Circle of Blue: ELPC’s Madeline Fleisher Warns Tougher Regs Needed for Great Lakes to Avoid More Algae Bloom Disasters

After years of watching their state do little to address stormwater runoff, polluted wells, and noxious algae blooms in once clear waters, 16 Wisconsin citizens last month decided enough was enough. They filed a petition with the federal Environmental Protection Agency to force Wisconsin to correct failures in its clean water program or else take away Wisconsin’s authority to administer permits under the Clean Water Act.

It is a step of last resort expressing an utter lack of confidence in the state government’s ability and desire to protect its waterways.

The past two decades have seen the dismantling of the Wisconsin Department of Natural Resources, the state agency in charge of issuing and enforcing clean water regulations, according to Kim Wright, executive director of Midwest Environmental Advocates. The agency’s workforce has declined 18 percent since 1995. Last summer Republican Governor Scott Walker abolished the agency’s water division and its Bureau of Science Services while eliminating 18 staff positions.

Midwest Environmental Advocates, a Madison-based nonprofit law center, filed the petition for corrective action on behalf of the 16 individual citizens. The budget and staff cuts, and other changes, seriously harmed the agency’s ability to protect water, according to the petition, which also references a 2011 letter from the EPA that outlined problems within the state’s Clean Water Act programs.

Keep Reading

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.


Public News Service: Photographers Aim to Preserve Parts of Lake Michigan

CHICAGO – An art exhibit opening today in Chicago is focused on capturing the beauty of an ecologically sensitive area on Lake Michigan.

Brad Klein, senior attorney with the Environmental Law and Policy Center, said the center is showcasing the photos of three artists to help bring attention to a section of land near the Saugatuck Dunes in Michigan. A real-estate developer is considering some of that land for residential properties.

“If you allow this kind of development in such a critical area,” he said, “you really threaten to kind of kill the goose that laid the golden egg.”

Klein said the local economy in Saugatuck relies in part on the natural beauty of the dunes to draw in tourists, and that the real-estate development could put that at risk. The photos, featuring natural scenes of the dunes, will be on display at the Environmental Law and Policy Center in downtown Chicago.

Klein said the Great Lakes are a treasure for the area and all Midwesterners should feel a common pull to protect the areas around them.

Keep Reading

MLive: Why Michigan won’t shut down Mackinac straits oil pipeline

STRAITS OF MACKINAC — Shepler’s Mackinac Island Ferry service boats run on oil and they’ve done so for more than 70 years. But they won’t run at all if tourism dries up because the island is engulfed in an oil spill.

That risk has led Chris Shepler, owner of the popular ferry business, to publicly call for a shutdown, or decommissioning, of the Enbridge Inc. twin Line 5 oil pipelines that traverse the straits’ bottom just west of the Mackinac Bridge.

“We’ve got to err on the side of caution,” said Shepler. “Nothing lasts forever.”

That shutdown argument is gaining steam. Calls for either decommissioning, replacing or regulating the controversial Line 5 pipeline segment under the straits have grown more frequent since environmental groups began raising fears a few years ago about an ecological and economic disaster if the 62-year-old line were to a rupture oil into Lake Michigan and Lake Huron.

Legislators have aimed bills at the pipeline. Mayors have written the governor. Freshwater advocates have coalesced around the issue and activists have staged protests and disruptions. The latest occurred last week in Lansing, where a group gathered on the Capitol steps to call for an immediate shutdown of the pipeline, which they consider an unacceptable threat to the Great Lakes.

But state officials recently stopped short of recommending it be shuttered after a yearlong inquiry in a report issued July 14, even though Michigan Attorney General Bill Schuette, who co-chaired the effort, said Line 5’s “days are numbered” and the state would probably not allow its construction were that approval sought today.

Continue Reading

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.”


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.”


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 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/


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

Support ELPC’s Next 20 Years of Successful Advocacy

Donate Now