Indiana

Press Release: Environmental Law & Policy Center Commends President Obama, U.S. EPA on Final Clean Power Plan

For Immediate Release

August 3, 2015

Environmental Law & Policy Center Commends
President Obama, U.S. EPA on Final Clean Power Plan;
Will Partner With Regional Leaders for Smart Implementation

STATEMENT BY HOWARD A. LEARNER
Executive Director, Environmental Law & Policy Center

“The Clean Power Plan is our nation’s strongest step forward to reduce carbon pollution by accelerating clean solar energy and wind power solutions. Solving our climate change problems is the moral, economic, policy and political challenge of our generation. The Plan’s clean energy development solutions will create Midwest jobs, improve global public health and protect our Great Lakes ecosystem.”

“The Clean Power Plan gives states flexibility for implementation strategies that maximize the benefits of both cutting carbon pollution and growing the clean energy economy. The Environmental Law & Policy Center’s experts on the ground will work with the Midwest’s local stakeholders on plans that will deploy clean technologies to hold down utility bills, create jobs and improve environmental quality.”

“For Midwest manufacturing centers, today’s news is a signal to advance the clean renewable energy and energy efficiency supply chain businesses producing modern equipment. For the Midwest’s rural areas, today’s news is a signal that wind power development will keep growing and provide a new income stream for farmers, spur rural economic development and improve the environment for everyone. For cities like Chicago, Cleveland, Des Moines, Detroit, Indianapolis and Minneapolis, today’s news means a new era of solar panels on rooftops and more energy efficiency buildings that can better energize our urban communities.

“It’s time for the Midwest’s Congressional Delegation and Governors to step up and seize this opportunity to modernize our aging energy system and gain the benefits of growing the new clean energy economy. Let’s end the political squabbling and move forward with smart climate change solutions that are good for many Midwestern businesses and good for our environment.”

###

Courthouse News Service: Thirty-one States Fight Clean Water Rule

(CN) – Attorneys general from 31 states asked the Environmental Protection Agency and Army Corps of Engineers to delay implementation of a Clean Water Act rule for at least 9 nine months for judicial review.
The rule defines “Waters of the United States” under the Clean Water Act. The states claim it asserts federal jurisdiction over streams, wetlands and other water bodies previously considered to be under state jurisdiction.
The EPA cited the need for clean drinking water and clean water as an economic driver as the impetus for its new rule, and Supreme Court rulings in 2001 and 2006 in which justices disagreed about which waters were covered by the Act.
“About 117 million Americans – one in three people – get drinking water from streams that lacked clear protection before the Clean Water Rule,” the EPA said in a May 27 statement about the new rule. “The health of our rivers, lakes, bays, and coastal waters are impacted by the streams and wetlands where they begin.”

KEEP READING

AP: Opponents of Illiana Tollway Want Hearing on Tax Breaks

SPRINGFIELD, Ill. (AP) — Opponents of a proposed tollway linking Illinois and Indiana want a public hearing on a rule to create tax breaks for the project.

The Environmental Law & Policy Center filed a hearing request after news reports that Gov. Bruce Rauner’s administration this week proposed a rule granting a sales tax exemption for construction materials to build the Illiana Tollway.

READ MORE

Crain’s Chicago Business: Rauner proposes sales tax break for Illiana Expressway

For the second time in a month, Gov. Bruce Rauner’s administration has moved to throw an apparent financial lifeline to the proposed Illiana Expressway. But Team Rauner says things aren’t what they seem.

While insisting that the proposed south suburban toll road is still on ice, with all spending frozen, the Rauner administration filed for public comment a proposed rule to grant a sales tax exemption to construction materials that would be used to build the road. The rule then likely will be submitted to a legislative review panel for final approval.

Earlier Rauner signed a bill authorizing $5.5 million in spending on the road, saying the money would go for consultants working to wind down the project. That came despite an overall budget crisis that has left the state billions of dollars in the red.

Rauner spokesman Lance Trover said the proposed language headed to the General Assembly’s Joint Committee on Administrative Rules “is required by legislation” and “is in no way an effort to revive a project that the Illinois Department of Transportation has pulled from its multiyear plan.”

Illinois Department of Revenue spokesman Terry Horstman said the rule stems from a 2010 law authorizing tax breaks for the highway, which would stretch from the Indiana border to Interstate Highway 55. Horstman said he didn’t know why it took five years for a draft rule to be filed or why it was filed now.

Longtime Illiana critic Howard Learner is suspicious. In a statement, Learner, who heads the Environmental Law and Policy Center, asked, “Given the state of Illinois’ financial crisis, why in the world is the Department of Revenue proposing to grant a sales tax exemption for the boondoggle Illiana Expressway?”

“It’s time for Gov. Rauner to finally terminate the wasteful Illiiana Tollway,” he continued, “and not create another new costly subsidy that Illinois taxpayers can’t afford.”

Continue Reading

Journal Gazette & Times – Courier: Tax breaks sought for Illiana toll road

SPRINGFIELD — In another sign the controversial Illiana Expressway still has a pulse, Gov. Bruce Rauner’s administration is seeking legislative approval of tax breaks that could benefit the on-again, off-again project.

In a proposal filed by the Illinois Department of Revenue on July 10, the administration is seeking sales tax exemptions for building materials used to construct the road, which would connect Interstate 55 in Will County with Interstate 65 in Indiana.

KEEP READING 

Press Release: Environmental Groups Deliver Petitions to ORSANCO Calling for them to Uphold Mercury Anti-dumping Standards for Ohio River

FOR IMMEDIATE RELEASE

Environmental Groups Deliver Petitions to ORSANCO Calling for them to Uphold Mercury Anti-Dumping Standards for Ohio River

Technical committee meets today to decide recommendations

Cincinnati, OHIO – A coalition of environmental groups will deliver close to 2,000 petitions today to a subcommittee of a multi-state commission urging members to recommend following through with new standards that forbid companies from dumping high levels of toxic mercury into the Ohio River. Mercury is a known neurotoxin that causes brain and nerve damage to children and developing fetuses.

Twelve years ago, the Ohio River Valley Water Sanitation Commission, known as ORSANCO, banned companies located along the Ohio River from releasing large amounts of mercury into the water through the use of mercury dilution zones. The ban on these “mixing zones” is scheduled to go into effect in October in order to improve the safety of fish consumption caught in the river and overall protection of public health. Dozens of coal plants and factories in Ohio, Kentucky, West Virginia and elsewhere haven’t yet complied with this long-planned ban and many are now asking the commission to create exceptions to that ban or eliminate it completely. ORSANCO, which oversees water pollution and abatement standards on the Ohio River, has said it’s considering their request.

Environmental groups have been collecting signed petitions urging ORSANCO to stick to its original ban set in place more than a decade ago – and already delayed by 2 years – rather than give in to pressure from businesses that have failed to take even initial steps to comply with mercury mixing zone standards, according to Madeline Fleisher, staff attorney at the Environmental Law & Policy Center in Columbus, Ohio. ORSANCO’s technical committee, which is reviewing comments submitted by environmental groups and others during the public comment period last spring, is meeting today in Cincinnati to discuss recommendations it will submit to the commission.

“The Environmental Law & Policy Center and our partners are pressing ORSANCO to do the right thing by ensuring there’s a level playing field requiring concrete steps to reduce the amount of damaging mercury that polluters are dumping into the Ohio River,” said Ms. Fleisher.

The Ohio River is the public water supply for more than 5 million people, and it ranks at the top of the U.S. Environmental Protection Agency’s list of dirtiest rivers, in part because of high mercury levels. The petitions delivered to ORSANCO today were gathered by ELPC, the Kentucky Water Alliance, the West Virginia Rivers Coalition, the National Wildlife Federation and other environmental group allies. Last May, more than 17,000 petitions from environmental groups were delivered to ORSANCO during its public comment period.

“We want the state and federal appointed officials tasked with improving water quality in the Ohio River to uphold the ban on chemical hot spots, or mixing zones,” said Judy Peterson, executive director of the Kentucky Water Alliance. “We want government officials to put public health before corporate profits.”

“Citizens up and down the Ohio River are saying ‘clean water can’t wait,’” said Angie Rosser, executive director of the West Virginia Rivers Coalition. “They won’t accept delay or backsliding when it comes to reducing dangerous toxins in their water supply.”

The commission is slated to make its decision by fall and announce its new pollution control standards at its scheduled October 8 meeting. The 27-member commission is charged to conduct a review of its pollution abatement and control standards every three years.

 

###

 

 

 

 

 

 

 

Crain’s Chicago Business: Rauner OKs new spending on Illiana despite promised ban

Gov. Bruce Rauner quietly has signed a measure to spend another $5.5 million on the proposed Illiana expressway, raising questions about whether he’s seeking to keep the project on financial life support.

Several weeks ago, Rauner shelved the controversial south suburban toll road with a flourish:

KEEP READING

Howard Learner Statement on Supreme Court Mercury Ruling

FOR IMMEDIATE RELEASE
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

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.”

###

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.

KEEP READING

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

This story featuring Howard Learner is re-posted from http://www.eenews.net/greenwire/2015/06/25/stories/1060020908

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.”

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

Support ELPC’s Next 20 Years of Successful Advocacy

Donate Now