Planning commission gets attorney?s opinion on conflict of interest

by Richard Lamb, Advance Editor

A planned appeal of a decision by the Michigan Court of Appeals by a local citizens group to the Michigan Supreme Court may have cast a new light on a conflict of interest issue involving a member of the Presque Isle County Planning Commission. William Lewis of Presque Isle Township, vice president of Citizens for Environmental Inquiry (CEI), announced last week that CEI is appealing its lawsuit against the DEQ (now DNRE) to the Supreme Court of the State of Michigan.

In 2008 CEI asked the circuit court to order the DEQ to ?initiate their rule-making authority to regulate carbon dioxide emissions,? aimed at companies who had coal plant projects in the works. At its January organizational meeting, the planning commission asked attorney Mike Vogler to review his opinion on whether or not planning commission board member Byron DeLong had a conflict of interest, since his name appears on the petition as a member of CEI.

THE LAWSUIT was originally filed against the Michigan Department of Environmental Quality (DEQ) and their director Steven E. Chester. After the original lawsuit was filed, Wolverine Power, Mid-Michigan Energy LLC and Consumers Energy, who each had announced plans to construct power plants, joined the lawsuit as co-defendants with the DEQ.

The conflict of interest could surface, as Wolverine will likely appear before the commission in the future to ask for various permits regarding the construction of the power plant. In the most recent meeting of the planning commission, DeLong denied that Wolverine?s plans to construct a 600-megawatt power plant in Rogers Township had anything to do with the lawsuit. Wolverine was not even named in the original lawsuit, he said, as the cooperative joined in voluntarily as an intervening party. As reported in last week?s Advance, planning commission member Julian Pilarski asked at the March 18 meeting if DeLong?s group would have ever filed the lawsuit if it were not for Wolverine?s plan.

?It wouldn?t have made any difference if Wolverine had never came here. It was something that needed to be answered,? said DeLong. ?My concern is that there does seem to be some impropriety in this, at least in appearance,? responded Pilarski. ?You say it didn?t have any effect, but did it or not, I don?t know.? Board member Richard Wright told DeLong he thought it was clear that Wolverine?s plans certainly brought it to the forefront. ?No, I don?t think it was Wolverine that brought that to the forefront. We?ve been discussing that for some period of time,? DeLong told the board March 18. ?The lawsuit was filed against the DEQ for failure to do their job.? VOGLER?S OPINION WAS based on the fact that the CEI vs. DEQ, et al, had been dismissed at the time of the March 18 meeting.

He stated, ?It is my opinion that the court of appeals decision has rendered moot the question of whether Mr. DeLong has a conflict of interest voting on issues coming before the planning commission involving Wolverine Power Supply Cooperative Incorporated. My opinion, however, presupposes that an appeal is not going to be made to the Michigan Supreme Court.?

?We are not appealing, at least the last I knew we were not,? said DeLong in response to Vogler?s written opinion. That situation has changed dramatically with last week?s announcement that the CEI would appeal the decision to the Michigan Supreme Court. CEI, OPPOSED TO the building of coal-fired power plants as proposed by several companies in the state, filed an appeal to the Michigan Court of Appeals in 2008. Ingham County Circuit Court Judge William E. Collette dismissed the case holding that the circuit court is ?without authority to order the DEQ to promulgate regulations,? leading to the first appeal. In February the Court of Appeals Panel held that under present Michigan law, a total failure by the DEQ to regulate carbon dioxide (CO2) pollution is not ?wrongful conduct? that is subject to judicial action under the Michigan Environmental Protection Act; but they went on to point out that the actual emission of CO2 may be a valid basis for judicial action against the offender. They stated potential pollution is not actionable in court, but actual pollution is.

CEI?s pro bono legal counsel, retired judge Joseph P. Swallow, explained that

the issue on appeal is whether or not a citizen can maintain a lawsuit against a state agency for refusing to follow a legislative mandate that they regulate the pollutant carbon dioxide. Swallow concluded, ?The present Supreme Court under prevailing circumstances may reconsider earlier decisions prohibiting a lawsuit of this nature. CEI?s petition for leave to appeal provides them the opportunity to change the law. THE APPEAL COMES as Wolverine waits for an air quality permit from the state, which could trigger a federal grant to pursue carbon sequestration, something called for by many environmental groups.

Last October, Wolverine received a $2.7 million grant from the U.S. Department of Energy (DOE) through the American Recovery and Reinvestment Act for an industrial carbon capture and sequestration (CCS) project to accompany the proposed Rogers Township power plant. The CCS project would allow Wolverine Power to develop innovative new technologies to reduce carbon dioxide emissions. A second phase in the DOE evaluation process could result in an additional $147 million in federal funding for the project if the DNRE issues the air quality permit to Wolverine Power in time for Wolverine to file the paperwork before the April 15 grant application deadline. At the time of Wolverine?s filing for the federal grant, Gov. Jennifer Granholm offered her support.