Challenges to Elm Road generation station consolidated into one court

Daily Reporter (Milwaukee), Jan 9, 2004 by Sean Ryan

A Milwaukee County Circuit Court Wednesday consolidated the four challenges to the Elm Road generation station approval into one case and decided the Dane County courts should hear it.

The Public Service Commission of Wisconsin is faced with four separate legal petitions, filed in three different counties by five parties, to review its November approval of We Energies' proposed Oak Creek power plant. The PSC order allowed We Energies to build a $2.15 billion, coal-fired power plant.

The petitions against the decision are:

* A Nov. 11 petition from the city of Oak Creek in Milwaukee County claimed the PSC decision improperly reduced the amount of money We Energies would pay it for hosting the plant.

* Clean Wisconsin and S.C. Johnson, also in November, jointly petitioned the Dane County courts to rule the PSC didn't follow its responsibility to protect ratepayer and environmental interests.

* Calpine Corp. on Dec. 9 challenged in Dane County the decision's impact on the state's competitive power market.

* The town of Caledonia petition filed on Dec. 10 in Racine County claims the PSC didn't meet its obligation to gather information about the plant's impacts, drafted an inadequate environmental impact statement and didn't fully explore alternatives.

Last month, the PSC requested the courts consolidate the petitions into one proceeding to avoid conflicting decisions and simplify the process. David Ludwig, representing the PSC, said the commission didn't care which county court heard the cases so long as they were all consolidated.

Overwhelming records

These cases are going to be very difficult to examine, Ludwig said, referring to case records more than 10,000 pages long. I don't wish it upon any judge. I certainly don't wish it on more than one judge.

Milwaukee County Circuit Court Judge Francis Wasielewski considered the request because Oak Creek filed its Milwaukee County petition before the other parties did. The 12 lawyers on hand Wednesday sat according to which venue they preferred, with representatives from Oak Creek, We Energies and Madison Gas and Electric arguing for Milwaukee and Clean Wisconsin, S.C. Johnson, Caledonia and Calpine across the aisle pushing for Dane County.

We Energies and Madison Gas and Electric's attorneys argued that Milwaukee County was the best venue because the people who would be most affected by the decisions live there. Madison Gas and Electric has the option to purchase ownership of a portion of the proposed Oak Creek plant.

All of the weight of this case is centered in Milwaukee County in Oak Creek, said John Casey, representing Wisconsin Electric Power Company. There is simply no reason for it to be in Dane County rather than it was the proper place for Calpine to file its petition, and it was the proper place for Clean Wisconsin to file its petition.

On the opposite side of the aisle, attorneys argued that Dane County courts had more experience handling PSC petitions and that the legal issues would remain the same no matter how close the affected ratepayers lived to the deciding courthouse. They also offered that Oak Creek's petition could be separated from the other three because it dealt with fewer environmental issues.

Wasielewski, echoing a statement made by Calpine attorney Raymond Roder, said the venue wouldn't change the legal consideration of issues at hand. He decided all the cases should be handled at once, so they could all progress in tandem and wouldn't have conflicting outcomes.

You could have all sorts of things that could make this case more difficult, less manageable than it is now, Wasielewski said. At the end of the day, I don't think it makes any difference, as somebody commented here, whether it's a judge in Milwaukee County or it's a judge in Douglas County or a judge in Dane County.

The cases will be consolidated and assigned according to the Dane County Circuit Court rules.