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.
While Ohio regulators last week rejected one utility’s plan to guarantee income for its power plants – characterized by critics as a “bailout” – the decision left the door open for similar proposals in the future.
Meanwhile, protective orders will continue to prevent public disclosure of all the facts and figures behind the plans proposed by utilities.
Last Wednesday the Public Utilities Commission of Ohio (PUCO) rejected a proposal by American Electric Power (AEP) that would have guaranteed sales for AEP’s share of all electricity from two coal plants owned by the Ohio Valley Electric Corporation. All ratepayers would have had to cover the costs of that plan, whether they chose AEP for their electricity generation company or not.
AEP claimed the plan would give ratepayers a hedge against long-term inflation. It described its plan as a Power Purchase Agreement (PPA).
Environmental and consumer advocates have said the plans would impose huge immediate costs on ratepayers with the likelihood of large long-term net losses as well.
In AEP’s case for the Ohio Valley plants, the company’s own estimates of the plan’s probableimpacts varied widely. Estimates ranged from a net benefit of $8.4 million to a net cost of roughly $52 million over the first three years of the plan.
Opposing advocates foresaw net losses for consumers in both the short and long terms.
After weighing the evidence, the PUCO found that the plan could “result in a net cost to customers with little offsetting benefit.” Because AEP failed to prove a net benefit to ratepayers from its plan, the commission did not approve the proposed Power Purchase Agreement.
“Today’s decision is great news,” said Rachael Belz, executive director at Ohio Citizen Action. The group had encouraged large numbers of people to voice an “outcry” against the utility plans. “One down, two to go!” she said, referring to similar proposals from FirstEnergy and Duke Energy.
“PUCO’s decision today recognizes that consumers should not be forced to subsidize aging, polluting coal plants,” said Howard Learner, Executive Director of the Environmental Law & Policy Center. “That’s a win for Ohioans.”
“Ohioans can breathe easier knowing PUCO has chosen clean air and customer choice in Ohio,” said Trent Dougherty, managing director of legal affairs for the Ohio Environmental Council. The group was “cautiously optimistic” that the PUCO would treat the decision as precedent for future decisions, he added.
Yet while the PUCO did not approve AEP’s plan, it did not categorically reject the idea, either.
Rather, the PUCO let AEP set up a “placeholder” rider. The amount would be set at zero for now, but could turn into an actual cost for consumers at some later time.
In other words, the PUCO left the door open for AEP to come back and pitch the plan again.
“We recognize that there may be value for consumers in a reasonable PPA rider proposal that provides for a significant financial hedge that truly stabilizes rates, particularly during periods of extreme weather,” the PUCO’s opinion said.
Beyond that, the PUCO laid out a blueprint of evidence it would want to see in any future hearing.
Among other things, the PUCO said, AEP would have to show the necessity of keeping a power plant open, its financial need, impacts of any potential closure and plans for complying with “all pertinent environmental regulations,” including ones which are pending.
“The commission’s order does recognize the legality of a PPA being established by a regulated utility,” said AEP spokesperson Terri Flora. She added that the company would “now have to work with the commission to understand their concerns.”
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.”
FOR IMMEDIATE RELEASE Contact: David Jakubiak (312) 795-3713 or firstname.lastname@example.org
STATEMENT BY HOWARD A. LEARNER
Executive Director, Environmental Law & Policy Center
“PUCO’s decision today recognizes that consumers should not be forced to subsidize aging, polluting coal plants. That’s a win for Ohioans. We hope the Commission will continue to thoroughly scrutinize any future proposals to ensure that utilities don’t engage in self-dealing that forces customers to bailout plants that aren’t economically competitive. Let’s advance cleaner, more efficient energy sources.
“We believe that this ruling lays the groundwork for the Commission to reject similar proposals by FirstEnergy and Duke,” added Learner. “That said, we’ll continue our work to show that bailouts like this go against consumer interests and harm the environment. We hope that the Commission will apply the same thorough scrutiny to these pending cases as it did to AEP’s claims.”
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.
Unions and environmental groups called on Congress to provide more funds for passenger rail and transit systems in a report released today.
The Environmental Law and Policy Center and BlueGreen Alliance released the report, “Passenger Rail & Transit Rail Manufacturing in the U.S.,” which examined the impact and opportunities the passenger rail and transit industry presents to the national economy.
Howard Learner, executive director of the Environmental Law and Policy Center, said at the Washington, D.C., release that there are a variety of opportunities for Congress to invest in long-term passenger rail and transit infrastructure.
“We believe both passenger rail and transit should be included in a robust way in the transportation reauthorization bill and how funding is allocated,” he said. “We’re not against highways and bridges, but we want to make sure passenger rail and transit is a full, robust part of how the transportation reauthorization bill comes out.”
Some members of Congress have fretted over funding for a long-term bill, but Learner suggested there are ways to pay for infrastructure needs, including raising the gas tax.
“The gas tax has attracted some support and some favorable nods on both sides of the aisle, but also some opposition, particularly coming from the Republican House members,” said Learner.
Jennifer Narrod, the shop chairwoman for the IUE-CWA Local 81323 and a worker at Alstom Signaling Inc. in Rochester, N.Y., said a downsizing of manufacturing at her plant in recent years not only has hurt workers, but also has affected small businesses throughout the community. Narrod said long-term investments in the rail industry would be beneficial to Rochester and small towns across the country.
Narrod said her company, which produces signaling and operating systems for rail cars, manufactures products for larger cities and noted that Rochester doesn’t have a passenger rail system. Along with the report, Narrod said small-town companies have a significant impact on the rail industry and are important to the economy.
The report found more than 750 companies in 39 states that manufacture components for passenger rail and transit rail. It homed in on a set of Midwestern and Mid-Atlantic states and found 540 companies making subcomponents of materials, track and infrastructure products, as well as providing repairs for the industry.
Investing in passenger rail and transit infrastructure could further boost manufacturing in those states and expand production to others, the report found.
“We need leadership from Congress to ensure long-term, sustainable funding for transportation, and from leaders at every level to ensure that as we build and operate the clean energy and transportation infrastructure and technology of the future, we also rebuild good family-supporting jobs and prosperous communities,” said Kimberly Glas, executive director of the BlueGreen Alliance, a coalition of unions and environmental groups.
Congress has until May to find a funding solution for transportation infrastructure.
The report’s authors said short-term funding bills hamper hiring and fail to give investors and companies confidence to expand plants. Both Glas and Learner said a long-term infrastructure investment would provide these companies with certainty for the future.
Although there are a few months until the deadline, Glas said she and others would have “boots on the ground” at the Capitol and in congressional districts that are affected by infrastructure funding.
“Congress can and should come together and get something done here, and get it done in way that’s robust for creating jobs, growing our economy, investing in passenger rail and transit rail that helps our environment, helps mobility, reduces congestion and is good for jobs,” said Learner. “It’s up to Congress now to get that done.”
The BlueGreen Alliance and the Environmental Law & Policy Center (ELPC) on Jan. 30 released a groundbreaking new report illustrating the breadth of the U.S. transit and passenger rail manufacturing footprint, showing businesses and jobs nationwide that are being sustained by state and federal investments in rail and transit. The report — Passenger Rail and Transit Rail Manufacturing in the U.S. — found more than 750 companies in at least 39 states that manufacture transit and passenger railcars, locomotives and their components and related materials and equipment today.
The groups said the report shows that there is a powerful opportunity to grow transit and passenger rail manufacturing nationwide, but argued that success depends on leadership from Congress to make the long-term investments in rail and transit that are key to sustaining a strong and globally competitive industry.
“This report underscores that investing in the transportation systems we need for a strong, prosperous economy, is also critical to rebuild good manufacturing jobs all across the country—in communities both nearby and far from the transit and rail systems themselves” said Kim Glas, executive director of the BlueGreen Alliance. “We need leadership from Congress to ensure long-term, sustainable funding for transportation, and from leaders at every level to ensure that as we build and operate the clean energy and transportation infrastructure and technology of the future, we also rebuild good family supporting jobs and prosperous communities.”
WASHINGTON–The infrastructure of passenger and transit rail hangs in the balance without long-term federal funding, according to a report released Friday by the BlueGreen Alliance and the Environmental Law and Policy Center (ELPC).
Representatives from the BlueGreen Alliance and the ELPC cited Maryland’s Purple Line as a prime example of a transit project that would improve infrastructure and create jobs. Long-term funding from Congress for transit manufacturing will improve mobility, reduce pollution, and help the economy, according to the report presented at a news conference at the National Press Club.
Larry Hogan’s election as Maryland’s governor has presented a new challenge for the Purple Line in Maryland’s suburbs of Washington, D.C., and the Red Line in Baltimore. In his campaign, Hogan questioned the expense of the mass transit projects.
The $2.4 billion, 16-mile Purple Line would extend from New Carrollton in Prince George’s County to Bethesda in Montgomery County, and the $2.9 billion Red Line would extend 14 miles between Woodlawn in Baltimore County and Bayview in East Baltimore.
Pete Rahn, Hogan’s nominee for Maryland’s transportation secretary, told two legislative committees Wednesday that he will keep an open mind while reviewing all the information about the two rail proposals and hopes to make a recommendation to Hogan in the next 90 days.
The fate of the Purple and Red lines rests in the hands of Rahn and Hogan as well as federal funding in order to move forward.
COLUMBUS, Ohio — The latest proposed FirstEnergy rate plan would cost customers an extra $3 billion, an expert retained by two consumer organizations charged earlier this week.
The plan would have “a net cost to customers of about $3.1 billion to $3.2 billion,” wrote Matthew Kahal, an expert consultant retained by the Ohio Consumers’ Counsel and the Northeast Ohio Public Energy Council, or NOPEC.
“The commission should protect Ohio customers from this result and reject the … proposal,” wrote Kahal in testimony filed with the Public Utilities Commission of Ohio.
With 35 years experience in more than 400 U.S. utility rate cases, Kahal was one of 15 experts filing testimony on behalf of more than 20 parties by Monday’s deadline.
The testimony sets the stage for three public hearings on the plan to take place in Akron on Jan. 12, Toledo on Jan. 15 and Cleveland on Jan. 20.