North Dakota

Greenwire: Midwest law center can compromise but doesn’t fear a fight

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.”

Howard Learner launched the Environmental Law and Policy Center 20 years ago.
Howard Learner launched the Environmental Law and Policy Center 20 years ago.

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.

ELPC’s victories include protecting regional waterways like the Chicago River from contaminated discharges.
ELPC’s victories include protecting regional waterways like the Chicago River from contaminated discharges.

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.”

Midwest Energy News: Industry, advocates weighing in on Minnesota coal case

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.

Keep Reading

ND Alliance for Renewable Energy: Survey Shows Strong Support for Renewables

BISMARCK – Almost all (97%) North Dakotans feel that energy efficiency is somewhat or very important, according to a newly-released statewide public opinion survey commissioned by the North Dakota Alliance for Renewable Energy (NDARE).

The survey was conducted by the University of North Dakota Bureau of Governmental Affairs, with financial support from North Dakota’s Office of Renewable Energy and Energy Efficiency.

“The results of this survey underscore what we’re hearing from North Dakotans in every corner of the state – energy efficiency and renewable energy are important parts of our energy equation,” said NDARE president Kim Christianson, noting that 72% of respondents favor having a state energy building code and that 87% support new public buildings meeting stronger standards of energy efficiency.

Survey respondents also felt that the state legislature should do more to support renewable energy and energy efficiency.

“More than 70 percent of those polled agreed that additional funding for renewable energy and energy efficiency should be allocated from a state trust fund, which was originally established to support water and energy efficiency projects.  Historically, less than one percent of the Resources Trust Fund has been directed toward energy efficiency,” Christianson said.

Respondents favored utilizing Resources Trust Fund monies to develop robust energy education programs, monitoring energy use in public buildings and developing utility rebate programs for consumers.

Christianson also noted that the survey respondents supported the expansion of the state’s weatherization program and extending tax incentives for geothermal, biomass, solar and small wind programs.

The survey also showed strong support for wind power as an energy generation resource, followed closely by energy efficiency, natural gas and solar energy.  In addition, more than one-half of respondents believe that additional energy efficiency and renewable energy projects will create jobs in the state.

Survey results also strongly support the addition of energy consumer and energy efficiency representation on North Dakota’s state-level energy policy commission, which is chaired by the North Dakota Commerce Commissioner.

The North Dakota Alliance for Renewable Energy is a diverse membership-based advocacy organization that works with citizens, industry, government, interest groups, and educators to promote the development and use of renewable energy – including biofuels, biomass, and wind energy, as well as the widespread adoption of cost-effective energy efficiency and conservation practices.

For more information on NDARE and to download a full version of the survey results, visit www.ndare.org.

ELPC Presents at USDA’s Forum on Rural Energy for America

???????????????????????????????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.

2014: ELPC Advances Clean Energy & Clean Transportation Solutions, Protects the Midwest’s Special Natural Places

Dear Friends and Supporters,

DavidHowardELPC has achieved strong successes in challenging times, demonstrating that smart, strategic legal and policy advocacy can both improve environmental quality and grow the Midwest’s economy. ELPC’s solutions-focused strategies engage diverse partners and seize opportunities to make a fundamental difference in accelerating clean energy development and clean transportation technologies, protecting clean air and clean water, and preserving the Midwest’s special wild and natural places. Our multidisciplinary staff teams of expert public interest attorneys, M.B.A.s, policy advocates and communications specialists, combined with sound science engagement from ELPC’s Science Advisory Council, play to win and know how to get things done—truly making a difference for a better world.

We’re on the cusp of fundamental environmental changes. New solar energy, wind power, battery and lighting technologies can help clean up and transform the electricity sector. The Obama Administration’s landmark Clean Power Plan will, in effect, impose a price on carbon pollution while allowing flexible pollution reduction strategies that can be sculpted for effective solutions in each state.

ELPC’s advocacy led to the nation’s largest-ever investment in high-speed rail, including $2.6 billion for developing the Midwest rail network. Modern, faster, more comfortable new trains are being manufactured in the Midwest, creating jobs and spurring economic growth. The Midwest is a proving ground for the rest of the nation: higher-speed rail is arriving, with ELPC’s leadership.

Innovative car technologies – all-electric vehicles, gas-electric hybrids, fuel cell, CNG and others – combined with better designs and lighter materials are reducing
pollution from the transportation sector while lifestyle and economic changes lead to fewer people driving
cars and fewer vehicle miles traveled.

President Obama’s Great Lakes Restoration Initiative has bipartisan support and sustained appropriations, which have largely avoided political squabbling. The projects supported by $1.3 billion of federal funds over the past four years are achieving real results for restoring the Great Lakes ecological system.

This is an exciting and challenging time for ELPC’s Board and Staff to seize these opportunities for environmental quality and economic development progress. We’re proud of ELPC’s accomplishments in helping transform our Midwest home into a cleaner and more vibrant place to live, work and play.

Sincerely,

Howard A. Learner and David Wilhelm
ELPC Executive Director and Board Chair

 

Protecting the Midwest’s Prairies, Wilderness & Great Lakes

EOY-Sylvania

ELPC’s strategic litigation and advocacy campaigns provide our Midwestern conservation colleagues with first-rate legal firepower when necessary to protect treasured natural resources. ELPC public interest attorneys work in both the federal and state courts, and in the court of public opinion, to protect the Great Lakes, Mississippi River and the Midwest’s special natural areas, threatened species and wildlife habitats. ELPC establishes key legal precedents that protect our natural heritage now and for the future.

Protecting the Midewin National Tallgrass Prairie – Challenging the Proposed Illiana Tollway. Midewin is our country’s first national tallgrass prairie and is home to northeastern Illinois’ largest, most diverse community of grassland birds. ELPC and our clients Openlands, Midewin Heritage Association and Sierra Club are challenging the boondoggle Illiana Tollway, which threatens the Midewin Prairie and wildlife habitat with damaging noise, light and pollution from convoys of heavy trucks. ELPC’s federal and state court litigation, combined with our media and public education campaign, has exposed the financial folly of the Illiana Tollway and its destructive impacts on the Midewin National Tallgrass Prairie. In October, the Chicago Metropolitan Agency for Planning Board again voted overwhelmingly against adding the Illiana Tollway to the regional plan. The Illiana Tollway is now the hottest transportation battle in Illinois.

Defending the Sylvania National Wilderness Area. Sylvania is a beautiful 18,327-acre wilderness area with quiet connected lakes and old-growth trees on the Wisconsin-Michigan border. ELPC attorneys, representing Friends of Sylvania, Sylvania Wilderness Cabins, and the Upper Peninsula Environmental Coalition won a major victory in federal district court to finally limit “grandfathered” polluting and noisy gas-powered motorboat use along the Sylvania Wilderness. This ELPC litigation victory is a key precedent for protecting our Wilderness Areas, National Forests, and National Lakeshores in the North Woods and Upper Great Lakes. We’re protecting the Sylvania Wilderness against invasive species and preserving wilderness tranquility for people to enjoy in this special place.

Stopping the SS Badger from Dumping Toxic Coal Ash in Lake Michigan. ELPC and our colleagues are working with U.S. Senator Dick Durbin and others to stop the coal-burning SS Badger, a Lake-Michigan ferry boat, from dumping about 1 million pounds of toxic coal ash into Lake Michigan each year. In 2013, the SS Badger’s owner agreed with the US EPA to reduce coal ash dumping in 2014 and completely stop by 2015. The SS Badger’s owner now claims to have installed digital combustion controls that lower fuel consumption, and, next summer, will store the coal ash on board. ELPC will work to ensure that the SS Badger stops dumping into the Great Lakes.

Protecting the Great Lakes from Aging Oil Pipelines. Every day, Enbridge’s decaying, 60-year-old “Line 5” pipeline carries over 20 million gallons of crude oil and natural gas fluid under the Straits of Mackinac, which connects Lake Michigan and Lake Huron. In 2010, another Enbridge pipeline spilled more than 875,000 gallons of oil into the Kalamazoo River. That spill created an ecological disaster that is still being cleaned up today. ELPC is working with the Michigan Land Use Institute, Michigan Environmental Council, FLOW and other partners to require Enbridge to remove, replace or upgrade its pipeline to protect the vulnerable Straits of Mackinac. We are gaining support from policymakers to take needed protective action.

 

Leading the Midwest’s Clean Energy Transformation

EOY-Solar

Disruptive solar energy and battery technologies and sustained advances in energy efficiency are poised to transform the electricity sector like wireless and the internet transformed telecommunications. ELPC advocates new policies to drive energy markets and technological innovations that can change the world.

Growing Renewable Energy in the Heartland. Wind power development is driving manufacturing jobs, rural economic development and pollution reduction. Iowa leads the nation, generating 28% of its electricity from wind power. Chicago has 14 global and North American wind power corporate headquarters. Wind power equipment supply chain businesses create jobs across the Midwest. Solar technologies keep advancing and PV panels drop in price, while energy efficiency advances in appliances, lighting and buildings save us money and reduce pollution.

ELPC’s solutions-based advocacy accelerates clean energy through an “innovate and replicate” model in which new policies — including updating standards for more solar on the grid in Illinois and new solar approaches in Minnesota — can be replicated in more states to drive markets, reduce barriers, and advance clean energy across the Midwest.

Expanding Energy Efficiency Programs. LED lights save 90% more energy than incandescent bulbs. In Illinois, ELPC steered new programs to accelerate market penetration of LED lights and home weatherization to produce longer-term, deeper energy savings. In Iowa, ELPC persuaded a utility to increase discounted LED lights from 2% to more than 40% by 2018, thereby avoiding more than 45 million pounds of CO2 pollution. ELPC’s sustained advocacy to accelerate energy efficiency in the Midwest will save consumers money on their utility bills, reduce the need for polluting power plants, and lighten the load on the electricity grid thereby improving reliability. A key indicator of market change: American Electric Power told the Public Utilities Commission of Ohio that it expects electricity demand to decrease by 16% over the next ten years.

Solar is Poised for Breakthrough Success. ELPC’s advocacy leadership is advancing breakthrough policies and removing barriers to solar energy development. ELPC persuaded the Minnesota Public Utilities Commission to adopt an innovative “value of solar tariff” to recognize the multiple economic and social benefits of solar. ELPC is working with Illinois policymakers to update standards that will make solar easier to finance and connect to the grid. ELPC attorneys won a nationally precedential case before the Iowa Supreme Court to remove utility-sponsored regulatory barriers against a conventional financing mechanism used to support solar installations on public buildings, homes and business.

ELPC attorneys and a diverse coalition of solar power and energy efficiency businesses, RENEW, AARP, low-income consumer groups, and municipalities are fighting back before the Public Service Commission of Wisconsin against three Wisconsin utilities seeking to raise fixed charges and impose costly regulatory barriers to advancing solar energy and energy efficiency innovations. We need to win before the Comission and in the court of public opinion.

ELPC designed Illinois’ new $30 million solar procurement program, and we are working to create more sustainable cities by developing old industrial brownfields into solar “brightfields” that generate clean energy, create jobs and spur economic revitalization. ELPC’s multidisciplinary team of energy experts works on multiple fronts to accelerate Midwest leadership to a cleaner energy future.

 

Advancing Midwest Leadership for Climate Change Solutions

EOY-McCartyThe Midwest is the center of our nation’s carbon pollution problems and should be the fulcrum for clean energy and clean transportation solutions. ELPC is working to speed development of clean wind power and solar energy resources, implement policies to advance energy efficiency, and accelerate hybrids, electric vehicles and other modern clean car technologies combined with better planning. These climate change solutions are good for job creation, good for economic growth and good for our environment and public health.

Achieving the Full Potential of the Clean Power Plan. President Obama’s proposed Clean Power Plan advances climate solutions leadership. The U.S. EPA is finalizing strong federal carbon pollution reduction standards in 2015 that will use Midwest states’ implementation plans to clean up the Midwest’s electricity sector. Supportive policies, improved technologies and changes in business and public attitudes and actions are driving clean energy from early adopters to the mainstream, with more wind power development, more solar energy installations and more efficient LED lighting, appliances, HVAC, pumps and motors. Electricity demand is declining while the Midwest economy is rebounding, and renewables and natural gas are squeezing out old coal plants and reducing carbon pollution. ELPC’s framework strategy Repowering the Midwest is moving from policy vision to reality.

 

Accelerating the Next Generation of Sustainable Transportation

Advancing Midwest High-Speed Rail Development. ELPC’s sustained advocacy to advance the Chicago-hubbed Midwest high-speed rail network is achieving major progress with bipartisan political and business, labor and civic support. By late 2015, we expect 110 mph modern rail service on 75% – 80% of the Chicago–St. Louis corridor, and soon after on the Chicago-Detroit corridor. Modern passenger railcars manufactured in Rochelle, Illinois are on track by early 2016. Minnesota continues planning for high speed rail projects as well. Key federal transportation legislation is a priority for Congress in 2015, and ELPC is working closely with the pivotal Midwest delegation to expand funding for high-speed rail development that improves mobility, reduces pollution, creates jobs and spurs economic growth.

Reducing Harmful Diesel Pollution. ELPC and our community partners challenged increased diesel pollution from Norfolk Southern’s rail yard expansion in Chicago’s Englewood community. ELPC’s legal and policy advocacy combined with community organizing, public engagement and media attention brought Norfolk Southern to the negotiating table. The settlement will reduce particulate pollution from diesel rail equipment and trucks, add neighborhood green space, and bring new jobs and economic growth.

Promoting Electric Vehicles. ELPC business and policy specialists are working to expand electric vehicle market penetration by removing barriers and advancing supportive policies. ELPC is partnering with the City of Chicago and leading businesses to promote workplace charging policies and infrastructure. By developing the policies to create workplace and home charging opportunities, electric vehicles can be used by more people, expanding capacity for businesses to operate large-scale green fleets.


 You may also download a PDF of our year-end brochure here.

 

 

The 2014 Election Results: What They Mean for the Midwest’s Environmental and Clean Energy Policies

Plain and simple: Republicans achieved a wave of victories nationally and in the Midwest while, as the incumbent national party, Democrats bore the brunt of the public’s dissatisfaction with politicians. The public, however, did vote positively on various referenda issues in ways that aligned more closely to Democrat positions than Republican positions.

For environmental, clean energy and conservation advocates, the election results are mostly not promising, but it’s more complex than simple one-liners aimed at raising money or gearing up for 2016 battles.  We lost some strong environmental supporters in the November 4th elections, but some winning candidates, from both parties, have been good supporters of clean energy, passenger rail, and other environmental and conservation programs. As described below, there are some opportunities as well as obvious challenges.

Three trends worked against the incumbent party in 2014 – the first two of which will change in the 2016 elections: (1) Democrats defended an unusually larger number of Senate seats in 2014 than Republicans did. (2) Republicans were able to take advantage of the historic trend of voters electing candidates of the party opposing a sitting President in off-year elections. This is especially the case at the six-year mark in a President’s tenure. Voters are usually ready for change, and frustrations over domestic or foreign policy issues are often taken out on the President and his party. The 2014 voting results are mostly consistent with so-called “pendulum swings.” (3) Older voters continue to participate much more than younger ones, but among senior citizens, Roosevelt Democrats are dying off and being replaced by Reagan Republicans.

Looking at the Overall Results, Lessons Learned and Strategic Opportunities/Challenges:

1. People are completely, totally, overwhelmingly dissatisfied with “politics as usual.”

As the incumbent party, Democrats bore the brunt of this rampant dissatisfaction. Senator-elect Joni Ernst (R-Iowa) and Governor-elect Bruce Rauner (R-IL), for example, proudly ran on platforms of changing “business as usual” and successfully tapped this wave of public dissatisfaction in a way that parallels President Obama’s successful “change” message in his 2008 election campaign. Opportunity: Environmentalists should build on this “business as usual” concern in our challenges to the Illinois Department of Transportation’s proposed Illiana Tollway, which is a financial boondoggle “road to nowhere” that will harm the Midewin National Tallgrass Prairie. Likewise, Exelon’s, First Energy’s, AEP’s and other energy companies’ attempts to gain more public subsidies and taxpayer bailouts for their uneconomic nuclear and coal plants exemplify a distasteful “business as usual” to much of the public.

2. Opportunities for environmental progress will shift from Washington D.C. to the states.  Let’s seize opportunities to go on the offense in states where we can win on specific issues.

In the Midwest, we’ll have to thread the political needle, but there are some focused opportunities for progress. Midwest high-speed rail development enjoys bipartisan support in Illinois, Michigan, Minnesota and Missouri. We expect Governor Rick Snyder (R-MI) to work together with Governor-elect Bruce Rauner (R-IL) on Chicago-Detroit high-speed rail, as he has with outgoing Governor Pat Quinn (D-IL).

Governors Terry Branstad (R-IA), Jack Dalrymple (R-ND), Mark Dayton (D-MN) and Dennis Daugaard (R-SD) are strong supporters of wind power development, as are most members of the Midwest/Great Plains Senate Delegation, including Senators Dick Durbin (D-IL), Al Franken (D-MN), Charles Grassley (R-IA), Amy Klobuchar (D-MN) and John Thune (R-SD). A challenge: Can we effectively parlay that wind power support into solar energy policy support as the next clean technology opportunity? ELPC will soon be issuing updated renewable energy business supply chain reports, which identify specific companies in each state by legislative district, to underscore the economic value in their communities.

Energy efficiency – Because it saves money for residential and business consumers, it receives at least lip-service bipartisan support; it’s “motherhood and apple pie” in political terms. There seem to be serious opportunities for progress in Illinois and Michigan, although recent setbacks in Indiana and Ohio are disheartening.

Severe fiscal constraints in Illinois and some other states will help ELPC and other partners challenge boondoggles such as the proposed Illiana Tollway, which is opposed by environmental and conservation interests and widely seen as a billion-dollar boondoggle.  Environmentalists should consider mounting “green scissors” campaigns, which identify wasteful projects and programs, in the Midwest states that are facing serious budget shortfalls.

3. We’ll be playing climate change solutions defense in Washington D.C.

There’s no way to sugar-coat it: although environmental values historically transcended party lines, many key Republican Congressional leaders actively and ardently oppose environmental programs and climate change solutions in particular. With the U.S. Senate now controlled by Republicans, environmentalists will be on the defensive. Climate change denier Senator James Inhofe (R-OK) will chair the Environment and Public Works Committee, oil-industry friendly Senator Lisa Murkowski (R-AK) will chair the Senate Energy and Commerce Committee, and Senator Mitch McConnell (R-KY) will become the Senate Majority Leader. Our environmental protection and natural resources preservation values will be under assault in multiple ways. Challenges: (a) Assess when and where to compromise, and where to draw lines in the sand. (b) Build some bipartisan support in the Senate to hold off 60-vote majorities on climate change solutions backsliding and to enable the U.S. EPA Clean Power Plan to move forward. (c) Engage support for President Obama to wield his veto pen when necessary for defending core environmental values and clean energy solutions to our climate change problems.

4. We need to energize environmental voters – especially younger voters – to turnout more.

Too many Democrats ran away from environmental and clean energy issues, and some preliminary data indicates fall-off in voting in some states, especially among younger voters who care about these issues.  For example, in Chicago, 2014 turnout was significantly below 2010 voting, and younger voters really did not turnout. That low turnout follows a coordinated campaign by Democrats to identify their hoped-for voters and get them to vote. ELPC plans to work with an analytics team to assess turnout of pro-environmental (especially younger) voters in several key cities and states. That analysis could provide important data in persuading elected officials to talk and act more favorably on pro-environmental and pro-clean energy issues if they want to turnout more voters. If candidates and the national parties want to increase turnout of pro-environmental votes – particularly younger voters – they need to speak to climate change solutions and take actions that “walk the talk.” More news to follow on this point.

5. We should engage and build support with Republican friends who are supportive on particular environmental, clean energy and climate change solutions.

Senator Mark Kirk (R-IL) has been a strong supporter of Great Lakes protection and was one of the few House Republicans to vote for the Waxman-Markey climate change solutions legislation. We should urge Senator Kirk to exert leadership on key issues within the Republican Senate caucus. This opportunity is even more important given the close working relationship between Senator Kirk’s staff and Governor-elect Rauner’s staff. It is important to recognize that not all new Republicans entering the Congress are anti-environment. Midwestern environmentalists should be able to work with some new members, including Congressman-elect Robert Dold (R-IL), whose pro-environmental and pro-clean energy campaign ads and positions reflect his Chicago-Northern Suburban district. South Dakota Senator-elect Mike Rounds (R-SD) may be an opponent on many issues, but he also supports extending the federal Production Tax Credit (PTC) for wind power development. Across a broad range of issues, environmentalists should consider reframing some of their positions into language more consistent with Republican approaches and philosophy. We could see more increased interest, for example, in market-based solutions.

6. Some reality checks on Clean Power Plans in the Midwest states.

All of the Midwest and Great Plains states elected Republican Governors, with Minnesota as the lone exception. Several Republican Governors (e.g., Kasich, Pence, Walker) apparently look in the mirror and see themselves as possible Presidential and Vice-Presidential contenders. Let’s be realistic: their visions do not include supporting the U.S. EPA’s Clean Power Plan, and, at least until after the November 2016 elections, they will not likely support a “Midwest RGGI” (Regional Greenhouse Gas Initiative) for political reasons regardless of asserted policy and economic rationales. Indeed, they are much more likely to be joining Congressional Republicans in bashing and suing to stop the U.S. EPA from implementing the Clean Power Plan than in joining together in a regional RGGI-type compact.  We should focus on actively engaging in each Midwest state to develop and shape their clean power compliance strategies and plans. We should leave doors open to a Midwest RGGI. We should not expend our limited political capital on a Midwest RGGI strategic initiative where we just don’t have support from the current Governors and, ultimately, their state EPAs/DNRs.  For those who hope or believe otherwise, to paraphrase Jerry McGuire: “show me the states” who will sign up (beyond maybe Minnesota and, perhaps, Illinois).

7. Relatively few Midwest/Great Plains Senate and House seats actually switched parties. 

Three House members in Illinois and Iowa switched from Ds to Rs, and one House seat in Nebraska switched from an R to a D. Two open Senate seats switched parties: in Iowa, Republican Joni Ernst was elected to follow long-time Democrat stalwart Tom Harkin, and, in South Dakota, Republican Mike Rounds was elected to succeed Democrat Tim Johnson. Democrats retained three contested Senate seats: Senators Dick Durbin (D-IL) and Al Franken (D-MN) comfortably won re-election, and Gary Peters (D-MI) was elected to succeed Democrat Carl Levin. The Midwest Senate delegation, overall, is evenly balanced among Democrats and Republicans.

8. 2016 is a Presidential election year with key upcoming Senate Races in Iowa, Illinois, Pennsylvania and Wisconsin.

The partisan tables turn in 2016 because there is much greater turnout in Presidential election years, which historically favor Democrats, and more Republican Senate seats are in play. Unlike in 2014, Republicans will be defending 24 seats as compared to 10 seats for the Democrats in 2016. The Midwest states are likely to be a key Presidential and Senate battleground, along with states such as Colorado and Florida. Republican Senate seats in Illinois (Kirk), Iowa (Grassley), Pennsylvania (Toomey) and Wisconsin (Johnson) are likely to be among the nation’s most hotly contested races whether the current incumbents run or retire. All of these seats, currently held by Republican incumbents, were carried by President Obama in 2008 and 2012. 

Let’s Now Look to the Election Results in Each of the Midwest/Upper Great Plains States:

Governorships – Republicans Dominate

Democrat Mark Dayton won re-election in Minnesota, but Illinois Governor Pat Quinn (D) lost to Governor-elect Bruce Rauner (R). Republicans retained the governorships in Iowa, Michigan, Ohio, South Dakota and Wisconsin.  Republicans now control the governorships in all of the Midwest/Great Plains states, except for Minnesota and Missouri.

State Legislatures – Some Shifts

Although the compositions of the state legislatures were not expected to change dramatically, there were some shifts. Republicans achieved majority control in the Minnesota House through an 11-seat pickup largely by gaining seats in rural areas, and they solidified their control of both the Wisconsin Senate and House. Democrats kept control of the Iowa Senate and maintained veto-proof majorities in the Illinois Senate and House.

Here’s a State-by-State Review of the Election Returns:

Illinois

Illinois had a tight gubernatorial election, a not-close U.S. Senate race, and five hotly-contested Congressional races, which resulted in two seats switching from Democrats to Republicans.  The Illinois General Assembly remains overwhelmingly Democratic.

U.S. Senate: Three-term U.S. Senator Dick Durbin (D) was opposed by State Senator (and ice cream baron) Jim Oberweis (R). The race was never close, and Senator Durbin won his fourth term 53%-43%. Senator Durbin has been a longstanding leader on important environmental, clean energy and high-speed rail funding issues. ELPC looks forward to continue working closely with Senator Durbin, who will likely be the Assistant Senate Minority Leader in the next Congress.

U.S. House of Representatives: Four years ago, Illinois was a battleground state in which several Democratic House seats fell to Republicans. Two years ago, following remapping, Democrats won five of the six contested House races. This year, Republicans made strong runs to retake those five seats and succeeded in switching two of Illinois’ 18 House seats:

  • 10th District: Former Congressman Robert Dold (R), who lost this seat in 2012, came back to defeat one-term incumbent Democrat Brad Schneider by a 3% margin. Historically, voters in this district had supported pro-environment, pro-choice Republicans such as Congressman John Porter and former Congressman, now-U.S. Senator Mark Kirk. Remapping put more Democratic-leaning voters in this district. Congressman Schneider (D) has been a good environmental supporter, but Congressman-elect Dold (R) ran stressing his strong pro-environmental values. We’ll want to work with Congressman-elect Dold to move from his campaign ads into positive legislative actions on climate change, clean energy and Great Lakes protection issues.
  • 11th District: Incumbent Democratic Congressman Bill Foster held this seat until 2010 when he lost, but then he won the seat back in 2012. He was opposed by State Representative Darlene Senger (R), but, following remapping, the district leans Democratic. It also includes many scientists and technicians from the Argonne and Fermi National Laboratories as well as related businesses and research centers. Congressman Foster won re-election by a comfortable 53% – 47% result.
  • 12th District: Incumbent Democratic Congressman Bill Enyart won this seat in Southern Illinois two years ago in a competitive race. In 2014, he was opposed by long-time Republican State Representative Mike Bost. Pre-election polls swung back and forth, but, ultimately, Bost defeated Enyart by an 11% margin. Because the 12th District is dominated by coal interests and other mineral extraction issues, neither Enyart nor Bost was considered particularly supportive of environmental issues.
  • 13th District: Incumbent Republican Congressman Rodney Davis originally won this seat in 2012. The 13th district includes university areas in Bloomington-Normal, Champaign-Urbana and Springfield and is considered to be a toss-up district. Democratic candidate Ann Callis, a retired judge, did not seem to gain electoral traction. Congressman Davis (R) won re-election handily with a 59% – 41% victory.
  • 17th District: Two years ago, Democratic Congresswoman Cheri Bustos upset Republican Congressman Bobby Schilling, who ran again this year in a rematch. This was another competitive race, but Congresswoman Bustos, who has been generally supportive of environmental and conservation interests, gained a strong 55% – 45% victory.

Governor: Incumbent Governor Pat Quinn (D) was running for a second full term following his ascension to the Governor’s office in January 2009 after the impeachment trial of the former governor.  He was successfully challenged by businessman Bruce Rauner (R), who won the hotly contested race by a 51% – 46% margin. Rauner won 101 of Illinois’ 102 counties; Quinn only won Cook County (Chicago area). The Quinn/Rauner race surpassed all previous spending records in Illinois, passing the $97 million mark (at least).

Governor Quinn supported many environmental and clean energy initiatives and was a champion of high-speed rail development. However, his Illinois Department of Transportation vociferously advocates the highly-controversial Illiana Tollway (as well as the proposed Peotone Airport), which is being challenged by ELPC, Openlands, Sierra Club and many other conservation organizations. Governor-elect Rauner was mostly silent on these issues during the campaign. He has been supportive of conservation organizations and has voiced support for clean energy. Let’s see.

Indiana

There was little in play in Indiana with no open Senate seats and Republican Governor Mike Pence in the middle of his first term. There were no changes or especially close races among Indiana’s Congressional seats: seven held by Republicans and two held by Democrats. Both houses of the Indiana Legislature are strongly Republican, and that did not change.

Iowa

Iowa was a battleground state with an open Senate seat, three hotly-contested Congressional seats, and control of both state legislative chambers potentially in play. Governor Terry Branstad (R) ran for a sixth term and was not closely challenged. Republicans gained a U.S. Senate seat and an additional Congressional seat. Republicans strengthened their majority in the Iowa House while Democrats maintained their slim State Senate majority.

U.S. Senate:  Five-term Senator Tom Harkin (D) announced his retirement, opening this seat for the competitive race between Democrat Bruce Braley, Iowa’s 1st District Congressman, and Republican Joni Ernst, an Iowa State Senator. Braley and Ernst appear to have very different views on environmental issues, especially implementation and enforcement of the Clean Water Act. Senator-elect Ernst won by an 8.5% margin after what had appeared to be a much closer race. Some preliminary post-election analysis suggests that Republicans effectively identified “low-propensity” Republican-leaning voters and encouraged them to cast ballots early, and even though Democrats spent millions more in 2014 than in 2010, their turnout was lower.

U.S. House of Representatives: Republicans captured seats in three out of Iowa’s four Congressional districts as two seats opened when Congressman Bruce Braley (D) ran for Senate and Congressman Tom Latham (R) retired:

  • 1st District: Democrats nominated former Iowa House Speaker Pat Murphy for this Eastern Iowa Congressional seat opened up by Braley’s Senate candidacy. Republicans nominated Dubuque businessman Rod Blum. The voter registration is Democratic-leaning, but Blum defeated Murphy by 51.2% – 48.8% as part of the Republican wave and amid campaign missteps by Blum. This seat will likely be a top Democratic “pick-up” target in 2016.
  • 2nd District: Democratic incumbent Congressman Dave Loebsack won his race for a fifth term against Republican Dr. Mariannette Miller-Meeks by 52.5% – 47.5%.
  • 3rd District: Republicans had a five-candidate primary for long-time Congressman Tom Latham’s (R) seat in this Republican-leaning district. Because none of the candidates captured 35% of the primary vote, a GOP convention was convened, which nominated David Young who had run 4th in the primary. Young previously served as Senator Grassley’s Chief of Staff. Congressman-elect Young defeated Democratic candidate Staci Appel, the former Assistant Majority Leader in the Iowa Senate, by more than a 10% margin.
  • 4th District: Incumbent Republican Congressman Steve King ran for his seventh term in Iowa’s most conservative district. King was challenged by young Democrat Jim Mowrer, who spent $2 million on his campaign. Congressman King won re-election 61.7% – 38.3%.

Governor: Incumbent Republican Governor Terry Branstad was seeking his second consecutive and sixth overall term as Governor. He previously served four consecutive terms that were followed by two Democratic governors (Vilsack and Culver). Governor Branstad outspent his opponent Democratic State Senator Jack Hatch by a 10:1 margin, and he handily won re-election by a 22% margin. Branstad has been a national leader on wind power development issues and is promoting a new parks initiative in his new term as Governor.

State Legislature: The Iowa Legislature has been narrowly divided and remains so. The Senate is controlled by the Democrats with a narrow 26-24 majority. The House is controlled by Republicans who picked up four seats to strengthen their majority to 57-43.

Michigan

Michigan was also a battleground state with an open Senate seat and a hotly-contested gubernatorial race with first-term Republican Governor Rick Snyder up for re-election. Republicans gained ground in the state House and now have a super-majority in the state Senate.

U.S. Senate: Long-time Senator Carl Levin (D) announced his retirement, opening the seat for a contested race between Democratic Congressman Gary Peters and Republican former Secretary of State Terri Lynn Land. This race was sometimes considered a possible Republican pickup, but Senator-elect Peters won by a large 13% margin, thus holding the Democratic seat. Senator-elect Peters supports action on climate change and expressed pro-environmental positions during the campaign while Land opposed to taking action on climate change.

U.S. House of Representatives: There were no especially close races for Michigan’s Congressional seats, which include nine Republicans and five Democrats.

Governor: Incumbent Republican Governor Rick Snyder was running for a second term and faced vigorous opposition by Democratic former Congressman Mark Schauer. Governor Snyder won re-election by a 4% margin. Governor Snyder has been a leader advancing high-speed rail development in Michigan and the Midwest, and he has indicated that renewable energy development and energy efficiency advances will be a focus of his second term.

Minnesota

Senator Al Franken and Governor Mark Dayton each won their elections for a second term in office. Democrats held control of the state Senate, but Republicans gained 11 seats and control of the state House.

U.S. Senate: Senator Al Franken (DFL) was opposed by businessman Mike McFadden (R), but it was a very different race than six years ago when Senator Franken won election by defeating an incumbent Republican Senator by an exceedingly close 312-vote margin. This election, clean energy supporter Senator Franken won re-election by more than a 10% margin.

U.S. House of Representatives: Minnesota has eight Congressional seats, which include five Democrats and three Republicans. None of the seats changed hands. Following tough and expensive campaigns, Congressman Rick Nolan (D) won by a 1.5% margin, Congressman Collin Peterson (D) won by a 9.5% margin, and Congressman Tim Walz (D) won by an 8.5% margin.

Governor: Incumbent Democratic Governor Mark Dayton faced challenger Republican former state legislator Jeff Johnson, and he won by 6% margin. Dayton has been supportive on environmental and clean energy issues. He is now the Midwest’s sole Democratic governor.

State Legislature: Despite losing every other statewide race to Democrats, Minnesota Republicans succeeding in flipping the Minnesota House in their favor. Their 11-seat pickup reflected a strategy of contending that Democratic-controlled state government is out-of-touch with rural Minnesotans. Republicans gained 10 seats in greater Minnesota to come away with a 72-62 advantage in the House. Democrats retained their Senate majority.

North Dakota

There was little in play in North Dakota with no open Senate seats and Republican Governor Jack Dalrymple mid-term. Congressman Kevin Cramer (R) easily won re-election to North Dakota’s sole Congressional seat. The state legislature continues to be heavily Republican; however, State Senators Connie Triplett and Tim Mathern, who have been supportive of ELPC’s efforts to require capturing of flared natural gases, were re-elected. Governor Dalrymple has also recently expressed concerns about flared gases in Bakken oil drilling. Unfortunately, a ballot measure designed to provide more state conservation funding suffered a crushing defeat after the oil industry’s heavily-financed ad campaign in opposition.

Ohio

Ohio did not have a Senate race, and incumbent Republican Governor John Kasich was not effectively challenged for a second term by Democrat Ed Fitzgerald, the County Executive of Cuyahoga County.  The race was never close, and Governor Kasich was re-elected by a 31% margin.  Ohio has 16 Congressional seats – 12 Republicans and four Democrats. None of the seats changed hands, and no races were close following the remapping that advanced Republicans and packed Democrats in a few districts. All of Ohio’s state-wide elected officials are Republicans, and both houses of the legislature are controlled by Republicans with veto-proof margins that did not change.

South Dakota

Incumbent Republican Governor Dennis Daugaard, who has chaired the bipartisan Governors’ Wind Energy Coalition, easily won re-election over Democratic candidate Susan Wismer, a South Dakota House member. Likewise, incumbent Republican Congresswoman Kristi Noem easily won re-election over Democrat Corrina Robinson by 66.5%-33.5%. She supports extending the Production Tax Credit (PTC) for wind power development and has supported the Farm Bill’s clean energy programs. Both South Dakota legislative chambers are overwhelmingly Republican, and that did not change. The U.S. Senate race, however, was more interesting.

U.S. Senate Race: There is an open Senate seat due to the retirement of Democratic Senator Tim Johnson. Former two-term Republican Governor Mike Rounds was a strong candidate, but the election became complicated because of a scandal dating from the Rounds gubernatorial administration and due to the entry of third-party candidate Larry Pressler, who had previously served as a Republican U.S. Senator, and fourth-party candidate Gordon Howie. The final election returns show Republican Senator-elect Mike Rounds winning with 50.4% over Democratic candidate Rick Weiland (29.5%), Independent candidate Larry Pressler (17%) and Independent candidate Gordon Howie (3.0%). We will likely differ with Senator-elect Rounds on many environmental issues, but expect to work with him to advance some renewable energy policies and to extend the federal Production Tax Credit (PTC) to encourage more wind power development.

Wisconsin

Wisconsin had no U.S. Senate Race and no close U.S. House races in the gerrymandered districts, but it held its third hotly-contested gubernatorial election in four years, which Republican Governor Scott Walker won. The state House is controlled by Republicans, who also have a narrowed majority in the state Senate. Both chambers are expected to be hostile on many key environmental issues and supportive of Governor Scott Walker’s policies. Their victories give Republicans almost complete control of Wisconsin state government for another two-year legislative session. Environmentalists will be greatly on the defensive.

Governor: There’s little to be said here that’s not well-known by most readers. Incumbent Republican Governor Scott Walker, whose anti-environmental record is clear, faced Democratic challenger Mary Burke, a former executive at Trek Bicycle Corporation and Secretary of the Wisconsin Department of Commerce. The gubernatorial race was close from the beginning, and Burke gained endorsements from several state papers, including the moderately conservative Wisconsin State Journal. On Election Day, Governor Walker won by a 5.7% margin. Environmentalists and many others will be analyzing this race particularly because Wisconsin is likely to be a key Presidential election battleground state with a targeted Senate race.

*          *          *

The Environmental Law & Policy Center sees both strategic opportunities for progress and major challenges with the federal government’s and many states’ fiscally constrained budgets. We look forward to discussing both paths with our colleagues and diverse potential allies. As the views of these newly-elected public officials become clearer and they move from campaigning toward governance, ELPC will continue to assess both ways of seizing opportunities and responding effectively to the challenges. ELPC looks forward to working together with our colleagues and diverse coalition partners to achieve environmental progress and economic development together. We will keep you informed going forward.  Please let us know if you have any questions or suggestions.

Howard Learner’s New Comment in Environmental Law Reporter: “Emerging Clarity in Climate Change Law: EPA Empowered and State Common Law Remedies Enabled”

Please see ELPC Executive Director Howard Learner’s new Comment in the Environmental Law Reporter (September 2014):  “Emerging Clarity in Climate Change Law:  EPA Empowered and State Common Law Remedies Enabled” (pdf).  This legal analysis addresses: (1) How the U.S. Supreme Court’s recent decisions in EPA v. EME Homer City and UARG v. EPA fill out the climate change law framework of Mass. v. EPA and AEP v. Connecticut; and (2) The recent Third Circuit decision and the Iowa Supreme Court decision that allow state common law actions to address carbon and other air pollutants.  Here’s a brief summary of Howard’s Comment on this timely and important set of issues:

The emerging law of climate change is becoming clearer. The U.S. Supreme Court’s series of climate change and other Clean Air Act decisions authorize the U. S. Environmental Protection Agency to advance its standards-setting process, and provide general deference to EPA’s implementation of the Clean Air Act and other statutory programs. The Court is sending a clear message to the U.S. Court of Appeals for the District of Columbia Circuit, which reviews most of EPA’s final standards, and to other courts, to restrain judicial activism.  Likewise, federal and state courts are opening the door for plaintiffs to assert state common law tort remedies.

The Court’s majority has made clear its solid support for the landmark Massachusetts v. EPA decision authorizing EPA to regulate greenhouse gases. The partisan political attacks and the novel theories of the cottage industry of appellate attorneys representing certain polluting industries have not deterred the Court. The Court’s recent decisions in EPA v. EME Homer City Generation and Utility Air Regulatory Group v. EPA, which strongly, although not entirely, uphold EPA’s CAA implementation discretion, should reduce confusion and bring much-needed increased certainty for both state policymakers and energy industry executives to move forward in making business decisions.  At the same time, both federal and state courts are beginning to fill in the blanks left by the Court in its American Electric Power v. Connecticut decision, which held that the Clean Air Act displaces federal common law injunction actions brought by states and other plaintiffs seeking to limit carbon dioxide pollution from coal plants, by preserving citizens’ traditional rights under state common law.

ELPC to Quadrennial Energy Review: North Dakota’s More than Oil and Natural Gas!

Mindi-QuadEnergyReview

 

For Immediate Release
August 8, 2014
Contact: David Jakubiak, ELPC
312-795-3713, djakubiak@elpc.org

Bismarck, ND – North Dakota’s oil-fueled economic boom should not stifle development of a diverse energy mix, mask the losses of wasteful resource flaring, or place North Dakota’s unique special places at risk, the Environmental Law & Policy Center’s Mindi Schmitz told state, federal and business leaders Friday at the state’s Quadrennial Energy Review.

“This boom is primarily focused on Bakken oil, but there are other energy development opportunities here to diversify the state’s energy mix and broaden the economic expansion,” said Schmitz, North Dakota governmental relations specialist with ELPC.

The Review held at Bismarck State College was attended by a who’s who of federal, state and business leaders from the energy and transportation sector. Gov. Jack Dalrymple was joined U.S. Energy Secretary Ernest Moniz, U.S. Transportation Secretary Anthony Foxx, Sens. John Hoeven and Heidi Heitkamp and Rep. Kevin Cramer. Others on hand included Ron Ness, president of the North Dakota Petroleum Council; Matt Rose, executive chairman of BNSF; and Robert Steede, director of Enbridge North Dakota.

Schmitz noted that North Dakota has the sixth most wind resource in the nation, yet ranks 11th in wind energy production. “There is a substantial and costly gap between the potential represented in the size of the resource and the actual represented by on-the-ground wind development.”

Additionally, she called for continued efforts to end the wasteful venting and flaring of North Dakota’s natural gas resource. While steps have been made, she said, about 1/3rd of the natural gas extracted in the state is still flared. As the number of wells grow,  the amount of gas rises as well.

“In May 2014 alone, operators flared nearly 10 billion cubic feet of gas. That’s enough to heat around 100,000 average homes for a year,” she said.

Flaring, Schmitz said, is taking money out of the pockets of landowners and is costing the local, state and federal government millions in lost tax revenue. “In May 2013, gas flaring cost the state about $3.6 million in lost tax revenue per day.”

Flaring also pollutes, she said, producing huge amounts of harmful, smog-forming nitrogen oxides and volatile organic compounds; greenhouse gas pollution, including carbon dioxide and methane.

Of particular concern, Schmitz argued are special places on North Dakota that are irreplaceable.

“Flames from flaring obscure what were once pristine, starry night skies and pollution from flaring harms the park’s plants and animals,” she said. “We should not be fracking and flaring within view of Teddy Roosevelt National Park or any other special place.”

Schmitz offered 5 recommendations to reduce risks posed by oil developemt:

  • Adopt standards to minimize flaring from oil/mixed oil-and-gas wells;
  • Promulgate requirements to minimize methane leakage from wells, pipes and associated gas production and transport equipment;
  • Pass more stringent rules for pipelines, railcars and trucks to minimize oil/wastewater spills, and strictly enforce those rules;
  • Require that, where possible, fracking wastewater be recycled, and fund research to increase wastewater recycling; and
  • Bolster protections for special places under federal control, including Teddy Roosevelt National Park, the Dakota Grasslands, and other sites with historical, archaeological and natural resource assets.

“We can have responsible energy development with immense benefits, and provide greater protection for North Dakota air, water and special places,” she said.

Wall Street Journal: Ohio Regulators Aim to Help Water Problem With Fertilizer Licenses

The drinking-water crisis in one of Ohio’s largest cities is drawing attention to a new requirement for farmers in the state: a license to fertilize.

The certification is the biggest step Ohio has taken to control nutrient runoff from farms, seen as a key cause of algae blooms in Lake Erie. Those blooms are blamed for a two-day “do-not-drink” advisory in Toledo and its suburbs that ended Monday.

Regulators say the new licenses that become mandatory in 2017 will require farmers to take a one-day class. They say it will help cut fertilizer use by showing farmers how they can apply less nutrients without negatively affecting their crop yields. The law also allows regulators to revoke such certifications if problems are found on a farm.

State officials and farm leaders point to the certification as a sign of the growing steps Ohio is taking to tackle the blooms, with such efforts expected to increase in the years ahead. But environmentalists argue much more aggressive steps are needed to prevent repeat occurrences of what happened in Toledo.

“This isn’t a matter of farmers fine-tuning what they’re doing,” said Howard Learner, president of the Environmental Law & Policy Center, a Midwest advocacy group. “This requires a substantial rethinking of how nitrogen and phosphorus is used in the agriculture sector.”

Keep Reading

ELPC Hosts U.S. EPA Administrator Gina McCarthy for Clean Energy Business Roundtable

ELPC was honored to host U.S. EPA Administrator Gina McCarthy for a Clean Energy Business Roundtable today at our Chicago office. We were joined by 35 corporate clean energy and sustainability business leaders, including executives from Baxter Healthcare, Broadwind Energy, Clean Line Energy, E.ON Energy USA, Hecate Energy, Invenergy, Johnson Controls, Next Era Energy, Schneider Electric, SoCore Energy, VLV Development, Walgreens, Wangxiang, and West Monroe Partners.

Following my introduction, there was a lively discussion between Administrator McCarthy and business leaders on the investment and job opportunities spurred by the proposed Clean Power Plan. Administrator McCarthy summed up:

“We wanted the standards to be very flexible and wanted to show there are job growth opportunities here … The amount of money you save when you look at efficiency and renewables in a city is amazing and people really like it … If you can do it in one city, you can do it in every city. All I’m asking people to think about is what’s already been done in so many other places.”

ELPC and I look forward to working with you to advance strong carbon pollution reduction standards that can create jobs, spur technological innovation and engineering ingenuity, and improve our public health and environment. Solving climate change problems is the moral, economic, policy, political and technological challenge of our generation. Let’s work together to make a difference.

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

Support ELPC’s Next 20 Years of Successful Advocacy

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

Support ELPC’s Next 20 Years of Successful Advocacy

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

Support ELPC’s Next 20 Years of Successful Advocacy

Donate Now

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

Support ELPC’s Next 20 Years of Successful Advocacy

Donate Now

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

Support ELPC’s Next 20 Years of Successful Advocacy

Donate Now

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

Support ELPC’s Next 20 Years of Successful Advocacy

Donate Now

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

Support ELPC’s Next 20 Years of Successful Advocacy

Donate Now