Judge hears CEI argument

Janelle Packer
A real-life David and Goliath met Wednesday in the circuit court for Ingham County.

Joseph Swallow, attorney for the Presque Isle-based Citizens for Environmental Inquiry, appeared as the plaintiff before Chief Circuit Judge William E. Collette regarding a lawsuit the group filed in February against the Michigan Department of Environmental Quality regarding carbon dioxide emissions by coal-based power plants.

The Michigan Attorney General’s office, along with attorneys representing Wolverine Power, Mid-Michigan Energy and Consumers Energy all sat on the side of the defense.

“On one side you have the three largest law firms in the state of Michigan, on the other side is only CEI and the individual plaintiffs and their pro bono attorney,” Swallow said.

Wolverine, Mid-Michigan and Consumers have submitted applications to the DEQ seeking air permits to build coal-fired power plants.

According to Rusty Hills, spokesperson for the AG’s office, the parties were in court today because the attorney general, joined by the others, filed for dismissal of the case due to lack of subject matter jurisdiction.

In its complaint, CEI said it sent a letter to the DEQ in August asking it to make a rule on carbon dioxide emission or say why there is no such rule. Swallow said the Administrative Procedures Act requires the DEQ to reply to the letter within 90 days, something Swallow said the organization did not do.

When a reply did arrive in January, Swallow said the letter was non-responsive. It did not answer the request, but did not deny it.

CEI filed a lawsuit against the DEQ in February, asserting among other things that the DEQ is required by state statute to make a regulation on carbon dioxide emissions.

In addition, CEI wants an answer regarding the letter. It wants the DEQ to either make a regulation or explain why no rule has been made. Finally, CEI does not want any more air permits issued until a regulation is made or the DEQ explains why no regulation has been made.

On Wednesday, the attorney general argued the response letter from the DEQ was the end of the issue, and the court does not have the power to hear the case.

This is not an argument Swallow is comfortable with.

“If you accept the AG’s argument that the APA is final, then you are giving a letter from the administrative agency the same authority as the Supreme Court and that cannot be,” he said.

In the end Collette took the matter under advisement. A decision will be forthcoming.

Swallow added that the lawsuit is not against Wolverine Power, and not in opposition to the proposed plant in Rogers City. It is simply about carbon dioxide emissions.

“We are not talking about negative lawsuits against anyone in particular, just the emission of carbon dioxide, which is defined by law as a pollutant,” Swallow said.

Janelle Packer can be reached via e-mail at jpacker@thealpenanews.com or by phone at 358-5695.