WisBusiness: Doyle says judge’s ruling could harm state’s energy future

By Brian E. Clark

Gov. Jim Doyle vented his frustration with the judiciary at a recent energy conference, rapping the Dane County judge whose decision has stalled the expansion of a Wisconsin Energy coal power plant at Oak Creek.

Doyle’s talk at a Metropolitan Milwaukee Association of Commerce symposium dealt primarily with need for innovation and conservation to meet new energy needs.

He also said building power plants and high-voltage transmission lines cannot be the only solution to meeting the state’s growing power demands.

But in remarks after the speech, the governor said parts of a circuit court judge’s ruling last year overturning a state Public Service Commission permit would make it “almost impossible for us to ever site a power plant in the state of Wisconsin."

He did not specifically name Judge David Flanagan – who ruled against the PSC – but it was clear which judge he meant. Flanagan’s November decision came on an appeal by several environmental groups and S.C. Johnson.

Flanagan ruled that the PSC did not apply state law properly when it approved the two-plant Oak Creek project in 2003.

He also wrote that Oak Creek should have had all its permits before it could be approved by the PSC. His decision sent shock waves through the state’s utilities and business community.

The case is now before the state Supreme Court, which may rule on an appeal by the Public Service Commission and Wisconsin Energy this spring.

Wisconsin Energy had hoped to start work on the $2.15 billion coal project May 1. Chairman Gale Klappa, in a December interview with WisBusiness.com, estimated a year’s delay could cost the company $150 million or more.

In addition, Klappa said Flanagan’s decision had turned the state’s energy planning process “on its head” and put many other power projects in question.

At the MMAC energy conference, Doyle also said he hopes the state’s high court sides with the PSC and Wisconsin Energy.

“Now if a few judges would clear the way we could get moving on some other important projects as well," he said.

Melanie Fonder, the governor’s press secretary, said Doyle did not mean to put any pressure on the judges.

“These are feelings that he has expressed before,” she said.

Steve Baas, government affairs director for MMAC, said the business community appreciated the governor’s comments.

“He recognizes that the Oak Creek project is critically important for southeast Wisconsin and the state as a whole,” he said.

Oak Creek is one part of a Wisconsin Energy plan called “Power the Future.” The plan was drawn up in 2000, mainly in response to energy reliability shortages in 1997 and 1998. Klappa said power shortfalls might start in four years if Oak Creek is not built.

Baas said he does not believe the state’s permit process for power plants needs to be changed. But he said business groups are prepared. Baas said the MMAC and other business groups will not wait long to push a legislative response if they do not like the high court’s ruling.

“If the Supreme Court upholds Flanagan’s decision, it would have serious negative ripple effects on the Wisconsin economy and the state budget,” he said.

“Doing nothing is not an option,” he said. “We’ll have to look for a quick legislative remedy. Fortunately, I think we would be working with the governor so we can have a reliable supply of power in the future.”

Baas said he did not know what sort of legislative remedy business leaders would seek.

“It’s premature to say until the court rules,” he said.

Baas said he did not think it was inappropriate for the governor to criticize the Dane County judge or express his opinion on how the Supreme Court should rule.

“I don’t think the Supreme Court makes decisions based on what the governor says,” he said. “The court is independent.”

Mark Redsten of Clean Wisconsin, one of the groups that filed the suit against the PSC, said he expects the high court to overturn Flanagan’s ruling that all permits must be in place before a PSC permit can be granted.

“We never asked for that,” stated Redsten, who said he was not upset with the governor’s comments. “This is one area where Judge Flanagan may have misread the statute.”

Redsten, Clean Wisconsin’s executive director, said he hopes the high court will come down on his group’s side on other issues, however.

“This is a very complex case and we believe the PSC did not follow the law,” he said.

Redsten said he does not think the Supreme Court will make a hasty decision.

“Ultimately, I think there will be a power plant built,” said Redsten, who noted that his group’s suit also challenged Wisconsin Energy’s air and water permits.

“We just want it be as clean as possible and we want them to follow the rules,” he said.