Iowa

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.”

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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.”

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: http://www.midwestenergynews.com/2015/06/24/report-net-metering-policies-drive-solar-growth/

 

Crain’s Chicago Business: Exelon’s nuke partner is also a rival

Exelon has a frenemy in Warren Buffett.

The billionaire chairman of Berkshire Hathaway, which owns Des Moines, Iowa-based utility MidAmerican Energy, is playing an outsized role in Illinois’ energy future. MidAmerican is co-owner with Exelon of the Quad Cities nuclear plant, which Exelon has threatened to close unless lawmakers vote to hike electricity rates on most state residents to provide more revenue to the company’s six Illinois nukes, including Quad Cities.

But MidAmerican is arguably a major contributor to Quad Cities’ woes.

Exelon consistently has blamed the sale of wind power from Iowa into Illinois for driving wholesale energy prices down to levels that make it impossible for some Exelon nukes—in particular Quad Cities, which sits along the Mississippi River—to make money.

Who’s building all that wind power? Since 2004, MidAmerican has developed more than 2,800 megawatts, about half the wind capacity in Iowa, according to the American Wind Energy Association, and significantly more than the 1,819-megawatt capacity of the Quad Cities nuke.

On May 1, MidAmerican announced plans to invest $900 million in the construction of two wind farms next year that will add 552 megawatts. Buffett is an enthusiastic supporter of renewable energy, saying last year that he would be happy to invest $15 billion in green energy over coming years. For his company, investing in Iowa wind farms comes virtually without risk because they’re approved by the state’s utilities board and ratepayers cover their cost. But the operations generate more power than can be sold exclusively in Iowa, so excess output is sold into Illinois and elsewhere.

While Exelon says Quad Cities is losing money, those losses are borne solely by Exelon, not MidAmerican. That’s because MidAmerican, which owns 25 percent of the plant, sells its portion of the output to its own ratepayers in Illinois, Iowa and South Dakota at regulated rates, ensuring it’s profitable. Exelon, operator and 75 percent owner of Quad Cities, sells its share at market prices, with no guarantee those rates will cover its costs.

MidAmerican says it supports Exelon’s proposed legislation in Illinois, which would impose a surcharge on customers of Commonwealth Edison, which serves northern Illinois, and Ameren Illinois, which delivers power downstate. The fee would support “low-carbon” forms of power and is crafted so that Exelon’s Illinois nukes would get the vast majority of the $300 million in revenue it would generate.

The bill wouldn’t impose that charge on MidAmerican’s 85,000 customers in the Quad Cities region of Illinois. That’s despite the fact that one of Exelon’s arguments for subsidizing its nukes is to preserve their high-paying union jobs and the tax base in affected communities.

So, MidAmerican’s support for its business partner is qualified. “Exelon has described the legislation as not negatively impacting MidAmerican Energy’s Illinois customers, which is critical to the company’s support,” MidAmerican spokeswoman Ashton Newman says in an email. “If future versions of the legislation impose additional costs that harm our customers, MidAmerican Energy will need to re-evaluate the measure.” MidAmerican says it wouldn’t be fair to charge its Illinois customers when they pay for MidAmerican’s part of the plant in their rates.

Yet MidAmerican has raised rates in Illinois just once since 1992. As a result, Illinoisans in the Quad Cities pay 11 cents per kilowatt-hour, 17 percent less than the 13.3 cents ComEd households pay. An average household using 653 kilowatt-hours per month pays $87 to ComEd and $72 to MidAmerican. Exelon says its proposed surcharge would add about $2 a month to the average residential bill.

“Many businesses are willing to support Exelon getting more money for its nuclear plants as long as someone else is paying for it,” says Howard Learner, executive director of the Environmental Law and Policy Center in Chicago and a frequent Exelon critic.

For its part, Exelon says it has no position on whether MidAmerican customers should pay the surcharge. It wrote the bill to exclude them because past state laws to aid specific forms of energy have affected only ComEd and Ameren customers.

Regarding MidAmerican’s role in harming the economics of Quad Cities, Exelon spokesman Paul Elsberg says in an email, “We cannot fault any company for taking advantage of governmental support available to them.”

Exelon continues to lobby Congress to end federal tax credits for new wind farms that it says distort the energy markets. In the meantime, Elsberg says, “If Illinois’ nuclear plants were permitted to compete on an equal footing with other low-carbon energy sources through (Exelon’s surcharge), we believe the plants would return to a modest level of profitability.”

So far, Exelon hasn’t persuaded state lawmakers to act despite threats that it will start the process of closing Quad Cities and two other nukes without immediate action. CEO Chris Crane said at an investor conference on May 28 that Exelon would move in September to start the process of closing Quad Cities without financial relief. If so, Exelon won’t be able to do so unilaterally.

Exelon will need its frenemy’s acquiescence. “It is a legal issue that would need to be worked out between MidAmerican Energy and Exelon,” says Newman, adding the company “hopes the plant will continue to operate for a number of years.”

Press Release: New Clean Water Standards “An Important Step Forward” According to Environmental Law & Policy Center

FOR IMMEDIATE RELEASE

Wednesday May 27, 2015

New Clean Water Standards “An Important Step Forward” According to
Environmental Law & Policy Center  

CHICAGO – Today, the Obama Administration issued new clean water standards that are an important step forward to protect safe drinking water and healthier community rivers, streams and wetlands in the Great Lakes and Mississippi River watersheds.  ELPC and many of our allies across the nation have worked to achieve these new standards for many years. These standards have been informed by public input, are well grounded in the law, and are based on sound science.

READ MORE

Victory! Final Clean Water Standard Will Protect Streams and Wetlands

Meme---Clean-Water-Rule-VictoryToday the Obama Administration issued new clean water standards that are an important step forward to protect safe drinking water and healthier community rivers, lakes and streams in the Great Lakes and Mississippi River watersheds.

ELPC and many of our allies across the nation have worked to achieve these new standards for many years. These standards have been informed by public input, are well grounded in the law, and are based on sound science.

This is a big deal. Water resources are so interconnected that in order to protect our celebrated waterways – the Mississippi River and the Great Lakes – we also need to protect the backyard brooks, community creeks and steady streams that feed them. That’s what these new clean water standards accomplish.

Now let’s work with EPA and people and businesses in Midwest communities to advance these sensible clean water standards and make them work well going forward.

Victory! Final Clean Water Standard Will Protect Streams and Wetlands

Today the Obama Administration issued new clean water standards that are an important step forward to protect safe drinking water and healthier community rivers, lakes and streams in the Great Lakes and Mississippi River watersheds.

ELPC and many of our allies across the nation have worked to achieve these new standards for many years. These standards have been informed by public input, are well grounded in the law, and are based on sound science.

This is a big deal. Water resources are so interconnected that in order to protect our celebrated waterways – the Mississippi River and the Great Lakes – we also need to protect the backyard brooks, community creeks and steady streams that feed them. That’s what these new clean water standards accomplish.

Now let’s work with EPA and people and businesses in Midwest communities to advance these sensible clean water standards and make them work well going forward.

USA Today: Environment may get bigger stage at Iowa Caucuses

DES MOINES, Iowa — Hot-button issues such as clean power, water-quality regulations and renewable fuels are expected to get a bigger stage in the 2016 Iowa Caucuses, as environmental activists put more pressure on presidential contenders to address controversial issues such as climate change.

But experts still expect that concerns about saving the planet likely will play second, third and possibly even fourth fiddle to issues such as jobs and the economy, heath care and national security. The key, they say, may be to link the environment to popular measures such as wind and solar energy that can create jobs while also reducing America’s carbon footprint.

“If you’re a candidate that’s looking for a way to talk about the environment, Iowa provides a perfect road map for that,” said Josh Mandelbaum, the Des Moines attorney for the Environmental Law and Policy Center. “You can stay away from the most polarizing issues and talk about areas where in Iowa you have bipartisan support” such as wind energy.

Republican presidential hopefuls so far have typically said that the federal government has been too heavy-handed with regulation and expressed little support for government incentives to develop alternative energy sources. Democratic hopefuls such as Martin O’Malley and Bernie Sanders have been more outspoken in their support.

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Omaha Public Radio: Report Finds More than 4000 Iowa Employees Working in Energy Supply Chain

More than 100 companies from across the state of Iowa are working in the wind and solar energy supply chain.

That’s according to a report recently released by the Environmental Law and Policy Center.

Howard Learner, Executive Director, says Iowa is helping to power the world through renewable energy businesses that build wind machines and solar panel equipment.

Learner says what’s interesting is the number of businesses across Iowa that are involved in making the equipment, designing and doing the engineering work for wind farms, handling the legal work and making component parts.

“So it’s good for manufacturing jobs as well as being good for construction jobs at the wind farms. It’s good for economic development in both in rural areas where the wind farms go up and in the manufacturing hubs like Cedar Rapids or Newton where the blades and other equipment is being made.  And it’s good for the environment by leading to cleaner air and cleaner water for everybody.”

Learner says Iowa has been a leader in wind power for a long time.  He says wind supplies 27% of the electricity generation in Iowa.

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