Minnesota

ELPC’s Dexter in Duluth News Tribune: NLX Rail Line Good for Economy, Environment

As published in the Duluth News Tribune on Wednesday, April 27, 2016.

This is a great time for Minnesotans to contact state legislators in support of the Northern Lights Express (NLX) rail project that’s expected to result in about $1.4 billion in benefits to the state over 40 years. That’s a handsome return on an estimated total construction cost of about$500 million. The Legislature has the opportunity this session to make a down payment on that investment, yielding important dividends in years to come.

My Environmental Law & Policy Center advocates for projects that are good for the economy and environment. The NLX rail line is a great example.

An estimated 3,100 jobs would be created during construction, plus permanent jobs later. About $355 million in state and local tax revenue would be generated over 40 years of increased economic activity. Tourism revenue would grow by $378 million, and wages related to new tourism would jump by $233 million over 40 years. Trains are safer than cars, and using the NLX would be a relief to travelers during harsh Minnesota winters. Finally, an estimated 750,000 people would ride the train each year, and that’s projected to increase to 1 million by 2040. That’s a lot of cars off the road, resulting in a dramatic decrease in carbon dioxide emissions that are harmful to the planet.

This is an important project for Duluth and is among those that could receive funding before May 23 when the legislative session ends. The project already is on the long-term work plan for the Minnesota Department of Transportation. In addition to Duluth, NLX stops are planned in Superior, Hinckley, Cambridge, Coon Rapids and Minneapolis.

Let’s tell elected officials we want this high-speed rail line so we can grow Minnesota’s economy, improve travel safety, and reduce harmful emissions.

If we build it, they will come.

Learner Op-Ed in Duluth News Tribune on Falling Oil Prices and Controversial Pipelines

Regional View: Falling Oil Prices A Game Changer for Midwestern Pipelines

By Howard A. Learner

February 29, 2016

Bakken shale oil and Canadian oil sands market prices are low, and oil production is falling. Enbridge Energy Partners just announced it is further delaying construction of both the controversial proposed new Sandpiper oil pipeline and the Line 3 replacement oil pipeline for two more years until 2019. Enbridge blamed the Minnesota Court of Appeals’ decision requiring an Environmental Impact Statement process be completed.

However, that’s likely only part of the story.

Pipeline companies are biting the bullet and deferring new projects because of oil price and production uncertainties. Before Enbridge Energy and its partners spend $2.6 billion to $3 billion on each of the Sandpiper and Line 3 replacement oil pipelines through northern Minnesota, they might pause and see whether oil prices stay low and production declines. Markets matter.

The market price for benchmark West Texas Intermediate crude oil is low at around $33 per barrel, having fallen from the $100 per barrel range in 2011 through mid-2014. JP Morgan forecasts West Texas Intermediate crude oil to average $31.50 per barrel in 2016, and Goldman Sachs pro-jects $40 per barrel. Analyst projections for 2017 through 2018 vary considerably. Low oil prices mean fewer rigs, less oil production, and less need for new pipelines.

Bakken shale oil’s break-even prices are around $40 to $45 per barrel, well above the current market price. Production costs vary depending on how rich the particular oil well is, the efficiency of the company’s operations, financing costs, and how close the rig is to infrastructure. Bakken shale oil must be transported by pipeline or rail to distant Midwestern or Texas refineries.

The number of active drilling rigs in North Dakota is the lowest since July 2009. There are now only 38 active rigs in the Bakken area, down from 204 rigs in February 2012.

According to North Dakota Department of Mineral Resources Director Lynn Helms, Bakken output fell to 1.15 million barrels a day in December 2015, down 6 percent below the all-time high in December 2014. Helms stated that oil production could fall to 1 million barrels per day by late 2016. Oil production and service companies are planning more layoffs, and there could be additional bankruptcies in June 2016 when banks often recalculate their debt limits for oil companies.

Unless and until West Texas Intermediate oil prices reach around $45 per barrel, the rig count and oil production will continue to decline in the Bakken shale oil region, meaning less demand for oil pipelines such as Sandpiper and crude shipping by rail. For example, Whiting Petroleum just announced that it will suspend its Bakken shale oil drilling projects due to low oil prices.

Canadian oil sands’ break-even prices for new production are around $80 per barrel for the “best of the best,” $90 to $100 per barrel for the “rest of the best,” and $100-plus per barrel for the “rest of the rest.” Canadian oil production likely will stagnate until global oil prices reach at least $80 per barrel. Some existing oil sands production operations have enormous sunk costs and might continue to operate as a long-term play as producers wait and hope for higher oil prices.  However, expect production to decline and no new oil sands production to start.

Less oil production means less need for new pipelines. Financing for new North American oil pipelines is drying up until bankers and other investors see oil prices rise, leading to more production. That’s the market situation facing Enbridge for its costly new Sandpiper and Line 3 replacement oil pipelines.

Oil prices have dropped dramatically over the past 15 months. That changed reality has unavoidable market consequences for both oil production and the controversial pipelines.

Howard A. Learner of Chicago is executive director of the Environmental Law & Policy Center, an advocacy organization for environmental and economic development with offices in Chicago, Duluth and other Midwestern cities.

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

FOR IMMEDIATE RELEASE
February 24, 2016

Contact:
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:

http://www.dairynet.com/dcontent/article/SolarResourcesannouncementSoCoregroSolar.pdf

Greenwire: ELPC Files Brief Urging EPA to Require Nutrient Standards Along Mississippi River

A coalition of environmental groups yesterday submitted their latest legal arguments in their fight against U.S. EPA’s refusal to require standards for nutrient pollution in the Mississippi River Basin.

In a brief filed yesterday in the U.S. District Court for the Eastern District of Louisiana, 11 green groups say EPA should require states along the Mississippi River to adopt water quality standards for nitrogen and phosphorus, nutrients that can lead to algae blooms that rob waters of dissolved oxygen and kill aquatic life.

These blooms have led to a nearly 6,500-square-mile “dead zone” in the Gulf of Mexico, according to the National Oceanic and Atmospheric Administration.

“That dead zone has been growing and growing over time,” said Brad Klein, senior attorney with the Environmental Law & Policy Center, one of the environmental groups suing EPA. “We’ve been really missing deadlines to try to get that under control.”

The brief is the latest move in a fight dating back to 2008 to force EPA to implement standards to stem the flow of nutrients to the Gulf of Mexico. That year, groups petitioned the agency to begin adopting standards for states that refused to create their own.

Three years later, EPA declined to make a decision on the petition, saying, among other things, that it was seeking partnerships with states to create voluntary programs to address nutrient runoff, rather than writing federal regulations.

The environmental organizations sued the agency in district court in 2012. The court sided with greens. EPA appealed to the 5th U.S. Circuit Court of Appeals, who affirmed the lower court’s decision on the question of courts’ jurisdiction to hear the matter at all, but remanded the case to the Louisiana district court to settle a limited question on whether EPA had based response to the petition on the text of the Clean Water Act.

“We’re looking at that little narrow question that they sent back on the substance,” said Ann Alexander, legal advocacy director for the Natural Resources Defense Council’s Midwest Program. “It’s a critically important question, but it’s a narrow question.”

EPA reasoned that it would “be impractical, inefficient, and counterproductive to devote its limited resources to the mammoth task of determining whether numeric nutrient criteria are required for multiple pollutants in numerous water bodies” in states around the country, the agency’s legal team wrote the court in November 2015.

Klein disagreed with that assessment.

“Voluntary and nonregulatory efforts alone are, we don’t feel are ever going to solve the problem,” he said. “We need actual targets and standards for what we’re going to accomplish.”

Greens are relying in part on the landmark 2007 Supreme Court case Massachusetts v. EPA, in which the high court ruled the agency was required to make a determination as to whether carbon dioxide needed to be regulated based on the requirements of the Clean Air Act, rather than bringing in considerations not pertinent to the act.

But EPA disagreed that the Massachusetts ruling required that the agency make a decision on the current case.

“EPA has broad discretion to consider resource constraints, to balance competing statutory considerations, and to otherwise determine the ‘manner, timing, content, and coordination of its regulations,'” the agency wrote in its November brief.

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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.

ELPC Defends Third-Party Solar Financing in Wisconsin & Minnesota

In October, ELPC published an in-depth legal analysis of the following question: Should third-party owners of small clean energy projects – such as rooftop solar – be considered “public utilities” under existing state law in Minnesota and Wisconsin? ELPC’s legal conclusion was clear: They should not.

Here’s why: Third-party financing allows residents or organizations to buy power from a company that operates solar panels on their property, thereby making local solar energy more affordable and attractive to those who couldn’t otherwise afford the upfront investment. This arrangement is widely available in many states and has led to strong solar market growth. But utilities in Wisconsin and Minnesota are calling on regulators to treat small-scale solar system owners just like large monopolies.  That designation would effectively prohibit third-party solar financing and place extreme limitations on solar market growth.

ELPC has shared our legal analysis with clean energy colleagues throughout the country and expect it to inform legislative and regulatory discussions that are increasingly “hot topics.” Stay tuned.

LEARN MORE About ELPC’s Defense of Third-Party Solar Installments

Midwest Energy News: ELPC Defends Clean Energy by Emphasizing Legality of Third-Party Solar in Wisconsin, Minnesota

Wisconsin has become known nationally as a state hostile to distributed solar energy, with a Public Service Commission that has supported utility policies making rooftop solar installations difficult to finance and develop.

Minnesota, meanwhile, is generally known as a state where policies and officials are friendly to solar energy.

But in both states, a lack of clarity around the legality of third-party ownership, an important solar financing arrangement, has jeopardized or slowed the prospects for solar development, industry backers say.

Third-party ownership is a way that schools, government agencies and other non-profit organizations can finance solar installations and ensure that they can take advantage of tax credits.

In response to the situation, the Environmental Law & Policy Center has recently released legal memos making the case that in both states, statutes and case law clearly indicate such arrangements are fully legal (the ELPC is a member of RE-AMP, which publishes Midwest Energy News).

The Wisconsin memo, released in mid-October, is meant to help change the prospects for distributed solar in the state and jump-start a local solar industry that has been on hold because of what backers call hostile decisions and actions from utilities and regulators. In Minnesota, the memo released today is meant to bolster and protect a generally vibrant distributed solar outlook.

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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

STATEMENT BY HOWARD A. LEARNER
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.”

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Howard Learner Statement on Supreme Court Mercury Ruling

FOR IMMEDIATE RELEASE
June 29, 2015
Contact: David Jakubiak 

Supreme Court’s Mercury Decision Limits Progress for Cleaner Air, Healthier Environment
Costs of Mercury Pollution Too High to Ignore

STATEMENT BY HOWARD A. LEARNER
Executive Director, Environmental Law & Policy Center

“The Supreme Court’s decision today delays important mercury and other air toxics standards that limit pollution in order to protect children’s health and the Great Lakes. State public health officials in the Great Lakes states have issued ‘mercury advisories’ warning people that, sadly, it’s not safe to eat many fish they catch in most of our lakes and rivers. The U.S. EPA should now act promptly, following the Court’s decision, to fully assess the public health and environmental costs of mercury pollution, finalize lawful standards and move our country forward.”

“Unfortunately the coal industry is being rewarded for endless litigation stalling the U.S. EPA’s reasonable standards to reduce mercury pollution in our environment and protect public health. It’s well past time for EPA and the courts to move forward in responsible ways to greatly reduce mercury and other toxic pollutants that harm our children’s health and our waterways.”

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Greenwire: Lawyers Mine Health Care Ruling for Clean Power Plan Clues

This story featuring Howard Learner is re-posted from http://www.eenews.net/greenwire/2015/06/25/stories/1060020908

By Jeremy P. Jacobs, E&E reporter

Environmental attorneys are grappling with whether today’s Supreme Court ruling upholding the Obama administration’s health care reform could set a precedent in expected legal challenges to U.S. EPA’s Clean Power Plan.

In a 6-3 vote, the justices upheld the Affordable Care Act’s tax subsidies for people who get insurance on both federal and state-created exchanges.

Challengers claimed that a strict reading of the law mandated that the IRS provide the subsidies only for individuals who purchased insurance on an “exchange established by the state” and, therefore, not on the exchanges in roughly three dozen states that were set up by the federal government.

Chief Justice John Roberts, in his opinion for the court, wrote that the context of the law indicated that Congress intended both types of exchanges to qualify for the subsidies. Otherwise, he wrote, the underpinnings of the health care law would crumble.

“Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts,” Roberts wrote, “and to avoid the type of calamitous result that Congress plainly meant to avoid.”

Environmental lawyers, however, have homed in on the chief justice’s brief discussion of the 1984 precedent Chevron v. Natural Resources Defense Council. In that ruling, the court set up a two-step structure for adjudicating agency actions. Step 1 is whether the law directing the agency’s work is ambiguous. If it is, under Step 2 the court must defer to the agency’s interpretation if it was reasonable.
At first glance, the health care reform case, King v. Burwell, looked as if it could be decided on Chevron grounds. But Roberts quickly sidestepped the precedent.

Chevron didn’t apply because the health care case is “extraordinary” and centers on a question of “deep ‘economic and political significance,'” Roberts wrote, quoting precedent. The Chevron two-step process, he said, need not be initiated if it appears the ambiguity at issue was not one that Congress intended for the acting agency to resolve.

“Had Congress wished to assign that question to an agency, it surely would have done so explicitly,” Roberts wrote.

Lisa Heinzerling, a Georgetown Law professor and former climate official at EPA, said she was “struck” by the passage.

It’s an “affirmation of the idea that because an issue is really important, an agency doesn’t get deference,” she said.

She noted that the “economic and political significance” argument has been raised in the early challenges to EPA’s proposed greenhouse gas standard for existing power plants, the key component of the administration’s effort to address climate change that is due to be finalized later this year.

In fact, Harvard Law professor Laurence Tribe, a former mentor to President Obama, made that argument earlier this year, Heinzerling said.

A potentially analogous issue involves the conflicting Clean Air Act amendments under which EPA is issuing the greenhouse gas rules. Due to a legislative glitch, two versions of Section 111(d) were signed into law — one from the House and one from the Senate. Critics of the proposal read the House version to prohibit EPA from issuing regulations for sources of pollution already regulated under the law.

Because EPA has already issued power plant standards for other pollutants, that theory would foreclose the new rule.

EPA and environmentalists counter that the Senate version only prohibits redundant regulation of specific pollutants, which would allow the greenhouse gas standards to stand.

The two amendments are not easily reconciled, and Thomas Lorenzen, a former Justice Department environmental attorney, said today’s ruling reinforces the idea that the fate of the Clean Power Plan will ultimately be resolved by judges.

And Roberts’ opinion, he said, may have provided a way for them to sidestep the traditional two-step Chevron analysis.

With the two amendments, “you have a congressional goof,” said Lorenzen, who now represents industry clients at the law firm Crowell & Moring. There is “no clear intent to delegate authority to the agency.”
Jeff Holmstead, a former EPA air chief now representing industry at Bracewell & Giuliani, echoed that point.

“The decision in King v. Burwell makes it pretty clear that the court will not just defer to EPA but will make its own decision about the legal implications of the competing House and Senate versions of 111(d),” Holmstead said. “The court clarified its holding in Chevron by saying that the courts should only defer to an agency on the types of issues that Congress intended to leave to that agency’s discretion. It will be hard for EPA to argue that Congress intended to give EPA discretion over the scope of its own power.”

‘You need to look at the context’
Heinzerling, as well as environmentalists, however, cautioned against reading too much into today’s decision. They noted that several factors differentiate the case from the inevitable challenges to the Clean Power Plan.

Roberts said Chevron didn’t apply because the ambiguity in the state versus federal exchange issue was left to the IRS.

“It is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort,” Roberts wrote.

That would not be the case in a challenge to the Clean Power Plan, said Howard Learner, the president of the Chicago-based Environmental Law & Policy Center.

“There is a congruence between the statute, the Clean Air Act and the agency, EPA, being called upon to execute it,” he said. “I would be very, very surprised if the court went to some sort of Chevron step 0 analysis with regard to EPA’s interpretation of the Clean Air Act.”

Heinzerling added that there was an alternate way to read the health care decision that would bolster EPA’s case.

After rejecting a Chevron analysis, Roberts chose to look at the broader context of the law in order to uphold the administration’s reading of it.

In the context of the Clean Power Plan, EPA and environmentalists contend that the 1990 amendments to the law were clearly intended to strengthen EPA’s authority under Section 111(d), not weaken it — and critics’ reading would.

Roberts, Heinzerling said, seemed to say “you need to look at the context in which that language appears.”

“That’s very helpful in most environmental cases,” Heinzerling said.

More broadly, some law professors still found reasons to be concerned about Roberts’ reasoning, even though the case turned out to be a major win for the administration.

Justin Pidot, a former DOJ environmental attorney now a professor at the Sturm College of Law at the University of Denver, said the ruling reinforces the court’s willingness to wade into high-profile agency actions.

There is, he said, “this newly minted rule that the court is going to intercede when costs get high. I think it’s alarming,” he said. “That’s a pretty dangerous principle for EPA.”

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