarry. The May 21, 2010 letter from C. Vinson Helwig, on behalf of the state, denied Wolverine?s permit application, after nearly 1,000 days of consideration.
Last fall, Wolverine asked 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.? Wolverine also prevailed when it asked the judge to declare former Gov. Jennifer Granholm?s executive order of 2009 unlawful, when she asked for input from the Michigan Public Service Commission (MPSC). ?A fair reading of the entire denial letter issued by the DNRE on May 21, 2010 establishes that the basis for the denial was a lack of support for the need for the WCEV. The denial letter does not refer to the air quality standards, the use of increments or the competing economic needs for those increments or the competing economic
?There is no genuine issue of material fact that the denial was based only on need,? the judge stated in the order. ?As a result, the court must determine whether or not DNRE?s action was authorized by law.? Judge Fagerman said ?although it is clear that one of the considerations as contained in the Michigan legislation is to consider alternatives to a new source, there is nothing in the Michigan legislation or its regulations that indicates that there is a statutory requirement that there be an established need for the proposed major source.?
(A complete version of this story appears in the Feb. 3, 2011 edition of the Advance)