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/


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


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.


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.

E&E: Utilities seek larger part in charging station rollout

It’s unsurprising that electric utilities stand to benefit from the sale of plug-in vehicles, providing a bump — even a small one — for flat-lining sales.

Utilities throughout the country that are looking for authority to spend millions of dollars building out charging networks say their customers will benefit, too — even those who don’t own EVs.

Just in the past six months, the state of Washington passed legislation allowing utilities to put EV charging infrastructure in their rate base. In California, Pacific Gas & Electric and Southern California Edison are proposing huge investments in EV charging infrastructure (ClimateWire, Feb. 10). In the Southeast, Southern Co.’s Georgia Power subsidiary is spending $12 million on a pilot program to install as many as 50 public EV charging stations by the end of 2016 (EnergyWire, March 5).

The proposals are surfacing in the Midwest, too. In Illinois, Commonwealth Edison is lobbying for a bill that would allow it to build 5,000 charging stations. And Kansas City Power & Light is asking utility regulators in Missouri and Kansas to recover costs for a 1,000-station EV charging network (EnergyWire, Jan. 28).

The proposals follow the release of a white paper by the Edison Electric Institute a year ago, calling electrification of the transportation sector essential to the long-term health of the industry.

While the Kansas City area has relatively few plug-in vehicles on the road today, KCP&L’s $20 million Clean Charge Network proposal is being closely watched by the industry as an important test case.

The network, to be completed this summer, is being developed with partners ChargePoint and Nissan Motor Co. It would support as many as 10,000 EVs, and users would be allowed to charge their cars at no cost for the first two years.

According to filings with the Missouri Public Service Commission, the network buildout would initially cost typical residential customers about 15 cents a month. Despite the modest price tag, the plan has gotten a chilly reception from consumer groups and the PSC staff, which urged regulators to reject the proposal and leave EV charging an unregulated business.

Chuck Caisley, a utility spokesman, said KCP&L had to file the formal request as part of an electric rate case to put the issue in front of regulators. In states like Missouri, assets must be “used and useful” before utilities can seek cost recovery.

But the utility said it also wants to engage in broader policy discussions, a reason why it sought to initiate work groups in Missouri and Kansas.

“We understood this would certainly be a case of first impression in Missouri,” Caisley said. “We were aware that there were going to be some policy questions.”

Parallels to rooftop solar

Among those policy questions: Should all of the utility’s customers be forced to subsidize investment in infrastructure that will directly benefit the few who own plug-in cars?

It’s a familiar question that is also being asked about compensation rates for customers with rooftop solar energy systems — a separate debate that’s playing out at utility commissions and legislatures across the nation.

And according to KCP&L, the answer is yes, all utility customers will benefit.

Caisley said the utility analyzed the issue in depth and found “compelling reasons” why it should be able to recover costs for its EV charging network from ratepayers.

At its core, the plan addresses the biggest challenge faced by the utility industry and — by extension — its customers. Electricity sales growth is flat. But costs, including those required to meet more stringent environmental regulations, are increasing.

Helping stimulate adoption of plug-in vehicles helps address the disconnect by enabling use of existing power plants that sit idle much of the time, Caisley said. That means an increase in off-peak kilowatt-hour sales, helping the utility recover costs. And spreading fixed-cost recovery over more units of energy means lower kilowatt-hour rates.

There will also be environmental benefits as plug-in vehicles replace gasoline-powered cars.

According to KCP&L, the benefits from the Clean Charge Network are significant — much greater than the systemwide benefits from the almost $100 million it will pay out in solar rebates for Missouri customers.

Caisley said the utility is supportive of distributed generation and sees a future for rooftop solar in its service area.

At the same time, the policy decision made by regulators regarding the EV charging network could have consequences for future decisions regarding customer-owned solar.

“If the commission denies recovery for this, I think it unwittingly gives us the precedent to completely stop solar in our jurisdiction,” he said.

Finding utilities’ role in the market

Not everyone agrees with that assessment. Nor does everyone agree that utilities should be tasked with building EV charging networks at ratepayer expense.

Arun Banskota, president of NRG Energy Inc.’s eVgo subsidiary, which operates the largest public fast-charging network in the country, said the market should be allowed to develop on its own. Letting utilities spend millions of dollars of ratepayer funds to build out charging networks would put competitors like NRG at a disadvantage.

In general, “it’s not the right thing to do,” Banskota said in an interview. But, he added, “I would not say that utilities should be not be involved at all.”

There is a case for EV charging stations subsidized by utility customers or taxpayers in instances when the market isn’t functioning on its own. That could include underserved communities, such as low-income neighborhoods, where there’s little EV penetration and third-party developers and there’s not a financial case for investment, he said.

Banskota said a better role for utilities involves extending the existing distribution grid to enable EV charging infrastructure.

Curt Volkmann, senior clean energy finance specialist for the Chicago-based Environmental Law and Policy Center, agrees.

Volkmann said the “made-ready” approach to utility involvement in EV infrastructure being proposed by Southern California Edison is preferable to a network owned and operated by a large utility, such as the one proposed by ComEd in Illinois.

The California utility is asking regulators for permission to develop the infrastructure for up to 30,000 EV charging stations — distribution lines, transformers and other infrastructure. It will then be up to third parties to own the charging stations.

“It significantly reduces cost for a third party to put in a charger and let the utility stick to its core business,” Volkmann said.

Dan Welch, a transportation fellow at the Center for Climate and Energy Solutions, said policies regarding who can own EV charging infrastructure are rapidly evolving on a state-by-state basis. And what’s acceptable in one state might not be well-received in another.

“I think the markets need to be able to find their own equilibrium,” he said.

Exactly what role utilities play will differ, but companies that operate the distribution grid will undoubtedly be involved at some level.

“Utilities are familiar, they’re knowledgable, they’re trusted by governments, PUCs and consumers,” he said.

Caisley said utilities, with their century of experience building and running the grid, are best-suited to develop EV charging networks.

“This is electrical infrastructure,” he said. “And we can do it cheaper. By doing it in big tranches, we can bring down the cost.”

In fact, the utility says in regulatory filings that it’s not just the best company for the job, it’s the only company.

KCP&L says it’s obligated under Missouri law to build infrastructure to serve electric load in its service territory, whether demand is coming from a home, a commercial building or an automobile.

The law also prohibits the resale of retail electricity in KCP&L’s service area, raising questions about the ability of a third party to charge EV owners for plugging in.

“But we don’t even have to get to that question,” Caisley said. “Why not let the utility do what it does best?”

WBEZ: Great Lakes Pollution Symposium

Last August a toxic algae bloom in Lake Erie temporarily shut down Toledo, Ohio’s water source leaving questions about the long term viability of that source of water for about 400,000 people. This was fueled not only by warm temperatures but nutrient rich runoff. Nutrient pollution has recently been connected to adverse impacts for ecological and economic systems across the Great Lakes Region. A two-day symposium in Chicago is examining the current state of nutrient management in the Great Lakes, what policies are working and how stakeholders can work towards solutions. Aquatic Ecologist Nancy Tuchman and Gail Hesse of the Ohio Lake Erie Commission sift through some of these issues.

Toledo Blade: EPA official notes planes scan for farm violations

CHICAGO — Note to corporate agriculture: The U.S. Environmental Protection Agency has inspectors in the sky looking down at you.

Susan Hedman, the EPA’s Midwest regional administrator, said Thursday night at a Great Lakes conference her agency has had inspectors in small planes the last three years looking for manure-management violations by large livestock operations known as concentrated animal feeding operations, or CAFOs.

Ms. Hedman declined to provide specifics, saying the occasional flyovers are an enforcement tool. But she said the federal EPA has found it useful in taking legal action against some CAFOs with large manure releases, and sees expansion potential. The surveillance is not spying: The agriculture industry is notified in advance when the agency will be flying in the Great Lakes region, she said.

“That’s a very good use of inspector time,” Ms. Hedman told The Blade following her presentation.

The event, a two-day Great Lakes symposium sponsored by Chicago’s Environmental Law & Policy Center, drew a large Ohio contingent and put last August’s algae-induced Toledo water crisis at center stage. It concluded Friday.

Keep Reading

Win! SCOTUS Finds that Amtrak has Legal Authority to Set On-Time Performance Standards

March 9, 2015

Contact: David Jakubiak, (312) 795-3713 or djakubiak@elpc.org

SCOTUS: Amtrak Has Legal Authority to Set On-Time Performance Standards

WASHINGTON – The U.S. Supreme Court’s decision today affirming Amtrak’s power to create on-time performance standards could get slumping Midwest arrival times back on track.

“This is a good Supreme Court decision that should help rail passengers across the country,” said Howard Learner, Executive Director of the Environmental Law & Policy Center, which filed an amicus curiae brief in the case. “For every passenger who has been delayed for hours in Northwest Indiana or outside of Cleveland while oil tanker cars slog by, today’s court decision can be an important step forward.”

The Association of American Railroads challenged a federal law that allows Amtrak to help set on-time performance standards for railroads, arguing that Amtrak is a private company rather than a government entity. The Supreme Court, agreeing with the Department of Transportation and ELPC, held that Amtrak is more like a government entity.

The DC Court of Appeals had struck down a provision of the 2008 rail reauthorization bill that instructed the Federal Railroad Administration and Amtrak—consulting with the Surface Transportation Board, freight railroads, states, rail labor, and rail passenger organizations—to develop metrics and minimum standards for measuring Amtrak passenger train performance and service quality.

“Today’s U.S. Supreme Court ruling settles that legal question,” Learner said. “Amtrak is a government entity. Given this ruling, the existing on-time performance standards should be enforced and passenger rail should again be given priority.”

In an amicus curiae brief filed by ELPC, on behalf of itself and the National Association of Railroad Passengers, All Aboard Ohio and Virginians for High Speed Rail, ELPC found that on-time arrival rates had suffered since the appeals court ruling. In 2012, Amtrak achieved a nationwide on-time performance rate of 83 percent. Since the standards were invalidated by the Court of Appeals, on-time performance fell to an abysmal 42 percent.

While this is a major victory for Amtrak passengers across the nation, the Supreme Court’s ruling does raise the possibility of a lengthy court fight should the Association of American Railroads seek to continually litigate other issues around on-time performance.

“The highest court in the land has spoken and we hope is that freight railroads will move forward as a partner to improve passenger rail service across America,” added Learner.


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