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.
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.
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?”
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.
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.
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.
Today the U.S. House of Representatives passed legislation to authorize $8 billion in Amtrak funding. While the U.S. Senate still needs to consider the matter, this vote is a victory for ELPC and allies, who have been fighting back against anti-Amtrak amendments – including one introduced earlier this week that would have eliminated all funding for Amtrak, effectively ending all long-distance and state Amtrak train service.
Almost 700 ELPC followers and thousands of others throughout the country wrote to their Members of Congress with a clear message: Americans want a strong national train network and elected officials who support. This grassroots support played a huge role in securing today’s bipartisan vote.
Jeremy P. Jacobs, E&E reporter Published: Friday, February 27, 2015
Ask Chicago environmentalists who’s the Windy City’s best lawyer, and they’re likely to name Howard Learner.
Learner has built his Environmental Law and Policy Center into a Midwest powerhouse over the last 20 years on transportation and clean energy issues, scoring victories in courtrooms and state legislatures along the way.
His shop eschews the national spotlight for a hyper-regional focus that he says is part of the group’s DNA.
“First of all, we are Midwesterners,” he said. “The Midwest is probably the most important region in the most important country in the world.”
ELPC is among a few regional environmental law centers that operate in the gap between national Goliaths like the Natural Resources Defense Council and small grass-roots organizations. The center takes on major litigation — fighting lawsuits brought by former Chesapeake Energy Corp. CEO Aubrey McClendon, arguing for solar and wind energy in state Supreme Courts, and battling Great Lakes pollution. Moreover, it has developed a lobbying operation that pressures government officials — from U.S. senators to mayors — to support environmentally progressive policies.
Learner prides himself on leading a “grass-tops” organization, meaning it seeks to unite leaders from often-opposing camps — such as unions and local chambers of commerce — to push for common goals.
Sometimes that works, and sometimes it doesn’t, but ELPC is now thriving, thanks largely to Learner’s grasp of regional politics.
“He has steered clear of the weird political fights,” said J. Paul Forrester, an energy and agricultural specialist at Mayer Brown in Chicago. “He has a lot of political acumen. I give him a lot of credit for that. That’s helped him avoid ugly confrontation.”
Learner, 59, lives a mile-and-a-half from where he was born in Chicago. The son of a University of Wisconsin football player, he’s well over 6 feet tall and bearded. He cuts an imposing presence that he establishes right away with a firm handshake.
Growing up as an outdoorsman, Learner biked across Wisconsin several times and always had a backpack ready for weekend trips. He attended the University of Michigan and remains a devoted fan of the Wolverine football team, then headed to Harvard Law School.
He returned to Chicago with his law degree and worked for a public interest law firm that specialized in housing cases. Learner launched the group’s environmental practice and specialized in pro bono work.
In 1991, seven major foundations pooled funds and asked several local lawyers for proposals for a regional-based legal center to address environmental programs in the Midwest. Such a group didn’t exist, and, as Learner recalled, there were ample reasons the region needed one.
The Great Lakes contain nearly a fifth of the world’s freshwater supply and provide drinking water to more than 40 million people. At the time, electricity utilities were becoming more regionally focused, building power lines across state borders. The Midwest was also home to some of the dirtiest coal-fired power plants. Three-quarters of the pollution in the Great Lakes was coming from the energy and transportation sectors.
The region also served as the nexus of multiple types of transportation; interstate highways crisscross the area, as do major railways. And Chicago’s O’Hare International Airport serves as a hub of air travel in the region.
“If you are serious about solving our climate change problems, and you’re serious about keeping the Great Lakes clean,” Learner said, “you need to deal with the energy and transportation sectors on a regional basis.”
Learner applied for the funding, basing his proposal in part on other regional outfits like the Conservation Law Foundation in New England, the Southern Environmental Law Center and the Sierra Club Legal Defense Fund on the West Coast, which has since become Earthjustice.
The foundations backed Learner, guaranteeing $850,000 per year for three years. He left his practice, rented a storefront and started assembling furniture.
At the core of the group’s philosophy from the start, Learner said, was devising “pragmatic solutions” that paired environmental benefits with economic growth and job creation. Now such proposals are increasingly common among environmental groups, but at the time they weren’t.
Learner pledged that whenever his group came out against a project or proposal, it would say yes to a less harmful alternative.
“We said from the beginning we weren’t going to get boxed in as naysayers,” he said.
ELPC now has an annual budget of more than $6.5 million and about 50 employees in eight offices throughout the Midwest. It divides its efforts into two groups. Its strategic advocacy arm lobbies and files lawsuits to fight what it views as environmentally harmful policies. And second, it brings parties together to come up with “eco-business” deals and proposals, such as working with labor unions, local chambers of commerce and officials to facilitate solar and wind energy development in the Midwest, or a regional high-speed rail network.
Those efforts have yielded results. Iowa is the second-largest wind energy producer in the country, and Illinois, Minnesota and Kansas all rank within the top 10. And plans for a regional high-speed rail proposal to serve 60 million people in eight states are starting to jell. The St. Louis-to-Chicago-to-Detroit line is being built, and sections already run at 110 mph. The effort has garnered the support of the Obama administration, which committed $13 billion in the 2009 stimulus package.
Looking for opportunity
ELPC’s success is due in large part to Learner’s relentlessness.
Jerry Adelmann, president of the Chicago-based Openlands conservation group, said it typically takes Learner “two seconds” to respond to an email.
“He lives and breathes this stuff,” Adelmann said. “It’s part of his very being.”
To his foes — which are typically entrenched energy utilities — Learner can come off as a zealot. But he has overcome such criticism through political adeptness, which is unusual for someone who wears his Democratic-leaning politics on his sleeve.
Learner was Illinois delegate at the 2004 Democratic National Convention, and has served on political committees that others in the nongovernmental organization community would likely shy away from out of fear of reprisals from the other side.
“Howard is out front in terms of his politics,” Adelmann said.
Learner seems to dodge most blowback, though, largely because of his instincts.
“I think Howard is one of those visionary leaders,” said Josh Mandelbaum, an attorney in ELPC’s Des Moines, Iowa, office. “His mind is always spinning, and he sort of sees the direction that things are moving. He is constantly trying to anticipate what opportunities will present themselves and constantly trying to take advantage of them in a strategic way.”
That doesn’t mean ELPC doesn’t have critics.
Todd Maisch, president of the Illinois Chamber of Commerce, said it’s possible to have a “reasonable conversation” with ELPC. But he stressed that the group often presses for more stringent environmental controls than his members can support.
“Bottom line is, we think a big part of their agenda results in very little environmental improvement but huge costs,” Maisch said.
He added that ELPC’s coalition building is often less successful than the group says.
“Their attempts,” he said, “to bring people together to build a consensus — a lot more of those fail than succeed.”
Battling energy tycoon
Learner and ELPC can nevertheless point to significant achievements, both on the large and small scale.
ELPC was part of a coalition that pushed for the closure of two old power plants in 2012 on Chicago’s South Side, the city’s last two coal-fired facilities. Before that, it fought to ensure that wastewater was treated before utilities discharged it into the Chicago River.
And last summer, ELPC lawyers secured an Iowa Supreme Court victory in challenging an Iowa Utilities Board decision that created an unfavorable and expensive environment for solar energy development in the state.
There is also a strong “defender of the little guy” thread to their work. Perhaps no case illustrates that better than ELPC’s work for a small community in Saugatuck, Mich., against former Chesapeake CEO McClendon.
An artsy Lake Michigan resort town with fewer than 1,000 year-round residents, Saugatuck is a 2½-hour drive from Chicago. In summer, tourists visit the town’s art galleries, shops and renowned beach dunes. The community has sought to protect those attractions from development by passing strict zoning laws.
Those efforts were threatened, however, in 2007, when McClendon bought 412 acres at the mouth of the Kalamazoo River that the town had been trying to make part of the public domain and conserve for 50 years.
McClendon wanted to build a gated community and resort on the land, with a nine-hole golf course, hotel, mansions and condos. Within 30 days of purchasing the property, he filed a series of lawsuits challenging Saugatuck’s zoning laws.
Overwhelmed, David Swan and the Saugatuck Dunes Coastal Alliance turned to Learner for help.
ELPC took the cases, and Swan said the group’s attorneys became part of the community. They also provided communications and marketing support to Swan and his allies.
They were able to halt McClendon’s development. In November 2011, a federal district court judge threw out a settlement between McClendon and the Saugatuck Township Board that would have essentially removed zoning provisions from the property. The judge ruled that the settlement would have illegally prevented the board from ever updating its zoning laws for the property.
Further, the court held that any future such settlement would require a hearing to ensure it benefits the “public good.”
There remains some ongoing litigation, but the community has since bought back half the land McClendon purchased. And, Swan said, nothing has been built on McClendon’s land.
Swan credits ELPC with saving the dunes — and his community.
“It just kind of amazed me,” Swan said. “Here was a really brilliant attorney, who is really busy with huge projects, and he doesn’t let small projects like trying to save 400 acres of pristine duneland fall by the wayside.”
Numerous industry and environmental interests are weighing in on high-profile federal litigation over the legality of what is widely known as Minnesota’s anti-coal law.
Last year, a federal judge said the Next Generation Energy Act ran afoul of the U.S. Constitution’s Commerce Clause — which gives the federal government power to regulate interstate commerce — by restricting the purchase of carbon-intensive energy from other states.
Neighboring North Dakota, which mines coal and is reliant on the fuel for power generation, sued Minnesota in 2011 over the law. It said Minnesota’s law would, in effect, regulate its own generating portfolio (Greenwire, April 21, 2014).
U.S. District Judge Susan Nelson in Minnesota agreed. She said the Minnesota law “is a classic example of extraterritorial regulation because of the manner in which the electricity industry operates.”
In recent weeks, a roster of pro-coal interests has filed friend-of-the-court briefs with the U.S. Court of Appeals for the 8th Circuit to make sure the lower court ruling stands.
The National Mining Association and the American Coalition for Clean Coal Electricity said the law risks “balkanizing the electricity markets” and “interfering with the regional development of coal.”
The groups wrote late last month, “Since North Dakota coal production is used overwhelmingly for electric generation, and since Minnesota is the largest market for North Dakota electric generation, the Import Restriction will prevent the development of North Dakota’s coal resources.”
Minnesota regulators argue that concern from critics is hypothetical and speculative. They say the law was never meant to regulate or affect decisions outside the state, and there’s no evidence it has.
“Federal courts have a fundamental responsibility to ensure that a litigant demonstrates an actual or ‘certainly impending’ injury-in-fact that is fairly traceable to the challenged action,” said their brief. “Appellees fail to show either an injury-in-fact or causation.”
Environmental groups — including the Environmental Defense Fund, Environmental Law and Policy Center, Natural Resources Defense Council, and Sierra Club — are backing the state.
“Neither on their face, nor under any reasonable interpretation, could these provisions be deemed to apply to transactions taking place entirely outside of Minnesota and thereby run afoul of the dormant Commerce Clause,” they wrote late last year.
“The district court’s conclusion that the NGEA applies extraterritorially thus lacks the necessary foundation,” added the environmental groups.
The U.S. Chamber of Commerce and the National Association of Manufacturers, among other industry interests, shot back, accusing Minnesota backers of trying to misrepresent the law.
“No doubt aware of the difficulty the NGEA presents on its face, appellants and their [supporters] have strived in this litigation to re-write it,” said their brief.
On Friday, Feb. 6th, ELPC Senior Policy Advocate Andy Olsen spoke at the USDA’s National Rural Energy for America Program (REAP) Stakeholder Forum, which outlined program improvements since REAP’s recent overhaul and highlighted stakeholder successes. To access a free webcast of the event, click here.
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