Clean Wisconsin wins court victory against giant “fish-destroying machine”

Katie Nekola

In a decision issued early this March, a Dane County judge ruled that the water permit for the largest power plant construction project in state history does not comply with federal law, and must go back for review by a state administrative law judge.

Clean Wisconsin has long maintained that the cooling system for the new Elm Road Generating Station in Oak Creek is illegal, and challenged the DNR discharge permit in hearings one year ago in Milwaukee. The new plant would use open-cycle cooling, a 1920s-era technology that has been banned in Illinois for thirty years and in other states as well. In a recent speech, Robert F. Kennedy, Jr. described these water intake systems as “fish-destroying machines.”

The cooling system would take in 1.8 billion gallons of water each day, enough to supply the city of Chicago. The water not lost to evaporation would be returned to the lake 10-15 degrees warmer, creating the potential for thermal shock to aquatic organisms and disrupting the natural spawning cycle. In addition, millions of small fish would be killed as they are trapped against the screens and sucked into the pipe. The discharge pipe would, in turn, dump mercury-contaminated water into Lake Michigan.

The decision to allow such an outmoded and damaging cooling system was based on the DNR’s determination that the power plant could be defined as an “existing facility,” a critical distinction because the performance standards for existing facilities are much less stringent than for new facilities. Clean Wisconsin challenged the classification in an appeal to the state division of hearings and appeals, pointing out that the new Elm Road coal plant is independent of the adjacent Oak Creek coal plant, is an entirely new structure, and is obviously a new facility. However, the judge in that case agreed with DNR, so we took our case to the next level, the Dane County Circuit Court. In the meantime, a federal court ruled that the loophole used by WE Energies and DNR to classify this plant as “existing” could no longer be used. Dane County judge Shelley Gaylord took the federal case (Riverkeeper II) into account, and ordered the state administrative law judge to reconsider his ruling with Riverkeeper II in mind.

Although WE Energies continues construction, they could be required to scrap this expensive and destructive cooling system and to use cooling towers instead. This would be an enormous victory, not only for Lake Michigan, but as a precedent for banning open-cycle cooling nationwide.