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Jeremy P. Jacobs, E&E reporter
Published: Friday, February 27, 2015
Ask Chicago environmentalists who’s the Windy City’s best lawyer, and they’re likely to name Howard Learner.
Learner has built his Environmental Law and Policy Center into a Midwest powerhouse over the last 20 years on transportation and clean energy issues, scoring victories in courtrooms and state legislatures along the way.
His shop eschews the national spotlight for a hyper-regional focus that he says is part of the group’s DNA.
“First of all, we are Midwesterners,” he said. “The Midwest is probably the most important region in the most important country in the world.”
ELPC is among a few regional environmental law centers that operate in the gap between national Goliaths like the Natural Resources Defense Council and small grass-roots organizations. The center takes on major litigation — fighting lawsuits brought by former Chesapeake Energy Corp. CEO Aubrey McClendon, arguing for solar and wind energy in state Supreme Courts, and battling Great Lakes pollution. Moreover, it has developed a lobbying operation that pressures government officials — from U.S. senators to mayors — to support environmentally progressive policies.
Learner prides himself on leading a “grass-tops” organization, meaning it seeks to unite leaders from often-opposing camps — such as unions and local chambers of commerce — to push for common goals.
Sometimes that works, and sometimes it doesn’t, but ELPC is now thriving, thanks largely to Learner’s grasp of regional politics.
“He has steered clear of the weird political fights,” said J. Paul Forrester, an energy and agricultural specialist at Mayer Brown in Chicago. “He has a lot of political acumen. I give him a lot of credit for that. That’s helped him avoid ugly confrontation.”
Learner, 59, lives a mile-and-a-half from where he was born in Chicago. The son of a University of Wisconsin football player, he’s well over 6 feet tall and bearded. He cuts an imposing presence that he establishes right away with a firm handshake.
Growing up as an outdoorsman, Learner biked across Wisconsin several times and always had a backpack ready for weekend trips. He attended the University of Michigan and remains a devoted fan of the Wolverine football team, then headed to Harvard Law School.
He returned to Chicago with his law degree and worked for a public interest law firm that specialized in housing cases. Learner launched the group’s environmental practice and specialized in pro bono work.
In 1991, seven major foundations pooled funds and asked several local lawyers for proposals for a regional-based legal center to address environmental programs in the Midwest. Such a group didn’t exist, and, as Learner recalled, there were ample reasons the region needed one.
The Great Lakes contain nearly a fifth of the world’s freshwater supply and provide drinking water to more than 40 million people. At the time, electricity utilities were becoming more regionally focused, building power lines across state borders. The Midwest was also home to some of the dirtiest coal-fired power plants. Three-quarters of the pollution in the Great Lakes was coming from the energy and transportation sectors.
The region also served as the nexus of multiple types of transportation; interstate highways crisscross the area, as do major railways. And Chicago’s O’Hare International Airport serves as a hub of air travel in the region.
“If you are serious about solving our climate change problems, and you’re serious about keeping the Great Lakes clean,” Learner said, “you need to deal with the energy and transportation sectors on a regional basis.”
Learner applied for the funding, basing his proposal in part on other regional outfits like the Conservation Law Foundation in New England, the Southern Environmental Law Center and the Sierra Club Legal Defense Fund on the West Coast, which has since become Earthjustice.
The foundations backed Learner, guaranteeing $850,000 per year for three years. He left his practice, rented a storefront and started assembling furniture.
At the core of the group’s philosophy from the start, Learner said, was devising “pragmatic solutions” that paired environmental benefits with economic growth and job creation. Now such proposals are increasingly common among environmental groups, but at the time they weren’t.
Learner pledged that whenever his group came out against a project or proposal, it would say yes to a less harmful alternative.
“We said from the beginning we weren’t going to get boxed in as naysayers,” he said.
ELPC now has an annual budget of more than $6.5 million and about 50 employees in eight offices throughout the Midwest. It divides its efforts into two groups. Its strategic advocacy arm lobbies and files lawsuits to fight what it views as environmentally harmful policies. And second, it brings parties together to come up with “eco-business” deals and proposals, such as working with labor unions, local chambers of commerce and officials to facilitate solar and wind energy development in the Midwest, or a regional high-speed rail network.
Those efforts have yielded results. Iowa is the second-largest wind energy producer in the country, and Illinois, Minnesota and Kansas all rank within the top 10. And plans for a regional high-speed rail proposal to serve 60 million people in eight states are starting to jell. The St. Louis-to-Chicago-to-Detroit line is being built, and sections already run at 110 mph. The effort has garnered the support of the Obama administration, which committed $13 billion in the 2009 stimulus package.
ELPC’s success is due in large part to Learner’s relentlessness.
Jerry Adelmann, president of the Chicago-based Openlands conservation group, said it typically takes Learner “two seconds” to respond to an email.
“He lives and breathes this stuff,” Adelmann said. “It’s part of his very being.”
To his foes — which are typically entrenched energy utilities — Learner can come off as a zealot. But he has overcome such criticism through political adeptness, which is unusual for someone who wears his Democratic-leaning politics on his sleeve.
Learner was Illinois delegate at the 2004 Democratic National Convention, and has served on political committees that others in the nongovernmental organization community would likely shy away from out of fear of reprisals from the other side.
“Howard is out front in terms of his politics,” Adelmann said.
Learner seems to dodge most blowback, though, largely because of his instincts.
“I think Howard is one of those visionary leaders,” said Josh Mandelbaum, an attorney in ELPC’s Des Moines, Iowa, office. “His mind is always spinning, and he sort of sees the direction that things are moving. He is constantly trying to anticipate what opportunities will present themselves and constantly trying to take advantage of them in a strategic way.”
That doesn’t mean ELPC doesn’t have critics.
Todd Maisch, president of the Illinois Chamber of Commerce, said it’s possible to have a “reasonable conversation” with ELPC. But he stressed that the group often presses for more stringent environmental controls than his members can support.
“Bottom line is, we think a big part of their agenda results in very little environmental improvement but huge costs,” Maisch said.
He added that ELPC’s coalition building is often less successful than the group says.
“Their attempts,” he said, “to bring people together to build a consensus — a lot more of those fail than succeed.”
Learner and ELPC can nevertheless point to significant achievements, both on the large and small scale.
ELPC was part of a coalition that pushed for the closure of two old power plants in 2012 on Chicago’s South Side, the city’s last two coal-fired facilities. Before that, it fought to ensure that wastewater was treated before utilities discharged it into the Chicago River.
And last summer, ELPC lawyers secured an Iowa Supreme Court victory in challenging an Iowa Utilities Board decision that created an unfavorable and expensive environment for solar energy development in the state.
There is also a strong “defender of the little guy” thread to their work. Perhaps no case illustrates that better than ELPC’s work for a small community in Saugatuck, Mich., against former Chesapeake CEO McClendon.
An artsy Lake Michigan resort town with fewer than 1,000 year-round residents, Saugatuck is a 2½-hour drive from Chicago. In summer, tourists visit the town’s art galleries, shops and renowned beach dunes. The community has sought to protect those attractions from development by passing strict zoning laws.
Those efforts were threatened, however, in 2007, when McClendon bought 412 acres at the mouth of the Kalamazoo River that the town had been trying to make part of the public domain and conserve for 50 years.
McClendon wanted to build a gated community and resort on the land, with a nine-hole golf course, hotel, mansions and condos. Within 30 days of purchasing the property, he filed a series of lawsuits challenging Saugatuck’s zoning laws.
Overwhelmed, David Swan and the Saugatuck Dunes Coastal Alliance turned to Learner for help.
ELPC took the cases, and Swan said the group’s attorneys became part of the community. They also provided communications and marketing support to Swan and his allies.
They were able to halt McClendon’s development. In November 2011, a federal district court judge threw out a settlement between McClendon and the Saugatuck Township Board that would have essentially removed zoning provisions from the property. The judge ruled that the settlement would have illegally prevented the board from ever updating its zoning laws for the property.
Further, the court held that any future such settlement would require a hearing to ensure it benefits the “public good.”
There remains some ongoing litigation, but the community has since bought back half the land McClendon purchased. And, Swan said, nothing has been built on McClendon’s land.
Swan credits ELPC with saving the dunes — and his community.
“It just kind of amazed me,” Swan said. “Here was a really brilliant attorney, who is really busy with huge projects, and he doesn’t let small projects like trying to save 400 acres of pristine duneland fall by the wayside.”
CHICAGO — NRG Energy Inc. announced Thursday its plans to close one Illinois coal-fired generating unit in Romeoville and convert a power facility in Joliet to natural gas, a move the company said would reduce carbon dioxide emissions but also eliminate 250 jobs during the next two years.
Environmental groups called it an important step toward greener energy, but one that doesn’t go far enough to reduce the heat-trapping pollutants blamed for global warming.
The New Jersey-based energy company said it will close Will County Unit 3, one of its two coal-fired units in Romeoville, next April. The company plans to convert its Joliet facility to natural gas by mid-2016. The company also said it would install emissions control technology at its plants in Pekin and Waukegan.
The company took over the four Illinois facilities in April when it acquired in a $2.65 billion deal Edison Mission Energy, which had filed for bankruptcy.
The changes represent a $567 million investment for NRG that will reduce overall carbon dioxide emissions by at least 16 million tons annually by 2020, the company said. The reductions would equal more than half of Illinois’ carbon dioxide reduction goal called for by President Barack Obama’s proposed carbon pollution standards, the company said.
NRG plans to offer voluntary severance packages to workers, company spokesman Dave Gaier said. “These aren’t necessarily layoffs,” Gaier said.
Environmental groups gave the announcement a cautious nod, but called on the company to do more to phase out coal and invest in alternative energy.
“This is a step in the transition to much a cleaner energy economy in Illinois,” said Howard Learner, executive director of Environmental Law and Policy Center. Investment in wind and solar power will create jobs, Learner said.
The Sierra Club released a statement calling attention to NRG’s continued coal burning in Waukegan, Pekin and the second unit in Romeoville.
“For a company that describes itself as a trailblazing power producer, we were hoping and expecting a lot more vision, innovation and forward-thinking in NRG’s approach to its Illinois operations,” said Bruce Nilles of the Sierra Club’s Beyond Coal campaign.
Almost 41 percent of Illinois’ power came from coal-fired power plants in 2012, according to federal statistics.
NRG Energy Inc. announced Thursday a pollution reduction plan for its four Illinois coal-fired generating plants that pushed the state more than halfway toward meeting new proposed federal limits for reducing carbon dioxide pollution.
NRG Energy officials told the Tribune on Wednesday that it will cease coal operations at one generating unit in Romeoville (the Will County plant), convert its Joliet plant to burn natural gas and upgrade its two other coal plants in Pekin and Waukegan to comply with environmental regulations.
The jobs of about 250 people will be eliminated, the company said.
The largest job reductions are expected in Romeoville and Joliet. Coal plants converted to natural gas typically need less than half the staffing levels because a large part of coal plant operations consists of handling, transporting and cleaning up coal.
NRG said its environmental actions will remove 16 million tons of carbon dioxide from the air yearly by 2020 when compared with 2013. The figure is equivalent to what 4 million cars would produce yearly. The company added that its efforts also would slash lung-damaging sulfur dioxide emissions by 90 percent and nitrogen oxide emissions by 65 percent from 2013 levels.
CHICAGO (WLS) –Illinois officials say the state is well-equipped to meet new power plant emissions goals. The Obama Administration unveiled a plan Monday to cut carbon dioxide emissions from power plants by 30 percent by the year 2030. It sets the first national limits on carbon dioxide and will further diminish the use of coal in electrical production.
The proposal sets off a complex process in which the 50 states will each determine how to meet customized targets set by the EPA and then submit those plans for approval.
“It is important that we take serious, comprehensive action to reduce carbon emissions,” said Illinois Attorney General Lisa Madigan, “so I look forward to reviewing the draft guidelines of the federal plan in detail and helping to develop a flexible and effective approach for Illinois.”
You’ve got questions. We’ve got answers on what’s in store in Illinois now that the U.S. Environmental Protection Agency has released its long-awaited proposed rule for reducing carbon emissions from power plants.
Explain in brief what the Obama administration’s climate change rule is all about.
Frustrated by inaction by Congress, President Obama’s Environmental Protection Agency is claiming the authority under the Clean Air Act to regulated carbon emissions by power plants. Today it issued a proposed rule, which calls on states to take the lead in reducing emissions from power generators within their borders and gives them flexibility in how to do it.
Are Illinois power plants a source of significant emissions?
Yes, indeed. Only five other states emitted more greenhouse gases from power plants than Illinois in 2012, according to EPA. And while the Obama administration is saying that the proposed rule requires a 30 percent reduction of carbon from the power sector by 2030 based on their emissions in 2005, the reductions don’t fall equally state by state. Illinois is being asked to cut its power-plant emissions by 33 percent from its 2012 emissions. Only two other Midwestern states, Wisconsin and Minnesota, are being asked to do more. Strangely, neighboring Indiana, which emits more greenhouse gases than far larger Illinois thanks to its heavy dependence on carbon-heavy coal, must cut its emissions by only 20 percent.
What’s the time frame for action?
EPA is on a tight time line. The proposed rule must be made final in a year. States have until 2016 to come up with their plans. That won’t stop Illinois from taking the issue on earlier, thanks mainly to the lobbying exertions of Chicago-based Exelon Corp., whose six nuclear plants in Illinois stand to benefit financially from quicker action. State legislative leaders have signaled that they will consider far-reaching legislation to comply with the regulations next spring.
Why is Illinois in such a rush to enact changes that are likely to raise its residents’ electric bills?
Exelon, which owns Commonwealth Edison Co., is one of the most influential companies in Illinois. It has claimed that three of its six nukes in Illinois are losing money, largely due to competition in western Illinois from close-by wind farms. The company sees compliance with EPA’s rule as a means to boost revenues at its in-state plants. It argues that compliance with the rule will be next to impossible for Illinois if even one of its nuclear plants close, since nukes are virtually carbon-free and account for nearly half of the electricity produced here.
Which direction are lawmakers leaning in addressing the situation?
Every direction. Last week the Illinois House passed two resolutions dealing with the then-expected EPA regulations. One, sponsored by House Speaker Michael Madigan, effectively called on EPA and other state and federal agencies to do everything they could to promote retention of Exelon’s nukes. The other, introduced in January and tied to a state-by-state pro-coal effort by an organization tied to the Koch brothers, called on EPA to allow Illinois to take longer to comply with the rule and to meet less stringent standards if it desires in the interest of keeping coal-fired power plants open. “The House has passed two resolutions that point in two different directions that are hard to reconcile in a policy way,” says Howard Learner, executive direction of the Environmental Law and Policy Center, which has battled coal plants for years.
STATEMENT BY HOWARD A. LEARNER
Executive Director, Environmental Law & Policy Center
CHICAGO – Howard A. Learner, Executive Director of the Environmental Law & Policy Center, issued the following statement regarding the U.S. EPA’s proposed carbon pollution reduction standards issued on Monday:
“These carbon pollution reduction standards will drive technological innovation for a cleaner environment and protecting the public’s health. Solving our climate change problems by cleaning up the energy sector is necessary to fulfill our moral obligation to our children and a better future,” said Howard Learner, Executive Director of the Environmental Law & Policy Center.
Learner continued: “The United State Supreme Court held that the U.S. EPA has both legal authority and responsibility under the Clean Air Act to set standards to reduce carbon pollution to safe levels. Now, it’s time for the engineers and technical specialists to develop cost-effective solutions and unleash innovative new clean energy technologies that can both repower our economy and achieve better environmental protection.”
“The Midwest, alone, is responsible for about five percent of global greenhouse gas pollution and states like Illinois and Iowa are positioned to lead with wind power, solar energy and energy efficiency development solutions that spur economic growth while reducing carbon pollution. We commend the Obama Administration for advancing these carbon pollution reduction standards on a clear path forward,” said Learner.
For Immediate Release
April 29, 2014
Statement of Howard Learner, Executive Director, Environmental Law & Policy Center on Today’s U.S. Supreme Court 6-2 Decision Upholding the U.S. Environmental Protection Agency’s Cross-State Air Pollution Rule
“Today’s Supreme Court decision is a victory for cleaner Great Lakes, and for safer public health for all. The Supreme Court has affirmed the U.S. EPA’s legal authority to implement the Clean Air Act to reduce pollution that causes soot and smog, and that exacerbates asthma and other respiratory ailments.”
“It’s past time to allow the U.S. EPA to move forward in sensible ways that protect public health and the environment, while providing predictability and certainty for businesses.”
Reposted from Midwest Energy News. Original available at http://www.midwestenergynews.com/2013/12/13/qa-reading-the-tea-leaves-as-epa-rules-go-to-court/
Posted on by Kari Lydersen
Howard Learner is the executive director of the Environmental Law & Policy Center in Chicago.
This week the U.S. Supreme Court heardoral arguments regarding the Cross-State Air Pollution Rule (CSAPR), which was struck down by a 2-1 decision by a panel of the U.S. Court of Appeals for the District of Columbia Circuit last year.
Two judges had ruled that the U.S. Environmental Protection Agency overstepped its bounds in ordering states to significantly reduce their air pollution because of the impact on neighboring states – namely the impact of Midwestern coal plant emissions on Eastern states. An evenly split 4-4 Supreme Court ruling on CSAPR – since Justice Samuel Alito recused himself – would mean the appeals court’s decision is upheld.
The CSAPR arguments are pegged to two joined cases filed against a Homer City, Pennsylvania coal plant owned by EME, the same parent company of Chicago’s now-closed coal plants. (See the Supreme Court blog’s coverage of the cases here.)
On the same day, the EPA defended its Mercury and Air Toxics Standards (MATS) in front of a three-judge panel in the U.S. Court of Appeals for the D.C. Circuit. The court is expected to look more favorably on the MATS rule than it did upon CSAPR last year, and a decision is expected within several months.
We talked with Howard Learner, executive director of the Environmental Law and Policy Center, about the significance of the arguments and his predictions about the outcome (the ELPC is a member of RE-AMP, which also publishes Midwest Energy News).
Midwest Energy News: How did you feel about the oral arguments on CSAPR, and how do you think the Supreme Court will ultimately rule?
Learner: Forecasting Supreme Court decisions based on oral arguments can be hazardous to one’s health, but there are some directional indications here in light of precedents and the overall case before the court. I think the Supreme Court Justices seemed to be impressed with the analogies that the deputy solicitor general was presenting on behalf of the EPA.
When we’re dealing with ozone problems in the eastern states and the physical reality that pollution moves across state lines, it is difficult to determine exactly how much of the pollution, for example, affecting New Jersey’s airshed came from New Jersey sources versus Ohio sources versus Missouri sources. The EPA came up with its reasoned judgment about how to allocate responsibility among the states. Supreme Court precedent has accorded the EPA considerable respect for and deference to its scientific and technical expertise and judgment.
Look for a potential 6-2 decision in which the Justices would uphold the EPA’s CSAPR standards, based on leanings from the Justices’ questions and case law precedents.
What do you think of the industry argument that under CSAPR an upwind state could be forced to reduce its emissions more than the amount it is contributing to downwind states?
The difficulty here is that we’re dealing with a physicality problem – pollution moves in the atmosphere and doesn’t stay strictly within state lines. Air over New Jersey is being affected by pollution from upwind states.
There’s no way to perfectly allocate responsibility for pollution among the states, and there are different reasonable approaches. The question isn’t whether the agency’s approach is perfect, it’s whether among competing approaches, the agency is within the zone of reasonableness.
Some of the Justices seemed to recognize that in order to protect public health, the EPA has to have some room to reasonably interpret broad statutory terms such as “substantial contribution.” There was an indication that at least a majority of the Justices seem to be viewing the agency’s approach to be within the zone of reasonableness.
Do you think cost should be considered in demanding emissions reductions from different states?
There’s no one-size-fits-all approach. Some parts of the Clean Air Act consider cost and some don’t. The section dealing with non-attainment for ozone transport and “substantial contribution” does include a benefit-cost element. By contrast, sections dealing with mercury and air toxics don’t really require consideration of costs.
The pre-eminent goal of the Clean Air Act is to protect public health and remove endangerments. In the parts of the Act dealing with toxic air emissions that have very serious impacts on public health, cost is not a pre-eminent consideration.
What the EPA is attempting to do is look to those places, such as ozone transport, where it’s most cost-effective to reduce emissions. So for those who are concerned with economics and cost, the EPA’s approach is very effective. Some of the states challenging the ozone transport rules are essentially arguing that cost should not be a pre-eminent part of the decision.
What do you think of the MATS hearing before the appeals court, and do you think the court will uphold that rule?
The MATS case is different than CSAPR. First of all it’s before the DC Circuit Court of Appeals, not the Supreme Court, and it has a cluttered history. The EPA went through an extensive notice and comment rule-making period, issuing a draft rule, getting comments from many groups and, indeed, after moving to finalize the rule, then took it back and tweaked it in early 2013 to adjust for some particular concerns raised by some industry groups.
Keep in mind that industry is divided on this one. Some companies that own coal plants are strongly opposing these standards. There are other energy companies that own coal plants that have already installed mercury pollution reduction equipment and they’d like to see a level playing field of everyone complying so they don’t face a competitive disadvantage. The natural gas and nuclear industry have generally been supportive of the MATS as they see a competitive advantage to be gained.
There comes a time for finality, predictability and consistency for how mercury and other air toxic pollution are to be reduced by coal plants and others by installing modern pollution control technologies. The mercury standards have been battered about for a number of years. The EPA has devoted considerable scientific and technical analysis to these public health rules.
The challenges brought by industry are somewhat arcane. The fact is some of the critics don’t want the rules altogether, while some others want them tweaked or skewed in their favor.
The Supreme Court’s opinion in American Electric Power vs. Connecticut (2009) recognizes the EPA’s scientific and technical expertise to which courts should defer in reasonable cases. Reading the tea leaves here and reading what was said in oral arguments, there seems to be at least some inclination among the judges on the D.C. Circuit that they recognize that this mercury pollution standards case is appropriate for deferring to the agency’s expertise.
If MATS and CSAPR are upheld, what will that mean for coal plants in the Midwest?
If the CSAPR and MATS standards are upheld by the courts, that will clearly force many Midwestern coal plant owners to invest in more modern pollution control equipment and further retrofit their plants in order to achieve cleaner air. That will affect the ongoing economic viability of some of the coal plants in the highly competitive power markets in the Midwest. Some of the owners will choose to invest in modern pollution control equipment and be part of the solution, and some will choose to shut down the plants because of the market economics — they’ll conclude it’s not worth throwing good money after bad.
For many years, these older coal plants have been shifting costs onto the public in terms of their pollution and resulting harmful public health and environmental impacts. The coal plant owners have been externalizing their costs onto the public. The Clean Air Act implementation standards will force polluters to internalize their costs and reduce the shifting of pollution costs to the public.
What does the situation with MATS and CSAPR say about the regulatory and political climate now compared to the Bush years when the predecessor to CSAPR was struck down by the D.C. Circuit federal appeals court because it was too lenient?
There have been attempts in Congress by some to improve the Clean Air Act standards and others to weaken its standards. Since 1990, however, the Act has not been amended in any serious way.
We live in a divided country when it comes to overheated partisan politics. President Obama was elected by a significant margin in 2012, and elections have consequences. During the campaign, some industry opponents blasted President Obama for his so-called “war on coal” – a misnomer – but they lost.
The EPA is now moving forward with long-delayed Clean Air Act standards that were called for by legislation passed by Congress in 1977 and 1990. The courts will, hopefully, now confirm the EPA’s authority to issue these standards.
How would CSAPR and MATS play out in Illinois, given that Illinois has its own rules and agreements with the major power companies mandating stricter reductions in mercury and other pollutants?
While Illinois’ mercury pollution reduction standards have been implemented, in some cases the federal standards might cover specific additional toxics emissions beyond mercury. Illinois was a leader in adopting mercury pollution reductions in 2006 and 2007, these are helping achieve significant public health benefits and cleaner rivers and Great Lakes.
However, Midwest Generation and Ameren (now Dynegy) have been given waivers of part of Illinois clean air interstate standards for sulfur dioxide and nitrogen oxide. The implementation of CSAPR is thus very important.
What will happen if the Supreme Court does not reinstate CSAPR?
Until CSAPR is reinstated in some form, then the Clean Air Interstate Rule (the Bush-era standards) will continue to apply. Presumably if the Supreme Court were to uphold the (appeals court decision shooting down CSAPR), it would do it in a way that provides guidance to the EPA. The Court would say what’s wrong here and needs to be fixed.
How would you feel if that happened?
There really does come a time for predictability and finality.
The Clean Air Act was passed by Congress many years ago, and its implementation has been long delayed while public health harms continue. Sooner or later these public health protections should be moved forward.
This transcript was lightly edited for clarity and brevity.
WASHINGTON — (Reuters) The U.S. environmental regulator argued in court on Tuesday that its rule limiting mercury and hazardous air pollutants is “appropriate and necessary,” not an improper interpretation of the federal Clean Air Act as industry groups and some states contend.
The U.S. Court of Appeals for the District of Columbia Circuit, the second most powerful court in the country behind the Supreme Court, heard two cases challenging the Environmental Protection Agency’s first rules to crack down on mercury from the country’s fleet of electric generating units.
The EPA’s Mercury and Air Toxics Standard (MATS) applies to 1,400 of the country’s largest power plants and would come into force in 2015, or in some cases, 2016.
The MATS rule was finalized in December 2011 but has been subject to several petitions for reconsideration from groups ranging from pollution control equipment vendors to power plant developers. The EPA has said that MATS could prevent up to 11,000 premature deaths, and generate $90 billion in health benefits, each year.
The three-judge panel asked a number of detailed questions to the dozen or so lawyers representing the EPA, green groups, the energy industry and states. The judges appeared skeptical of industry’s argument that the agency did not take the proper steps to determine that it was “appropriate and necessary” to regulate those pollutants.
Neil Gordon, Assistant Attorney General for the state of Michigan, which opposes MATS, said the EPA’s interpretation of the word “appropriate” was unlawful since the agency did not weigh regulatory costs in its decision to regulate the pollutants.
But Chief Judge Merrick Garland, a Democratic appointee, questioned Gordon’s argument, saying, “nowhere does Congress require (the EPA) to evaluate cost” in its determination for the need to curb mercury and other toxic substances to protect public health.
Arguments at the hearing, held even though the court was closed for a snow day in Washington DC, lasted nearly four hours. That was longer than planned and longer than arguments in similar regulatory cases, observers said.
“The panel was well versed in the case and thoroughly read the briefing. The questions were really probing around the salient issues,” said John Suttles, a lawyer for the Southern Environmental Law Center who represented the American Lung Association as an environmental intervener in the case.
He said the EPA made a strong case that it was within its rights in regulating the pollutants and that he “didn’t really see an indication that court disagreed with EPA.”
But Eric Groten, an industry lawyer specializing in the Clean Air Act for Vinson & Elkins, said he would be surprised if the MATS was affirmed in its entirety.
“There were so many issues argued that it increases the chance the EPA got something wrong,” he said.
Groten noted that some judges questioned whether the EPA “artificially skewed the data” used to set mercury limits by basing them on the best performing power plants rather than a wider sample.
The judges, which also included Democratic appointee Judith Rogers and Republican appointee Brett Kavanaugh, are expected to take a few months to deliberate and could reach a decision by February or March.
A conclusion to the case will end years of “pingponging” between the EPA and the DC Circuit court.
“If the EPA prevails in the MATS case, that moves this set of standards forward and brings finality, stability and predictability to the reduction of mercury and other air toxics for coal plants,” said Howard Learner, an attorney and executive director of the Environmental Law and Policy Center.
Coal industry groups said they hope that the DC Circuit and the Supreme Court, which heard another air pollution case Tuesday, strike down both laws, which they claim hurts jobs and the economy.
“EPA’s overreaching and overzealous rulemaking is crippling the nation’s coal-fueled electric sector and is a threat to our nation’s economy,” said Laura Sheehan, a spokeswoman for the American Coalition for Clean Coal Electricity.
(Reporting by Valerie Volcovici, editing by Ros Krasny and David Gregorio)
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