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We Energies wins in court -- Supreme Court gives green light to Oak Creek power plant job
By David Steinkraus
In an unmitigated victory for We Energies, the Wisconsin Supreme Court on Tuesday morning gave the OK for the $2 billion expansion of the Oak Creek power plant just the way the utility wants it.
The project had been on hold after a Dane County Circuit Court judge said the Public Service Commission erred when it approved the project in November 2003.
"We reverse the order of the circuit court and uphold the PSC's final decision and order in all respects," wrote the four justices in the majority. There were two dissenters. Justice N. Patrick Crooks didn't participate in the case.
Consequences "Today's court decision is a green light to move forward," We Energies spokesman Thad Nation said.
That would be some $18.8 million if the total penalty is paid.
There is a 45-day call-up period to assemble workers and materials before construction starts. Nation said the call-up, and start of construction, are subject to the negotiations.
Opponents of the Oak Creek plan are still in court, however, challenging three state permits.
SC Johnson was a party to the lawsuit, and has helped lead and fund much of the opposition to the Oak Creek plan. In a prepared statement, H. Fisk Johnson, chairman and CEO of the company, said:
"This is a sad day for the citizens of southeast Wisconsin. I respect the Supreme Court's decision, but I am disappointed in the impact it will have on our region.
"I feel strongly that building additional pulverized coal facilities is an unwise choice. The people of southeast Wisconsin, our economy and our health deserve much better. We continue to believe in cleaner energy alternatives, which keep costs down and the environment healthy.
"SC Johnson will review the court's decision and consider our legal options."
Nation said We Energies isn't planning for legal action that would hold up a permit and prevent the plant from operating: "We have been successful in every permit challenge that has come up so far."
In a prepared statement, PSC Commissioner Bert Garvin said: "The court's reasoned decision also reaffirms the conclusion we reached in our order approving the Elm Road Generating Station over 18 months ago - new, coal-fired, baseload generation facilities are both needed and are in the public interest." He is the only commissioner who was on the PSC when it approved the Oak Creek plan.
Katie Nekola, energy program director for Clean Wisconsin, one of the project opponents who filed suit, said many people were swayed by the myth that the state will face an energy crisis if this project isn't allowed to proceed.
She said that as a lawyer, sheunderstands the court's reasoning in deferring to the technical expertise of the PSC, but that doesn't conform with present reality, she said.
"I really feel the staff at the these agencies .. are tied by the political influence involved, and that makes agency deference inappropriate," she said. The court essentially said the PSC can do whatever it wishes, such as ignoring the project's effect on human health, "and I think that's a disservice to all of us."
Legal reasoning In 134 pages of the 174-page opinion, the four-justice majority came down heavily on the side of the PSC, giving much weight to its definitions of its own duties and the laws that govern it.
While he concurred with the others in the majority (justices Wilcox, Roggensack, and Prosser), Justice Louis Butler wrote a separate opinion in which he found fault with the Environmental Impact Statement.
Butler took issue with the analysis of the cooling system. It would suck in about 2 billion gallons of water a day, and although the intakes would have screens to prevent large aquatic organisms from being drawn into the plant, eggs and larvae in the water would be pulled into the plant.
The problem, Butler wrote, is that the EIS found this damage inconsequential.
"Of course there are consequences to losing tens of millions of aquatic life forms comprised of fish, crustaceans, and shellfish during a one-year time span," he wrote. "We simply have no way of knowing what those consequences are over time precisely because the EIS assumes that there will be no long-term impacts because the short-term impacts on aquatic life are inconsequential."
The people of the state would be better served if the PSC were to take a hard look at long-term environmental consequences, he wrote.
"As I stated during the oral argument in this matter, everything about this case screams of its extreme importance for the state and people of Wisconsin, in terms of its energy needs and the environment," he wrote. However, it is the role of the Legislature and state agencies to determine energy policy and the public interest, he wrote, and so he reluctantly joined the majority.
In her dissent, Justice Ann Walsh Bradley - joined by Chief Justice Shirley Abrahamson - also focused on the cooling
system.
Illinois and Indiana have outlawed the technology proposed for Oak Creek, she wrote, yet in examining the cooling system's effect on aquatic life, the Wisconsin EIS relied on 30-year-old data from the power plant, and on an interim report from a study then in progress, a report which drew no conclusions.
Clearly the PSC ignored the law because the EIS did not adequately analyze the potential for harm, she wrote, nor did it look at reasonable alternatives.
"In the end, the EIS provides but a fleeting consideration of the environmental impact of the proposed water intake system, and no consideration whatsoever of the reasonable alternatives. Therefore, the PSC's decision to accept the EIS was contrary to the requirements of its own administrative rules and WEPA (the Wisconsin Environmental Policy Act)."
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