Howard Learner Statement on Supreme Court Mercury Ruling

June 29, 2015
Contact: David Jakubiak 

Supreme Court’s Mercury Decision Limits Progress for Cleaner Air, Healthier Environment
Costs of Mercury Pollution Too High to Ignore

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.”


Chicago Tribune: Environmental group: IDOT withholding Illiana info

The Environmental Law and Policy Center charged this week that the Illinois Department of Transportation “has blatantly failed to comply” with the state’s freedom of information law by failing to provide documents regarding the Illiana toll road.

The Chicago-based center, a major opponent of the tollway project, filed four separate requests in the past year for communications, contractual, financial and environmental information that IDOT did not fulfill — resulting in the center asking the state attorney general’s public access counselor to review the requests and order IDOT to comply.


Greenwire: Lawyers Mine Health Care Ruling for Clean Power Plan Clues

This story featuring Howard Learner is re-posted from

By Jeremy P. Jacobs, E&E reporter

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.”

Midwest Energy News: Net Metering Policies Drive Solar Growth

Turns out, solar energy is good for rate payers, good for the grid and good for the environment.

ELPC’s Brad Klein spoke with Midwest Energy News about what a new Environment America study on the value of solar  means for the on-going discussion about the role of solar in the energy future of the Midwest.

From that story:

“…In the Midwest, many feel like solar is under attack. In states including Iowa, Wisconsin, Ohio and Michigan, utilities are seeking — or state regulators have adopted — policies that impede net metering or solar more generally. Clean-energy advocates lament that these decisions have generally been made without referencing data, hence they hope evidence like that presented in Environment America’s report will help shape future decisions.

“When [utilities] argue about the cost of solar they never use any specifics, they’re generalized arguments that don’t reflect the level of solar penetration and don’t reflect any benefits that solar brings to the grid,” said Brad Klein, senior attorney for the Environmental Law & Policy Center (ELPC).

“And the more systemic issue is those arguments completely fail to recognize the benefits of solar, all the things this report lays out. When you study distributed solar on the grid, you learn there are a whole host of benefits utilities are ignoring when they claim net metering is unfair.”

Read the whole story here:


ClimateWire: Court rules federal, state agencies violated NEPA in approving massive Ill.-Ind. project

Court rules federal, state agencies violated NEPA in approving massive Ill.-Ind. project
Benjamin Hulac, E&E reporter
Published: Monday, June 22, 2015
A federal judge in Chicago ruled last week that state and national transportation agencies violated the law when they approved plans for a controversial toll road to connect Illinois and Indiana.Judge Jorge Alonso, of the U.S. District Court for the Northern District of Illinois, Eastern Division, ruled against the Federal Highway Administration, the Illinois Department of Transportation (IDOT) and the Indiana Department of Transportation (INDOT).

The decision is a punishing blow to the Illiana Expressway, also known as the Illiana Corridor, a proposed 47-mile road that would stretch east-west between the two states. Illinois Gov. Bruce Rauner (R) delayed the project earlier this month, citing budget constraints.

FHWA violated the National Environmental Policy Act (NEPA) and transportation law when it signed off on an environmental impact study based on different information than the local planning organizations used to assess the Illiana, Alonso ruled Tuesday.

The court found the agencies didn’t adequately consider the “no-build” outcome of not constructing the road, a NEPA violation.

Does Interstate 80 in Illinois need another highway nearby to relieve congestion? A judge rules no. Photo by Doug Kerr, courtesy of Flickr.

FHWA’s approval of the environmental study to approve the road was “arbitrary and capricious and in violation of NEPA,” Alonso wrote to conclude his decision. He remanded the case to the agencies.

In their separate assessments of the Illiana Corridor, local planning commissions in both states used different population and employment data to forecast traffic levels and the road’s potential impact than FHWA, IDOT or INDOT.

Rather, the three federal and state agencies relied on “market-based” forecasting and downplayed the fact that Will County in Illinois, through which the road would run, had seen flat population growth recently, according to the decision.

NEPA “obligates the agencies” to reconcile their economic projections surrounding the Illiana tollway with the local commissions’ long-term plans, Alonso wrote.

With particular emphasis, Alonso also noted that the agencies justified the road on specious ground: They projected future traffic and population growth for the region based on the assumption that several pending construction projects — including the Illiana Tollway itself, as well as an airport and new housing developments — would be built.

‘A key precedent’?

“As the court points out, they engaged in circular logic,” said Howard Learner, executive director of the Environmental Law & Policy Center, in a call from Chicago.

“IDOT’s consultants greatly overstated population growth,” said Learner, the lead lawyer for the plaintiffs, Openlands, the Midewin Heritage Association and the Sierra Club.

FHWA and the state agencies can appeal the ruling, begin a new environmental impact study or disband the project, he said.

State attorneys for Indiana are “assessing our options following the judge’s ruling,” Will Wingfield, an INDOT spokesman, said in an email. The department “temporarily suspended development of the Illiana in February, and the development continues to be suspended,” he said.

“We are still reviewing the ruling and exploring our options at this time,” said Guy Tridgell, an IDOT spokesman. Rauner’s office did not respond to a request for comment.

Tension has simmered for years about the tollway, which Illinois state officials had said would cost $1.3 billion. Critics of the projects have said the state’s budget should be used to upgrade or maintain public transportation systems.

In 2011, FHWA gave its notice of intent to prepare an initial environmental impact study for “the Illiana Corridor Project,” meant to connect the counties adjacent to I-55 in Illinois and I-65 in Indiana.

The Chicago Metropolitan Agency for Planning (CMAP) and the Northwestern Indiana Regional Planning Commission (NIRPC) had long-term transportation plans and forecasts at that time.

Since 2011, both CMAP and NIRPC voiced their concerns several times about the project.

“By choosing an alignment that is well south of any substantial development, while minimizing property impacts, the corridor has little positive effect on regional mobility and local system deficiencies,” CMAP wrote to the agencies in 2012. “It also will likely not generate sufficient revenue to construct and maintain the facility.”

U.S. DOT has consistently overestimated how much Americans will drive since the 1990s, and the U.S. Energy Information Administration lowered its nationwide driving forecast last year (ClimateWire, June 5).

“This is a key precedent going forward that hopefully will be looked at by the transportation agencies,” Learner said of the ruling last week. “It was a P3 based on overoptimistic population forecasts and overoptimistic traffic demand,” he said, using the abbreviation for public-private partnership agreements. “Simply put, the numbers didn’t work.”

Copyright 2015 E&E Publishing, LLC. This article was reprinted from ClimateWire with Permission of E&E Publishing.


Continue reading

Chicago Tribune Editorial: Can we make it final now? Shred the Illiana tollway

In 2013, the Federal Highway Administration signed off on a plan to build a tollway not just in the middle of nowhere, but along the southern edge of a national wildlife preserve.

The environmental impact statement, prepared by the feds and state transportation officials in Illinois and Indiana, was supposed to answer some basic questions: Does the Illiana tollway really need to go there? How would it impact the people, birds and animals who live nearby?

It turns out the study didn’t answer those questions, though the highway administration approved it anyway. This week, a federal judge sent it back for a do-over.

Let’s not.

Gov. Bruce Rauner has already put the Illiana on hold as a budget-cutting move. But the project was a bad idea from the start. The judge’s ruling provides more reasons for Rauner to move the plan from the shelf to the shredder.

Approval of the environmental study was one of several bureaucratic hurdles that the Illiana managed to clear over the objections of conservationists and regional planners. The 50-mile trucking corridor would connect I-55 in southern Will County to I-65 in Lake County, Ind., passing just south of the Midewin National Tallgrass Prairie.

The feds concluded that the tollway was needed to stay ahead of an anticipated population-and-jobs boom in the area, to relieve congestion on local roads and to move freight more efficiently through the region. Never mind that the Illiana’s supporters had to shop around for numbers to support that argument.

The protected species that might be bothered by the lights, traffic and exhaust fumes probably wouldn’t be harmed, the study says, because they could just keep their distance from the highway.

Ruling in a lawsuit filed by the Environmental Law & Policy Center, U.S. District Judge Jorge Alonso called the agency’s decision “arbitrary and capricious.”

Continue Reading

News: ELPC Leads Letter Calling for Petcoke Standards

The following is re-posted from Midwest Energy News.

Advocates Blast Illinois EPA For Passing On Petcoke Oversight

by Kari Lydersen

Petroleum coke, or “petcoke,” is still a problem in Chicago despite city regulations, and it could quickly become a problem in other parts of the state if there are no limits or rules on storage of the toxic powdery byproduct of oil refining.

That’s the message of groups that sent a letter to the Illinois Environmental Protection Agency (IEPA) on June 11, decrying the agency’s decision not to pursue making such statewide rules.

In January 2014, the IEPA had asked the Illinois Pollution Control Board for permission to make emergency rules regarding the storage of petcoke and other bulk materials in the state.

The move was sparked by controversy over petcoke storage on Chicago’s Southeast Side, including by the Koch Industries subsidiary KCBX Terminals. In asking for rules the IEPA cited fugitive particulate matter air emissions and run-off from petcoke storage piles into water.

At the time the Illinois Pollution Control Board denied the IEPA the authority to make an emergency rule, but said “the rules governing bulk terminal operations for petcoke and coal could be improved,” and urged the IEPA to go ahead with a standard rule-making procedure.

A docket was opened and over the following months the IEPA told the pollution control board it was conducting outreach and meetings with stakeholders. But, as the pollution control board indicated in its April 16 final opinion, the IEPA repeatedly asked for stays of the proceedings and appeared to be making little progress. In January the board warned the IEPA that the docket could be closed if a rule wasn’t proposed within 90 days.

In April, the IEPA informed the board that it would not pursue new rules on bulk storage, stating simply that: “The Agency has updated the new administration regarding this matter. Further, the Agency has considered the effect of the City of Chicago’s recent promulgation of an ordinance addressing petcoke-related operations in the City, as well as pending litigation related to petcoke activity in the City.”

The groups called the IEPA’s decision “unreasonable and contrary to the public interest.” The letter indicated that Chicago’s regulations do not do enough to curb petcoke pollution, and that Chicago regulations do nothing to protect residents outside the city. The letter also said they do not consider the new administration of Gov. Bruce Rauner to be “an excuse” not to move forward with the rules.

“This is a health problem, regardless of who’s sitting in Springfield,” said Rachel Granneman, associate attorney at the Environmental Law & Policy Center, the lead signers of the letter. “IEPA has the responsibility to communities to protect them from this health threat. We don’t think that’s changed in any way.”

The IEPA did not respond to a request for comment.

Calling for prevention
While petcoke so far has not been an issue in Illinois outside Chicago, environmental and health advocates note that extensive petcoke storage could easily happen in other parts of the state. That’s especially likely given the city regulations prohibiting new petcoke storage and placing limits on existing facilities.

“It’s just unconscionable to think Illinois EPA had enough concern to call for emergency rules last year but now is essentially saying the city took care of the problem for the entire state?” said Brian Urbaszewski, director of environmental health programs for the Respiratory Health Association of Metropolitan Chicago, which signed the letter. “That just doesn’t make any sense at all. I just don’t understand why the Illinois EPA now thinks that the rest of the state doesn’t deserve the same protections people in Chicago are getting.”

Chicago-area industrial waterways, including the Calumet River, which is the artery for the KCBX facility, also run outside Chicago city limits. There are also locations along rail lines or rivers including the Mississippi River that could be convenient for storing petcoke.

Advocates say state rules are imperative to pre-empt situations like that which played out in Chicago. Granneman said it is ironic that the IEPA cited lawsuits by Illinois Attorney General Lisa Madigan regarding petcoke as a reason state rules are not needed. Rather, the lawsuits are evidence that rules are needed to prevent such situations elsewhere in the future, she said.

“You can have lawsuits, but that’s after the fact, just dealing with that specific issue at that specific location,” said Granneman. “You really need very specific prescriptive regulations dealing with how wet the coke has to be, what to do to shut it down if the wind picks up. There aren’t these types of regulation in place [statewide]. We don’t want to have the whack-a-mole situation” dealing with problems once they arise.

KCBX spokesman Jake Reint said state rules are not necessary.

“For the products we handle at KCBX, we continue to believe further regulation isn’t necessary given what we know about the effectiveness of the existing requirements and our own bulk material handling practices,” he said.

Other companies and trade associations representing coal, oil, shipping, chemicals and manufacturing also opposed state rules on bulk storage, which would affect other commodities along with petcoke.

Chicago regulations not enough
Local residents and advocacy groups say state rules on petcoke are also needed for Chicago, because they don’t believe the city’s regulations are strict enough or being enforced enough to adequately protect residents.

KCBX was granted some variances to rules issued by the city health department. And company officials have repeatedly said they cannot meet a city deadline of June 2016 for enclosing petcoke piles. The company had essentially been in a standoff with city officials over the matter until just before February elections where petcoke was a campaign issue; then KCBX promised to remove petcoke piles by the deadline.

Reint said that is still the plan.

“By next summer there will be no petroleum coke or coal piles at either of our terminals, as the city’s rules require,” he said.

But given the company’s statements and record in the past, residents are not convinced KCBX will keep its promise. Meanwhile they are also worried that even if KCBX eventually builds an enclosure, serious air pollution could still occur if high volumes are delivered on barges and rail cars, which do not have to be covered. The letter also points to problems in recent months, despite KCBX’s investments in dust suppression.

“Even with the City of Chicago regulations in effect, facilities in Chicago are still failing to comply with national air pollution standards that US EPA set to protect public health,” said the June 11 letter, whose signers included the Southeast Chicago Coalition to Ban Petcoke, State Representative Barbara Flynn-Curie, the Sierra Club Illinois, the Natural Resources Defense Council, the Southeast Environmental Task Force, Blacks in Green, the National Nurses United labor union and other community and regional organizations.

The letter noted:

“As recently as February 14, 2015, the 24-hour average concentration of particulate matter less than ten micrometers in diameter (PM10) at the southeast monitoring site at KCBX’s North Terminal was 175 micrograms per cubic meter, while the National Ambient Air Quality Standard for PM10 is 154 micrograms per cubic meter.2 The City of Chicago regulations are unable to ensure compliance with national standards; they certainly provide no acceptable basis to forgo state regulations.”

Reint countered that the company’s monitoring and soil testing show that the company is not causing pollution.

In January, the City Council passed an ordinance ordering the Department of Planning and Development to set limits on how much petcoke or coal can be passed through a facility. The ordinance included a deadline of March 31 for the limits, but so far none have been set. A Department of Planning and Development spokesman did not respond to requests for comment or information.

Residents say this apparently missed deadline is among the reasons they don’t trust the city administration to effectively regulate petcoke, despite tough talk from Mayor Rahm Emanuel and other officials. And if powerful politicians like Emanuel don’t do enough to crack down on companies that store petcoke, they ask how residents in low-income and/or rural areas without such political clout will fare.

“Other smaller local governments where petcoke is or might be stored may be bamboozled or threatened into forgoing local health protections by the powerful corporations in this business,” said Urbaszewski. “Some may not even have the ability to set strong local rules to protect their own residents. People living in Illinois should be protected from corporate actions that put their health at risk, no matter where they live in the state.”

ELPC, NRDC and other signers of the letter to the IEPA are members of RE-AMP, which publishes Midwest Energy News.

Press Release: ELPC Commends Federal Court Decision Declaring Transportation Agencies’ Illiana Tollway Approvals Illegal


Contact: Judith Nemes (312) 795-3706

ELPC Commends Federal Court Decision Declaring Transportation Agencies’ Illiana Tollway Approvals Illegal

Big Legal Victory Should Help Bring Illiana Tollway to an End  

Chicago—The U.S. District Court for the Northern District of Illinois issued a strong decision declaring the federal and state transportation agencies’ approvals of the proposed Illiana Tollway to be illegal.

“The Federal Court decision is a big victory for the Environmental Law & Policy Center and our clients and for sensible transportation planning and priorities,” said Howard Learner, Executive Director of the Environmental Law & Policy Center. “We are very pleased the Federal District Court has ruled in our favor, which should bring the boondoggle proposed Illiana Tollway to an end.”


Daily Herald: Illiana Expressway dealt another blow

A federal judge struck a significant blow to an already endangered road project Tuesday, ruling government approvals for the Illiana Expressway were flawed.

U.S. Judge Jorge Alonso called a Federal Highway Administration report and decision in favor of the controversial expressway “arbitrary and capricious.”

The ruling heartened opponents of the road who had taken the U.S., Illinois and Indiana departments of transportation to court to stop its construction.

The Illiana “is a fiscal boondoggle, undermines sound regional planning, and would degrade the Midewin National Tallgrass Prairie,” Enviromental Law and Policy Center Executive Director Howard Learner said.


ELPC’s Founding Vision is Becoming Today’s Sustainability Reality

Support ELPC’s Next 20 Years of Successful Advocacy

Donate Now