Subject: Judge halts two coal-fired power plants - in Wisconsin

Judge overturns OK of Oak Creek power plants
By THOMAS CONTENT
tcontent@journalsentinel.com
Milwaukee Journal Sentinel
Posted: Nov. 29, 2004

A Dane County circuit court judge has overturned a state decision that authorized the construction of two new coal-fired power plants in Oak Creek at a cost of $2.15 billion.

The judge, David Flanagan, set aside the state Public Service Commission's November 2003 decision to approve the first coal plants proposed for Wisconsin in more than two decades.

In a decision released Monday, Flanagan said the commission's decision violated state law because state law required Wisconsin Energy Corp. to propose at least two alternative sites to the Oak Creek power plant site for the project.

The court case resulted from several lawsuits filed by opponents of the project, including Racine-based S.C. Johnson & Son Inc., Clean Wisconsin, Calpine Corp.

Environmentalists have challenged the utility's decision to choose to expand its Oak Creek coal plant because of the pollution effects associated with burning coal.

Wisconsin Energy says based on the fact that it will likely shut down two older coal-burning units at Oak Creek and the new pollution control technology that will be installed at the new plant, total emissions from the Oak Creek will drop 60% over 10 years.

In a statement, the Public Service Commission expressed disappointment with the decision.

" We feel our review process of the application and decision in this case were both thorough and complete," said David Gilles, commission general counsel.

The commission will review the decision and consider alternatives. The commission could appeal the decision to a higher court, or could re-open the case to amend its decision.

The commission and other parties in the case have 90 days to appeal the decision.

Complete coverage of this story will appear online later today and in the Milwaukee Journal Sentinel in the morning.

Fair Use Statement

Judge rejects power plant application

By Associated Press
Racine Journal Times
November, 2004

MADISON - A judge has scrapped the state's approval of a utility's plan to build two coal-fired power plants in suburban Milwaukee, saying Wisconsin Energy Corp.'s application was incomplete.

Dane County Circuit Judge David Flanagan ordered state regulators to redo the approval process after the utility failed to provide required cost and design information about new power transmission lines it will need to run the $2.15 billion plant in Oak Creek.

The state Public Service Commission approved construction of the plant in November 2003. " The determination to approve construction of the largest generating facility in state history without also determining the cost, design and location of transmission facilities appears to be unprecedented and is, at best, puzzling," Flanagan wrote in his ruling overruling the PSC's order.

Fair Use Statement

Judge halts two coal-fired power plants
Plans by Wisconsin Energy Corp. to build two coal-powered generating plants at Oak Creek have been put on hold.

By Mike Miller
Madison Capital Times
November 29, 2004

Dane County Circuit Judge David Flanagan ruled today that the Public Service Commission's approval of the project violated state laws and procedures in several ways. In a 54-page written decision, Flanagan sent the matter back to the commission to begin the approval process anew.

The decision came in a consolidation of cases brought by Clean Wisconsin Inc. and S.C. Johnson and Sons; the Calpine Corp.; and the city of Oak Creek, all of which opposed at least some parts of the commission's order approving the $2.15 billion project.

Although Flanagan found several portions of the PSC order to have violated various statutes and procedures, at the heart of his ruling is that Wisconsin Energy Corp.'s initial application for the project was not complete.

" The application ... fails to identify at least two alternative locations, fails to include all required regulatory approvals and fails to set forth transmission line agreements," the judge wrote, and said that means the case must go back to the PSC for the process to begin again.

Flanagan said an incomplete application is a fatal flaw in the process of granting permits for power plants not only because the PSC needs all the necessary information before it, " but also to provide to the public an opportunity to examine the basis for the proposed construction."

Lawyers for Wisconsin Energy Corp. could not be reached for comment on the decision, but an appeal is considered likely.

Flanagan wrote that the commission has only two choices when faced with an incomplete application. It can either reject the application or approve it with modifications, the judge said. " The PSC chose a third course, however, and permitted the process to begin based upon an incomplete application. In doing so, the PSC acted in violation of the law," Flanagan said.

The proposed plant would use high-sulfur coal as a fuel. Opponents of the project contended that would lead to increased air pollution in southeast Wisconsin. While Flanagan did not rule out the use of high-sulfur coal as the fuel of choice for the plant, he did say the PSC did not give sufficient consideration to other types of fuel, such as natural gas.

" The commission's determination that only high sulfur coal may be considered as a fuel source to provide baseload power is not supported by facts identified with sufficient clarity in the order," the judge said.

He also criticized the PSC for approving the power plant before the company had obtained the needed regulatory permits from the DNR, among them a permit to draw 1.4 billion gallons of Lake Michigan water on a daily basis. Failure to obtain that permit could have added $200 million to the project or stopped it dead in its tracks, the judge said.

Flanagan was also critical of the PSC for granting approval of the project even though it said in its order that it did not know what the cost or design of transmission lines would be.

" This determination to approve construction of the largest generating facility in state history without also determining the cost, design and location of the transmission facilities appears to be unprecedented and is, at best, puzzling," the judge wrote.

Fair Use Statement

© All Rights Reserved SEED Coalition