South Dakota

Howard Learner Statement on Supreme Court Mercury Ruling

FOR IMMEDIATE RELEASE
June 29, 2015
Contact: David Jakubiak 

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

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

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

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

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

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

By Jeremy P. Jacobs, E&E reporter

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FOR IMMEDIATE RELEASE

Wednesday May 27, 2015

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

CHICAGO – Today, the Obama Administration issued new clean water standards that are an important step forward to protect safe drinking water and healthier community rivers, streams and wetlands in the Great Lakes and Mississippi River watersheds.  ELPC and many of our allies across the nation have worked to achieve these new standards for many years. These standards have been informed by public input, are well grounded in the law, and are based on sound science.

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Victory! Final Clean Water Standard Will Protect Streams and Wetlands

Meme---Clean-Water-Rule-VictoryToday the Obama Administration issued new clean water standards that are an important step forward to protect safe drinking water and healthier community rivers, lakes and streams in the Great Lakes and Mississippi River watersheds.

ELPC and many of our allies across the nation have worked to achieve these new standards for many years. These standards have been informed by public input, are well grounded in the law, and are based on sound science.

This is a big deal. Water resources are so interconnected that in order to protect our celebrated waterways – the Mississippi River and the Great Lakes – we also need to protect the backyard brooks, community creeks and steady streams that feed them. That’s what these new clean water standards accomplish.

Now let’s work with EPA and people and businesses in Midwest communities to advance these sensible clean water standards and make them work well going forward.

Victory! Final Clean Water Standard Will Protect Streams and Wetlands

Today the Obama Administration issued new clean water standards that are an important step forward to protect safe drinking water and healthier community rivers, lakes and streams in the Great Lakes and Mississippi River watersheds.

ELPC and many of our allies across the nation have worked to achieve these new standards for many years. These standards have been informed by public input, are well grounded in the law, and are based on sound science.

This is a big deal. Water resources are so interconnected that in order to protect our celebrated waterways – the Mississippi River and the Great Lakes – we also need to protect the backyard brooks, community creeks and steady streams that feed them. That’s what these new clean water standards accomplish.

Now let’s work with EPA and people and businesses in Midwest communities to advance these sensible clean water standards and make them work well going forward.

South Dakota Public Broadcasting: Friends Of The Big Sioux River

The newly formed non-profit, Friends of the Big Sioux River, held a press conference last Thursday to announce its vision to realize “a clean, healthy river for all to enjoy and share with pride.”  In 2012, the Big Sioux was identified as the 13th dirtiest river in the nation.  Friends of the Big Sioux River was formed to bring awareness to the current condition of the waterway and to inspire action among all who influence its quality.  Matthew McLarty of the Environmental Law & Policy Center of South Dakota, Greg Veerman of Astronaut Studios and Friends of the Big Sioux River director Dana Loseke outlined their vision on Dakota Midday.

Click to listen

Argus Leader: New group focuses on Big Sioux water quality

A new group wants to encourage Sioux Falls and other watershed communities to do more to clean up the Big Sioux River.

Friends of the Big Sioux River (FBSR), a collective of local environmentalists, conservationists and business leaders, will formally launch at a press conference Thursday morning. The group wants to convince communities along the Big Sioux that South Dakota’s dirtiest river is worth caring about.

Matt McLarty, a policy advocate with the Environmental Law and Policy Center, said despite millions of dollars’ worth of investment along the river from Sioux Falls and the ag industry, there’s been little progress to improve the quality of the water that flows between the banks of the Big Sioux.

“The city has invested quite a bit in the shores of the Big Sioux. But it’s really time to pull the focus back to the waterway itself,” he said.

The Big Sioux River is thirteenth on the U.S. Environmental Protection Agency’s list of most polluted rivers. The first step toward improving its status is making people aware just how polluted it is, McLarty said.

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

FOR IMMEDIATE RELEASE
March 9, 2015

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

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

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

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

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

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

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

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

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

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

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Good News! Amtrak funding approved by U.S. House

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.

amtrakvotescreenshot

Learn more about today’s vote in this article from The Hill.

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