ELPC 2015: What We’ve Achieved, and What’s Next

This is a transformational year for the environment. ELPC is seizing strategic opportunities for progress on the big issues. We’re achieving strong results in these politically gridlocked times.

First, the EPA’s Clean Power Plan caps two decades of sustained advocacy by ELPC and many environmental and public health colleagues backed by sound scientific findings. The U.S. is now stepping up as a global leader advancing clean energy solutions to reduce carbon pollution.

Second, solar energy, wind power and innovative energy efficiency technologies are poised to transform the electricity market just as wireless transformed telecommunications, changing the ways that we live and work. ELPC is driving new policies to accelerate distributed Midwest solar energy installations and install one million new smart thermostats in Illinois.

Third, ELPC’s successful litigation to stop the fiscal folly Illiana Tollway, protect the Midewin National Tallgrass Prairie and promote sound regional planning is transforming transportation policy to prioritize public transit and modern regional rail instead of politically clouted boondoggles. ELPC attorneys are winning in both the court of law and the court of public opinion.

ELPC is effective. Our teams of expert public interest attorneys, M.B.A.s, policy advocates and communications specialists, combined with the ELPC Science Advisory Council, play to win and know how to get things done.  ELPC is truly making a difference for a better world.


Your support has helped ELPC advance a cleaner renewable energy mix for the Midwest, accelerate cleaner transportation, and clean up the rivers and great lakes that we all care about. Please consider ELPC’s results and make a financial contribution to support our successful program work in 2016:


Ditching the Illiana Tollway Boondoggle and Protecting the Remarkable Midewin National Tallgrass Prairie

Midewin_Illiana_250x330The proposed new Illiana Tollway is a fiscal folly, undermines sound regional planning and would harm wildlife and ecological values in the Midewin National Tallgrass Prairie. On June 16th, Federal District Court Judge Jorge Alonso granted Plaintiffs’ motion for summary judgment and declared that the federal and state transportation agencies’ approval of the Tier 1 final Environmental Impact Statement and Record of Decision “for the proposed new Illiana Expressway was arbitrary and capricious and in violation of NEPA.” This is a tremendous litigation victory for ELPC’s public interest attorneys on behalf of our clients Midewin Heritage Association, Openlands and Sierra Club.

More than a dozen newspapers across Illinois have editorialized against the Illiana “road to nowhere” during the state’s fiscal crisis and when there are much higher priorities for limited transportation infrastructure funds to enable badly-needed fixes for transit and commuter rail, intercity higher-speed rail, and highway and bridge repairs.

ELPC’s legal, economic and media advocacy and our clients’ public engagement have changed the proposed new boondoggle Illiana Tollway from a “done deal” to “terminal life support.” It’s time for Governor Rauner and Illinois’ political leadership to finally ditch the Illiana once and for all. ELPC is working hard in the federal and state courts, and in the courts of public opinion, to bring the proposed Illiana Tollway to its well-deserved end.


Installing One Million Smart Thermostats in Illinois – A National Model

NestThermostat_250x330ELPC and Commonwealth Edison worked together creating an ambitious new program to install one million new smart thermostats in Illinois homes and small businesses over the next five years. U.S. EPA Administrator Gina McCarthy joined us for the October 8th public announcement. This leading-edge initiative provides rebates up to $120, using the consumer-funded Energy Efficiency Performance Standards program resources, for the new generation of Ecobee, Nest and Honeywell thermostats that learn customer behavior and adjust cooling and heating without complicated programming. These “smart thermostats” can save consumers 15%-25% from their heating and cooling costs and reduce pollution. Once the Illinois program is off the ground, ELPC plans to replicate it in more Midwestern states. This innovative technology is a winner.


Accelerating Solar Energy in Illinois, Iowa, Michigan and Minnesota

SolarShedd_250x330Solar energy installations in the Midwest grew by 70% last year, creating jobs, new businesses and economic growth. However, the coal industry and some electric utilities are seeking to impose regulatory barriers to protect their polluting power plants and their electricity monopolies. ELPC is working to advance sound policies that drive clean solar energy forward and remove regulatory barriers to development.

In Illinois, ELPC was instrumental in helping enact and then design the state’s first $30 million distributed solar generation procurement.

In Iowa, ELPC successfully repelled Interstate Power & Light’s attempt to impose new barriers to solar development after we won a major case before the Iowa Supreme Court to remove utility-imposed barriers to conventional third-party financing arrangements for solar energy development projects.

In Minnesota and Michigan, ELPC is making steady progress with our state-based partners to design new distributed solar programs and strategies. We’re moving forward at this transformational time to accelerate solar energy development for a cleaner energy future. ELPC is pro-technological innovation, pro-competition and pro-removing regulatory barriers to solar.


Keeping the Great Lakes and Midwest Rivers Clean

LakeMichiganMichigan-sidebarThere are two main types of water pollution – from a single, identifiable “point” source and the “non-point” flows from farms, ranches and streets. ELPC is working on both.

This is the first year that the SS Badger car ferry did not dump about 1,000,000 pounds of toxic coal ash into Lake Michigan. The ship now has a new coal ash containment system thanks to an effective advocacy campaign led by ELPC with U.S. Senator Dick Durbin and our good colleagues. ELPC’s work to stop the SS Badger from polluting the drinking water supplies for 42 million people is a strong precedent that reinforces that it’s no longer acceptable to dump toxic pollution in our Great Lakes.

ELPC also brought together more than 60 scientists and policymakers for our second annual Great Lakes Science-Policy Confluence Conference to discuss solutions to mitigate “nutrient pollution” – agricultural runoff that helped cause toxic blue-green algae blooms in Western Lake Erie. In summer 2014, 500,000 people in the Toledo area were without safe drinking water supplies for 72 hours. That’s not acceptable. ELPC is stepping up our advocacy for the necessary actions to reduce nitrogen and phosphorus runoff from agricultural operations that caused the toxic algae and contaminated water supplies.

ELPC continues our Mississippi River protection legal leadership, and we convened a new collaboration of Illinois, Indiana, Kentucky, Ohio, Pennsylvania and West Virginia groups for coordinated multi-state action to help clean up the Ohio River, considered by some to be America’s most polluted waterway.


ELPC Is Accelerating the Next Generation of Sustainable Transportation

AmtrakELPC is a recognized leader in advancing the Midwest high-speed rail network, which will improve mobility, reduce pollution, create jobs and pull together the regional economy. We are working to accelerate new clean cars and trucks, which use modern technologies to increase fuel efficiency and reduce pollution.

This year, I was honored to be asked by Amtrak’s CEO to serve on a four-member Blue Ribbon Panel analyzing and recommending strategies and better practices to increase fluidity and reduce congestion for higher-speed passenger rail and freight rail in the “Chicago Gateway” leading to St. Louis, Detroit and the East Coast.



Making the Clean Power Plan Standards Work Well

coal_250x330This is the federal cornerstone for America’s commitment to climate change solutions. ELPC is working with many business, environmental, health and faith-based allies to overcome the coal industry’s and certain politicians’ litigation efforts to stall progress, and to effectively implement state climate solution action plans in the Midwest states. Overall, ELPC is advancing new policies to drive energy markets with technological innovations that can change the world.





ELPC believes in the core principle that environmental progress and economic growth can be achieved together, and we put that sustainability principle into practice every day. ELPC’s solutions-focused strategies engage diverse partners and seize opportunities to accelerate clean energy development and clean transportation technologies, protect clean air and clean water, and preserve the Midwest’s wild and natural places.

ELPC’s multidisciplinary staff teams of public interest attorneys, M.B.A.s, policy experts and communications specialists are fully engaged across the Midwest, and we’re making progress. It isn’t easy; real change never is. We don’t give up. Let’s keep working together to win.

Thank you for engaging and making a contribution to support ELPC’s work to harness this change and achieve a brighter future.


Midwest Energy News: Federal Ruling Could Resolve Iowa School District’s Solar Dispute

ruling made earlier this summer by the Federal Energy Regulatory Commission (FERC) could clear away the road block that has been hindering a solar project proposed by a rural Iowa school district, according to a lawyer familiar with the situation.

At issue is a plan by the Rudd-Rockford-Marble Rock Community School District in Rockford, Iowa to install a solar array and sell the excess power back to the local city utility.

And since the proposed 750-kilowatt system likely would be able to produce twice the electricity the district uses, and about half the energy the city provides to its 850 customers, it seems possible that it could displace a sizable chunk of the power that the city buys from its wholesale provider, the Municipal Energy Agency of Nebraska (MEAN).

However, an agreement known as an “all-requirements contract” between the utility and its wholesale power supplier is standing in the way.

Josh Mandelbaum, a staff attorney in Des Moines with the Environmental Law & Policy Center, said that a case from Colorado involving a rural electric cooperative and its wholesale power supplier is quite similar to the one now brewing in Rockford. In the Colorado case, the FERC ruled that when an all-requirements contract conflicts with the federal Public Utility Regulatory Policies Act (PURPA), PURPA wins.

Keep Reading

Victory! Two Anti-Solar Proposals Dropped in Iowa

Two Iowa power providers reversed course on anti-solar proposals in August, opening up the market for solar energy development in Iowa. ELPC leads a coalition of Iowa advocates and businesses working to expand solar energy in the state.

Alliant, Iowa’s second-largest power company, will now allow customers with rooftop solar systems to receive credits for excess energy returned to the grid – a process called net metering. ELPC and other Iowa solar advocates protested this business practice to the Iowa Utilities Board. The change will allow customers to better finance solar systems and encourage the expansion of rooftop solar projects in Iowa.

Pella Electric Cooperative, which serves 3,000 customers in Central Iowa, withdrew a controversial proposal that would have hit rooftop solar owners with an exorbitant $85/month fee – which would have been the most extreme anti-solar fee anywhere in the country. The news was welcomed by co-op members and underscores the need for open discussion about the value of solar. ELPC is working with Pella to bring the benefits of solar to all of the co-op’s members.

LEARN MORE About the Net Metering Victory and the Pella Cooperative Victory 

Associated Press: Amid Backlash, Iowa Co-Op Drops Planned Fee for Solar Hookup


August 28, 2015

Amid Backlash, Iowa Co-Op Drops Planned Fee for Solar Hookup

The Associated Press

PELLA, IOWA — Facing a backlash from solar energy advocates and an inquiry from regulators, a rural Iowa electricity cooperative has dropped a plan to charge customers who install solar panels on their homes and businesses a special $85 monthly charge.

The Pella Cooperative Electric Association withdrew its proposal Thursday in a filing to the Iowa Utilities Board, which was considering a challenge from solar customers and environmental groups who argued the charge was illegal, unjustified and discriminatory.

Similar disputes between utilities and solar energy advocates are playing out across the country, but observers said the cooperative’s proposed interconnection charge was believed to be among the highest in the nation.

The cooperative, which serves about 3,000 members in rural southern Iowa, notified customers who already have or were planning to install solar generation systems of the new charge last month. The cooperative argued that the fee was justified because customers who generate some, but not all, of their own electricity use less from the utility’s distribution system and therefore pay less. The fee was meant to have those customers pay their equal share of fixed costs and avoid having other customers subsidize them, the cooperative argued.

In a statement, the cooperative said the fee wasn’t meant to discriminate against solar customers but that it would be withdrawn in light of the complaints.

“We need to ensure every member is being treated fairly,” the cooperative said. “Because we are a cooperative, we have decided to withdraw the proposed increase … until such time that we can better educate our members and the community as to the fair and equitable recovery of fixed costs.”

The news delighted Mike Lubberden, who halted his plan to install a solar array outside his Pella home after learning of the charge in July. He said Friday that he now plans to move forward but hopes the utility doesn’t try to resurrect the charge at a later date. He said the charge was “outrageous” and designed to discourage solar energy deployment.

He and other solar energy backers note that the cooperative receives some revenue from customer-owned generation systems: the coop pays 3.3 percent per kilowatt-hour for excess solar and sells it for 10.1 cents. They noted that solar arrays have benefits for the environment and energy grid.

The Office of Consumer Advocate had requested information and data about the fee as part of an inquiry into whether it would violate Iowa law, which bars charging “discriminatory rates” for customers who use renewable energy. The office, which represents utility customers’ interests, had been planning to update the board on its investigation next month.

The Environmental Law and Policy Center, which had intervened to challenge the proposal, said Friday the withdrawal was good news and should spark discussion about the role solar can play at rural electric cooperatives in Iowa.

“There are better ways to prepare for the energy future than imposing punitive and unjustified fees on members who are leading the way on renewable energy,” said Josh Mandelbaum, a Des Moines attorney for the group.

Press Release: Pella Electric Coop Reversal on Solar Charge Good News for Coop Members


August 27, 2015

Pella Electric Coop Reversal on Solar Charge Good News for Coop Members

It’s Time for an Open, Data-Driven Discussion on Benefits of Solar to Coops

DES MOINES, Iowa – Late Thursday the Pella Electric Cooperative withdrew a controversial proposal which would have hit members with solar panels with an exorbitant fixed charge of $85 month. The news was welcomed by members of the co-op, and underscores the need for an open discussion about the role solar will play in the coops energy future.

“Families and businesses that have joined institutions like Central College in cutting energy costs and bringing us closer to energy independence with solar will not be punished for making a choice that is better for budgets and for the environment,” said Bryce Engbers, a Pella Electric Coop member and pork producer who has solar panels.

Mike Lubberden, another solar Pella member commended the move, but added that the coop should alter the way it looks at solar.

“This would have been the most extreme anti-solar, anti-renewable energy fee anywhere in the country,” Lubberden said. “Pella Electric Cooperative Association should permanently drop this proposal, and instead take an approach that captures the value of solar energy for all coop members.”

Josh Mandelbaum of the Environmental Law & Policy Center expressed hope that Pella Electric Cooperative’s withdrawal of the flawed proposal was an indication that the coop has reevaluated its approach. “There are better ways to prepare for the energy future than imposing punitive and unjustified fees on members who are leading the way on renewable energy. We look forward to working with the Pella Electric Cooperative to identify ways to bring the benefits of solar to all of the coop’s members.”

Mandelbaum pointed to the fact that solar now creates revenue for the coop. Currently, Pella buys excess solar energy at a rock bottom price and sells it at a premium any time the member’s system produces more energy than the member uses. The coop pays 3.3 cents per kilowatt-hour for excess solar and sells it for 10.1 cents. The member who installs solar has paid all the costs to do so, and the coop keeps nearly 7 cents on every unit of excess energy.

Nathaniel Baer, Energy Program Director of Iowa Environmental Council also lauded the decision to drop the solar charge. “This proposal was never supported by data showing it was needed, in fact, we are confident that solar is bringing value to the coop. We hope that this opens the door to a larger discussion of how we can bring more solar to rural electric coops across the state.”


Good News for Solar From Our Iowa Office


Alliant Reverses Stance That Hindered Solar Projects in Iowa

By Ryan J. Foley, Associated Press

IOWA CITY, Iowa (AP) — Facing a new legal challenge, Iowa’s second-largest power company has abandoned a business practice that critics say improperly slowed the adoption of solar energy across the state.

Over the last year, Alliant Energy had told schools and municipalities that it wouldn’t allow net metering for rooftop power-generating systems financed by third-party solar companies. That meant customers would not be credited on their bills for excess energy they generate during peak sun times and return to the grid, making many of the projects economically unfeasible. In response, customers delayed, downsized and shelved solar projects meant to reduce their energy costs and impact on the environment.

But in a surprise reversal, Alliant said in a legal filing last week it will allow net metering for many such projects. Alliant spokesman Justin Foss said the company “revised our stance” after receiving the first formal applications for interconnection from customers entering into such arrangements.

“Since this is a relatively new issue, we adjusted to find the most customer-focused solution,” Foss said.

Joshua Mandelbaum, an attorney with the Environmental Law and Policy Center in Des Moines, called that explanation disingenuous, noting Alliant hadn’t received other applications because customers were told earlier in the process that net metering wouldn’t be allowed.

He said the change was positive and would allow “a number of customers who are interested in pursuing solar to be able to finance their systems.”

“I’m still puzzled why it took so long for Alliant to come around to this position. Nothing has changed on the ground in the last year,” he said. “It only served to delay customers’ ability to take advantage of this option and create unnecessary tension and bad feelings with customers.”

The reversal came days after Mandelbaum, on behalf of a coalition of solar advocates, told the Iowa Utilities Board that Alliant’s position violated the state’s net metering rule and was thwarting renewable energy projects proposed by nonprofits and government agencies. Such entities, which don’t pay taxes, often enter into agreements to purchase power directly from solar companies that install generating systems on their buildings. The arrangements allow them to benefit from federal tax breaks designed to promote solar energy.

The Iowa Supreme Court ruled last year that the so-called power purchase agreements were legal, rejecting a challenge by Alliant.

After the ruling, Alliant argued that net metering for those projects wasn’t allowed because the solar companies were reselling power within its service territory, which was barred by its state operating agreements. That position has now been dropped.

Alliant notified the Iowa Falls Community School District — which dropped a proposal to install solar arrays on four school buildings — and other customers of its reversal in recent days.

“I was shocked,” said Cresco city councilor Amy Bouska, who learned the news from Alliant last week. Bouska said her city’s exploration of solar came “to a screeching halt” last spring when Alliant said net metering wouldn’t be allowed. She praised Alliant’s change but noted the utility still won’t allow net metering at buildings classified as large industrial users, such as the city’s fitness center and wastewater treatment plant.

Eagle Point Solar, a Dubuque-based company which had prevailed in last year’s Iowa Supreme Court case, filed a complaint with the utilities board in June alleging Alliant’s policy was illegal and forced it to scale back a plan to install solar arrays on buildings for the city of Asbury. Company President Barry Shear said he was surprised by Alliant’s “amazing rollover.”

“This change in policy from Alliant is going to have significant impact on the feasibility of projects that fall into the general service rate category,” he said.


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

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.”


Press Release: Thank You Sen. Grassley for Leading Charge On Wind Energy

July 21, 2015

Environmental Law & Policy Center Thanks Iowa’s Sen. Grassley for Leading Charge to Extend Federal Wind Energy Production Tax Credit

DES MOINES, Iowa – The Environmental Law & Policy Center thanks Sen. Charles Grassley (R-Iowa) for leading the charge to include the Wind Energy Production Tax Credit in the Federal Tax Extenders Package Bill, which passed out of the Senate Finance Committee today on Capitol Hill.

“Senator Grassley played a key role in Congress extending the federal wind energy production tax credit, which is helping to spur wind power growth in Iowa,” said Steven Falck, ELPC’s Senior Policy Advocate in Des Moines.

The wind energy production tax credit first passed in 1992, which has fostered growth of the Iowa wind energy supply chain and created more than 6,000 jobs. Through the last quarter of 2014, the U.S. installed wind energy capacity was at 65,879 megawatts, which also created more than 73,000 jobs.

“The Environmental Law & Policy Center urges the full Iowa Congressional delegation to support Sen. Grassley’s lead in extending the Federal Wind Energy Production Tax Credit,” said Falck.

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.”


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.”

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