Crain’s Detroit Business: ELPC’s Learner Calls on Gov. Snyder to Tell his AG to Withdraw from Mercury Lawsuit

Schuette still trying to block EPA rules to lower mercury pollution into environment

by Jay Greene 

Michigan Attorney General Bill Schuette didn’t like the “no” answer Chief Justice John Roberts gave him earlier this month on his quest to allow utility companies to exhaust more mercury and other pollutants into the atmosphere.

Now, Schuette, in a March 18 petition for a writ of certiorari, has asked the entire U.S. Supreme Court to hear his appeal to block the EPA’s mercury and air toxics standards rule.

“When an agency promulgates a rule without any statutory authority, may a reviewing court leave the unlawful rule in place?” Schuette, who is leading a 20-state coalition to stop the EPA from enforcing its mercury rule, asked the court.

To hear Schuette’s appeal, four SCOTUS justices now must vote in favor of his position. With the recent death of Justice Antonin Scalia, the court now has eight members.

Just using basic math, if Roberts doesn’t change his opinion on the case, it appears  Schuette has only three votes on the court from conservative-leaning justices.

Environmental groups and an opposing group of states have asked that Schuette drop the case for public health reasons. They also believe the EPA is well within its statutory authority to enforce its rule under the Clean Air Act.

But Schuette believes that because the Supreme Court last July — in a 5-4 vote with an opinion written by Scalia — found the EPA’s mercury rule illegal because it didn’t consider the costs to industry of implementing the rule, the court should also freeze the rule.

Instead, the SCOTUS decision sent the case back to the U.S. Court of Appeals for the District of Columbia for further consideration.

The D.C. Circuit Court, however, appears to be giving the EPA time to revise its rule. The EPA has said it will comply with SCOTUS and enumerate its belief that the benefits of the mercury rule justify its costs to the power plant industry.

In Michigan, officials for Consumers Energy Co. and DTE Energy Co. have already stated they are prepared to meet the EPA’s new rules. They already have spent millions installing pollution control equipment to comply.

Schuette apparently believes Justice Roberts and the D.C. Circuit Court are wrong and he is right.

“It is a fundamental principle of administrative law that agency actions taken without statutory authority must be vacated,” Schuette said in his petition.

Schuette is also involved in a court case to terminate the EPA’s Clean Power Plan, another EPA rule that the state’s utilities apparently feel they can easily meet.

While initially supporting the EPA’s Clean Power Plan, Michigan Gov. Rick Snyder has suspended action by the state to comply with the rule that aims to reduce carbon emission pollution, a necessary step to slow global warming.

States supporting Schuette are Alabama, Alaska, Arizona, Arkansas, Idaho, Iowa, Kansas, Kentucky, Michigan, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, Texas, Utah, West Virginia and Wyoming.

States that support the EPA’s mercury reduction rule include Massachusetts, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, New York, Rhode Island, Vermont and the District of Columbia.

Environmentalists say Schuette could challenge the rule again before the D.C. Circuit and then appeal to the Supreme Court later if he doesn’t like the answer.

Earlier this month, Howard Learner, executive director of the Environmental Law & Policy Center and a professor at theUniversity of Michigan, wrote Schuette and asked him to give up his legal quest. “In light of the lead contamination affecting the drinking water supply in Flint, Schuette ought to be sensitive to the importance of reducing mercury pollution that harms children’s health and our environment,” Learner wrote.

Last week, I listened to Snyder testify in Congress about Michigan’s poor initial response to lead in Flint’s drinking water. While he blamed himself and state government, he seemed to give equal blame to the EPA for not pushing Michigan hard enough to protect Flint’s drinking water supply.

It was a very unusual performance by Snyder, I thought. Blame me, but also blame them, he seemed to be saying. Republicans on the committee were more than happy to agree with Snyder and they strongly attacked EPA Administrator Gina McCarthy for not being more heavy handed.

I wonder what Snyder would say now that the EPA is pushing hard to clean up Michigan’s air from excessive mercury and carbon dioxide pollution?

Learner said Snyder should show leadership by calling on Schuette to withdraw his litigation against the EPA and its effort to improve air and water in Michigan and elsewhere. “It’s time for Michigan’s public officials to show that they’ve learned the lessons from the Flint contaminated water tragedy by taking responsive actions, not just more rhetoric,” Learner said.

Snyder should tell us whether he wants a strong EPA, as he suggested in the Congressional hearings, or does he want a weak EPA, as Schuette apparently does, when it comes to mercury pollution? At least Schuette is consistent. With Snyder, however, he can’t have it both ways. Or can he?

ELPC’s Learner Talks with Midwest Energy News: Flint Shows Need to Stop Fighting EPA Pollution Rules

In the context of Flint, Michigan’s ongoing lead-tainted water crisis, regional environmental groups are calling on Michigan Attorney General Bill Schuette to stop his fight against federal rules for mercury emissions from power plants.

The Chicago-based Environmental Law and Policy Center sent a letter to Schuette on March 8, calling on him to stop challenging the U.S. Environmental Protection Agency’s Mercury and Air Toxics Standards in federal court.

Utilities across the country — including the two largest in Michigan, DTE Energy and Consumers Energy — are already moving to comply with the new rules, meaning a court decision to overturn them could have little practical impact.

The rules have reportedly led to the closing of about 100 coal plants nationwide. The EPA says the standards will prevent up to 410 premature deaths in Michigan and create up to $3.4 billion in health benefits this year.

“Why in the world — especially in light of the Flint water tragedy — is Attorney General Bill Schuette and Michigan leading the national litigation to stop or stall mercury pollution reduction standards?” Howard Learner, executive director of the ELPC, said in an interview with Midwest Energy News. “That is simply tone deaf to the reality of the circumstances when it comes to the need to reduce toxic pollution to protect children’s health and the environment.”

Schuette has maintained that the rules would be too costly. In a statement last month as he asked the U.S. Supreme Court to halt the rules, Schuette said: “For more than seven months since this Court’s decision in Michigan v. EPA, (the rule) has already caused irreparable harm. It has imposed literally billions of dollars of compliance costs on utilities, and by extension, all families who use electricity.”

Learner countered: “Now that Consumers Energy and DTE have already installed mercury pollution control equipment, any argument that Attorney General Bill Schuette is making that it would somehow save Michigan consumers money or impact jobs is looking backward rather than today’s reality.”

Learner went on to call Schuette’s challenge based on costs “penny wise and pound foolish,” similar to how Flint’s water supply was tainted by lead as part of an effort to save the city money.

He added that “the irony here” is that even if the mercury rules are overturned in the courts, DTE and Consumers would end up being at a “competitive disadvantage” with utilities in other states that perhaps hadn’t invested in pollution controls. And yet Michigan would still be subject to mercury pollution from those other states, Learner said.

The EPA adopted the mercury rules for coal plants in 2013. Shortly after, in Michigan vs. EPA, Schuette led 19 other states, utilities and coal companies to challenge the standards in federal court.

A federal circuit court upheld the standards in April 2014. After an appeal, the U.S. Supreme Court in June reversed the lower court’s ruling, saying narrowly that the EPA had to revisit the standards and give more consideration to costs. The Supreme Court, however, did not invalidate the rules.

The EPA is expected to issue a final rule by April 15. Schuette’s case is still pending in the U.S. Court of Appeals for the District of Columbia.

But following the U.S. Supreme Court’s surprise decision to stay the EPA’s Clean Power Plan, Schuette asked the High Court to essentially do the same for the mercury rules. Chief Justice John Roberts denied Schuette’s request on March 3.

“I have little doubt that when the EPA issues its final rule, some utilities and states will appeal those mercury pollution reduction standards,” Learner said. “It seems they’re appealing anything and everything the EPA is doing.”

Mercury is a neurotoxin that can impair fetal brain development and reduce a child’s IQ and ability to learn. Learner called the rules “sound regulation to avoid mercury contamination of the Great Lakes, inland lakes and rivers that results in the bioaccumulation of mercury in fish, which are eaten by people.”

The EPA estimates $3 to $9 in health benefits for every dollar spent on compliance.

Even if the EPA’s rules are invalidated, Michigan’s statewide mercury rules would take effect, Learner said.

Roberts’ March 3 decision to reject a stay — as well as the ongoing water problems in Flint — drove the ELPC to appeal to Schuette.

“We hope Attorney General Bill Schuette and Michigan public officials have learned the tragic lessons of the Flint poisoned water crisis,” Learner said. “This is the time to know when to hold them and know when to fold them and stop gambling with children’s health.”

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Public News Service: ELPC Asks Michigan Attorney General to Drop Pushback of Mercury Standards

By Mary Kuhlman, Public News Service

An environmental group and other concerned Michiganders are asking state Attorney General Bill Schuette to halt attempts to block regulations to reduce a known neurotoxin.

Despite the Supreme Court’s recent denial of requests by Michigan and other states to stay the Mercury and Air Toxics Standards, Schuette has not stopped efforts to restrict the measure. Howard Learner, president and executive director of the Environmental Law and Policy Center, said continuing litigation before the District of Columbia Court of Appeals is not in the best interest of the state and public health.

“Mercury’s a neurotoxin. It produces fetal brain damage, it slows the development of IQ and it hurts kids’ learning ability,” he said. “Mercury, once it’s in a pregnant woman’s bloodstream, passes through the placental barrier; it affects fetal brain development and it harms children.”

Schuette and other opponents have argued that the new rules are federal overreach and expensive for utilities to implement. But Learner says Consumers Energy and DTE already are set to comply with the standards with plans to install modern pollution-control equipment on coal plants. The final rule is expected by mid-April.

Learner said the push to block the mercury rules could hurt utilities in Michigan. The irony, he said, is that Shuette “is potentially continuing litigation that would reward utilities in other states that have not yet installed mercury-pollution control equipment and put them at a competitive advantage over Consumers Energy and DTE.”

Learner said the Michigan Department of Health and Human Services has acknowledged the threat posed by mercury contamination in the Great Lakes. In the wake of Flint’s water crisis, he said, more vigilance is needed in protecting public health.

He called on Shuette “to stand up for healthy kids and clean water, for our coal plants to reduce mercury pollution, and for us to move on and learn the lessons that have happened in the state for the last several months.”

According to initial assessments from the Environmental Protection Agency, the standards could result in between $37 billion and $90 billion in health and environmental benefits annually. That analysis is being updated by the agency.

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Greenwire: ELPC’s Learner Urges Michigan to Drop Fight Against EPA Mercury Rule

Michigan, the lead plaintiff in the lawsuit challenging U.S. EPA’s Mercury and Air Toxics Standards, should drop its appeal and withdraw from the case, a Midwestern advocacy group urged this week in a letter to the state’s attorney general.

Following U.S. Supreme Court Chief Justice John Roberts’ refusal last week to freeze the rule, “It is time for the litigation challenging these important standards to come to an end,” Howard Learner, executive director of the Chicago-based Environmental Law & Policy Center, told Attorney General Bill Schuette (R). The organization late yesterday released the letter dated Tuesday.

Among other factors arguing in favor of dropping the case, Learner wrote: Michigan’s two largest coal plant owners, DTE Energy Co. and Consumers Energy, are already installing pollution control equipment to comply with the standards, and the Michigan Department of Health and Human Services has recognized the public health threat of eating fish in which mercury has “bioaccumulated.”

In light of the lead contamination affecting the drinking water supply in Flint, Mich., Schuette “ought to be sensitive to the importance of reducing mercury pollution that harms children’s health and our environment,” Learner added in an interview this morning. A Schuette spokeswoman did not immediately reply to a request for comment.

The Environmental Law & Policy Center operates around the Midwest, with an office in Grand Rapids, Mich. Nineteen other states have joined Michigan in challenging the standards; Learner said his group may make similar appeals to Iowa and others in the region.

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Crain’s Detroit Business: Learner Says Lessons of Flint Should Be Clear for Michigan Leaders

Crain’s Detroit Business

By Jay Greene

I wrote a news story back in 2012 about how Michigan Attorney General Bill Schuette was leading an effort by 19 other states to block a tough new air pollution rule that would limit mercury emissions from power plants.

Schuette apparently is still leading that effort, despite Supreme Court Chief Justice John Roberts’ ruling on Thursday that shot down his request for an emergency stay to the mercury rule.

Back in 2012, Schuette said: “This new regulation is a federal overreach that threatens affordable electricity rates for Michigan job creators.”

Schuette was responding to tough new regulations on mercury emissions and other air toxins adopted in early 2012 by the U.S. Environmental Protection Agency.

The AG has yet to comment on the Supreme Court’s latest decision. When he does, I will post it here.

But Howard Learner, executive director of the Environmental Law & Policy Center and a professor at the University of Michigan law school, said he has written Schuette and asked him to give up his legal quest.

“The lessons of Flint should be clear for Michigan leaders. Mercury and lead poisons kids and jeopardizes their health. Why would the attorney general continue to lead the charge to stop the EPA” from limiting toxins, said Learner.

“This crusade didn’t make sense before, and much less now,” he said.

As far as I know, both DTE Energy Co. and Consumers Energy Co. have moved on and are not opposing that mercury rule. They are either taking steps to close a dozen coal-fired power plants or add emission control devices to remove mercury from smokestacks.

In fact, many of the 600 power plants in the nation are already in compliance. Many also are moving ahead with plans to comply with the EPA’s Clean Power Plan that would force power plants to reduce carbon emissions by 30 percent under 2005 levels. The Supreme Court recently put a hold on that rule as well.

It seems a little weird to me that utility companies appear to be ahead of some politicians and courts when it comes to some environmental protection rules.


Press Release: SCOTUS Rejects Mercury Standard Delay, It’s Time For Michigan AG Schuette To Stand Up For Healthy Kids, Safe Fish


David Jakubiak

U.S. Supreme Court Rejects Stay Of Mercury Standards
It’s Time For Michigan AG Schuette To Stand Up For Healthy Kids, Clean Water; Time For Polluting Coal Plants To Reduce Mercury Pollution

Today, Chief Justice John Roberts denied a request filed by Michigan Attorney General Bill Schuette to stay U.S. Environmental Protection Agency standards to reduce mercury pollution from coal plant smokestacks. These standards will protect children’s health and clean up lakes and streams.

“It is time for Attorney General Schuette to stop litigating to delay mercury and air toxics standards that will reduce poisonous pollution that harms childhood brain development, and that pollutes our Great Lakes making fish unsafe to eat,” said Howard Learner, Executive Director of the Environmental Law & Policy Center.

Michigan’s Department of Community Health identifies mercury as a dangerous toxin, setting limits of consumption on popular eating fish including yellow perch and walleye, saying mercury exposure “can cause damage to your brain, heart, and nerves.”

“It’s a shame that it’s not safe to eat the fish you catch in too many Michigan rivers and lakes because of preventable mercury pollution,” said Learner. “Modern pollution-control technologies cost effectively reduces mercury pollution and have been installed by utilities across the Midwest. Why is Michigan Attorney General Schuette using taxpayer money to delay reducing poisonous mercury pollution?

“The time has come for Bill Schuette to stand on the side of protecting children’s health and clean water, and for Michigan coal plants to clean up their act.”


Press Release: Wisconsin Electric Co-Op Sets Standard for Rural Solar

February 24, 2016

David Jakubiak

Solar Shines for Rural Electric Co-Ops
Announcement Nearly Doubling Wisconsin Solar Sets Roadmap for Midwest Co-Ops

Wisconsin’s Dairyland Power Cooperative and its member cooperatives announced a historic investment in solar energy on Wednesday unveiling plans to build more than 15 megawatts of new solar energy at 12 locations across Wisconsin.

The announced projects will nearly the double the amount of solar power installed in Wisconsin, which now has about 25 megawatts of installed solar. The projects will be built by solar developers SoCore Energy, based in Chicago and groSolar based in White River Junction, Vermont. Together the installations will create enough electricity for more than 2500 homes.

“Wisconsin’s electric cooperatives are now national and state leaders for solar energy,” said Andy Olsen, Senior Policy Advocate of the Environmental Law & Policy Center in Madison. “Dairyland was clear that this effort grew out of support for solar from their members, commitment to diversifying their generation and stabilizing costs , which are goals of cooperatives across the region.”

Brad Klein, Senior Attorney at the Environmental Law & Policy Center, said the Dairyland announcement sends a strong signal to rural electric cooperatives across the Midwest. “The enormous potential for solar energy in states like Wisconsin, Minnesota, Iowa and Illinois is just now beginning to be realized, and rural electric cooperatives, which have strong relationships with their members, have an opportunity to lead the way.”

To learn more about the Dairyland Power announcement visit:


Howard Joins WBEZ’s Worldview to Discuss Paris Climate Agreement

Monday afternoon, Howard Learner joined Jerome McDonnell on WBEZ’s global affairs program Worldview to discuss what the COP21 agreement reached in Paris means to efforts to address climate change. You can listen to the broadcast below.

Midwest Energy News Cites ELPC Michigan Supply Chain Report to Show Clean Energy Driving Economic Development

Strong clean-energy policy not only has environmental benefits, but it can also provide a push for businesses and economic development.

That’s according to Amy Butler — the executive director of OU INC, a small-business incubator specializing in energy at Oakland University in Michigan — who sees it unfold everyday.

Butler, who spent two decades on the policy side working for the state of Michigan, has transitioned to the business side and sees how the two can interact with each other.

Encouraging the clean-energy sector through standards and incentives makes the case for businesses to come to Michigan, she says.

recent report by the Environmental Law and Policy Center counted more than 300 businesses operating with the wind and solar supply chain here. Multiple reports have shown clean-energy investments nearing $3 billion and employing thousands in Michigan.

“Strong energy policy will attract energy-solution companies to the state,” Butler said.

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Midwest Energy News: Michigan Clean-Energy Supply Chain Thriving but Threatened According to ELPC’s Report

In Michigan, more than 300 businesses are active in the clean-energy sector, creating a supply chain of manufacturing, financing, engineering, designing and installing wind, solar and advanced battery systems, according to a new report from the Chicago-based Environmental Law and Policy Center.

And much of that economic development can be attributed to the state’s 2008 renewable portfolio standard that mandated 10 percent of the state’s generation portfolio come from renewables by the end of this year. Utilities have easily hit the target.

“We found the economic impact of the industry in Michigan is significant,” said John Paul Jewell, ELPC research coordinator.

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