Supreme Court’s Mercury Decision Limits Progress for Cleaner Air, Healthier Environment Costs of Mercury Pollution Too High to Ignore
STATEMENT BY HOWARD A. LEARNER
Executive Director, Environmental Law & Policy Center
“The Supreme Court’s decision today delays important mercury and other air toxics standards that limit pollution in order to protect children’s health and the Great Lakes. State public health officials in the Great Lakes states have issued ‘mercury advisories’ warning people that, sadly, it’s not safe to eat many fish they catch in most of our lakes and rivers. The U.S. EPA should now act promptly, following the Court’s decision, to fully assess the public health and environmental costs of mercury pollution, finalize lawful standards and move our country forward.”
“Unfortunately the coal industry is being rewarded for endless litigation stalling the U.S. EPA’s reasonable standards to reduce mercury pollution in our environment and protect public health. It’s well past time for EPA and the courts to move forward in responsible ways to greatly reduce mercury and other toxic pollutants that harm our children’s health and our waterways.”
Environmental attorneys are grappling with whether today’s Supreme Court ruling upholding the Obama administration’s health care reform could set a precedent in expected legal challenges to U.S. EPA’s Clean Power Plan.
In a 6-3 vote, the justices upheld the Affordable Care Act’s tax subsidies for people who get insurance on both federal and state-created exchanges.
Challengers claimed that a strict reading of the law mandated that the IRS provide the subsidies only for individuals who purchased insurance on an “exchange established by the state” and, therefore, not on the exchanges in roughly three dozen states that were set up by the federal government.
Chief Justice John Roberts, in his opinion for the court, wrote that the context of the law indicated that Congress intended both types of exchanges to qualify for the subsidies. Otherwise, he wrote, the underpinnings of the health care law would crumble.
“Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts,” Roberts wrote, “and to avoid the type of calamitous result that Congress plainly meant to avoid.”
Environmental lawyers, however, have homed in on the chief justice’s brief discussion of the 1984 precedent Chevron v. Natural Resources Defense Council. In that ruling, the court set up a two-step structure for adjudicating agency actions. Step 1 is whether the law directing the agency’s work is ambiguous. If it is, under Step 2 the court must defer to the agency’s interpretation if it was reasonable.
At first glance, the health care reform case, King v. Burwell, looked as if it could be decided on Chevron grounds. But Roberts quickly sidestepped the precedent.
Chevron didn’t apply because the health care case is “extraordinary” and centers on a question of “deep ‘economic and political significance,'” Roberts wrote, quoting precedent. The Chevron two-step process, he said, need not be initiated if it appears the ambiguity at issue was not one that Congress intended for the acting agency to resolve.
“Had Congress wished to assign that question to an agency, it surely would have done so explicitly,” Roberts wrote.
Lisa Heinzerling, a Georgetown Law professor and former climate official at EPA, said she was “struck” by the passage.
It’s an “affirmation of the idea that because an issue is really important, an agency doesn’t get deference,” she said.
She noted that the “economic and political significance” argument has been raised in the early challenges to EPA’s proposed greenhouse gas standard for existing power plants, the key component of the administration’s effort to address climate change that is due to be finalized later this year.
In fact, Harvard Law professor Laurence Tribe, a former mentor to President Obama, made that argument earlier this year, Heinzerling said.
A potentially analogous issue involves the conflicting Clean Air Act amendments under which EPA is issuing the greenhouse gas rules. Due to a legislative glitch, two versions of Section 111(d) were signed into law — one from the House and one from the Senate. Critics of the proposal read the House version to prohibit EPA from issuing regulations for sources of pollution already regulated under the law.
Because EPA has already issued power plant standards for other pollutants, that theory would foreclose the new rule.
EPA and environmentalists counter that the Senate version only prohibits redundant regulation of specific pollutants, which would allow the greenhouse gas standards to stand.
The two amendments are not easily reconciled, and Thomas Lorenzen, a former Justice Department environmental attorney, said today’s ruling reinforces the idea that the fate of the Clean Power Plan will ultimately be resolved by judges.
And Roberts’ opinion, he said, may have provided a way for them to sidestep the traditional two-step Chevron analysis.
With the two amendments, “you have a congressional goof,” said Lorenzen, who now represents industry clients at the law firm Crowell & Moring. There is “no clear intent to delegate authority to the agency.”
Jeff Holmstead, a former EPA air chief now representing industry at Bracewell & Giuliani, echoed that point.
“The decision in King v. Burwell makes it pretty clear that the court will not just defer to EPA but will make its own decision about the legal implications of the competing House and Senate versions of 111(d),” Holmstead said. “The court clarified its holding in Chevron by saying that the courts should only defer to an agency on the types of issues that Congress intended to leave to that agency’s discretion. It will be hard for EPA to argue that Congress intended to give EPA discretion over the scope of its own power.”
‘You need to look at the context’
Heinzerling, as well as environmentalists, however, cautioned against reading too much into today’s decision. They noted that several factors differentiate the case from the inevitable challenges to the Clean Power Plan.
Roberts said Chevron didn’t apply because the ambiguity in the state versus federal exchange issue was left to the IRS.
“It is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort,” Roberts wrote.
That would not be the case in a challenge to the Clean Power Plan, said Howard Learner, the president of the Chicago-based Environmental Law & Policy Center.
“There is a congruence between the statute, the Clean Air Act and the agency, EPA, being called upon to execute it,” he said. “I would be very, very surprised if the court went to some sort of Chevron step 0 analysis with regard to EPA’s interpretation of the Clean Air Act.”
Heinzerling added that there was an alternate way to read the health care decision that would bolster EPA’s case.
After rejecting a Chevron analysis, Roberts chose to look at the broader context of the law in order to uphold the administration’s reading of it.
In the context of the Clean Power Plan, EPA and environmentalists contend that the 1990 amendments to the law were clearly intended to strengthen EPA’s authority under Section 111(d), not weaken it — and critics’ reading would.
Roberts, Heinzerling said, seemed to say “you need to look at the context in which that language appears.”
“That’s very helpful in most environmental cases,” Heinzerling said.
More broadly, some law professors still found reasons to be concerned about Roberts’ reasoning, even though the case turned out to be a major win for the administration.
Justin Pidot, a former DOJ environmental attorney now a professor at the Sturm College of Law at the University of Denver, said the ruling reinforces the court’s willingness to wade into high-profile agency actions.
There is, he said, “this newly minted rule that the court is going to intercede when costs get high. I think it’s alarming,” he said. “That’s a pretty dangerous principle for EPA.”
In a bit of a political rarity, top business and environmental groups were actually able to reach an agreement on what’s being billed as a significant jobs measure, despite all the other fighting in the spring General Assembly session.
Under the bill, Illinois firms needing air permits, mostly manufacturers, will be able to get them directly from the state, rather than dealing with a sometimes balky federal government.
While the measure technically will not apply within the Chicago metropolitan area, which has separate rules, air pollution obviously does not stop at the county line and nor does the impact of job creation.
“I don’t know of any bill that actually passed that’s more important to the business community,” says Illinois Chamber of Commerce chief Todd Maisch, whose group was one of several business and labor organizations that backed the measure. “We’ve been pushing this for 10 years.”
The measure, sponsored by Sen. Sue Rezin, R-Morris, and Rep. Elaine Nekritz, D-Northbrook, deals with something known as Prevention of Significant Deterioration permits. According to the chamber, 41 other states, including all of those around Illinois, now have state-run PSD programs. The bill allows Illinois to do the same, “putting the state on a level playing field with other states,” by adopting federal regulations as state rules.
There were some changes in wording during the legislative process, and those were enough to get green groups to drop their opposition, says the Environmental Law & Policy Center’s Howard Learner. For instance, the state rules can be more stringent than the federal standards, and those who object to proposed rules will more easily be able to intervene in court or appeals process.
Nekritz notes that Gov. Bruce Rauner’s office also was actively involved in developing the bill. “Everyone negotiated,” she puts it—despite the “bigger picture” battles over the budget, pensions and other matters.
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.
Looking for opportunity
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.”
Battling energy tycoon
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.
ELPC’s Founding Vision is Becoming Today’s Sustainability Reality
Support ELPC’s Next 20 Years of Successful Advocacy