Oak Creek Power Plant Permit Has Legal Problem, As Critics Had Alleged

Pesky federal regulations that protect our common resources, like Lake Michigan, have been applied by a Wisconsin judge at the Oak Creek Power Plant under construction.

From the Milwaukee Journal Sentinel's newsblog Friday afternoon, with, no doubt, a major story tomorrow:

"A Dane County judge has sent an environmental permit for the We Energies power plant under construction in Oak Creek back for further consideration, based on a federal court ruling earlier this year.

At issue is a permit issued by state environmental regulators for a water intake structure in Lake Michigan that would serve the coal-fired power plant, a $2.2 billion project.

Judge Shelley Gaylord said a federal appeals court ruling in January means the permit needs to be revised. The federal court ordered the Environmental Protection Agency to rewrite the rules that were used by the state Department of Natural Resources when it granted the Oak Creek permit.

"This decision affirms what we've been saying since 2003: that this is an illegal facility," said Katie Nekola, staff attorney for Clean Wisconsin, one of the environmental groups challenging the permit. "When the DNR reconsiders this permit as directed by Judge Gaylord, it will have no choice but to invalidate the permit."

But We Energies says the decision does not invalidate its permit and that the utility plans to continue building the plant, the largest construction project in state history.

"We will continue construction of the needed project while we work with DNR on those aspects that have been remanded," said utility spokesman Barry McNulty."

Wonder if others thinking of tapping into Lake Michigan for other purposes, like diverting water to communities in Waukesha County, will get the message, too:

Federal law and procedures have to be adhered to, or you do nothing but buy yourself trouble and raise your costs - - so thanks again to Clean Wisconsin and the Sierra Club for taking these arguments to court and making sure that basic natural resources get genuine stewardship, even if takes a lawsuit to ensure it.

(Note: An earlier post about the WE Energies permit issue from February read this way:

Was The Oak Creek Power Plant Approval Legal?

Good Question.
It turns out that the huge new coal-fired power plant that WE Energies is building along Lake Michigan in Oak Creek is not yet free of the legal and regulatory questions that had slowed its approval.

Partially built, the $2.2 billion project will begin operations in 2009.

The State of Wisconsin gave the utility its permitting approval under a federal rule that defined the project as "existing," rather than "new" - - a nuanced, pro-industry bureaucratic ruling - - and that meant the utility could eliminate expensive cooling towers from the construction plans.

Without cooling towers - - and they've been standard in modern power plant construction for decades - - the more than two billion gallons of water daily required by the plant for operations will be sucked in through a pipe in Lake Michigan.

That will kill alot of fish, according to experts within the federal government and environmental groups.

Last week, a New York federal appeals court struck down the rule that allowed the Oak Creek project to be built without cooling towers.

A Wisconsin circuit court judge in Madison must decide if the Oak Creek project needs cooling towers.

The utility denies its plant and water intake pipe will kill fish or harm the lake, and says its state-issued permits are valid.

This is another of those cases that pits industry against environmentalists, and a company's bottom line against stewardship of natural resources.

You'd think by now, especially with the multiple concerns about climate change and stresses on the Great Lakes, that industry would have done more to avoid these adversarial relationships with the natural world that we all depend on for survival.

As this case winds its way through the courts, let's praise Clean Wisconsin and the Sierra Club for these publicly-spirited achievements:

They've kept a steady eye and the media's focus on the health of Lake Michigan, and they've made sure that the convenience of utilities isn't allowed to supersede the rule of law.

Wisconsin utilities operate with state-approved monopolies and guaranteed rates of return. That's a pretty sweet deal in a free enterprise economy, so is it asking too much of the utilities to meet the highest legal and environmental standards?)