LANSING - The Michigan Court of Appeals has rejected an appeal by two environmental organizations against the issuing of a permit to Wolverine Power Cooperative to build a new coal-fired power plant in Rogers City.
Judges Stephen Borrello, Michael Kelly and Mark Boonstra ruled an appeal filed by the Sierra Club and the Natural Resources Defense Council was "moot" because it could not grant the parties relief. The environmental organizations appealed a decision by an Ingham County Circuit Court judge to uphold a permit issued to Wolverine by the Michigan Department of Environmental Quality to build the 600-megawatt power plant. The organizations argued the DEQ used a flawed analysis to set hazardous air pollution limits for the plant.
However, the appeals court judges found that the United States Environmental Protection Agency's mercury and air toxics standard applies, even while under review, according to the court's opinion. The standards supercede the limits set by the DEQ. Because the National Emissions Standards for Hazardous Air Pollutants override the limits set by the state agency, the court would change nothing by remanding the permit for a proper maximum achievable control technology review by the DEQ, as the two organizations requested.
"Unless and until the EPA actually strikes down or amends its NESHAP for coal-fired power plants, or the MATS rule is invalidated, the issues petitioners raise on appeal are moot," the opinion states.
Brad Wurfel, DEQ communications director, said the department is pleased with the court's decision, both on this case and on one filed by the same environmental groups against a permit for a coal-fired power plant upgrade in Holland. In both cases, the DEQ initially had denied the permits, later reconsidering its decision.
"The DEQ worked hard on these permits and crafted them in partnership with the applicants," he said. "We did the job carefully to ensure that these permits would withstand a legal challenge, and they have."
Nancy Tanner, Wolverine's communications and member relations director, said the cooperative was pleased with the court's decision regarding its permit as well.
"The court's decision confirms the Department of Environmental Quality's solid work on the air permit application for the Wolverine Clean Energy Venture power plant development," she said. "Wolverine will continue to explore the WCEV as a power supply option for its members."
The Sierra Club supports the court's recognition that Wolverine's new power plant would have to meet federal limits for mercury and other hazardous air pollutant emissions, Tiffany Hartung, Sierra Club Michigan Chapter campaign representative, said. However, the organization is disappointed the DEQ was not required to correct its less restrictive permit.
"We continue to carefully monitor any developments around the Wolverine Rogers City plant, which is not needed and is quite costly for cooperative ratepayers," she said.
There is a national trend away from burning coal as a power source, Hartung said, and Wolverine would do better to invest more in clean energy. For example, Cherryland Electric Cooperative, one of Wolverine's seven member cooperatives, is moving ahead with a pilot solar project.
The Sierra Club could take the case to the state Supreme Court, and while the organization is considering its options, no decision has been made at this point, Hartung said.